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England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> A & Anor v A Local Authority & Anor [2014] EWHC 4816 (Fam) (17 December 2014)
URL: http://www.bailii.org/ew/cases/EWHC/Fam/2014/4816.html
Cite as: [2014] EWHC 4816 (Fam)
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FAMILY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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| (1)A (2) B |
Applicants |
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| - and - |
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| (1) A LOCAL AUTHORITY (2) C (through his Guardian) |
Respondents |
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1st Floor, Quality House,
6-9 Quality Court, Chancery Lane, London, WC2A 1HP.
Tel No: 020 7067 2900. Fax: 020 7831 6864
email - info@martenwalshcherer.com)
Sarbjit Boora (instructed by A Local Authority Legal Department) for the First Respondent
Poonam Bhari (instructed by Carvill and Johnson Solicitors) for the Second Respondent
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Crown Copyright ©
- In this matter I am concerned with one child, C, who was born on 13 January 2014. His parents are D and E. They have an older child, F, who was born on 15 March 2012 and is therefore two years and nine months of age.
- The prospective adopters are A and B. Their application to adopt C was made on 19 May of this year. A Local Authority, filed an Annexe A report on 11 November 2014 and I heard evidence from the author of that report R, the social worker.
- The brief background history to this matter is as follows. In 2008 A and B were married. They attempted several cycles of IVF treatment, which were sadly unsuccessful. In 2012 they approached B Local Authority department to enquire about being adopters and seeking approval as adopters. Having waited a considerable period of time, in June 2013 they were engaged on an adoption course run by the local authority.
- Approximately two weeks later a work colleague of A, G, asked him if she could have time off work because she wished to attend with her long-term friend D for her to undergo a termination of her pregnancy. It was during the course of that conversation, I am told, that G learned that A and his wife were seeking to be adoptive parents and were on an adoption course. It was then that she had the idea to introduce A and B to D and E.
- In June 2013 D was pregnant with C, but both she and her husband felt that, given their financial circumstances, they were not in a position to look after another child. Accordingly, they had come to the difficult and sad conclusion that she should undergo a termination.
- Both D and E, when told by G that there were two people, a Sikh couple, who would be potential carers for their unborn child, were delighted. E told me in evidence and I accept, terminating a pregnancy is the biggest sin and that it was far better that the child should be born and placed with a prosperous couple. D agreed with everything that her husband said in evidence.
- I note and accept that immediately after A and B had been introduced to D and E, B contacted B Local Authority. She told me she was then, in colloquial terms, 'given the runaround' by the local authority and was passed between B Local Authority and then A Local Authority. It is recorded in the local authority's file that B telephoned A Local Authority on 23 September 2013. A and B tell me, and I accept, that throughout the balance of the pregnancy they paid some £30 or £40 per month to D and E in order to assist them with purchasing food and the like whilst D was pregnant.
- D's due date was 16 January 2014. On 11 January 2014 I am told that A and B went to call upon D and E to hand over some foodstuffs. G was, by chance, present in D and E's home and it was then that D and E asked A and B whether they could lend them £5000. The loan was for the purpose of them being able to satisfy the financial requirements of their visa application: D being here in this country only on a student visa.
- A and B asked for time to think about it. They offered to pay D and E £1500 and that was paid through a bank transfer on 13 January 2014, the selfsame date that C was born. Three days later, on 16 January, upon being discharged from hospital, D and E handed over C to A and B and he has remained in their care since that time.
- D and E requested further monies and on 14 February 2014 £3000 was paid to them by bank transfer. A further request was made for a smaller sum of £400 and that was paid on 31 March. I am told by both A, B and D and E that in early April 2014 the sum of £1650 was repaid to A and B. In July 2014 £700 was repaid in cash, in August 2014 £300 was repaid in cash, in September £800 was repaid in cash and on 20 October £400 was repaid by bank transfer, leaving a total outstanding at the moment for repayment on the loan of £1050.
- Slightly out of chronological order, on 29 August the social worker saw the prospective adopters. It was then revealed to the social worker that they had paid £30 to £40 per month or so to D and E. During the course of that meeting they were asked whether they had paid any other monies to D and E.
- At a subsequent meeting on 5 September the social worker asked A and B to produce their bank statements. They did so and B told the social worker that it would be seen that there were large sums of monies paid by them to D and E. The social worker had previously asked whether any other monies had been paid by A and B to D and E, to which B said no. That was plainly not correct, but there is an issue. The social worker was asking, she says, whether any other monies at all had been paid. It would appear that B and A interpreted that question as being had any other monies been paid in relation to the adoption of C.
- During the course of evidence it is noteworthy that there was a difference between my note of the social worker's evidence about the question she asked and those of counsel, which only goes to demonstrate how easy it would be to misinterpret or misunderstand what was being asked by the social worker at that time.
- In any event and quite properly, because of the amount of the monies paid by A and B to D and E, namely £4900, the social worker reported the matter to her managers at the local authority, to the guardian at Cafcass and to the police. The police undertook an investigation, having been reminded that pursuant to section 95 of the Adoption and Children Act 2002 it was a criminal offence to make any payments in relation to an adoption. The police investigated but ultimately decided to take no further action.
- The adoption application came before His Honour Judge Cardinal on 14 October this year, when he was concerned that illegal payments had been made. The matter was allocated to me in the High Court and the matter came before me for directions on 30 October 2014 when I ordered that the matter should be set down for a fact finding hearing.
- I bear in mind section 1(2) of the 2002 Act, that the paramount consideration of the court must be the child's welfare throughout his life. I also have regard to section 1(4) of the 2002 Act, otherwise known as the welfare checklist.
- By section 92 of the 2002 Act there are restrictions placed upon arranging adoptions. In terms, private adoptions are not permitted and adoptions can only be effected through a recognised adoption agency. Any arrangement other than through an adoption agency is, by the terms of section 93 of the 2002 Act, a criminal offence. Section 95(1) provides:
- That is, any such payment is a criminal offence. However, whilst criminal offences may or may not have been committed, either by arranging a private adoption or making payments, there is no provision in the 2002 Act which sets out that such offences are a bar to the court going on and nevertheless approving and making an adoption order; that is because the ultimate consideration for the court is the welfare best interests of the child.
- I heard evidence from the social worker. She was obviously concerned about the payments and quite properly caused them to be investigated. However, it was, I am told, the clear view of the Local Authority that even if this payment of £4900 had been made for or in consideration of the adoption of C, nevertheless the court should go on and make an adoption order. As the social worker clearly sets out in her annex A report, C has been with A and B since 16 January, so all but three days of the whole of his life so far, the care that has been afforded by them is exemplary and there are absolutely no concerns about the care that they have given to this little boy.
- The Guardian, who was not required by any party nor the court to give evidence, takes a similar view. Whatever payments may or may not have been made by A and B to D and E, she too takes the view that the welfare interests of this child demand that he should remain in the care of A and B and the court should make an adoption order in their favour.
- I heard evidence from A, from B and D and E. I also heard evidence from G. It is plain, as was indicated by counsel for the Guardian, that both in the written evidence and some of the oral evidence there are slight differences of emphasis, possibly what could be connoted as inconsistencies between the accounts given by the adoptive parents and the natural parents and G. However, I am quite satisfied overall that they, and I remind myself that A and D and E had to give evidence through interpreters, were genuine and honest people in the explanation that they gave me of the arrangements which led to C being placed with A and B.
- It is, I find, a remarkable coincidence that large sums of money were paid by A and B to D and E on the day of and subsequently shortly after the birth of the child. There are very strong public policy considerations against permitting monies to be paid for the handing over of a child or for the adoption of a child. There are very strong public policy considerations against permitting privately arranged adoptions. The reasons for those are all too obvious. On occasions the court is aware that privately arranged adoptions have taken place in circumstances which are wholly inimicable to the welfare of the child concerned.
- In this case, and on my assessment of the adoptive parents and the natural parents, I am quite satisfied that G is not a 'professional adoption arranger'. It was happenchance that she discovered that A and his wife wanted to adopt a child and, of course, she is a long-term friend of D of some four years standing.
- I was moved by and accept the evidence of E that he and his wife felt compelled to arrange the termination of their unborn child, but considered it to be the biggest of sins and were therefore pleased and delighted that there was the prospect that a healthy child could be born and could be placed with a prosperous couple who would look after him throughout his childhood and beyond.
- I am satisfied that the prospective adopters had tried unsuccessfully to have their own children, had properly pursued the issue about being Local Authority adopters, had waited for a considerable period of time before being able to attend an adoption course and that immediately after they had been introduced to D and E and the private arrangement had been made, B immediately notified the Local Authority.
- There was no attempt to hide the arrangement from the authorities because, in my judgment, the arrangement, although contravening section 92 of the 2002 Act, was a genuine and sincere arrangement and not in any sense a commercial arrangement which was contrary to the interests of the child.
- I am quite satisfied that in relation to discussions with the social worker there was no attempt by A and B deliberately to mislead the social worker R about the payments of monies. On the totality of the evidence, although very coincidental that the monies were paid around the time of the birth of the child, I accept the evidence I have heard that those monies, the £4900, were not paid for or in consideration of the adoption of C.
- I am further fortified in that view on the basis that I accept that a large part of that loan has been repaid. It is unfortunate that it was paid in cash in the main rather than through a bank account, but I accept the reasons that I have been given as to why that occurred.
- The birth parents, D and E, entirely support and endorse the making of the adoption application by A and B. On the totality of the evidence I am satisfied that A and B are entirely proper and suitable people to be the adoptive parents of C. I accept the evidence of the social worker that they have given him excellent care since 16 January and it would be wholly contrary to his interests for him to be removed from their care at this stage. The social worker told me that they had considered alternative orders under which C could reside with A and B, namely a residence order under section 8 of the 1989 Children Act, or under a special guardianship under section 14(a) of the 1989 Act. Having considered those options the social worker was satisfied, as is the Guardian, that adoption is the only route which provides proper permanence for C throughout his childhood and indeed throughout his life.
- In all of those circumstances and applying the paramountcy principle and the provisions of the welfare checklist, I am entirely satisfied that it is in C's welfare best interests that he be made the subject of an adoption order in favour of A and B and I so propose to order.
MR. JUSTICE KEEHAN:
"This section applies to any payment (other than an excepted payment) which is made for or in consideration of (a) the adoption of a child."