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Family Law

The leading authority on all aspects of family law

05 FEB 2009

ADOPTION: Re A (Adoption: Removal) [2009] EWCA Civ 41

(Court of Appeal; Thorpe, Wall and Moore-Bick LJJ; 5 February 2009)

The child was in local authority care; the authority considered that adoption was in the child's best interests, and wished to assess a paternal uncle and aunt, living in the USA, as prospective adopters. There were no potential adopters among the family in England. Any family placement would therefore be governed by the international adoption provisions of the Adoption and Children Act 2002. Under s 84(4), a parental responsibility order could only be granted prior to adoption abroad if the child's home had been with the applicant or applicants throughout the preceding 10 weeks. Under s 42(7) an adoption order could not be made unless the court was satisfied that the adoption agency or local authority had had 'sufficient opportunities' to see the child with the applicant or applicants in 'the home environment'. The uncle and aunt were able to stay in England for a period, but could not remain for as long as 10 weeks, having work commitments and 5 children of their own. The local authority plan was for the 10-week period to be satisfied by the child living with the uncle and aunt in both the USA and England. The authority therefore sought the court's leave, under Children Act 1989, Sched 2, para 19, to send the child, now nearly 2 years old, to the USA with her current foster carer and a social worker. The foster carer was to return after 1 to 2 weeks; the social worker was to return after 4 weeks; if all went well the child was to stay in the US for a maximum of 90 days. The child and the uncle and aunt were then to return to England for further assessment in England. The Department for Children, Schools and Families opposed the authority's application, arguing that the 10 weeks to be spent in the applicant's 'home' had to be in a home in England. The judge considered that the plan promoted the welfare of the child, but refused to approve the local authority plan on the basis that such approval would create divergent authority at first instance. He granted the local authority leave to appeal.

The appeal was allowed. Under both s 84(4) and s 42(7), the home referred to did not have to be in England and Wales. The word 'home' was not geographically defined by the Act. The DCSF's policy-based argument in favour of requiring the home to be in England was not convincing, not least because it could work against the best interests of children by preventing them from being adopted by members of their families living abroad. As far as child protection issues were concerned, the local authority had to have 'sufficient opportunities' to see the child 'in the home environment', wherever that 'home environment' might be. A child going abroad for a trial period was not being 'placed for adoption', and came within Sched 2, para 19.

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