INTERCOUNTRY ADOPTION: R (Charlton Thomson and Others) v Secretary of State for Education and Skills [2005] EWHC 1378 (Admin)

11 JUL 2005

(Queens Bench Division; Munby J; 4 July 2005) [2006] 1 FLR 175

In June 2004, the Secretary of State imposed a temporary suspension on adoptions from Cambodia. The suspension applied to would-be adopters who had been approved by the UK authorities but not to those who had already received a matching report from the Cambodian authorities. The claimants, six British couples, had been attempting to adopt Cambodian children. All were at different stages in the adoption process but none had received a matching report at the time that the Secretary of State imposed the temporary suspension. The two couples whose case had advanced furthest had been told by the Department of Education and Skills a couple of months before the suspension that certificates of eligibility to adopt had been granted, affixed to their applications and sent to the British embassy in Cambodia. The claimants sought judicial review of the Secretary of State's decision to impose a temporary suspension, her failure to process the majority of the applications for certificates of eligibility and suitability to adopt and her decision to revoke the certificates already issued. The court refused the applications for judicial review on every ground and dismissed the application for specific disclosure. The Secretary of State undoubtedly retained discretion as to whether or not to issue a certificate of eligibility. Her decision was consistent with the proper exercise of her powers in the context of the statutory scheme as a whole and met the common law test of rationality and the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (the European Convention) test of proportionality. Given the nature of the Secretary of States discretion and the purpose for which it could be exercised, she was as entitled to revoke or withdraw a certificate which had not been acted upon by the Cambodian authorities, as she was to refuse to issue a certificate. There had been no breach of legitimate expectation as none of the statements relied upon by the claimants amounted to a promise or commitment by the Secretary of State that pending cases would continue to be processed in accordance with published procedures. She had been entitled to conclude that any reasonably feasible alternative safeguards that might have been put in place were simply not likely to be sufficiently effective to address the very real and pressing problems that called so imperatively for action on her part. The difference between prospective adopters who had gone beyond the point of suspension and those who had not related simply to how far they had got through the adoption process as a matter of fact. It was not a prescribed ground of discrimination under the European Convention, Art 14 based upon personal status. The exceptional circumstances procedure, as operated by the Secretary of State, met every common law requirement of fairness and was compatible with the requirements of Art 6. Article 8 was not engaged. Further disclosure was not necessary as the voluminous materials provided by the Secretary of State enabled a fair disposal of the issues. The case for specific disclosure had not been brought within the principles identified in R v Secretary of State for the Environment ex parte Islington London Borough Council [1991] CAT 1191/761.

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