England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice
		6th November 2014

MRS. JUSTICE THEIS:

Introduction

1. This is an ex tempore judgment given today because I am conscious that a number of people have travelled great distances to be here for this hearing and it is important that a decision is given today. I will direct that there will be a transcript because I consider it is important that the outcome of this application should be in the public domain, suitably anonymised, bearing in mind a previous application to adopt was reported last year Re X (A Child) [2013]EWHC 689 (Fam)).
2. This is AB's second application dated 3^rd March 2014 in respect of his step-daughter, X who is now 17 years old. She was born in June 1997. X's mother, now AB's wife is CD.
3. As I have indicated there was a previous adoption application made which was withdrawn as a result of the determination of this court regarding one of the gateway requirements set out under the Adoption and Children Act 2002 (ACA 2002). That decision is reported as Re X (A child) (ibid). The court did not refuse the application, so that this second application is not restricted by operation of s 48 ACA 2002.
4. The application is dated 3^rd March 2014. AB gave notice to A Local Authority (the relevant local authority) of his intention to adopt on or about 20^th September 2013. This application has come before the court on two previous occasions for directions, on 8^th April and 22^nd July 2014 where relevant directions were made leading up to this hearing. The result of those two orders was that a number of practical arrangements were agreed and issues identified.
5. First, it was indicated in one of the orders that as a result of the practical arrangements made for X and AB and CD to be in this jurisdiction (together with a schedule of Local Authority visits and contact with AB and the family), this Local Authority had sufficient opportunity to see AB and X in their home environment for the purposes of completing their investigation pursuant to section 42(7) of the 2002 Act.
6. Secondly, and importantly, X was joined as a party and the court has had the enormous benefit of her Guardian, Miss Day, who has been appointed to act on her behalf. In addition, CD was made a party, as was her father, DE. Directions were also made for the filing of the necessary reports and evidential statements to underpin the applicant's application.
7. Finally, in relation to the arrangements, the court notified the Secretary of State of this application via the Home Office Liaison Team, and they responded on 12^th August of this year, indicating not only that they did not want to intervene but, importantly, in the context of this case, that they had no objection to the order being made.
8. The issues that were identified for the court to consider today were: (1) whether X's father has parental responsibility, and if so, what role if any he should play in the application; (2) whether the consent he has given complies with s 52 ACA 2002 and, (3) whether X has had her home with the applicant for the six months immediately preceding the application in the context of the requirements of s 42(3) ACA 2002.
9. The position of the parties is as follows. X's mother, CD, supports the application and consents to the order being made. X's father has been contacted, in particular by Mr. Metcalfe, who has undertaken the Local Authority assessment. He consents to the order being made. His consent in the appropriate form A104 dated 3^rd March 2014 is before the court. Mr. Metcalfe has made contact with DE to ensure that he is aware of this hearing, which he is. He has not attended or taken any active part.
10. The application is also supported by the assessment undertaken by Mr Metcalfe on behalf of the Local Authority, and by the inquiries and analysis undertaken by the Children's Guardian, Miss Day.
11. The court has had the enormous benefit in this case of a number of particular features. Firstly, the experienced representation that has been before the court, both in relation to the applicant and the children's Guardian. Miss Cronin and Miss Cavanagh have filed skeleton arguments that have been of the highest quality. They have been of enormous assistance to the court, and the thoroughness of those documents has enabled the court to give a relatively full ex tempore judgment today.
12. The second feature of this case that has been of great benefit to the court and the parties is the continuity of professionals. Miss Day was X's guardian in the previous proceedings; that continuity and wider viewpoint to these proceedings has been extremely helpful. That has been borne out by the perceptive analysis that she has included in her report.
13. In addition the court has had the enormous benefit of Mr. Metcalfe's continued involvement in this case. He is an enormously experienced social worker. His level of expertise is unique in my experience. He has been a field social worker for 37 years, with 6 years on top of that wealth of experience in undertaking assessment reports of this nature. The court is truly fortunate to have been the recipient of that wealth of expertise. His inquiries in both the previous and in these proceedings have displayed perceptive and sensitive insight as to the issues in the case. His report, if I may say so, is a model of its kind. It is detailed, well-evidenced, well-structured, fair and balanced and I have absolutely no hesitation in accepting the evidential conclusions that he reaches in that report.
14. I will be making an adoption order and now need to explain my reasons

Relevant Background

15. With those preliminary observations, I will turn to consider the relevant background. Much of that is set out in my previous judgment at paragraphs 5 to 8 ( Re X (A Child) (ibid)). For the purposes of this case I will use the summary in Miss Cronin's skeleton argument in relation to the background. X's parents were married in country C in 1996. X was born in June. DE's name is entered on X's birth certificate. The parties have pragmatically worked on the basis that under country C's law DE has parental responsibility for X, and we should treat him as such within these proceedings.
16. DE and CD separated in about 1999 when X was about two years of age. They were living apart at the time of their separation, as DE was then working abroad. Their marriage was dissolved under country C law in August 2010.
17. Prior to their separation DE relocated to Saudi Arabia and has subsequently moved to Qatar, where he currently resides. He has remarried and lives there with his second wife and their two children, aged 10 and 7. When DE left, X's mother became solely responsible for X's physical, emotional and financial requirements and needs. DE did not provide any financial support; this was provided by the mother together with X's maternal grandmother, who has been a significant feature in X's life. Although X has had occasional contact with DE, via electronic mail, she has not physically seen him since 2008. Notwithstanding that, from then until now both AB and her mother have encouraged her to maintain contact with him, and have offered to pay for him to either visit X in country A or for X to visit him with his family. The reality is that for a very significant period of time DE has had no role in X's care and development, and has certainly had no parental role during that period of time.
18. AB is British-born. He is now aged 60. Whilst he has been a long-term resident abroad for business purposes and for employment, he has retained his domicile of origin in England. That is an issue that I accepted in my previous judgment. He retains a home in the local authority area and the family plan is to retire back to this jurisdiction when that time comes.
19. AB has three adult children. His first son M (from whom he is currently estranged) and his two adopted children from his second marriage, Dr. SW and Mrs. SC. He adopted them in 1986 and he has retained, since then, and continues to retain, a close and supportive relationship with each of his adopted children.
20. AB and X's mother met in country A where they were both working in March 2008. CD works as an accountant, she had moved there in May 2007 in order to help provide for X and her family. X at that time remained living with her maternal grandparents in country C.
21. AB and CD began living together in country A in June 2009. They travelled to country C to meet X in April and December 2009 so that AB could meet X and establish his relationship with her. By the end of 2009 AB had assumed responsibility for X's financial support. In September 2010 X sat and passed the entrance exam for the country B English curriculum boarding school (the International School) which coincidentally was the school where AB's adopted children had attended and enjoyed their education. X has attended that school since January 2011 and following her successful GCSE examination results recently, she is still there studying for her A Level International Baccalaureate.
22. In June 2013 AB and BC got married in Cyprus. This was attended by AB's sister. In 2013 there were difficulties with AB's employment and business interests. Characteristically, he has been able to dust himself down following that difficulty and has established his own company. According to his discussions with Mr. Metcalfe in July 2014, he feels the corner has been turned and he has been able to re-establish his financial and business interests on a more secure footing.
23. Since about September 2013, the relevant period that the court is considering, X has spent, save for the February half-term, most of her school holidays with AB and CD. Her holiday periods with AB have been in their homes in a number of different jurisdictions, either in country A, in this country or at their home in country B.

Legal Requirements

24. Turning now to the legal requirements, a number of the legal requirements are agreed; consequently they can be dealt with quite shortly. First, it is clear under s 51 ACA 2002 that AB should be domiciled in the United Kingdom or habitually resident for the preceding 12 months (which is not relevant) in this jurisdiction to enable him to be able to make his application. As I found at paragraph 13 of my judgment in the previous application in Re X (ibid), he set out details in his statements then of his continuing ties to the United Kingdom; the fact that he had retained a property here; his intention to retire and live here in about seven years' time; and, on his death, to be buried here. That evidence has not been challenged. That situation has not changed. I am entirely satisfied on the information I have his domicile of origin is retained by him and he satisfies that preliminary gateway requirement to make this application.
25. In relation to the other matters, firstly under Sections 44(1) to (3) of the Adoption and Children Act it is necessary for a proposed adopter to have given notice of his intention to the appropriate Local Authority, and that must be given not more than two years and not less than three months before the adoption application is made to the court. In this case the appropriate notice was given on or about 20^th September 2013 and the application was made on 3^rd March 2014. So, clearly that requirement is met.
26. The next one is section 44(5) which provides that on receipt of a notice of intention to adopt, the Local Authority must arrange for the investigation of the matter and submit to the court a report of the investigations. The Local Authority's investigation report is required to consider the suitability of the proposed adopter and any other matters relevant to s 1 ACA 2002 in relation to the application. As I have already alluded to, the court has had the enormous benefit of the extremely full and thorough report submitted by Mr. Metcalfe.
27. The next matter is Section 42(7) which it provides that an adoption order may not be made unless the court is satisfied that sufficient opportunities to see the child with the applicant or, in the case of the application by a couple, both of them together in the home environment have been given. Because of the arrangements I endorsed at an earlier directions hearing, I am entirely satisfied that those opportunities have been there to enable Mr. Metcalfe to be able to see them in a home environment.
28. The next matter that is non-controversial is the relevant provisions of ACA 2002 that I have to be satisfied that the child is not and has not been married. I am entirely satisfied that X is not married and has not been married.
29. The two matters that require a little more careful consideration are:
30. Firstly, the requirement under Section 42(3) which is that if the applicant, or one of the applicants, is the partner of a parent of a child, the condition is that the child must have had his home with the applicant or, as the case may be, applicants at all time during the period of six months preceding the application. This, of course, is directly relevant for the purposes of this hearing and the relevant time period is from 3^rd September 2013 to 3^rd March 2014. It is the applicant's submission that in determining the home during this period, it is relevant to consider the particular context of this family, the context of the life that they have led and their routine in relation to the various residences that they occupy. In particular, it is agreed that because X spends her term-time in her boarding school that these periods should be disregarded. That follows the determination I made in Re X relying on the earlier decision of Re B [1963] 3 WLR 471.
31. The evidence from the detailed statements that I have establishes that since the 2013 hearing in March 2013 there have been a number of holiday periods when X has not been at school and it is quite clear to me that they have, by and large, been spent in a home with AB. Whilst on the whole they have been spent at one of their homes in country A, the United Kingdom or country B, there have been occasions also when they have been on holiday. For example, in the summer of 2013 when they went, for AB and CD's marriage, to Cyprus and also in February of this year when X spent that half-term holiday staying with one of her teachers in country B, because AB was committed dealing with his business interests. Apart from that, it is clear the evidence establishes that during the summer of 2013, save for the time spent in Cyprus for AB and CD's wedding, the summer holidays were spent at either the family home in country A, or country B. In the October half-term the family came over to this jurisdiction to enable them to be able to see members of the family, and in Christmas 2013 they spent time together in their family home in country A. In February of this year X spent that holiday in country B, staying with her teacher and in the Easter holidays AB and X spent that time together in their home in country B. It was during that visit that they drove to town S as a result of the sale of a property that AB owned there. He went off, I think, for a one day visit for a business meeting in city Z. Then in the summer 2014 the family spent this time together in the United Kingdom based at their home in the local authority area, although they were able to move around to be able to meet and spend time with the wider family as described in the statements.
32. It is submitted on behalf of AB that this pattern, which is materially different than the pattern that the court had before it in 2013, demonstrates that during the times when X has not been at school, she has spent her time in the home environment with AB and that therefore that requirement is satisfied. Miss Cronin makes the point in her skeleton argument that the threshold in relation to the shared home requirement is set out in order "to ensure that the child has spent sufficient time living with the applicant in a home environment to enable the court to be satisfied that they are sufficiently well matched for the adoption to be likely to be successful." Those are the observations of Moore-Bick L.J. in Re A (a child) (Adoption) [2009] 3 WLR 1169. The important point that Miss Cronin makes is that the court needs to look at each case on its own facts; that it does not need, when considering this aspect, to be necessarily tied to the bricks and mortar of a home, but to look at the context in which this family spends its time together.
33. It is quite clear, when I look at the more detailed history in relation to this family, that they are a family who do move between the different homes they have. It is quite clear from the evidence that in relation to the last six months X has spent sufficient time living with the applicant in a home environment; that has either been at one of the homes AB owns or rents, or it has been on occasions when they have been on holiday, when they have been living and operating as a family.
34. In addition and, in my judgment, relevant, is the factual evidence shows the parties sharing a home in terms of where they have been evidences X's integration into AB's family, also his concern and care, and that she clearly sees him as her father. That view is supported by the documents that are attached to the very full statement filed by AB, which includes letters from AB's sister, her partner, his brother and also his mother describing what they have been able to observe when they have seen and spent time with X and AB.
35. Miss Cavanagh, in her skeleton argument, raises the issue that the court needs to consider perhaps the periods of time that have been spent on holiday in a different way than the periods that have been spent in the family home. I do not agree with that in the particular context of this case because when one looks at the overall picture, the important issue is to be able to see whether X has been living in a home environment with AB. Whilst predominantly that has been in homes that AB owns or rents, they have also been in a home environment when they have been on holiday or been visiting other members of the family.
36. I agree with the position that it has moved on since the last hearing. It is quite clear, in the context of this case, that X has had her home with the applicant in the period of the six months preceding the application, save when she has been at school. This has to be looked at, as I have already said, in the context of this case; where X attends boarding school during the term time, and this is a family that have a number of properties in different jurisdictions. They travel extensively. I also have to take on board the restrictions in relation to CD's ability to be able to take leave, other than the periods permitted by her employment. It is quite clear from the detailed evidence filed that X's integration into AB's family and the obvious care and concern he has for her have grown considerably. All the evidence points to X seeing AB as her father. This is borne out by the wealth of material from X and AB, and is supported by other material, including letters from AB's mother, sister, her partner and his brother. All of these attest to the strength of the relationship between AB and X, and how she is very much regarded as one of the family. For those reasons I am satisfied that that gateway requirement is met.
37. The final requirement is the position in relation to consent. The court has to be satisfied, under s 47(2) ACA 2002 that an adoption order may not be made unless, in the case of each parent or guardian of the child, the court is satisfied that the parent or guardian consents to the making of an adoption order.
38. As I have already indicated, CD consents. DE has signed his consent in the relevant form. That has now been seen by the court and is dated 3^rd March 2014. I have worked on the basis adopting the pragmatic approach encouraged by Miss Cavanagh that he has parental responsibility for X and so, therefore, he was rightly made a party to the proceedings and the court rightly has to consider whether his consent is required. I am entirely satisfied not only from the consent document, but also by the extremely helpful inquiries undertaken by Mr. Metcalfe that he does consent to this order being made in the context of s 47(2).
39. Turning to the Local Authority assessment, as I have indicated, Mr. Metcalfe has undertaken a detailed and careful investigation. He has met AB on nine occasions. As I have already indicated, he was frank enough in his report to acknowledge that he has changed his mind in relation to AB. In his report he says as follows:

"AB presents as a confident and charismatic person who will be noticed in most environments. He has strong views about many topics and does not suffer fools gladly. I have met him on nine occasions and I have certainly changed my view of him since my first interaction. This came via an exchange of emails when he first made inquiries regarding adopting X. After learning of his circumstances I suggested to him that due to his living arrangements and the fact that X did not reside with him may mean that he did not meet the requirements within the adoption legislation to submit an application to adopt X. AB responded by suggestion that I should 'think out of the box'. After further exchanges it became clear that AB's memory of his previous experience of step-parent adoption was either very different than today's requirements; or that his memory had faded significantly. As our relationship has developed I found AB to be a committed and determined parent of X, and a fierce advocate for her. I have not had the opportunity to observe AB in the company of other children, so it is difficult for me to comment on how he generally relates to children and vice versa. I have, however, been in the company of him and X on five occasions and have observed just how relaxed and comfortable X is in his company. I have listened to them have serious conversations and have seen the assertive side of X's character without there being any recriminations. I have also seen and heard them laughing and joking and felt the warmth of their relationship. Judith informs me that if X has a problem it is to AB who X returns to."

40. Mr. Metcalfe's perceptive and thorough report considers and positively evaluates the relationship between X and her wider family members. He notes that AB's commitment to X is 'total and remains so' and that X can call him for advice and assistance.
41. At the conclusion of his report, in considering what the appropriate order should be, he says as follows: "I believe that the most appropriate order for

court to make in this case is an adoption order in respect of X. The granting of an adoption order will not only legalise AB's relationship with X, but will openly acknowledge the permanence of it. AB is a very significant person in X's life. They share a very strong bond and relate to each other as father and daughter. Adoption will demonstrate AB's total commitment to X and the emotional claiming of her. AB and X have an established relationship which adoption can only enhance and in many ways is the natural progression of what already exists. AB is a conscientious loving and committed parent and I have no reason to believe that he will not continue to fulfil his parental responsibilities, enabling X to progress in all areas of her development.

42. Miss Day's report is dated 3^rd November 2014. As I have indicated, she brings the benefit of continuity. She has also carefully considered the position in relation to the application before the court, and has carefully weighed up the pros and cons as to whether an order should be made. She says, as follows, at paragraph 2.19 of her report:

"2.19. In conclusion, whether the making of an adoption order would be in X's best interest is, in my opinion, a finely balanced exercise. On the one hand X is enthusiastic of the proposition and has expressed clear views directly to myself that she 'really really wants this'. The order would enhance her sense of belonging to AB's family and formalise the existing affectionate and valued relationship between them. Further, an order would enable her to gain all the rights and benefits available to a British citizen and ensure that she was legally recognised as a child of AB and CD's marriage. In acting as Guardian to any child or young person my role is two-fold. Not only am I required to consider the wishes and feelings of the young person concerned, but also evaluate their welfare needs in conjunction with their expressed views. This is sometimes difficult for the young person and their families to comprehend as welfare evaluation is a complex exercise and not always consistent with the wishes of the subject. I can see real benefits for X if an order is granted. I recognise that she is an articulate and able 17 year old with a mind of her own and as her advocate I would wish to ensure that the court is fully conversant with her views.

"2.20 However, I am also deeply troubled by the concept that an order could divest her of her rights to citizenship in her country of birth and would seek certain clarification that this is not the case or in the instance that it is a clear pathway is available to rectify it. I suspect that X's intention to pursue a university education in the United Kingdom will remain, whether or not she is adopted. I further suspect that AB will continue to provide for her as a child of his family financially, practically and emotionally, as he has done so to date. He is also able to make provision for his step-daughter by inclusion in his will, thereby ensuring she inherits whatever he deems appropriate following his death.

X is of an age where it is not necessary to exercise parental responsibility on her behalf, other than for the next six months. Taking all those issues into consideration the court must be satisfied that an order is better for the child than no order at all. No order and the status quo would probably remain. However, an order would promote X's sense of belonging and ensure that her wishes are recognised. It would further entitle her to UK citizenship and on the basis of the Home Office having no objection to an adoption order being granted in this case, I can find no coherent reason to make a recommendation to the contrary. On this basis and following clarification of the issues pertaining to country C citizenship previously identified, I too would support the making of an adoption order in favour of AB."

43. For the reasons that I have already given, I am satisfied that the gateway requirements have been met. I also, of course, need to consider the lifelong welfare needs of X, as required by section 1 ACA 2002.
44. In relation to her wishes, they are very clear. They are summarised in paragraph 2.5 of Miss Day's report. She has voiced her views in an articulate and expressive manner leaving no doubt that she has a sound understanding of the personal implications if an order is made and as such it is her wish to be adopted by AB.
45. All the evidence points one way. It is quite clear that her welfare needs would be met by an adoption order being made. As the President, Sir James Munby, recently remarked in Re X [2014] EWHC 3135, paragraph 54, an adoption order "has an effect extending far beyond the mere legal. It has the most profound personal, emotional, psychological, social and, it may be in some cases, cultural and religious consequences." Miss Day, in her report, describes this case as being finely balanced. The factors that tip her to recommend the order being made, are the benefits of British citizenship and X's personal need for a parental figure. As Miss Cronin described in her submissions, this was graphically illustrated by the occasion at X's school when she hoodwinked AB in being able to come into the school thinking it was to see one of the teachers, and it resulted in a surprise birthday celebration in the classroom that X had clearly arranged and clearly wanted to be able to take place in front of her fellow classmates. Perhaps a small vignette, but it clearly demonstrates her need to be able to have a parental father-figure.
46. In relation to the Guardian's position, some of the matters that features in her analysis as making this a finely balanced decision have, I think with further discussion and submission, perhaps fallen away. Firstly, the concern she had about the loss of country C citizenship as a result of X acquiring British citizenship on the making of an adoption order, it is clear, having looked at the document (Annex A attached to Miss Day's report) that on the face of it she will not lose her country C citizenship as she will not be acquiring British citizenship by naturalisation and so will not expressly be renouncing her citizenship. It makes quite clear in the final paragraph of Annex A that there is the possibility of a dual nationality that exists. But even if it does have the consequence of her losing country C citizenship, it is quite clear from the final part of the last paragraph at Annex A that it is very easy to re-acquire country C citizenship; X would need to do would be by taking an oath of allegiance to country C and as a result, she and any children she may have would be deemed citizens of country C. That concern, rightly raised by Miss Day in her report, seems to be a matter that is not in reality a loss that X will have as a result of the court making an adoption order. In any event, it also has to be seen in the context of this case where all the evidence points to AB doing all that he can to ensure that X maintains her relationship with her wider birth family, not only her father and his wife and children but also, importantly, her paternal grandparents who still live in country C, and her maternal grandmother who has played such a key role in her upbringing.
47. The other matter raised is at paragraph 2.22 of the Guardian's report, that in reality because X is nearly 17 and a half that there will only be parental responsibility to be exercised over the next six months. Therefore it is said, in effect: is there any need for an adoption order to be made.
48. The position is quite clear. Firstly, I have to have regard to the lifelong welfare considerations of X as required by s 1 ACA 2002. Miss Cronin has, very helpfully, in that context referred me to a decision of the House of Lords in M,R (on the application of) v London Borough of Hammersmith and Fulham [2008] UKHL 14, which although in the context of the respective responsibilities of local authority children's and housing services includes the following observations from Baroness Hale. This will perhaps resonate loud and clear with family judges who deal with children of this age in this jurisdiction. At paragraph 4 she says as follows:

"4. Any parents of teenagers aged 16 and 17 knows how difficult they can be. But they also know that however much those teenagers are struggling to discover their own identities and lead independent lives, they also depend upon the love and support of their parents. As the green paper, Care Matters: Transforming the Lives of Children and Young People in Care [2006] Command, 6932, paragraph 7.2 put it:

'For most young people the idea of being left unsupported at that age would be alien. They have a sense of security and know that their parents will always be there for them. Few young people ever really leave the care of their parents. They may leave home, and on average do so at the age of 24, but they know that their

families are only ever a phone call away and stand ready to offer financial support and advice, or a place to stay if they need it."

49. Although, as a matter of law, Miss Day is correct that the exercise of parental responsibility in the narrower sense will cease in about six months' time when X acquires the age of 18, the reality is very different. Anyone will know that beyond the age of 18 any young person benefits enormously from the guidance and support that they will receive from their parents in relation to supporting them in the various decisions and events that will occur in their lives beyond the age of 18. That wider view is entirely consistent with the lifelong welfare considerations the court should take into account when considering this type of application.
50. Therefore, in my judgment, having considered the matters set out in s1 ACA 2002 in the context of X's life-long welfare needs, they are best met by this court making an adoption order. That order will not only give her the tangible benefits such as British citizenship, but also, equally importantly, in my judgment, secure in a life-long way her position with AB. That can only be to her benefit. The legal relationship she will lose by this order being made in terms of the paternal family have to be seen in the context of this case where I have already indicated AB has done all that he can to encourage the relationships being maintained, and there is nothing to suggest that will change in the future.
51. Therefore, I will make the adoption order as I agree with Mr. Metcalfe's conclusions that such an order can only enhance the natural progression of the relationship that already exists between X and AB, and secures in a life-long way the strong bond that is already there.

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