N (Children) (Adoption: Jurisdiction)  EWCA Civ 1112
Important decision of the Court of Appeal concerning adoption cases with a foreign element, the possibility of ‘limping’ adoptions, and future good practice in relation to section 20 Children Act 1989: misuse and abuse of s.20 will ‘no longer be tolerated’ and ‘it must stop’.
This was an appeal from a decision of HHJ Bellamy (sitting as a Deputy High Court Judge) at the final hearing of care and placement order proceedings relating to two Hungarian children to transfer the proceedings to Hungary pursuant to Article 15 of Council Regulation (EC) no 2201/2003 (hereafter ‘BIIA’). The essential issue was whether Judge Bellamy was right to proceed as he did under Article 15 BIIA, and the Court of Appeal (Munby P, Black LJ and Sir Richard Aikens) dismissed the appeals.
During the hearing however, the issues broadened and the Court of Appeal had to consider a number issues concerning the application of domestic adoption law in cases with a foreign element, resulting in a very detailed judgment from Munby P.
Jurisdiction in adoption cases with a foreign element
(Munby P at [74-103]; Black LJ at [175-186])
The Court of Appeal concluded that the English court does have jurisdiction (a) to make an adoption order in relation to a child who is a foreign national, and (b) to dispense with the consent of a parent who is a foreign national.
As to the question (that has been ‘rumbling around for years and needs to be put to rest’) of what system of domestic law the English court should apply when deciding whether to dispense with parental consent and whether to make an adoption order, Munby P agreed with Goff J’s view in In Re B(S) (An Infant)  Ch 204 that the foreign law is an important factor to be taken into account by considering the welfare of the child; not by virtue of the foreign law but rather because English law requires the court to do so. The foreign law does not go to jurisdiction nor is there any question of applying the foreign law, whether substantive or procedural.
How jurisdiction should be exercised and the possibility of a ‘limping adoption’
(Munby P at [104-111]; Black LJ at [187-188]; Sir Richard Aikens at )
Munby P emphasised certain passages within section 1(4) ACA 2002 which are particularly important where the court is concerned with the proposed adoption of a foreign child. He said it cannot be emphasised too much that the court in such a case must give the most careful consideration, as must the children’s guardian and all the other professional witnesses, in particular to those parts of the checklist which focus attention, explicitly or implicitly, on the child’s national, cultural, linguistic, ethnic and religious background. He repeated important passages from recent case-law.
As to the concept of a ‘limping’ adoption order (an adoption order which, although fully effective in this country, might be ineffective in other countries that the child and the adopters may wish or need to visit), Munby P agreed with Goff J’s analysis and conclusion on this issue in In re B(S). Unless the foreign country is one which, under international Convention, is bound to recognise an English adoption order, the English court will need to address the following, having ensured that it has the necessary evidence to enable it to do so:
- Whether the English court’s order will be recognised elsewhere (unless the case is one in which it is clearly for the welfare of the child that an order should be made irrespective of its consequences elsewhere, as in refugee cases).
- Evidence should be furnished to show that the order, if made, will be recognised by the foreign court and, if so, then the English court is free to proceed regardless of any question of foreign law or procedure.
- If not, the court will have to weigh the disadvantages of the child having one status here and another in other countries, or even a doubtful one, against the other considerations there may be in favour of adoption.
- It is not necessary, however, to prove what the child’s domicile actually is, or to go into the adoption laws of the relevant country because the problem is not one of jurisdiction or of applying the foreign law (substantive or procedural) but of considering factually whether, having regard to the foreign element, the English order will have general recognition, and if not whether the order would still be for the welfare of the child.
Black LJ agreed that strict proof of domicile/domiciliary law may not be necessary but considered it imperative that, when considering whether or not to make an adoption order, the court should consider what links the child has to other countries (perhaps especially, but not necessarily only, in terms of domicile or nationality); should consider what risk there is that any adoption order it makes may not be universally recognised; and should reflect upon the practical implications of this for the child. That was not to say that an adoption order could not be made if it were to be demonstrated that it would not be recognised in a country which may be of importance for the child in future but it would be a factor that would need to be weighed in the balance, along with all the others, in deciding what order is going to be most conducive to the child’s welfare throughout his life.
Sir Richard Aikens hoped that a robust application of the FPR relating to expert opinions could avoid the danger of a major forensic battle engaging foreign lawyers to give opinions on the effectiveness (or lack of it) of an English adoption order in other countries, and the issue becoming expensive and time consuming ‘satellite litigation’.
Article 15 BIIA
It was concluded that care proceedings are within the scope of Article 1(1)(b) BIIA even if the LA care plan is for adoption. Proceedings for a placement order are within the scope of Article 1(3)(b) BIIA. It follows that Article 15 BIIA applies to care proceedings, even if the LA care plan is for adoption, but does not apply to proceedings for a placement order (Munby P at [66-73]).
Munby P’s analysis of the requirements before the English court can make a transfer pursuant to Article 15 BIIA is at [112-122], and Sir Richard Aikens’ summary at [191(iv)].
Leaving on one side the impact of Article 1(3)(b) BIIA, it could not be said that Judge Bellamy was ‘wrong’ to exercise jurisdiction under Article 15 BIIA (Munby P at [123-148]).
The fact that Judge Bellamy did not appreciate the effect of Article 1(3)(b) BIIA did not vitiate his decision. His decision under Article 15 BIIA in relation to the care proceedings can, and should, stand; his decision in relation to the placement proceedings cannot stand. As a result the care proceedings are stayed in consequence of the transfer under Article 15 BIIA, and the placement order proceedings are stayed in consequence of the stay of the care proceedings (Munby P at [149-52]).
Section 20 Children Act 1989
(Munby P at [157-171])
Munby P drew attention to the misuse by the LA in this case of section 20 CA 1989 and said ‘steps must be taken as a matter of urgency to ensure that there is no repetition ever again’.
In this case the children were placed in accordance with section 20 in May 2013 yet proceedings not issued until January 2014. Munby P said that section 20 may, in an appropriate case, have a proper role to play as a short-term measure pending the commencement of care proceedings, but the use of it as a prelude to care proceedings for a period as long as here was ‘wholly unacceptable’. He drew attention to recent case-law in which LAs were condemned for misuse, and in some cases plain abuse, of s.20 including cases resulting in awards of damages. He said that misuse of section 20 in a case with an international element is ‘particularly serious’.
Munby P considered that the recent case-law illustrated to an alarming degree four separate problems, all too often seen in combination:
- The failure of the LA to obtain informed consent from the parent(s) at the outset. LAs must heed the guidance set out by Hedley J in Coventry City Council v C, B, CA and CH  EWHC 2190 (Fam),  2 FLR 987 at para 46 (cited at ). Where a parent is not fluent in English it is vital to ensure the parent has a proper understanding of what precisely they are being asked to agree to.
- The form in which the consent of the parent(s) is recorded. A feature of recent cases has been the serious deficiencies apparent in the drafting off too many s.20 agreements.
- Far too often the arrangements under s.20 are allowed to continue for far too long.
- The seeming reluctance of LAs to return the child to the parent(s) immediately upon a withdrawal of parental consent. A LA which fails to permit a parent to remove a child in circumstances within s.20(8) acts unlawfully, exposes itself to proceedings at the suit of the parent and may even by guilty of a criminal offence. Munby P was ‘exceedingly sceptical’ as to whether a parent can lawfully contract out of s.20(8) in advance by agreeing with the LA to give a specified period of notice before exercising their s.20(8) right to remove the child.
Munby P stated that for the future good practice requires the following, in addition to proper compliance with the guidance given by Hedley J:
- Wherever possible the agreement of a parent to the accommodation of their child under s.20 should be properly recorded in writing and evidenced by the parent’s signature.
- The written document should be clear and precise as to is terms, drafted in simple and straight-forward language that the particular parent can readily understand.
- The written document should spell out, following the language of section 20(8), that the parent can ‘remove the child’ from the LA accommodation ‘at any time’.
- The written document should not seek to impose any fetters on the exercise of the parent’s right under s.20(8).
- Where the parent is not fluent in English, the written document should be translated into the parent’s own language and the parent should sign the foreign language text, adding, in the parent’s language, words to the effect that ‘I have read this document and I agree to its terms’.
Misuse and abuse of s.20 is a denial of the fundamental rights of both the parent and child, ‘it will no longer be tolerated’ and ‘it must stop’.