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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> FAS v Secretary of State for the Home Department & Anor [2015] EWCA Civ 951 (05 October 2015) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2015/951.html Cite as: [2015] EWCA Civ 951, [2015] Fam Law 1449, [2015] WLR(D) 396, [2016] 1 WLR 407, [2016] 2 FLR 1035, [2016] 1 FCR 191, [2016] WLR 407, [2016] 2 All ER 251 |
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ON APPEAL FROM
Leeds District Registry
Family Division,
Mr Justice Mostyn
BD12Z01801
Strand, London, WC2A 2LL |
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B e f o r e :
LADY JUSTICE MACUR DBE
and
LORD JUSTICE SALES
____________________
FAS -and- |
Appellant |
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SECRETARY OF STATE FOR THE HOME DEPARTMENT -and- |
First Respondent |
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BRADFORD METROPOLITAN DISTRICT COUNCIL |
Second Respondent |
____________________
Mr Paul Greatorex (instructed by Government Legal Department)
for the First Respondent
The Second Respondent was not represented
Hearing date: 18 August 2015
____________________
Crown Copyright ©
Lord Justice Sales:
Introduction
The legal framework
"1. Considerations applying to the exercise of powers
(1) Subsections (2) to (4) apply whenever a court or adoption agency is coming to a decision relating to the adoption of a child.
(2) The paramount consideration of the court or adoption agency must be the child's welfare, throughout his life.
(3) The court or adoption agency must at all times bear in mind that, in general, any delay in coming to the decision is likely to prejudice the child's welfare.
(4) The court or adoption agency must have regard to the following matters (among others)—
(a) the child's ascertainable wishes and feelings regarding the decision (considered in the light of the child's age and understanding),
(b) the child's particular needs,
(c) the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person,
(d) the child's age, sex, background and any of the child's characteristics which the court or agency considers relevant,
(e) any harm (within the meaning of the Children Act 1989) which the child has suffered or is at risk of suffering,
(f) the relationship which the child has with relatives, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including—
(i) the likelihood of any such relationship continuing and the value to the child of its doing so,
(ii) the ability and willingness of any of the child's relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child's needs,
(iii) the wishes and feelings of any of the child's relatives, or of any such person, regarding the child.
…
(6) In coming to a decision relating to the adoption of a child, a court or adoption agency must always consider the whole range of powers available to it in the child's case (whether under this Act or the Children Act 1989); and the court must not make any order under this Act unless it considers that making the order would be better for the child than not doing so."
"(4) An application for an adoption order may only be made if the person to be adopted has not attained the age of 18 years on the date of the application.
(5) References in this Act to a child, in connection with any proceedings (whether or not concluded) for adoption, (such as "child to be adopted" or "adopted child") include a person who has attained the age of 18 years before the proceedings are concluded."
"In reaching any decision relating to the adoption of a child a court or adoption agency shall have regard to all the circumstances, first consideration being given to the need to safeguard and promote the welfare of the child throughout his childhood, and shall so far as practicable ascertain the wishes and feelings of the child regarding the decision and give due consideration to them, having regard to his age and understanding."
"(5) Where—
(a) any court in the United Kingdom or, on or after the appointed day, any court in a qualifying territory makes an order authorising the adoption of a minor who is not a British citizen; or
(b) a minor who is not a British citizen is adopted under a Convention adoption effected under the law of a country or territory outside the United Kingdom,
that minor shall, if the requirements of subsection (5A) are met, be a British citizen as from the date on which the order is made or the Convention adoption is effected, as the case may be.
(5A) Those requirements are that on the date on which the order is made or the Convention adoption is effected (as the case may be)—
(a) the adopter or, in the case of a joint adoption, one of the adopters is a British citizen; and
(b) in a case within subsection (5)(b), the adopter or, in the case of a joint adoption, both of the adopters are habitually resident in the United Kingdom or in a designated territory."
The facts
"316A. The requirements to be satisfied in the case of a child seeking limited leave to enter the United Kingdom for the purpose of being adopted (which, for the avoidance of doubt, does not include a de facto adoption) in the United Kingdom are that he:
(i) is seeking limited leave to enter to accompany or join a person or persons who wish to adopt him in the United Kingdom (the "prospective parent(s)"), in one of the following circumstances:
(a) both prospective parents are present and settled in the United Kingdom; or
(b) both prospective parents are being admitted for settlement on the same occasion that the child is seeking admission; or
(c) one prospective parent is present and settled in the United Kingdom and the other is being admitted for settlement on the same occasion that the child is seeking admission; or
(d) one prospective parent is present and settled in the United Kingdom and the other is being given limited leave to enter or remain in the United Kingdom with a view to settlement on the same occasion that the child is seeking admission, or has previously been given such leave; or
(e) one prospective parent is being admitted for settlement on the same occasion that the other is being granted limited leave to enter with a view to settlement, which is also on the same occasion that the child is seeking admission; or
(f) one prospective parent is present and settled in the United Kingdom or is being admitted for settlement on the same occasion that the child is seeking admission, and has had sole responsibility for the child's upbringing; or
(g) one prospective parent is present and settled in the United Kingdom or is being admitted for settlement on the same occasion that the child is seeking admission, and there are serious and compelling family or other considerations which would make the child's exclusion undesirable, and suitable arrangements have been made for the child's care; and
(ii) is under the age of 18; and
(iii) is not leading an independent life, is unmarried and is not a civil partner, and has not formed an independent family unit; and
(iv) can, and will, be maintained and accommodated adequately without recourse to public funds in accommodation which the prospective parent or parents own or occupy exclusively; and
(v) will have the same rights and obligations as any other child of the marriage or civil partnership; and
(vi) is being adopted due to the inability of the original parent(s) or current carer(s) (or those looking after him immediately prior to him being physically transferred to his prospective parent or parents) to care for him, and there has been a genuine transfer of parental responsibility to the prospective parent or parents; and
(vii) has lost or broken or intends to lose or break his ties with his family of origin; and
(viii) will be adopted in the United Kingdom by his prospective parent or parents in accordance with the law relating to adoption in the United Kingdom, but the proposed adoption is not one of convenience arranged to facilitate his admission to the United Kingdom."
The judge's reasoning
i) on the facts he found, the judge did not regard the adoption application as an "accommodation" application in the terminology used by Lord Hoffmann in Re B, i.e. an application made without any genuine intention on the part of prospective adopters to assume parental responsibility and incorporate the child fully into their family: see [1999] 2 AC at page 141G. Although he noted at [4] that there is something curious about the idea that an adoption order can be made to give "parental responsibility for a child to the adopters" and extinguish the parental responsibility of the natural parents (see the effects of such an order identified in section 46 of the 2002 Act) in respect of a person who has turned 18 and hence become an adult for most purposes, the judge recognised that this is something plainly allowed for under the 2002 Act until the person to be adopted reaches the age of 19; and the judge's view that the adoption application in this case is a genuine one is implicit in [31]-[32] and [46], and may be inferred from the absence of any rejection by him of evidence to that effect by FAS; and
ii) if the benefit of having British citizenship had to be brought into account for the whole of the remainder of MW's life by reason of the new formula used in section 1(2) of the 2002 Act ("… throughout his life"), then that was a factor which would compel the making of an adoption order so that MW could receive that benefit, even though he would no longer be under the age of 18 by the time the order was made.
Discussion
"Section 6 requires the judge to have regard to 'all the circumstances' and to treat the welfare of the child 'throughout his childhood' as the first consideration. I do not see how, consistently with this language, the court could simply have ignored the considerable benefits which would have accrued to T during the remainder of her childhood. That the order would enable her to enjoy these benefits was a fact which the court had to take into account. No doubt the views of the Home Office on immigration policy were also a circumstance which the court was entitled to take into account, although it is not easy to see what weight they could be given. Parliament has not provided, as I suppose it might have done, that the adoption of a non–British child should require the consent of the Home Secretary. On the contrary, it has provided that the making of an adoption order automatically takes the child out of the reach of the Home Secretary's powers of immigration control. The decision whether to make such an order is entirely one for the judge in accordance with the provisions of s 6 . In cases in which it appears to the judge that adoption would confer real benefits upon the child during its childhood, it is very unlikely that general considerations of 'maintaining an effective and consistent immigration policy' could justify the refusal of an order. The two kinds of consideration are hardly commensurable so as to be capable of being weighed in the balance against each other" (p. 141C-F)
"I think it is wrong to exclude from consideration any circumstances which would follow from the adoption, whether they are matters which will occur during childhood or afterwards. This, as I have said, would be contrary to the terms of s. 6. Such benefits may include a right of abode or a possibility of succession. But benefits which will accrue only after the end of childhood are not welfare benefits during childhood to which first consideration must be given. And if a right of abode will be of benefit only when the child becomes an adult, that benefit will ordinarily have to give way to the public policy of not usurping the Home Secretary's discretion. It is perhaps a curious feature of this case that if the Home Office had been willing to allow Ms B to remain in this country for the 2 years during which a residence order was in force, the case for an adoption, conferring a right of abode for life, would have been very much weaker. It would not have given Ms B any benefits during her childhood which she would not have been able to enjoy anyway."
"… the court will rarely make an adoption order when it would confer no benefits upon the child during its childhood but give it a right of abode for the rest of its life. In such a case there are no welfare benefits during childhood to constitute the 'first consideration'. The court is in effect being asked to use adoption to confer citizenship prospectively upon an adult. This is a power which Parliament has entrusted to the Home Secretary and the courts are reluctant to trespass upon the area of his authority."
Conclusion
Lady Justice Macur DBE:
Lord Justice Briggs: