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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> A (A Child), Re [2009] EWCA Civ 41 (05 February 2009) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2009/41.html Cite as: [2010] PTSR 289, [2009] Fam Law 380, [2009] 3 WLR 1169, [2010] Fam 9, [2009] 2 FCR 123, [2009] EWCA Civ 41, [2010] 1 Fam 9, [2009] 3 All ER 479 |
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COURT OF APPEAL (CIVIL
DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE – FAMILY DIVISION
CHARLES J on 21st July 2008
FD07PO2518
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE WALL
and
LORD JUSTICE MOORE-BICK
____________________
LOCAL AUTHORITY |
Appellant |
|
- and - |
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Department of Children, Schools and Families and CAFCASS Legal |
1st Respondent 2nd Respondent |
|
A (A Child) |
____________________
Martin Chamberlain and Anna Burne (instructed by Treasury Solicitors) for the 1st Respondent
Malcolm Chisholm (instructed by CAFCASS Legal) for the 2nd Respondent
Hearing date: 2nd December 2008
____________________
Crown Copyright ©
Lord Justice Wall:
Introduction
"there is no legal bar to the court taking into account any period spent by IA at the home of Mr and Mrs N (her paternal aunt and uncle) in the United States of America when considering whether or not Mr and Mrs N had met the condition laid out in section 84(4) of the Adoption and Children Act 2002 that 'an application for an order under this section may not be made unless at all times during the preceding ten weeks the child's home was with the applicant or, in the case of an application by two people, both of them".
The facts
6. When the care order was made (in relation to IA) in January 2007 the plan was for adoption. The family put forward several family members as potential adopters and the only ones considered viable are a paternal uncle and aunt who live in the USA (Mr and Mrs N) with their five children. If the child is not adopted by them she would have to be placed outside the family. It is thought that it would be relatively easy to find appropriate non-family adopters for her in this country. A tension therefore arises between the potential advantages of a family placement and the time table for the child.
7. The prospects of it being concluded that the child's welfare would be best promoted throughout her childhood by her being adopted by Mr and Mrs N are thought to be good. However the local authority is of the opinion, in my view correctly, that at present it does not have sufficient information to reach a properly informed view on this.
8. Naturally the local authority do not wish to continue the process of investigating whether such an adoption should be supported if this cannot be done lawfully and/or practically having regard to the legal requirements and the child's time table.
9. As will be apparent from what I have said some investigations have been carried out by the local authority and its counterpart in the USA. These form the basis for the view of the local authority, which I share, that on welfare grounds the possibility of the child being adopted by Mr and Mrs N in the USA should be further investigated and assessed.
The local authority's care plan
10. The process, or steps, proposed by the local authority are as follows:
(1) Step 1
(a) Mrs N travels to the United Kingdom for introductions and to observe the child's routine in her current foster placement. Mrs N and her husband are presented to the fostering panel as foster carers for the child. (If this does not occur before the child travels, she will initially be placed under Regulation 38 of the Fostering Services Regulations 2002 (FSR 2002)).
(b) The child travels to the USA with Mrs N, her present foster carer and social worker for a holiday placement with Mrs N and her family. Further introductions take place with the family and the child within 1-2 weeks, after which the present foster carer will return. The social worker will remain for a period of 4 weeks and then return to England.
(c) The child remains with the N family for a maximum 90 days (as permitted by a temporary visitor visa to the USA).
(d) Whilst in the USA the social worker will commence assessment pursuant to Regulation 31(2)(d) of the Adoption Agencies Regulations 2005 (AAR 2005) and section 43 of the 2002 Act. A Looked After Child (LAC) Review will take place four weeks after the child is so placed with the N family in the USA.
(e) So at this stage the most relevant statutory provisions are sections 22 and 23 of the 1989 Act and section 43 of the 2002 Act, and the most relevant Regulations are the Fostering Services Regulations 2002 (FSR 2002) and the Adoption Agencies Regulations 2005 (AAR 2005).
(2) Step 2
(a) The social worker sends the 'adoption placement report' pursuant to Regulation 31(2) (d) AAR 2005 to Mrs N and her family 10 working days in advance of the proposed Adoption and Permanency Panel. The social worker completes the child's permanency report (to include a summary of possibilities for placement of the child within this country) and an assessment of whether adoption by Mr and Mrs N is in the child's best interests pursuant to Regulation 38 of the Adoption with a Foreign Element Regulations 2005 (AFER 2005).
(b) The child returns to England. If the report favours adoption by Mr and Mrs N they come with her for approval as adoptive parents and matching with the child. Mr N would be unable to stay for longer than approximately two weeks due to his work commitments, but Mrs N (and her youngest child) could stay longer. The four older children would not be able to come here for any longer than Mr N, if they could come at all.
(c) If it is then thought necessary and appropriate the local authority will pursue its adjourned application for a placement order pursuant to Section 18 of the 2002 Act.
(d) Pursuant to Regulation 44 of AFER 2005 the local authority's Adoption and Permanency Panel will consider the following documents: Article 15 report received from USA authority; the local authority's observations on that report; the child's permanency report; other such documents as required by Regulation 17(2) of the AAR 2005.
(e) At this stage the most relevant statutory provisions are again sections 22 and 23 of the 1989 Act and section 43 of the 2002 Act, and the most relevant Regulations are the Fostering Services Regulations 2002 (FSR 2002), the Adoption Agencies Regulations 2005 (AAR 2005) and the Adoption with a Foreign Element Regulations 2005 (AFER 2005). The Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption is also relevant.
(3) Step 3
(a) If panel recommends approval and matching, the local authority will notify the Department for Children, Schools and Families (Reg 40 AFER 2005) and will prepare a report in accordance with Article 16 (Reg 46 AFER 2005) to forward to the Department for Children, Schools and Families as the relevant Central Authority. The local authority will also provide details to the Department of Health in respect of any placement order or consent provided by the birth parents.
(b) Mrs N will provide written confirmation that she will travel with the child to the USA (Regulation 48(f) AFER 2005) and will request permission to travel with the child without her husband (the consent of both Central Authorities is required).
(c) The Department of Health will consider whether the appropriate steps have been met and if it agrees with the placement will refer the case to the Central Authority in the USA.
(d) Regulation 47 AFER 2005 sets out the requirements to take place before the child is placed for adoption including a requirement that the Central Authority in the USA will authorise the child to enter and reside permanently in the USA.
(e) Until such time as the requirements of Regulation 47 AFER 2005 are met and authority to place under the ACA 2002 is obtained, the child's placement with Mrs N remains under the fostering regulations.
(f) If and when those requirements are met and that authority is obtained (by court order or parental consent) the placement will become a placement for adoption.
(g) At this stage the most relevant regulations are again AAR 2005 and AFER 2005. Again the Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption is relevant.
(4) Step 4
(a) Mrs N and her husband will apply under s. 84 of the 2002 Act for parental responsibility. Regulation 48 of AFER 2005 applies.
(b) If that is granted the local authority will arrange for good bye visits for the child and her family.
(c) Subject to the court granting a parental responsibility order Mrs N will travel with the child to the USA and she and her husband will apply for a Convention Adoption within the USA.
(d) At this stage the most relevant statutory provision is s. 84 of the 2002 Act and again AAR 2005, AFER 2005 and the Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption are relevant.
11. So, leaving aside the foreign element, what the local authority proposes mirrors what it would do in this country if it decided that there should be a placement with family members before and perhaps leading up to a placement for adoption with those family members. If this was a domestic case it was not argued that any of the steps starting with a placement for assessment and then one for adoption were, or would be unlawful or inappropriate in any way.
12. At Step 1 the local authority has to obtain an order approving the removal of the child to the USA under Paragraph 19 of Schedule 2 to the Children Act. An issue arises as to whether that permission can lawfully be granted.
13. The local authority also seeks a declaration that there is no legal bar to the taking into account of the period the child so spends in the USA for the purpose of section. 84(4) of the 2002 Act. It does this to avoid the plan faltering because both Mr and Mrs N cannot remain in this country for 10 weeks and there are likely to be very real problems in Mrs N doing so because 4 of her children in the USA could not sensibly come with her to England for that period.
Why the judge refused relief
77. My main reasons are:-
(1) this would create divergent authority at first instance and would run counter to the underlying assumption of the Court of Appeal in Re G [2008]EWCA
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Civ
105, (also reported as Re G (Adoption: Placement Outside Jurisdiction) [2008] 1 FLR 1484 and 1497),
(2) it would therefore create uncertainty and confusion in an area which involves important questions of status and welfare, and so
(3) if there is to be a decision that on the true construction of the relevant primary and secondary legislation that the plan proposed by the local authority is lawful it should be made by the Court of Appeal.
78. In addition it seems to me that a decision that what the local authority proposes is lawful would be likely to introduce a number of questions and issues in other cases which absent regulations would lead to (a) a domestic system governed in large measure by regulation, and (b) a system relating to some foreign adoptions governed by an incremental approach based on decisions of the court. In my view adoption is for good reasons an area that is governed by detailed regulations and there would be advantage in avoiding a piecemeal development through case law of the steps to be taken in respect of foreign adoptions.
The relevant statutory provisions.
(6) Subject to any regulations made by the Secretary of State for the purposes of this subsection, any local authority looking after a child shall make arrangements to enable him to live with—
(b) a relative, friend or other person connected with him,
unless that would not be reasonably practicable or consistent with his welfare.
(1) A local authority may only arrange for, or assist in arranging for, any child in their care to live outside England and Wales with the approval of the court.
(2) A local authority may, with the approval of every person who has parental responsibility for the child arrange for, or assist in arranging for any other child looked after by them to live outside England and Wales.
(3) The court shall not give its approval under sub-paragraph (1) unless it is satisfied that—
(a) living outside England and Wales would be in the child's best interests;
(b) suitable arrangements have been, or will be, made for his reception and welfare in the country in which he will live;
(c) the child has consented to living in that country; and
(d) every person who has parental responsibility for the child has consented to his living in that country.
(4) Where the court is satisfied that the child does not have sufficient understanding to give or withhold his consent, it may disregard sub-paragraph (3)(c) and give its approval if the child is to live in the country concerned with a parent, guardian, special guardian, or other suitable person.
(5) Where a person whose consent is required by sub-paragraph (3)(d) fails to give his consent, the court may disregard that provision and give its approval if it is satisfied that that person—
(a) cannot be found;
(b) is incapable of consenting; or
(c) is withholding his consent unreasonably.
(6) Section 85 of the Adoption and Children Act 2002 (which imposes restrictions on taking children out of the United Kingdom) shall not apply in the case of any child who is to live outside England and Wales with the approval of the court given under this paragraph.
(7) Where a court decides to give its approval under this paragraph it may order that its decision is not to have effect during the appeal period.
(8) In sub-paragraph (7) "the appeal period" means—
(a) where an appeal is made against the decision, the period between the making of the decision and the determination of the appeal; and
(b) otherwise, the period during which an appeal may be made against the decision.
(9) This paragraph does not apply to a local authority placing a child for adoption with prospective adopters.
The 2002 Act
1 Considerations applying to the exercise of powers
(1) This section applies 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.
42 Child to live with adopters before application
(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.
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").
84 Giving parental responsibility prior to adoption abroad
(1) The High Court may, on an application by persons who the court is satisfied intend to adopt a child under the law of a country or territory outside the British Islands, make an order giving parental responsibility for the child to them.
(2) An order under this section may not give parental responsibility to persons who the court is satisfied meet those requirements as to domicile, or habitual residence, in England and Wales which have to be met if an adoption order is to be made in favour of those persons.
(3) An order under this section may not be made unless any requirements prescribed by regulations are satisfied.
(4) An application for an order under this section may not be made unless at all times during the preceding ten weeks the child's home was with the applicant or, in the case of an application by two people, both of them.
(5) Section 46(2) to (4) has effect in relation to an order under this section as it has effect in relation to adoption orders.
(6) Regulations may provide for any provision of this Act which refers to adoption orders to apply, with or without modifications, to orders under this section.
(7) In this section, "regulations" means regulations made by the Secretary of State, after consultation with the Assembly.
85 Restriction on taking children out
(1) A child who—
(a) is a Commonwealth citizen, or
(b) is habitually resident in the United Kingdom,
must not be removed from the United Kingdom to a place outside the British Islands for the purpose of adoption unless the condition in subsection (2) is met.
(2) The condition is that—
(a) the prospective adopters have parental responsibility for the child by virtue of an order under section 84 ……
(3) Removing a child from the United Kingdom includes arranging to do so; and the circumstances in which a person arranges to remove a child from the United Kingdom include those where he—
(a) enters into an arrangement for the purpose of facilitating such a removal of the child,
(b) initiates or takes part in any negotiations of which the purpose is the conclusion of an arrangement within paragraph (a)
(c) causes another reason to take any step mentioned in paragraph (a) and (b)
An arrangement includes an agreement (whether or not enforceable).
(4) A person who removes a child from the United Kingdom in contravention of subsection (1) is guilty of an offence.
(5) A person is not guilty of an offence under subsection (4) of causing a person to take any step mentioned in paragraph (a) or (b) of subsection (3) unless it is proved that he knew or had reason to suspect that the step taken would contravene subsection (1).
But this subsection only applies if sufficient evidence is adduced to raise an issue as to whether the person had the knowledge or reason mentioned.
(6) A person guilty of an offence under this section is liable—
(a) on summary conviction to imprisonment for a term not exceeding six months, or a fine not exceeding the statutory maximum, or both,
(b) on conviction on indictment, to imprisonment for a term not exceeding twelve months, or a fine, or both.
(7) In any proceedings under this section—
(a) a report by a British consular officer or a deposition made before a British consular officer and authenticated under the signature of that officer is admissible, upon proof that the officer or the deponent cannot be found in the United Kingdom, as evidence of the matters stated in it, and
(b) it is not necessary to prove the signature or official character of the person who appears to have signed any such report or deposition.
86 Power to modify sections 83 and 85
(2) Regulations may provide for section 85(1) to apply with modifications, or not to apply, if—
(a) the prospective adopters are parents, relatives or guardians of the child in question (or one of them is), or
(b) the prospective adopter is a partner of a parent of the child,
and any prescribed conditions are met.
(3) On the occasion of the first exercise of the power to make regulations under this section—
(a) the statutory instrument containing the regulations is not to be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.
87 Overseas adoptions
(1) In this Act, "overseas adoption"—
(a) means an adoption of a description specified in an order made by the Secretary of State, being a description of adoptions effected under the law of any country or territory outside the British Islands, but
(b) does not include a Convention adoption.
(2) Regulations may prescribe the requirements that ought to be met by an adoption of any description effected after the commencement of the regulations for it to be an overseas adoption for the purposes of this Act.
(3) At any time when such regulations have effect, the Secretary of State must exercise his powers under this section so as to secure that subsequently effected adoptions of any description are not overseas adoptions for the purposes of this Act if he considers that they are not likely within a reasonable time to meet the prescribed requirements.
(4) In this section references to this Act include the Adoption Act 1976 (the 1976 Act).
(5) An order under this section may contain provision as to the manner in which evidence of any overseas adoption may be given.
(6) In this section—
"adoption" means an adoption of a child or of a person who was a child at the time the adoption was applied for,
"regulations" means regulations made by the Secretary of State after consultation with the Assembly.
(2) The making of an adoption order operates to extinguish—
(a) the parental responsibility which any person other than the adopters or adopter has for the adopted child immediately before the making of the order,
(b) any order under the 1989 Act.
AFER 2005
Adoption with a Foreign Element Regulations 2005
10 Requirements applicable in respect of giving parental responsibility prior to adoption abroad
The prescribed requirements for the purposes of section 84(3) of the Act (requirements to be satisfied prior to the making of an order) are that—
(a) in the case of a child placed by an adoption agency, that agency has—
(i) confirmed to the court that it has complied with the requirements imposed in accordance with Part 3 of the Agencies Regulations or corresponding Welsh provision;
(ii) submitted to the court—
(aa) the reports and information referred to in regulation 17(2) and (3) of the Agencies Regulations or corresponding Welsh provision;
(bb) the recommendations made by the adoption panel in accordance with regulations 18 (placing child for adoption) and 33 (proposed placement) of the Agencies Regulations or corresponding Welsh provision;
(cc) the adoption placement report prepared in accordance with regulation 31(2)(d) of the Agencies Regulations or corresponding Welsh provision;
(dd) the reports of and information obtained in respect of the visits and reviews referred to in regulation 36 of the Agencies Regulations or corresponding Welsh provision; and
(ee) the report referred to in section 43 of the Act as modified by regulation 11;
(b) in the case of a child placed by an adoption agency the relevant foreign authority has—
(i) confirmed in writing to that agency that the prospective adopter has been counselled and the legal implications of adoption have been explained to him;
(ii) prepared a report on the suitability of the prospective adopter to be an adoptive parent;
(iii) determined and confirmed in writing to that agency that he is eligible and suitable to adopt in the country or territory in which the adoption is to be effected; and
(iv) confirmed in writing to that agency that the child is or will be authorised to enter and reside permanently in that foreign country or territory; and
(c) in the case of a child placed by an adoption agency the prospective adopter has confirmed in writing to the adoption agency that he will accompany the child on taking him out of the United Kingdom and entering the country or territory where the adoption is to be effected, or in the case of a couple, the agency and relevant foreign authority have confirmed that it is necessary for only one of them to do so.
The following provisions of the (2002) Act which refer to adoption orders shall apply to orders under section 84 as if in each place where the words "adoption order" appear there were substituted "order under section 84".
The authorities: Re G (a child) [2008] EWCA
Civ
105 (Re G).
Section 84 of the 2002 Act has attracted a great deal of criticism both from practitioners and the family judiciary on the basis that it operates as a significant disincentive to prospective adopters from abroad. Few people, it is argued, will have the capacity to interrupt their lives in order to provide a home for the child within this jurisdiction for the statutory period. There is, of course, the provision in section 86(2) of the 2002 Act which enables Parliament by Regulations to disapply section 85 if the prospective adopters are parents, relatives or guardian of the child in question (or one of them is). No such Regulations have, however, been made.
Other authorities
57. Where section 42(7)(b) applies therefore (i.e. in any case where the child has not been placed for adoption by an adoption agency), the adopters and the child will have to have a home in the area of an English/Welsh local authority in order that they can afford sufficient opportunities to that local authority to see them in the home environment together. This provision was enough to cause all parties to abandon further thought in this case of a section 84 order. Whilst I considered that they may well be right in that, I requested in my Draft Provisional Judgement that there be a little further research by counsel and some further submissions before a line was finally drawn under this possibility.
The important provisions of paragraph 19 for the present purposes are sub-paragraphs (6) and (9). Paragraph 19(6) is concerned with children who would potentially be protected by s 85 of the 2002 Act. These are children who are being removed from the country "for the purpose of adoption". Paragraph 19(9) concerns children whom the local authority is "placing for adoption". If the local authority is placing a child for adoption, paragraph 19(9) provides that paragraph 19 does not apply. The existence of paragraph 19(6), which disapplies s 85 of the 2002 Act where a child is to live outside England and Wales with paragraph 19 approval of the court tells us that after you have excluded all those children whom the local authority is "placing for adoption" and to whom, by virtue of paragraph 19(9), paragraph 19 does not apply, there remains a category of children to whom paragraph 19 does apply who might come within the terms of s 85 i.e. children who are being removed from the country "for the purpose of adoption". If it were not so, there would be no need of paragraph 19(6). It follows that being removed from the country "for the purpose of adoption" and being placed for adoption are not precisely the same thing. Given that there can be little doubt that placing abroad for adoption is a species of removal for the purpose of adoption, placement for adoption must therefore necessarily be a narrower concept than removal for the purpose of adoption.
The Plymouth case
The proposal, if possible and suitable, is that, after a period of proper assessment, M should make her permanent home in Malta with her paternal first cousin and his wife and their children.
It may be that within the legal framework there will be an adoption in Malta. At present this is far from clear or certain. There are a number of possible placements falling short of adoption. However, it is unlikely that there would be any opposition to the eventual legal arrangement when M goes to Malta permanently, if, following assessment, it is decided that the best way forward for M's best interests is adoption.
As in the instant case, it was not possible for M's paternal first cousin and his wife to come to England for the 10 week period envisaged by section 84.
39. I am satisfied that in this situation that (sic) the child is not being considered to be sent abroad for adoption but adoption is simply one option in a whole range of possible options, no criminal offence is committed and there is no breach of sections 84 and 85 if an assessment is taking place prior to a final decision being reached.
40. In this case this is exactly what is proposed; the child is not being sent abroad either for the purposes of, or for, adoption but to assess the range of various options of which adoption is just one. Accordingly, I find in these circumstances the sections do not conflict.
41.
I shall therefore make an order that the child can be removed for a period of up to four months under (Paragraph 19) and the detailed order will include an order for M's return subject to any later application for her to remain in Malta.
The Human Rights Act 1998 and the European Convention on Human Rights (ECHR)
The judge's approach
(a) the understanding of those proposing amendments (to the 2002 Act) and of those responding, was that before an order under section 84 (of the 2002 Act) could be made the child has to live with the prospective adopters in this country for 10 weeks; and (b) the view was taken that this should not be changed by amendments to the 2002 Act.
i) a need to have provisions that help prevent child abduction and trafficking and to help to ensure that (a) secure attachments between children and their prospective adopters are made, and (b) placements do not break down, and thus
ii) a need for a rigorous investigation, proper safeguards and a properly informed decision before both a domestic adoption order is made in this country, and a parental responsibility order under section 84 of the ACA 2002 is made as a preliminary step to an adoption order (or permanent placement) abroad, and
iii) a need to take appropriate steps, and to comply with appropriate safeguards, to avoid a child being left adrift in a foreign country if a proposed adoption (or permanent placement) there does not take place.
None of this is, I think, contentious, and accords very much with the approach taken by this court in Re G.
in my judgment permission can lawfully be given for a local authority to arrange for a child to live outside the UK for the purposes of an investigation and assessment of whether adoption abroad by the persons with whom the child is to live would be the most appropriate welfare solution for that child throughout his or her childhood.
i) It applies to prospective adopters whose home is abroad and the natural inference would be that the child would, or at least could, for the purposes of section 84(4) have his or her home with them where they lived and where the child would live if adopted.
ii) It is essentially a trigger provision to an application followed up by other provisions as to the making of a parental responsibility order with its consequences.
iii) Although it has similarities to ss. 42 (1) and (2) of the 2002 Act those sub-sections are not referred to in Regulation 11 of AFER 2005 and it is only section 42(7) that is so referred to.
iv) As a matter of language it does not say where the home has to be, when it easily could have done.
v) As Black J explains in ECC v M there are conceptual problems concerning what is or is not a home for particular purposes and a construction that enabled this pre-application period to be spent in the actual home of the applicants would avoid these problems. That solution would equate with the domestic situation when the child would have been living with the applicants for an adoption order in their real home. Problems would remain in respect of the observation of the child and the adults abroad, but these could be overcome with inter-country co-operation.
vi) The regulations, which inevitably on a free standing basis have a domestic feel or centre of gravity, are incorporated without express adjustment by Regulations of AFER 2005 and by the expansion of particular sections to cover orders under section 84 of the 2002 Act by Regulations 11 and 55 of AFER 2005. In my view the Regulations are directory and not mandatory (see for example In re T (A Minor) (Adoption: Validity of Orders) [1986] Fam 160) and this, coupled with such methods of introduction of domestic regulations in respect of an adoption abroad, and the purposive and sensible approach to be taken to the application of the 2002 Act and the relevant regulations, favours a purposive and sensible approach that should have regard to the point that the relevant adoptive home of the child throughout his or her childhood will be abroad. Such an approach reduces the domestic feel of the regulations and means that they should be interpreted and fulfilled by considering how the decision makers are to be best informed on that basis.
The domestic authorities referred to by Black J, but not McFarlane J, Re Y and Re SL support the conclusion that for the purposes of section 42(7)(a) the home environment does not have to be in the area of the placing local authority. This supports the view that it does not have to be in this country when the proposed adoption is a foreign adoption. Also, as with section 84(4) (of the 2002 Act), the section, as modified to cover a section 84 order, does not expressly provide that the home environment must be in this country.
I agree with the local authority that for these reasons, and for the reasons given in respect of section 84(4) (of the 2002Act), the home environment for the purposes of section 42(7)(a) (the 2002 Act) is not confined to one in this country.
The argument for the Department
(1) that the proposed declaration would sanction a use of paragraph 19 of Schedule 2 which amounted, in effect, to making an adoptive placement abroad. However, unlike a placement for adoption made in accordance with the 2002 Act and the Adoption Agencies Regulations 2005, the proposed arrangement would not be subject to the procedural and reporting regime applicable to placements for adoption in the United Kingdom. This was a regime which Parliament specifically required to be followed before an order under section 84 of the 2002 Act could be made and is a regime which is not realistically capable of implementation outside the United Kingdom.
(2) That the body of judicial criticism of the section 84(4) "10-week rule" far from strengthening its case as to the propriety of the proposed declaration, weakened it. That criticism was based on consistent jurisprudence to the effect that the 10-week period prescribed by section 84(4) must be spent in the UK.
(3) The existence of a power to disapply or modify the effect of section 85(1) is another factor indicating that Parliament was well aware that the strictness of the statutory regime may require attenuation. But the means by which that attenuation was to occur was by legislative process (subject to affirmative approval by Parliament itself). The court should be slow to disturb a construction which has been held and assumed to be correct by the grant of a declaration which would have the same effect as regulations under s. 86. The case against such a construction is particularly compelling given that it would in principle permit anyone (not just the narrow categories of potential adopters to which the section 86 power applies) to circumvent the procedural regime currently applicable to outbound inter-country adoptions.
(4) That Charles J was right to take the view that to grant the relief sought by the local authority would lead to the uncertainty and confusion which he identified in his judgment. The Department's construction, which avoided this confusion and uncertainty, should be preferred. Any attenuation of the 10 week rule can and should be achieved by regulations made under section 86, which the Department now intends to make, after public consultation (and subject to the Parliamentary procedure specified by section 86(3)).
Discussion
Section 42(7) of the 2002 Act
Policy considerations
The application under paragraph 19 of Schedule 2
Parliamentary change v statutory construction
whether there should be a requirement for a period (shorter than 10 weeks) to be spent in the UK so that there is at least a short period during which UK authorities can monitor the proposed placement directly in the UK before a child is sent abroad under the Regulations and, if so, what the appropriate period is.
The argument from CAFCASS Legal
Outcome
Lord Justice Moore-Bick
"(1) The High Court may, on an application by persons who the court is satisfied intend to adopt a child under the law of a country or territory outside the British Islands, make an order giving parental responsibility for the child to them.
(4) An application for an order under this section may not be made unless at all times during the preceding ten weeks the child's home was with the applicant or, in the case of an application by two people, both of them."
"An order under section 84 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."
Lord Justice Thorpe