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Family Law

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25 FEB 2014

ADOPTION: Re MW (Leave to Apply for Adoption) [2014] EWHC 385 (Fam)

(Family Division, Holman J, 27 January 2014)

Adoption - Leave to apply pursuant to s 42(6), Adoption and Children Act 2002

The full judgment is available below.

The woman sought to apply to adopt the 17-year-old young man from Pakistan, who was her cousin. He had been living with her for the previous 16 months and, therefore, the requirement under s 42 of the Adoption and Children Act 2002 had not been met. The woman sought leave to apply to adopt pursuant to s 42(6) of the Act.

Since his arrival in the UK the young man had apparently settled well in the woman's home and bonded with her two sons.

During the proceedings the woman presented a document which apparently had been signed by the birth father, consenting to the adoption but nothing was forthcoming from the mother.

The court had to consider whether the application appeared to be one made in good faith and for good and appropriate reasons and also whether the proposed application had at least a reasonable or realistic prospect of success. On the facts and in the circumstances of this case there was not likely to be any significant harm or upset to the young man if the application was made. However, the court had to be alert to the possibility in a situation such as this that an application could be contrived application to gain permanent immigration status and citizenship here. On the face of it the woman had given a credible account in her statement as to how the young man was brought here and came to live with her. There was nothing in her account to suggest that she, at any rate, was party to collusive or contrived arrangements.

The application had reasonable prospects of success. It was not realistic to ask the woman to wait the requisite 3 years to apply to adopt the young man, give that he was already 17 and there was an absolute cut off at 19 for adoption applications. The local authority would conduct a full investigation and the woman was requested to take all steps to locate the young man's birth parents in Pakistan. 

A judicially approved version of the judgment with a comprehensive headnote will appear in a forthcoming issue of Family Law Reports.

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Case No. BD12Z01801

Neutral Citation Number: [2014] EWHC 385 (Fam)

 

IN THE HIGH COURT OF JUSTICE                 

FAMILY DIVISION

LEEDS DISTRICT REGISTRY

Leeds Combined Court

1 Oxford Row

Leeds

LS1 2BG

 

Monday, 27th January 2014

 

Before:

 

THE HONOURABLE MR JUSTICE HOLMAN

 

 - - - - - - - - - - - - - - - - -

In the matter of:

 

Re: MW (A Child)

 

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Transcribed from the Official Tape Recording by

Apple Transcription Limited

Suite 104, Kingfisher Business Centre, Burnley Road, Rawtenstall, Lancashire BB4 8ES

Telephone: 0845 604 5642 - Fax: 01706 870838

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Counsel for the local authority: MS M.SMITH

Mrs AS appeared in person, assisted by her McKenzie friend, Mr K

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 JUDGMENT

MR JUSTICE HOLMAN:

[1] A lady called FAS is seeking to apply to adopt a young man, MW.  M was born on 18 November 1996, so he is now aged about 17¼.  As I understand it, the actual relationship between Mrs AS and M is that they are first cousins once removed.  That appears from paragraph 4 of the first statement of AS dated 17 December 2013.  She explains there that her late father was the brother of M's paternal grandmother.  It follows from that, if correct, that Mrs AS is the first cousin of M's father and, accordingly, the first cousin once removed of M himself. 

[2] In November 2012, Mrs AS issued in the Bradford County Court what was in form an application for a convention adoption order.  Since the other country involved, namely Pakistan, is not a party to the relevant convention, that application, as such, was misconceived.  However, she later issued a fresh application seeking simply an adoption order.  Section 42 of the Adoption and Children Act 2002 has the effect that someone in the situation of Mrs AS cannot apply for an adoption order unless the child concerned has had his home with her for not less than three years during the period of five years preceding the application.  In this particular case, it was only in October 2012 that M began to have his home with the applicant.  That is only now about 16 months ago.  However, section 42(6) of the Act provides that, ‘...but subsections (4) and (5) do not prevent an application being made if the court gives leave to make it.'  Accordingly, by an application notice dated 17 December 2013 AS has now applied to the court for leave pursuant to section 42 (6) to make an application for an adoption order.

[3] In support of that, there is the statement of AS dated 17 December 2013 and also a statement (which in my bundle is unsigned and undated) which purports to have been made by M himself.  From those documents and indeed some answers supplied by the Home Office in answer to a request to it, the essential facts appear to be that M was born and brought up in Pakistan where he lived with his parents.  At some stage, his parents seem to have separated.  In his statement M says:

"All I remember is being severely blamed and admonished by my parents.  All my life I have yearned for love and affection from my parents and I find it difficult to control my emotions...  My upbringing has been full of indescribable atrocities and calamities and it is best that I don't mention anymore, otherwise I will not be able to continue with my statement."

He then describes his father as a 'cantankerous dad' and he describes how he received a permanent injury to his face during the course of an altercation between his parents.

[4] It appears that in the summer of 2012 M's father brought him to England.  They both had a visa of six months' duration.  However, in September 2012, there was a meeting between M and Mrs AS and, as I have said, since October 2012 he has in fact lived with her.  His father appears to have returned to Pakistan.  In his statement, M describes, in summary, how he has bonded and settled very well in the home of Mrs AS and that he has formed a brotherly relationship with her own two sons, who are around the same age as him.  He states in his statement that he:

"...reached a decision that perhaps I was born to join the family of Mrs F AS...  I am thoroughly thrilled with my new life and I am very lucky to be in the surround of my mum, F AS...  My mum loves me to bits and always watches over me.  She is a best mum in the world one can ask for ..."

[5] Mrs AS does say in support of her application that the birth father of M has actually signed in November 2012 a formal written consent to the adoption of M.  I have seen a copy of the document upon which she relies and, for the purposes of today's application only, I will take that at face value.  There is, however, nothing at all from M's mother and no evidence at all as to her state of mind in relation to adoption. 

[6] It is, of course, clear that M has now long overstayed and has no lawful right to be in the United Kingdom at all.  However, the Secretary of State clearly has knowledge of this case, if only as a result of the request for information that was sent to her.  At the moment, the Secretary of State does not appear to be taking any active steps to seek to remove M. 

[7] Section 42 of the Adoption and Children Act 2002 does not itself state or indicate any test to be applied by the court on an application for leave.  The notes in the 2013 Family Court Practice at page 322 make reference to certain authorities, which, however, I have not myself seen today.  It is obvious that on an application of this kind the welfare of the child is not the paramount consideration.  Clearly, however, the court must consider and give weight to the welfare of the child concerned.  The court must consider whether the application appears to be one made in good faith and for good and appropriate reasons; and the court must consider whether the proposed application has at least a reasonable or realistic prospect of success.  I cannot see on the facts and in the circumstances of this case that there is likely to be any significant harm or upset to M if the application is made.  Indeed, the tenor of his own purported statement is to the effect that he already regards the applicant as his ‘mum' and would appear himself to wish to be adopted. 

[8] It is, of course, very concerning in a situation such as this that this may be a contrived application, designed, perhaps as a result of some collusion, to gain permanent immigration status and citizenship here for M.  I am very alert to that possibility and, unquestionably, it will require to be much more closely investigated.  On the face of it, however, Mrs AS has given a credible account in her statement dated 17 December 2013 as to how M was brought here and came to live with her.  There is nothing in her account to suggest that she, at any rate, was party to collusive or contrived arrangements.  The purported statement of M tells a sad story of his childhood and upbringing in Pakistan and seems to show a genuine psychological desire on his part to become a full adoptive member of the family of Mrs AS.  There is nothing in his statement obviously to suggest that he has colluded in some plan or arrangement to gain immigrant status for him. 

[9] I have made crystal clear to Mrs AS today, and spell it out very, very clearly indeed on the face of the order, that the decision today is a decision on leave only.  The question whether or not the court will actually make an adoption order is unclear and uncertain, and an adoption order may not be made.  In any event, it is unlikely that an adoption order will be made unless both birth parents have been clearly served with the application and their views ascertained.  Further, if the Secretary of State for the Home Department resists the making of an adoption order, her resistance will clearly be relevant to the court's final decision whether or not to make an adoption order, although it would not of itself be decisive. 

[10] However, with all those points stressed and spelled out, I have to say that this proposed application is one that does seem to me to have a reasonable or realistic prospect of success.  If the facts have been truthfully stated by Mrs AS and M himself, then this is a sad story of a somewhat rejected and ill-treated child who has been brought to England and effectively abandoned by one of his parents to a loving and caring relative.  If that is so, and subject to any resistance by the Secretary of State, and subject to the views of the birth parents when located, then it is clearly reasonably possible that an adoption order will be made, particularly if M himself strongly enough seeks it. 

[11] One might, of course, say in different circumstances that the applicant should wait for the three years that are prescribed in section 42(5) of the Adoption and Children Act 2002.  The purpose of that is, of course, to enable a prolonged period of time to pass to see how settled the child concerned really does become.  However, there is an absolute cut off age of 19, after which an adoption order simply cannot be made.  In view of the age of M already, if the applicant did have to wait for the full three years before she could make her application, then it would be too late for an adoption order to be made. 

[12] For all those reasons, I am satisfied that this is a case in which I should grant leave today, but subject to the very clear written warnings that I have mentioned and that will be recited in the formal order.  The local authority must now carry out a full investigation into the circumstances in which M is living and the strength of relationships between him and Mrs AS and her wider family here.  The Secretary of State for the Home Department must be kept fully informed at every stage of these proceedings and must specifically be sent a copy of the local authority's report when it is available.  Concurrently with that, there is a heavy duty upon Mrs AS to take active steps to locate each of the birth parents in Pakistan and to ensure that they are fully informed about, and supplied with all the documents relevant to, these proceedings and the proposed adoption application. 

[13] When all of that has been done, the matter will be listed for further directions only before a judge of the High Court, sitting here in Leeds, towards the end of July 2014.  Informed by all that happens between now and then, that judge will be best placed to decide what further directions may require to be given. 

[14] I will direct that a transcript of the judgment that I have given today shall be made at the expense of public funds and supplied to both parties and the Secretary of State for the Home Department.

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