| ADOPTION — Adoption order — Arrangements for adoption — Child placed by local authority prior to adoption abroad — Prospective adopters applying for parental responsibility order to facilitate removal of child from jurisdiction — Written confirmation of entry authorisation required from relevant foreign authority before making parental responsibility order — Adoption and Children Act 2002, s 84 — Adoptions with a Foreign Element Regulations 2005 (SI 2005/392), reg 10(b)(iv)
In re G (A Child) (Adoption: Placement outside Jurisdiction) [2008] EWCA Civ 105; [2008] WLR (D) 56
CA: Sir Mark Potter P, Wall and Lloyd LJJ: 21 February 2008
On a proper construction of reg 10(b)(iv) of the Adoptions with a Foreign Element Regulations 2005 it was the foreign equivalent of the English adoption agency which simply needed to confirm that from its past knowledge and experience, provided all relevant United Kingdom and foreign country procedures were followed, the child would be authorised to enter the foreign state.
The Court of Appeal so stated when adjourning an appeal by the mother of the child, G, against the order made by the judge, sitting as a judge of the High Court, on 1 February 2008 under s 84 of the Adoption and Children Act 2002 whereby he granted parental responsibility to Mr and Mrs C to facilitate G’s removal to the United States where they intended to apply to adopt her.
The grounds for the appeal were that, since G’s home had not been with both adopters for 10 weeks before the application was made, contrary to s 84(4) of the 2002 Act, and since reg 10(b)(iv) of the Adoptions with a Foreign Element Regulations 2005, which required prior written confirmation from the relevant foreign authority that G would be authorised to enter and reside permanently in that country had not been complied with, the judge had no power to make the order.
SIR MARK POTTER P said, giving the judgment of the court, that all parties were agreed that adoption was in G’s best interests; however the mother wanted G to be adopted in the United Kingdom. Although Mr C had only spent three of the required 10 weeks together with his wife and G in the English home, their Lordships agreed with the judge that the issue was one of fact and degree; physical presence throughout the period was not necessary to satisfy the requirements of s 84(4) provided, as here, the domestic authorities were able satisfactorily to assess the prospective adopters and the relationship they enjoyed with the child. With regard to the second ground of appeal, it was accepted on all sides that reg 10(b)(iv) of the 2005 Regulations had not been complied with and consequently the judge had no power to make the order by virtue of s84(3) of the 2002 Act. However, until the prospective adopters could produce such order demonstrating that they had exclusive parental responsibility for G, the United States embassy in London was not prepared to grant G a visa. This classic double bind or Catch 22 could not be simply overridden. However, in their Lordships’ view the correct reading of reg 10(b)(iv) was that first, the confirmation required to be given by the “relevant foreign authority” was to be given by the foreign equivalent of the English adoption agency, not by a governmental body, and secondly that it did not need to be given in absolute, unconditional or unqualified terms; what was required was confirmation to the effect that, provided all relevant procedures in the United Kingdom, and any adoption related procedures under the law of the foreign state which were prerequisites to the child being allowed into that state were followed, then, from its knowledge and experience, that child would be authorised to enter the foreign state. The appeal would be adjourned for 28 days and the local authority and children’s guardian invited to approach the American Adoption Agency to enquire if that organisation was able to provide the level of confirmation necessary; if the court were thus satisfied that the fresh evidence fulfilled the requirements the appeal would be dismissed and the judge’s order under s 84 of the 2002 Act confirmed.
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