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Family Law

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26 JUL 2005

ADOPTION: Re C (Foreign Adoption: Natural Mother's Consent: Service) [2006] 1 FLR 318

(Family Division; Bodey J; 26 July 2005)

An English couple had previously been granted an adoption order in Papua New Guinea but the English courts would not recognise the Papuan order as the couple were not domiciled in Papua New Guinea at the relevant time. The couple applied to the English courts for an adoption order and separated before the hearing. The court held that adoption would promote and safeguard the child's welfare under the Adoption Act 1976, s 6(4). The court has jurisdiction to make an adoption order under ss 14 and 15 where a married couple or a sole applicant i.e. one of a separated couple, apply for an order. The various advantages of an adoption order being granted to separated parents as outlined in Re WM (Adoption Non-Patrial) [1997] 1 FLR 132 applied and the requirements of s 13(3) were satisfied in this case. Under s 16 no adoption order can be made unless there is consent from each parent or his consent can be dispensed with. The judge adopted the reasoning given by Johnson J in Re G (Foreign Adoption: Consent) [1995] 2 FLR 534 following Scott-Baker J in Re KAP (unreported) on 14 November 1988 that the English courts could not recognise the extinguishment of a natural parent's right to consent to an English adoption by virtue of a foreign adoption order, the validity of which the English courts does not recognise. The natural mother remains the child's parent. The question then arose as to whether the mother had consented to the English adoption or whether it could be dispensed with. The mother had unequivocally consented to the Papuan adoption order. The effect of a Papuan adoption order extinguishes parental rights and vests them in those adopting as is the case with an English adoption order. Considering all the evidence, Bodey J was satisfied that the written consent given by the natural mother at the time of the original adoption was sufficient to embrace this adoption albeit years later in a different country. This is a possibility recognised in Re A (Adoption of a Russian child) [2000] 1 FLR 539 that despite Re G, valid parental agreement could consist in agreement to adoption in the country of origin and did not have to include specific agreement to an English adoption. The judge purposively construed s 16(2)(b) no reasonable parent taking into account the child's welfare could reasonably deny consent. The Adoption Rules 1984, rr 15 and 21 express in mandatory terms that parents are to be parties and parties to be served. However, there is a discretion not to require service, notwithstanding the mandatory nature of the rules in question following Re R (Adoption) [1967] 1 WLR 34 and Re A (Adoption of a Russian child) [2000] 1 FLR 539. Here there were exceptional circumstances and there were no realistic benefits to the mother in serving her with notice of proceedings. She had clearly intended the child to be adopted by the applicants in the Papuan courts and anywhere else that would recognise her consent as being valid. It is not possible to conceive of any realistic argument the natural mother could advance against an adoption order in the English courts. Bodey J granted the adoption order.

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