Does English adoption law 'need' to change?
The argument put forward by the mother was that most other European countries do not countenance non-consensual adoption or, if they do, make far less use of non-consensual adoption than domestic courts do. This argument was roundly rejected by the President, who concluded that there can be no suggestion that our law is incompatible with the UK's international obligations generally and its obligations under the ECHR. However, he stressed again (see
Re E (Brussels II Revised: Vienna Convention: Reporting Restrictions)  EWHC 6,  2 FLR 151) that it is crucial that courts in England and Wales are aware of the concerns expressed by other countries about the domestic approach to non-consensual adoption. Also of great importance is the imperative to apply rigorously the test of 'only adoption will do' and to ensure that best practice is followed in relation to all the aspects of the case including those relating to international dimensions (more on best practice will be set out below).
The interface between Articles 1(3)(b) and 15 of BIIR
As readers will be aware, Art 15 of BIIR provides a mechanism to transfer a case or a part thereof to another Member State that is better placed to try the matter and would not otherwise have jurisdiction pursuant to BIIR. However, Art 1(3)(a) specifically excluded from the remit of BIIR matters relating to adoption or 'preparatory to adoption'.
It was argued by the mother that a leave to oppose application is not a move preparatory to adoption, but, in fact, the complete opposite. Both the mother and the Latvian Central Authority argued that, whilst the mother still held parental responsibility, the case could be transferred to Latvia because Latvia was better placed to determine all issues relating to parental responsibility (including which type of placement CB should have). Lastly, it was argued that the failure to notify Latvia in good time meant that the local authority could not rely on the exclusion under Art 1(3)(b) to prevent transfer that might have been considered at an earlier stage, were Latvia to have been notified in good time that CB was in care.
The court found that there was no jurisdiction to consider an Art 15 transfer and approved arguments that the use of Art 15 is specific to a case of a part thereof. It does not connote a power to transfer jurisdiction at large in relation to a child. Further, leave to oppose adoption is an integral part of the process preparatory for adoption and so BIIR does not apply.
Best practice in cases involving foreign nationalsIt was argued by the mother and by the Latvian Central Authority that the admitted failure of the local authority to notify Latvia of the care proceedings in good time meant that:
a) there was a material change in circumstances within the meaning of s 47(5), once Latvia was notified,
b) the local authority should, in effect, be estopped from relying on its own default in relation to the Art 15 argument (see above),
c) the late involvement of Latvia meant that new options were available for the placement of CB which were not previously available and which should be explored in preference to adoption.
The court again rejected all the above arguments because the involvement of the Latvian state did not bring about any tangible change in circumstances relevant to decision-making about the child. The case leaves open what approach would be taken if the impact of a belatedly notified embassy was more significant.
The court provided comprehensive guidance as to best practice that should be followed in
all care cases involving a foreign national child:
a) local authorities should notify embassies that a foreign national child is in care at the earliest opportunity. It is noteworthy that the President was careful (as he was in
Re E) to form no conclusion as to whether or not a failure to notify an embassy was actually in breach of the Vienna Convention on Consular Relations 1963. He merely states that local authorities should act as if a failure to notify was in breach of international obligations,
b) the court should consider whether or not a case is suitable for an Art 15 transfer at the outset of proceedings,
c) there must be rigorous attention paid to considerations pertaining to the child's national cultural, linguistic, ethnic and religious background, However, the loss of culture, heritage and language are not in themselves a reason not to make an adoption order when circumstances demand (on the high threshold already required) that an adoption order must be made.
A requirement to assess parents seeking permission to oppose under s 47(5)The mother complained that she had last been assessed in 2012 and that her rights protected under Arts 6 and 8 of the ECHR required that she be given an opportunity for further assessment.
This argument was rejected. There is no requirement to assess a parent unless the information available indicates that such assessment is required. This is a critical finding, given the increasing trend for parents to seek permission to oppose adoption.
Christopher Miller acted for the local authority.