| ADOPTION — Arrangements for adoption — Placement order — Local authority having care of child — Statute requiring child’s home to be with prospective adopters for ten weeks immediately prior to making of parental responsibility order — Prospective adopters in United States of America unable to come to United Kingdom for statutory period — Whether statutory period to be spent in the United Kingdom — Adoption and Children Act, s 84(4)
Haringey London Borough Council v Department of Children, Schools and Families and another; [2009] WLR (D) 38
CA: Thorpe, Wall and Moore-Bick LJJ: 5 February 2009
S 84(4) of the Adoption and Children Act 2002 did not require that the period of ten weeks referred to in that section be spent in the United Kingdom.
The Court of Appeal so held when allowing an appeal by Haringey London Borough Council against the decision of Charles J, sitting in the Family Division of the High Court, on 21 July 2008, by which he refused the local authority’s application for his approval of its proposal to arrange for a child in its care, IA, to live with her paternal uncle and aunt in the United States of America on an extended visit pursuant to para 19 of Sch 2 to the Children Act 1989.
While the judge below would have granted permission on welfare grounds for the child to live in America, and there was no legal bar to the taking into account of the period to be spent by the child in the United States of America, he declined to make the order sought because it would have created divergent authority at first instance and would have run counter to the underlying assumption of the Court of Appeal in In re G [2008] EWCA Civ 105; [2008] 1 FLR 1484 and 1497.
S 84(4) provides: “ 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.”
WALL LJ said that the most important question raised by the appeal was whether, in an overseas adoption, a child’s “home” with prospective adopters during the period of ten weeks immediately prior to the making of an order for parental responsibility under s 84(1) of the 2002 Act had to be in England and Wales or whether it could be with the prospective adopters, wherever they happened to be living. The district judge was correct in his formulation of the construction of ss 84(4) and 42(7) of the 2002 Act by which he pointed out that s 84 was specifically directed to the making of a parental responsibility order in favour of a person or persons living abroad. The word “home” in s 84(4) was not geographically defined. The phrase “child’s home was with the applicant” fitted far more readily with a home outside the jurisdiction if that was where the prospective adopters’ home truly was. If the location of the “home” was undefined, the reasons for concluding that it must be in England and Wales became reasons of policy, but a policy which militated against prospective adopters coming to England and Wales, at the very least might have worked against the best interests of children by preventing them from being adopted by members of their families living abroad. Accordingly, both on grounds of construction and policy, s 84(4) of the 2002 Act did not require the ten-week period to be spent in the United Kingdom.
MOORE-BICK LJ gave a concurring judgment and THORPE LJ agreed. |
Appearances: Anthony Hayden QC and Ruth Cabeza (Corporate Legal Services, Haringey London Borough Council) for the local authority; Martin Chamberlain and Anna Burne (Treasury Solicitor) for the Department of Children, Schools and Families; Malcolm Chisholm (CAFCASS Legal) for CAFCASS Legal.
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