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Family Law

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04 MAR 2016

Re JL and AO (Babies Relinquished for Adoption) [2016] EWHC 440 (Fam)

Re JL and AO (Babies Relinquished for Adoption) [2016] EWHC 440 (Fam)

(Family Division, Baker J, 3 March 2016)

Public law children – Adoption –  Eastern European parents – Whether children relinquished for adoption could be adopted in the UK – Whether they could be placed in their country of origin

In two joined cases where babies were relinquished for adoption at birth in the UK the judge held that BIIR did not apply and plans for adoption were authorised to proceed.

The two cases involved babies born to mothers of Eastern European origin who gave birth in the UK and relinquished them for adoption.

JL's parents originated from Estonia and came to the UK to find work. The mother hid the pregnancy and had no contact with medical services until her waters broke and she went into labour. She indicated that she didn't want to keep the baby and he was voluntarily accommodated in foster care. The father expressed his wish not to care for the baby and the maternal aunt confirmed that the family were unable to offer the baby a home and that they supported his adoption in the UK.

The adoption and permanence panel recommended that the older child be placed for adoption and prospective adopters were identified. Concerns were raised for this case and other similar cases pending regarding jurisdiction. The Estonian authorities were contacted. It was confirmed that the child could not be adopted in Estonia within a timescale that would meet his needs and, therefore, they were happy for the UK adoption to proceed and to play no further part in the proceedings.

The Hungarian parents of AO also came to the UK to work. The local authorities became aware of the pregnancy when the mother requested a termination at 25 weeks' gestation which was not possible. They wished for the child to be adopted and for their families not to be informed about the pregnancy. The father decided he would not enter the delivery room and the mother did not want skin-to-skin contact following the birth.

The Hungarian authorities were contacted and responded saying that only the Hungarian authorities had the right to decide on the adoption of a Hungarian child. They sought the child's return to Hungary for placement there.

The local authority applied under the the inherent jurisdiction for a determination as to the child's habitual residence and the Hungarian consulate and the Hungarian Central Authority were invited to attend but were unable to do so.

The fact that JL and AO were nationals of respectively Estonia and Hungary did not, by itself, prevent a court in this country making either of them the subject of a placement or adoption order. The Family Division of the High Court had statutory jurisdiction by virtue of the Adoption and Children Act 2002 and under the inherent jurisdiction of the High Court.

In all adoption cases - non-consensual and consensual - the local authority was under an obligation to carry out a thorough analysis of the realistic options for the child, as highlighted in Re B-S. A thorough analysis of all the realistic options should surely be carried out in all cases where a local authority was making plans for a child's future.

In the case of JL the position was straightforward as all parties, including the Estonian authorities, were in agreement as to the outcome. The only issue was how to achieve it. In this instance a placement order was neither necessary nor possible. Since the mother had given her consent to the adoption the local authority was authorised to place the child for adoption. It was in the child's best interests to be adopted and the process of matching adopters could begin without further order.

The case of AO was more contentious. At the very least the court had jurisdiction pursuant to Art 13 of BIIR. The power to transfer the proceedings to the Hungarian court pursuant to Art 15 of BIIR was not available as that Regulation did not include decisions on adoption or measures preparatory to adoption. The inherent jurisdiction could not be used in such a way as to cut across the statutory scheme. The local authority application for a transfer of proceedings was dismissed. As in the case of JL, the parents had given their consent to adoption and, therefore, the local authority was authorised to place the child.

Case No: BS15C01264 and ZC15200515
Neutral Citation Number: [2016] EWHC 440 (Fam)

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

IN THE MATTER OF THE ADOPTION AND CHILDREN ACT 1989
AND IN THE MATTER OF THE SENIOR COURTS ACT 1981
AND IN THE MATTERS OF JL AND AO (BABIES RELINQUISHED FOR ADOPTION)

Royal Courts of Justice
Strand
London
WC2A 2LL

Date: 03/03/2016


Before:


THE HONOURABLE MR JUSTICE BAKER

- - - - - - - - - - - - - - - - - - - - -

Between:

A LONDON BOROUGH COUNCIL
Applicant

- and -

JL (by his children’s guardian)
Respondent

and

Between:

A WESTERN CIRCUIT LOCAL AUTHORITY
Applicant

- and -

A MOTHER (1)
A FATHER (2)
AO (by her children’s guardian) (3)
Respondents

- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Isabelle Watson (instructed by local authority solicitor) for the local authority in the case of JL
Henry Setright QC and Chris Barnes (instructed by FMW Law) for JL, by his children’s guardian
Stuart Fuller (instructed by local authority solicitor) for the local authority in the case of AO
Frank Feehan QC and Grainne Mellon (instructed by Powells Law) for AO’s mother
Frank Feehan QC and Katherine Dunseath (instructed by Berry Redmond Gordon and Penney LLP) for AO’s father
Stephen Roberts (instructed by Lyons Davidson) for AO, by his children’s guardian

Hearing dates: 21st December 2015 and 21st January 2016

- - - - - - - - - - - - - - - - - - - - -


Judgment

Re JL and AO (Babies Relinquished for Adoption) [2016] EWHC 440 (Fam)
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