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Family Law

The leading authority on all aspects of family law

15 OCT 2014

K and Another v FY and Another [2014] EWHC 3111 (Fam)

K and Another v FY and Another [2014] EWHC 3111 (Fam)
(Family Division, Holman J, 15 September 2014)

Adoption – Consent – Child placed with couple for 9 years – Mother and father could not be found – Whether their consent could be dispensed with for the purposes of s 52(1) of the ACA 2002 – Whether an adoption order should be granted.

The full judgment is available below.

An adoption order was granted in respect of a 9-year-old child who had lived with the prospective adopters for his entire life and whose parents could not be located.

The married husband and wife applied for an adoption order in respect of a 9-year-old child who had lived with them for his whole life. In 2005 the mother returned to India leaving him in their care and made a declaration that it was in the child’s best interests to remain in the UK and for him to ultimately be adopted by the couple.

The child had only limited permission to remain in the UK. Neither the mother nor the father could be located.

An adoption order was granted. The court was not prepared to find that the declaration made by the mother provided her effective consent to the adoption. But focusing on the reality of the case the parents could not be found within the meaning of s 52(1) of the Adoption and Children Act 2002. It was, therefore, open to the court to dispense with the parents’ consent. It was clear that the child was thriving with the couple and that it was in his best interests to make an adoption order.


Claim No: FD 13 Z 00545
Neutral Citation Number: [2014] EWHC 3111 (Fam)

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Strand
London
WC2A 2LL

Date: Monday, 15th September 2014

Before:

MR JUSTICE HOLMAN

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Between:

(1) K
(2) K
Applicants

- and -

(1) FY
2) C (Through the Child’s Guardian Peter Taylor)
Respondents

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Digital Transcription by Marten Walsh Cherer Ltd., 1st Floor, Quality House, 6-9 Quality Court Chancery Lane, London WC2A 1HP. Tel No: 020 7067 2900, Fax No: 020 7831 6864, DX: 410 LDE Email: info@martenwalshcherer.com Website: www.martenwalshcherer.com

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Miss Hartnett appeared on behalf of the Applicants
The First Respondent did not appear and was not represented
Mr Reed (instructed by Messrs Sternberg Reed) appeared on behalf of the Child’s Guardian

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JUDGMENT

Mr Justice Holman
:

[1] This is an unusual case. It is an application by a married couple, who are of Asian origin, but British citizens, to adopt a young man, now aged nine and a half, who has lived with them, effectively, for his whole life.

[2] The essential background facts and circumstances are as follows. The applicants are now aged in their mid to late fifties and are married to each other. In about July 2005, a lady named F Y travelled to England and spent a period of time residing with these applicants at their home in Greater London. F Y had with her three children, whom she said were her own children. The youngest of the three children was C, to whom this application now relates. C had been born in early 2005. Therefore, at that time, he was only about six months old.

[3] F Y and her three children resided at the home of these applicants until about the end of 2005. She then returned to Pakistan, taking with her the two eldest of her children, but leaving with these applicants her third and youngest child, C. By then, C was about 11 months old.

[4] Within the bundle now before the court, there is a document described as a statutory declaration made by somebody purporting to be F Y on 9th December 2005. Within this declaration, she says that she has decided that it is in the best interests of C for him to stay in the United Kingdom with the applicants, “with view to ultimate adoption” by them. She attached various documents to that statutory declaration, including a copy of her own passport.

[5] Between then and now, C has lived continuously with these applicants. He is now aged nine and a half and has been solely and exclusively brought up and looked after by them for almost the whole of his life.

[6] These two applicants do not have other children from their marriage. As I understand it, there have been difficulties with conception. However, the male applicant did also marry another lady and had other children by her. C has a close relationship with those other children and regards them as his brothers. It was only very recently, during the course of these proceedings, that C was first told that he is not the genetic or biological son of these applicants, but is somebody who has simply lived with them for, effectively, all of his life.

[7] C only has time limited permission to remain in the United Kingdom. This was recently extended by the Secretary of State for the Home Department until November 2016. If an adoption order is made, that will have the effect that he attains British citizenship and is able to live here for the rest of his life if he wishes. As a result, it was important to engage the Secretary of State for the Home Department in these proceedings, so that she could participate and, if she thought fit, resist the making of an adoption order.

[8] There has been a certain amount of correspondence and communication with the Secretary of State, but it is sufficient for today’s purposes if I refer to the terms of the order that I made on 2nd July 2014. Paragraph 1 of that order made clear that the adoption application would be listed for final hearing here, today, 15th September 2014. Paragraph 4 of the order provided that: “A copy of this order and the Guardian’s final report must be served on the Secretary of State for the Home Department (by the Treasury Solicitor) and she may appear at the final hearing, if so advised, to make any submissions that she may wish on whether or not an adoption order should be made.”

[9] I am satisfied that a copy of that order was indeed served upon the Secretary of State for the Home Department via the Treasury Solicitor. There is a letter dated 18th July 2014 from the solicitors on behalf of the applicants, to the Treasury Solicitor. That letter clearly says that it encloses a copy of the amended adoption application and a copy of the order of myself, dated 2nd July 2014, from which I have just quoted.

[10] There is an email dated 23rd July 2014, from Jamie Johnston, in the office of the Treasury Solicitor, which clearly says “Thank you for your letter of 18th July”. It continues by making reference to some linked application for judicial review and says: “I suspect this will probably mean that I am no longer the best person to act as contact in the family proceedings, but I’ll need to find out who is. I’ll let you know.”

[11] I am not aware of any further communication from Jamie Johnston or the Treasury Solicitor. However, the language of that email does satisfy me that the Treasury Solicitor had indeed received, by 23rd July 2014, copies of the amended adoption application and my order of 2nd July 2014, which made absolutely plain both the date of this final hearing and also the fact that the Secretary of State for the Home Department could appear today if she wished to do so.

[12] I have also been shown a letter dated 2nd September 2014 from Sternberg Reed, the solicitors who act on behalf of the guardian in these proceedings. That letter is sent also to the Treasury Solicitor’s Department and clearly attaches a copy of the guardian’s final report in this case, in compliance with that part of paragraph 4 of my order of 2nd July 2014, which required a copy of the guardian’s final report to be served upon the Treasury Solicitor. There is an email to Sternberg Reed from the same Jamie Johnston dated 3rd September 2014, in which he says “Thanks for this. I’ve passed on to my client.”

[13] I am thus satisfied that the Secretary of State for the Home Department has had ample knowledge of these proceedings and of the final hearing here today, and the contents of and recommendation in the final report of the child’s guardian. She has not chosen, in any way whatsoever, to seek to participate in these proceedings or, indeed, to resist the making of an adoption order.

[14] I cannot make an adoption order unless either all persons having parental responsibility for the child have given a consent as required by the Adoption and Children Act 2002, or the consent should be dispensed with on one of the bases set out in section 52 of that Act. Section 52(1) provides that:

“The court cannot dispense with the consent of any parent or guardian of a child to … the making of an adoption order in respect of the child unless the court is satisfied that—

(a) the parent … cannot be found …, or

(b) the welfare of the child requires the consent to be dispensed with.”

[15] I am not willing, on the facts and in the circumstances of this case, to treat the statutory declaration to which I have referred, which dates from as long ago as 9th December 2005, as being a consent from the mother that satisfies the requirements of the Act. It may well be that, in this case, consent could and should be dispensed with on the ground that the welfare of the child requires the consent to be dispensed with. However, in my view, it is more appropriate to focus on the reality of this particular case, which is that neither the mother nor the father, whoever he may be, of this child can now be found.

[16] There is an exhaustive report dated 29th April 2014 from a social worker, R F-T, who describes herself as specialising in working with families from India and Pakistan. In her very thorough report, Ms F-T describes the lengths to which she has gone to try and track down either the mother or any father of this child. She has clearly made exhaustive enquiries within Pakistan and has come to the clear conclusion, for good reasons that are explained in the report, that it is simply impossible now to track down or trace either parent of this child.

[17] When section 52 of the Act provides that consent may be dispensed with if the court is satisfied that the parent “cannot be found”, some proportionality must clearly be read into that statutory provision. There may, no doubt, be cases and situations in which, if vast resources and a considerable number of people were engaged for a significant amount of time in trying, by detective work, to track somebody down, it might be possible to do so. However, even in a situation as grave and final as adoption, there must be some limits to which Parliament intended applicants and, ultimately, the court to go in trying to find birth parents who have simply disappeared.

[18] It was thought at one stage that the father of this child might be the gentleman who had been named by F Y. However, the only identified person corresponding to the name she gave has been tracked down in Pakistan and he resolutely denied paternity of the child concerned and strongly asserted that he only had two daughters by a wife, who had indeed since died. DNA testing was subsequently done, which precluded that gentleman from being the genetic father of this child.

[19] In all those circumstances, I am now judicially satisfied, for the purposes of, and within the meaning of, section 52(1), that the parents of this child cannot be found. Accordingly, it is open to me to dispense with the requirement of their consent to the making of an adoption order.

[20] I now turn to the merits of the adoption application. There has been a very thorough investigation into the circumstances of these applicants and the circumstances in which this child has lived and is living, by a social worker, J T, of the local authority for the area in which the family live. Her report, dated 24th January 2014, clearly concludes that this child has been, and is being, very well brought up by these applicants and thrives in their care.

[21] Separately, there has been an investigation and report by the child’s guardian, Mr Peter Taylor. His report, dated 29th August 2014, also clearly concludes that this child has been, and is being, very well brought up by these applicants. Mr Taylor says at paragraph 8 of his report:

“It is beyond doubt that he has experienced a very high quality of care at the hands [of the applicants] and presents as securely attached to the applicants. It is the strength and quality of this attachment that so far has enabled him to deal with the knowledge that they are not his birth parents without significant emotional and psychological distress.”

[22] At page 5 of the report, under the heading:

“Assessment using the welfare checklist”, Mr Taylor reports: “I have interviewed C and he is absolutely clear in expressing a wish to be adopted. He fully understands what adoption means and he is particularly anxious to be of the same status as his brothers …”

[23] On page 6, Mr Taylor says:

“I have no doubt from my own observations, and from reading the report [of J T] that his day to day needs are well met by the applicants … He is already fully integrated into the adopted family unit and is securely attached to the applicants and his extended family, including his three half-brothers …”

[24] At paragraph 11, Mr Taylor says: “In my view, it is vital that he remains in the care of the applicants …”

[25] Therefore, the very clear recommendation of the guardian, Mr Taylor, having investigated this case as fully as he can, is that this child is thriving with these applicants, is being very well looked after by them, wishes to be adopted by them, and should be adopted by them.

[26] In all those circumstances, I am quite satisfied that this is an appropriate case in which I should make an adoption order. I am satisfied, as I have already explained, that neither parent of this child can be found. Therefore, the way is open to me to make an adoption order.

[27] Accordingly, with very great pleasure, I now make a formal order whereby C, who was born on [blank] 2005, is adopted by these applicants.

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