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England and Wales Family Court Decisions (High Court Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (High Court Judges) >> Medway Council v JL & Ors  EWFC 5 (10 November 2016)
Cite as:  EWFC 5
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Strand, London, WC2A 2LL
B e f o r e :
| Medway Council
|- and -
|- and -
|- and -
|- and -
|DB and KB
|4th & 5th Respondents
|- and -
|LE, LY & LO
(Through their Children's Guardian Lynn Magson)
|6th – 9th Respondents
Ms Gemma Farrington (instructed by Atkins Hope) for the 1st Respondent
Mr Adam Clegg (instructed by Berry & Lamberts Solicitors) for the 2nd Respondent
Mr Edward Kenny (instructed by Davis, Simmonds and Donaghey) for the 3rd Respondent
Ms Kathryn Cronin (instructed by Goodman Ray) for the 4th & 5th Respondent
Ms Joanne Porter (instructed by Patrick Lawrence Solicitors) for the 6th – 9th Respondents
Hearing dates: 9th & 10th November 2016
Crown Copyright ©
Mrs Justice Theis DBE:
Actions of the Local Authority
Placement of the children
Local Authority Care Plans
a) This agreement applies during the lifetime of the placement order up until the time it is anticipated LO is made the subject of an adoption order in favour of Mr and Mrs B, and thereafter if an adoption order is made.
b) This agreement is in respect to contact between LO his mother and LE and LY,
c) Mr and Mrs B agree that from January 2017 and for the first 3 years thereafter LO will be brought to the UK for the purposes of contact twice a year for a period of one week on each occasion. The contact between LO and his mother will take place at a time to be arranged by Mr and Mrs B,
d) Mr and Mrs B agree to inform the allocated SW and the Foster Carers for LE and LY as to the dates for their visits as per (c) above giving them each at least two weeks notice of such visits and they all shall arrange contact between LO, LE and LY on at least two occasions during the particular visit,
e) From 2020 Mr and Mrs B will thereafter arrange for LO to come the UK at least once a year, for at least 10 days and as such the practical arrangements for contact between the mother and LE and LY are as per (c) and (d) above,
f) In the event that Mr and Mrs B and LO come to the UK on any other occasions in each year they will inform the mother and the foster carers for LE and LY so that contact can be arranged and as such the practical arrangements for contact between the mother and LE and LY are as per (c) and (d) above apply save that contact between LE and LY and LO may be only on one occasion depending on the length of the visit,
g) In 2018 Mr and Mrs B agree to financially assist the mother with travel to and accommodation in the USA for the purposes of contact to LO, mother to be drug free immediately prior to and during the trip.
h) On the basis that the foster carers have informed the local authority they do agree to travel with the children to the USA the Local Authority agrees in principle for LE and LY to travel to the US once every two years in a School holiday for one week and for the reasonable costs of this trip to be borne by the local authority, this will be effected in liaison with Mr and Mrs B and will, subject to the welfare needs of the children at that time, commence in 2018.
i) Mr and Mrs B agree to Skype/Facetime contact between LO, LE and LY to be arranged between them and the foster carers weekly for the duration of the placement order.
j) Mr and Mrs B agree to Skype/Facetime contact between LO and his mother when it can be arranged.
k) Any contact requested by JA can be managed by and arranged by Mr and Mrs B, with the assistance of Mr and Mrs A if necessary, on the basis that they, Mr and Mrs B, will consider if it is in LO's welfare and, until any adoption is made, in consultation with the local authority. As far as it can control this contact, the local authority recommends it is no more than twice a year.
l) There shall be any other contact that can be agreed between the parties in respect the children on the following basis:-a) Any other contact that can be agreed between LO and the mother and /or the father as agreed with Mr and Mrs B in consultation with the local authority,b) Any other contact that can be agreed between LO and LE and LE as agreed between Mr and Mrs B in consultation with the local authority and the foster carers for LE and LE.
'Positioned at the date of death in February 2003 the court must look back at the whole of the deceased's life, at what he had done with his life, at what life had done to him and at what were his inferred intentions in order to decide whether he had acquired a domicile of choice in England by the date of his death. Soren Kierkegaard's aphorism that 'Life must be lived forwards, but can only be understood backwards' resonates in the biographical data of domicile disputes.' As Ms Cronin submits, a person has his or her domicile, the legal home, in the place where he/she has their permanent home and lasting attachments. The object of determining a domicile is to connect the person with a particular system or rule of law, determining personal or family status or property rights.
(i) A person is, in general, domiciled in the country in which he is considered by English law to have his permanent home. A person may sometimes be domiciled in a country although he does not have his permanent home in it.
(ii) No person can be without a domicile.
(iii) No person can at the same time for the same purpose have more than one domicile.
(iv) An existing domicile is presumed to continue until it is proved that a new domicile has been acquired.
(v) Every person receives at birth a domicile of origin.
(vi) Every independent person can acquire a domicile of choice by the combination of residence and an intention of permanent or indefinite residence, but not otherwise.
(vii) Any circumstance that is evidence of a person's residence, or of his intention to reside permanently or indefinitely in a country, must be considered in determining whether he has acquired a domicile of choice.
(viii) In determining whether a person intends to reside permanently or indefinitely, the court may have regard to the motive for which residence was taken up, the fact that residence was not freely chosen, and the fact that residence was precarious.
(ix) A person abandons a domicile of choice in a country by ceasing to reside there and by ceasing to intend to reside there permanently, or indefinitely, and not otherwise. A person who has formed the intention of leaving a country does not cease to have his home in it until he acts according to that intention.
(x) When a domicile of choice is abandoned, a new domicile of choice may be acquired, but if it is not acquired, the domicile of origin revives.
Immigration issues regarding LO
(1) LO leaving the UK as a child placed for adoption and entering the US under the general 90 day visitor rules for British citizens;
(2) LO leaving the UK in the event of an adoption order being made when it is proposed he would enter and reside in the US as a member of Mr and Mrs B's household (the B-2 visa);
(3) LO renewing his B-2 visa from inside the US for some 2 years until, under US immigration law, he is classified as a 'child' in the B's family.
(4) After 2 years LO will qualify as a dependent family member entitled to inclusion in Mr B's E-2 investor visa.
(5) As a child of Mr and Mrs B LO stands to acquire a 'green' permanent residence card when Mr and Mrs B qualify for this status because their daughter becomes a US citizen and their visa sponsor.
i. Mr and Mrs B, who are British citizens have the US immigration status of Treaty Investor and spouse. (Immigration and Nationality Act (INA) § 101(a) (15)(E). They currently hold non-immigrant E-2 Treaty Investor visas permitting them to live in, conduct business in and freely travel in and out of the US for renewable (unlimited) terms of temporary stay. As non-immigrant visa holders they are required to maintain a primary residence in the UK. Their family home in London is preserved and is occupied by Mr and Mrs A. Their visas are currently set to expire in 2020. They have resided in the US on this investor and other business visas for some 10 years. They have successful businesses there.
ii. Mr and Mrs B will be eligible to apply and to qualify for permanent residence status (a 'green card'/LPR – lawful permanent residence) when, in two years' time their daughter becomes a US citizen and can act as their sponsor. Their daughter is the wife of a US citizen husband and mother of a US citizen child. LO can be included in any such application as he will then be their 'child' for immigration law purposes.
iii. The spouse and child of a treaty investor accompanying or joining the treaty investor may receive the same immigration status and rights as the investor.
iv. An adopted child is classified as a 'child' for such immigration purpose if he is adopted while under the age of 16 and has been in the custody of and resided with the adopting parents for at least two years. [INA § 101(b)(1)(E)(i)] There is extensive authority stating that the two year residency requirement may occur before or after the adoption and that the custody and residency requirements can be fulfilled simultaneously. (Consular Efficiency Bill PL 99-653 §2)
v. Following the making of an adoption order and in advance of LO qualifying for an E-2 visa as the 'child' of Mr and Mrs B he is eligible to be issued with a B-2 temporary visa as a 'member of their household'. [9 Foreign Affairs Manual (FAM) 402.2-4(B)(5)] Mr and Mrs B will have to provide a letter attesting to their preserved residence in the UK and that they (and LO) will depart from the US if required on termination of their E-2 and B-2 status. Mr Heller is instructed to undertake the necessary immigration applications in this case.
vi. The US Immigration guidance Mr Heller has enclosed – makes clear that the B-2 visa classification is "appropriate for aliens who are members of the household of another alien in long-term non-immigrant status but are not eligible for derivative status under that alien's visa classification". The B-2 is a temporary, renewable visa. According to Mr Heller, LO can expect to be granted a 12 month renewable B-2 visa allowing him to travel in and out of the US and to reside there with Mr and Mrs B. He is able to extend or vary his B-2 visa from within the US and after 2 years can qualify for an E2 visa as Mr and Mrs B's 'child'.
vii. Mr Heller advised that it could affect the issuance of a B-2 visa for LO if he were placed with Mr and Mrs B under a special guardianship rather than an adoption order. (letter 12.9.2016)
viii. The more restrictive options available to the proposed adopters in Kent County Council v PA-K and IA (A Child)  EWHC 578 (Fam)  2 FLR 541 do not apply in this case as the PA-K adopters were lawful residents not non-immigrant visa holders able to sponsor a child member of their household.
Based on the information furnished, [LO] may apply for a B-2 (tourist) visa. Information about the visa application process is available via our website at https://uk.usembassy.gov/visas/tourism-visitor/
Once a Form DS-160 has been completed and electronically submitted for [LO], an account should be registered in his name with the Visa Appointment Service at https://ais.usvisa-info.com/en-gb/niv to pay the Machine Readable Visa (MRV) fee of $160, and to select delivery arrangements for the return of [LO's] passport in the event that his visa application is successful.
When registering with the Visa Appointment Service, please disregard any references to submitting [LO's] application to the Embassy by courier; his application should be submitted in person via a prearranged visa interview. Once registration of [LO's] Visa Appointment Service account is complete, please reply to this message to confirm:
• [LO's] full name, exactly as it is stated in his passport;
• The full names of each of his prospective adoptive parents;
- The name of the individual that will attend the interview on [LO's] behalf,
and their relationship to [LO] (this should be either of [LO's] prospective
adoptive parents or his social worker); and
• A preferred date and time for the interview appointment, between 8:00am
and 11:00am. Please note, no appointments are available on weekends or on UK or U.S. public holidays.
[LO] is not required to attend the appointment in person. However, his passport must be furnished on the day, along with the other documents outlined on our website at https://uk.usembassy.gov/visas/tourism-visitor/required-documents/ In addition, the individual attending the appointment on [LO's] behalf should bring their own passport, as well as any documentation that is available evidencing proof of custody.
If [LO's] social worker will be attending the visa interview, they should also bring their official work ID and a letter of authority from the legal department of the social services office allowing the named social worker to sign and submit the visa application on behalf of the said authority
As you may be aware, this office does not pre-adjudicate visa applications. The final determination on each individual's eligibility for a visa is a matter for the adjudicating consular officer and no assurances can be given in advance.
"….. [s 85] should be read restrictively … It should not be taken as covering what are temporary removals pending a return to apply for a Convention adoption order in this jurisdiction – and return they must, not least because that is what is required by the USA immigration authorities. In those circumstances, in my judgment, s.28 (2) and (3) empower the court to sanction an arrangement which means that the period prescribed by s.42 can be spent outside the jurisdiction. In order to clearly distinguish this situation from one to which s.85 would apply, the court should assert that the child remains subject to this jurisdiction, permission should be given for a specific time and the prospective adopters should be required to return the child to the jurisdiction within that period or earlier if called upon to do so."
66 Meaning of adoption in Chapter 4
This section has no associated Explanatory Notes
(1) In this Chapter "adoption" means—
(a)adoption by an adoption order or a Scottish or Northern Irish adoption order,
(b)adoption by an order made in the Isle of Man or any of the Channel Islands,
(c)an adoption effected under the law of a Convention country outside the British Islands, and certified in pursuance of Article 23(1) of the Convention (referred to in this Act as a "Convention adoption"),
(d)an overseas adoption, or
(e)an adoption recognised by the law of England and Wales and effected under the law of any other country;
and related expressions are to be interpreted accordingly.
Discussion and Decision