| ADOPTION — Adoption order — Arrangements for adoption — Prospective adoptive parents living in America — Local authority seeking court order approving removal of child from England for holiday placement in America as first step in adoption plan — Whether removal of child “placement for adoption with prospective adopters” — Whether removal lawful — Whether periods spend in American home to be taken into account for purpose of assessing whether child having spent 10 weeks in prospective adoptive parents “home” — Whether prospective adoptive parents capable of qualifying for parental responsibility order — Children Act 1989, Sch 2, para 19 (as inserted by Adoption and Children Act 2002, s 139(1), Sch 3, paras 54, 72) — Adoption and Children Act 2002, ss 84, 85
Haringey London Borough Council v MA [2008] EWHC 1722 (Fam); [2008] WLR (D) 250
Fam D: Charles J: 21 July 2008
The court could lawfully order the removal of a child from England and Wales pursuant to para 19 of Sch 2 to the Children Act 1989 to enable a local authority to assess whether adoption abroad by prospective adoptive parents would be the most appropriate welfare solution for that child.
Charles J so held in the Family Division, when refusing to approve the removal of the child, IA, from England and refusing to make a declaration sought by the applicant, Haringey London Borough Council, that its adoption plan was lawful. Charles J joined the Department for Children, Schools and Families as the fourth respondent.
The local authority had made a care order in respect of the child five months after she had been born and had sought adoptive parents. The only family members considered viable were a paternal uncle and aunt who lived in America. The local authority wished to investigate the matter and as the initial step in their adoption plan proposed that the child travel to America for a holiday placement. Under s 85(4) of the Adoption and Children Act 2002 it was an offence to remove a child from the England and Wales for the purposes of adoption except under the authority of a court order made under para 19(1) of Sch 2 to the 1989 Act. The court could make an order under para 19(1) where the provisions of para 19(3) were satisfied, taking into account, inter alia, the child’s best interests. Under para 19(9), as inserted, an order could not be made under para 19(1) giving authority for removal where the local authority was “placing a child for adoption with prospective adopters”. The adoption plan ultimately required the aunt and uncle to make an application under s 84 of the Adoption and Children Act 2002 for parental responsibility. Under s 84(4) an application could not be made unless at all times during the preceding ten weeks the child’s home was with those applying for adoption. In order for the aunt and uncle to be able to comply with this requirement it was necessary that the period that the child had spent in America be taken into account.
CHARLES J said that provided the provisions of para 13(3) of Sch 2 to the 1989 Act were satisfied permission could lawfully be given for a local authority to arrange for a child to live outside the United Kingdom for the purposes of an investigation and assessment of whether adoption abroad by the person with whom the child was to live would be the most appropriate welfare solution for that child. Such an arrangement did not fall within the concept of “placement for adoption with prospective adopters” and so the bar to removal in para 19(9) did not apply. In the circumstances the child’s removal would have been lawful. Taking a purposive approach the “home of those applying for adoption” referred to in s 84(4) of the 2002 Act did not have to be in England and Wales and the period the child spent in America could therefore be taken into account. Since, however, there was both parliamentary material and authority that supported the opposite approach and it was not desirable to create divergent authority on the issue and since it was not appropriate to authorise removal when a parental responsibility order could not ultimately be made, the court would not exercise its discretion to approve the child being placed with the aunt and uncle in America. Any decision as to the lawfulness of the plan proposed by the local authority should be made by the Court of Appeal.
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Appearances: Ruth Cabeza (Head of Legal Services, Haringey London Borough Council) for the local authority; Jane Hayford (Silvers Solicitors) for MA (the mother); Jane Drew (Wilson & Co) for JN (the father); Yvonne Brown, solicitor, (Yvonne Brown & Co) for the children’s guardian; Malcolm Chisholm (CAFCASS Legal) as advocate to the court; Martin Chamberlain (Treasury Solicitors) for the Department for Children, Schools and Families.
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