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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 (A Child: Adoption Time Limits S44(3)) (Rev 1)  EWHC 3296 (Fam) (24 November 2020)
Cite as:  WLR(D) 57,  EWHC 3296 (Fam),  1 WLR 1381,  WLR 1381
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Strand, London, WC2A 2LL
B e f o r e :
|In the matter of Re A (A Child: Adoption Time Limits s44(3))|
Hearing dates: 24th November 2020
Crown Copyright ©
The Hon Mr Justice Keehan :
i) Ms B has been the adoption social worker for this case since the involvement of the local authority was triggered by the notice of intention to adopt;
ii) Ms B has been in regular contact with the applicant and with A since the summer of 2018;
iii) in February 2020 the applicant notified Ms B that she intended to issue an adoption application;
iv) Ms B supported the applicant make the first and second option applications;
v) Ms B fully supported the application for A's adoption by the applicant; and
vi) the adoption agency /the local authority took no issue with any technical failure to comply with the statutory criteria of the 2002 act and supported the court making an adoption order in this matter.
"Child to live with adopters before application
(1) An application for an adoption order may not be made unless—
(a) if subsection (2) applies, the condition in that subsection is met,
(b) if that subsection does not apply, the condition in whichever is applicable of subsections (3) to (5) applies.
(2) If —
(a) the child was placed for adoption with the applicant or applicants by an adoption agency or in pursuance of an order of the High Court, or
(b) the applicant is a parent of the child, the condition is that the child must have had his home with the applicant or, in the case of an application by a couple, with one or both of them at all times during the period of ten weeks preceding the application.
(3) If the applicant or one of the applicants is the partner of a parent of the child, the condition is that the child must have had his home with the applicant or, as the case may be, applicants at all times during the period of six months preceding the application.
(4) If the applicants are local authority foster parents, the condition is that the child must have had his home with the applicants at all times during the period of one year preceding the application.
(5) In any other case, the condition is that the child must have had his home with the applicant or, in the case of an application by a couple, with one or both of them for not less than three years (whether continuous or not) during the period of five years preceding the application.
(6) But subsections (4) and (5) do not prevent an application being made if the court gives leave to make it.
(7) 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 an application by a couple, both of them together in the home environment have been given—
(a)where the child was placed for adoption with the applicant or applicants by an adoption agency, to that agency,
(b)in any other case, to the local authority within whose area the home is.
(8) In this section and sections 43 and 44(1)—
(a) references to an adoption agency include a Scottish or Northern Irish adoption agency,
(b) references to a child placed for adoption by an adoption agency are to be read accordingly.
43 Reports where child placed by agency
Where an application for an adoption order relates to a child placed for adoption by an adoption agency, the agency must—
(a)submit to the court a report on the suitability of the applicants and on any other matters relevant to the operation of section 1, and
(b)assist the court in any manner the court directs.
44 Notice of intention to adopt
(1) This section applies where persons (referred to in this section as "proposed adopters") wish to adopt a child who is not placed for adoption with them by an adoption agency.
(2) An adoption order may not be made in respect of the child unless the proposed adopters have given notice to the appropriate local authority of their intention to apply for the adoption order (referred to in this Act as a "notice of intention to adopt").
(3) The notice must be given not more than two years, or less than three months, before the date on which the application for the adoption order is made.
(a) if a person were seeking to apply for an adoption order, subsection (4) or (5) of section 42 would apply, but
(b) the condition in the subsection in question is not met,the person may not give notice of intention to adopt unless he has the court's leave to apply for an adoption order.
(5) 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 investigation.
(6) In particular, the investigation must, so far as practicable, include the suitability of the proposed adopters and any other matters relevant to the operation of section 1 in relation to the application.
(7) If a local authority receive a notice of intention to adopt in respect of a child whom they know was (immediately before the notice was given) looked after by another local authority, they must, not more than seven days after the receipt of the notice, inform the other local authority in writing that they have received the notice.
(a) a local authority have placed a child with any persons otherwise than as prospective adopters, and
(b) the persons give notice of intention to adopt, the authority are not to be treated as leaving the child with them as prospective adopters for the purposes of section 18(1)(b).
(9) In this section, references to the appropriate local authority, in relation to any proposed adopters, are—
(a) in prescribed cases, references to the prescribed local authority,
(b) in any other case, references to the local authority for the area in which, at the time of giving the notice of intention to adopt, they have their home, and "prescribed" means prescribed by regulations."
i) When was the application "made" for the purposes of determining compliance with the notice requirements in s.44(3)?
ii) When was notice given for the purposes of determining compliance with the notice requirements in s.44(3)? And can notice be renewed?
iii) If the court determines that the application was made on 3rd August 2020 and notice was given on 1st June 2018, does the failure to comply with the requirements of s.44(3) mean the application cannot proceed?
i) s.44(3) refers to the date on which the adoption application was made and not the date on which the proceedings were commenced or were issued. Since the applicant's first application was made in May 2020 the requirement of the subsection is satisfied because this date was within two years of 1st June 2018 ;
ii) in the alternative, s.44(3) and the Family Procedure Rules 2010 ('the FPR') do not set out any requirement for the form in which a notice to adopt is given to the relevant local authority. Therefore because the applicant had been in regular contact with the adoption social worker and, in particular, told the social work in February 2020 that she was going to issue an adoption application, the court could deem this to be the date on which a notice of intention to adopt was given. If the court did so deemed this to be the date on which notice of intention to adopt was given, the provisions of s.44(3) were satisfied and there was no breach of the statutory requirements;
iii) in the alternative, it was submitted that the court should take a purposive approach to the construction of s.44(3) and permit the application to proceed; and
iv) in the further alternative, it was submitted that section 3 of the Human Rights Act 1998 ('the 1998 Act') requires the court to 'read down' s.44(3) so as to give effect to the applicant's and A's Article 8 rights to family life.
"the applicants must apply for the order during the period of 6 months beginning with the day on which the child is born".
The question in that case was whether the court had jurisdiction to make a parental order if the application was made outside the time-limit imposed by statute.
"The real question in all these cases is this: A thing has been ordered by the legislature to be done. What is the consequence if it is not done? In the case of statutes that are said to be imperative, the Courts have decided that if it is not done the whole thing fails, and the proceedings that follow upon it are all void. On the other hand, when the Courts hold a provision to be mandatory or directory, they say that, although such provision may not have been complied with, the subsequent proceedings do not fail. Still, whatever the language, the idea is a perfectly distinct one. There may be many provisions in Acts of Parliament which, although they are not strictly obeyed, yet do not appear to the Court to be of that material importance to the subject-matter to which they refer, as that the legislature could have intended that the non-observance of them should be followed by a total failure of the whole proceedings. On the other hand, there are some provisions in respect of which the Court would take an opposite view, and would feel that they are matters which must be strictly obeyed, otherwise the whole proceedings that subsequently follow must come to an end. Now the question is, to which category does the provision in question in this case belong? … I believe, as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject-matter; consider the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act; and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory."
"The modern approach towards breach of a statutory procedural requirement is to consider the underlying purpose of the requirement and whether it follows from consideration of that legislative purpose that any departure from the precise letter of the statute, however minor, should amount to the document being regarded as a nullity"
"In all cases, one must first construe the statutory … requirement in question. It may require strict compliance with a requirement as a condition of its validity … Against that, on its true construction a statutory requirement may be satisfied by what is referred to as adequate compliance. Finally, it may be that even non-compliance with a requirement is not fatal. In all such cases, it is necessary to consider the words of the statute …, in the light of its subject matter, the background, the purpose of the requirement, if that is known or determined, and the actual or possible effect of non-compliance on the parties. We assume that Parliament in the case of legislation … would have intended a sensible … result."
"Section 54 goes to the most fundamental aspects of status and, transcending even status, to the very identity of the child as a human being: who he is and who his parents are. It is central to his being, whether as an individual or as a member of his family. As Ms Isaacs correctly puts it, this case is fundamentally about Xs identity and his relationship with the commissioning parents. Fundamental as these matters must be to commissioning parents they are, if anything, even more fundamental to the child. A parental order has, to adopt Theis J's powerful expression, a transformative effect, not just in its effect on the child's legal relationships with the surrogate and commissioning parents but also, to adopt the guardian's words in the present case, in relation to the practical and psychological realities of X's identity. A parental order, like an adoption order, has an effect extending far beyond the merely legal. It has the most profound personal, emotional, psychological, social and, it may be in some cases, cultural and religious, consequences. It creates what Thorpe LJ in Re J (Adoption: Non-Patrial)  INLR 424, 429, referred to as "the psychological relationship of parent and child with all its far-reaching manifestations and consequences." Moreover, these consequences are lifelong and, for all practical purposes, irreversible: see G v G (Parental Order: Revocation)  EWHC 1979 (Fam),  1 FLR 286, to which I have already referred. And the court considering an application for a parental order is required to treat the child's welfare throughout his life as paramount: see in In re L (A Child) (Parental Order: Foreign Surrogacy)  EWHC 3146 (Fam),  Fam 106,  1 FLR 1143. X was born in December 2011, so his expectation of life must extend well beyond the next 75 years. Parliament has therefore required the judge considering an application for a parental order to look into a distant future.
"The purpose of the requirement to give no less than three months' notice of the intention to adopt is to enable the local authority to commence their investigation of the application, assess the parties, and be in a position to offer advice to the court when the matter is placed before it for directions (per section 44(5)/(6)) (see  above). Ms Kakonge advises me that the respondent Local Authority is now ready and able to undertake this assessment, and further submits that this assessment (in Annex A form) can be completed in less than the 12 weeks conventionally sought. She points out that the Local Authority is not starting this work with a blank canvas; as mentioned earlier () it commissioned PACT to complete an assessment of Ms CM in 2014 so much of the background investigation has been done. This assessment supported Ms CM's application to adopt TY in Jamaica.
Parliament cannot really have intended that the application for an adoption order, with all its transformative characteristics would have to fail in limine and barred forever simply because of the failure of the applicant to comply strictly with this notice requirement (or indeed the earlier notice requirement) in the legislation. An adoption order, after all,
"… has an effect extending far beyond the merely legal. It has the most profound personal, emotional, psychological, social and, it may be in some cases, cultural and religious, consequences. It creates what Thorpe LJ in Re J (Adoption: Non-Patrial)  INLR 424, 429, referred to as "the psychological relationship of parent and child with all its far-reaching manifestations and consequences." Moreover, these consequences are lifelong and, for all practical purposes, irreversible" (Sir James Munby P in Re X at )
Parliament surely intended a "sensible result". To rule that the adoption application should not be permitted to proceed on the basis of this non-compliance with what appears to be a mandatory requirement would not be a "sensible result".
"Interpretation of legislation
(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.
(2) This section–
(a) applies to primary legislation and subordinate legislation whenever enacted;
(b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and
(c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility"
"It is also clear that "family life" is not confined to relationships based on marriage or blood, nor indeed is family life confined to formal relationships recognised in law. Thus family life is not confined to married couples. A de facto relationship outside marriage can give rise to family life (Abdulaziz, Cabales and Balkandali v United Kingdom at para ), even if the parties do not live together (Kroon v The Netherlands (1994) 19 EHRR 263 at para ), and even if the couple consists of a woman and a female-to-male transsexual (X, Y and Z v United Kingdom (1997) 24 EHRR 143 at para ). So there can be family life between father and child even where the parents are not married: Keegan v Ireland (1994) 18 EHRR 342 at para . Likewise there can be family life between a parent and a child even where there is no biological relationship: X, Y and Z v United Kingdom at para  (family life existed as between the female-to-male transsexual partner of a woman and the child she had conceived by artificial insemination by an anonymous donor). A formal adoption creates family life between the adoptive parents and the child: X v Belgium and the Netherlands (1975) 7 D&R 75, X v France (1982) 31 D&R 241, Pini v Roumania (unreported – 22 June 2004). Family life can exist between foster-parent and foster-child: Gaskin v United Kingdom (1989) 12 EHRR 36"
i) upon the making of an adoption order A will not automatically acquire British citizenship because she is 18 years of age (above). Therefore it is not necessary to refer this matter to the Secretary of State for the Home Department; and
ii) FPR r14.12 requires health reports to be filed in respect of the applicant and of A which given A's age is neither necessary or proportionate on the facts of this case. I was invited to dispense with the requirement for these health reports.
i) the applicant had acted in good faith at all times;
ii) the breach has not caused any disadvantage or prejudice to any party or to the court;
iii) the local authority have been constantly involved with A and the applicant since the summer of 2018; and
iv) the local authority take no issue with the failure to comply with s.44(3) indeed Ms B, the adoption social worker, strongly supported an adoption order being made.