Re B (2014)
The Court were faced with an application by a couple to adopt a boy who was, by the time of judgment 18. The application was issued when he was 17, so the Court had jurisdiction at the time of the application (it took nearly a year to resolve)
There were two reasons why it took so long to resolve.
1. The immigration status of B himself. And in particular the Home Office’s “deafening silence” in relation to any attempts to engage them
2. The need for an age determination of B, since some of the documentation suggested that he might actually be 26, which would have taken him outside of the Court’s jurisdiction to make an adoption order.
- a 30-page letter sent to the Home Office dated 12th May 2011. This letter set out a detailed account of the background circumstances and effectively asked for a reconsideration of the previous refusal in August 2010. It also asked for leave for B to remain here on compassionate grounds, as set out in some detail in that letter.
- That letter was sent to the Home Office on 12th May 2011. Here we are nearly three years later, and despite chasing letters being sent to the Home Office by Mr. O on 17th November 2011, 29th November 2011, 16th January 2012, 20th February 2012, 11th June 2012, 5th November 2012 and 23rd August 2013, not one response or acknowledgement has been received from the Home Office regarding that application.
- This morning I was shown a letter from Capita (who appear to be instructed on behalf of the Home Office) to O Solicitors dated 28th March 2014. It says as follows:
“Thank you for your request dated 23rd May 2011 asking for reconsideration of the decision to refuse your client’s application for leave to remain. I apologise for the delay in responding to your client’s letter. We are in the process of reviewing your client’s request for reconsideration and would be grateful if your client could complete the attached form to provide us with an update to your client’s current circumstances. This information will assist in assessing whether your client’s case is eligible for reconsideration.”
A Capita form is attached which is about five or six pages long. The letter continues:
“Please return the form in the prepaid envelope within 14 days from the date of this letter. If we do not receive the returned form within this timeframe, your client’s reconsideration request will be assessed on the information provided at the time of the request or in which it is held on Home Office records.”
It is then signed, “Yours faithfully, Capita Business Services”. The letter is not signed by any individual. It is a pro forma letter. That is the updated position regarding the immigration application.
[I am REALLY looking forward to working for Capita, once care proceedings are privatised]
- Turning back to the procedural history, the matter was listed on 2nd October, again before District Judge Simmonds. He records in order that it appeared to the court that three matters were outstanding, one of which is the reply from the Home Office. Paragraph 1 of that order, “The court shall forthwith chase the Home Office for a response to whether they wish to intervene and for them to send this to the court forthwith”. In paragraph 2 it states “The court shall forward to the parties any response from the Home Office on receipt”. The matter was listed again for final hearing on 28th October 2013.
- In the intervening period between 2nd October and the end of October, enquiries were made by the court to see whether there had been any response from the Home Office but none had been received. On 25th October, the court advised the parties the hearing on 28th October was vacated due to an issue with the Home Office.
“Upon the adoption office having contact with the Home Office, as no reply had been received from the court’s enquiries, and upon the Home Office confirming that B has no right to stay in the United Kingdom and has his own case worker and they are awaiting information from the case worker before replying. And upon the court adjourning the hearing for this information to be provided.”
- The court directed the 28th October final hearing was vacated and the time for the Home Office to provide a response as to whether they wished to intervene within the proceedings was extended to 22nd November. The ordered provided that in the event the Home Office did not reply by 22nd November, the court shall proceed with the application on the basis that they do not wish to intervene. The matter was listed again before District Judge Simmonds on 29th November.
- On 28th November the court telephoned B’s solicitor to advise that some documents had been received from the Home Office. This meant the final hearing that was then listed on 29th November 2013 may not be effective. At the hearing on 29th November a statement with exhibits from Mr. S of the Home Office was before the court and was shown to the parties. Mr S is a Higher Executive Officer with responsibility for the custody of Home Office records. The statement raised issues regarding the date of birth for B together with issues regarding different birth certificates and their authenticity. As a result of that material being put before District Judge Simmonds, he transferred the matter to the High Court and it was listed for hearing before me on 16th January.
- Pending that hearing District Judge Simmonds made a number of directions. He directed B to file and serve a statement in reply to the statement from the Home Office by 10th January 2014. He also directed:
“This order shall be forwarded to the Home Office and they are invited to attend the hearing at para.1, namely 16th January 2014, to assist the court and to make any application to intervene in the proceedings on or before that date.”
- Immediately following that hearing on 29th November B’s solicitor advised the Home Office of the hearing and forwarded them a copy of the order advising them of the date of the hearing on 16th January. On checking with the court, subsequently it was found that the court, too, had sent a copy of the order of 29th November to the Home Office. No response was received either by B’s solicitor or by the court from the Home Office.
- The matter first came before me on 16th January. Having considered the papers, in particular B’s witness statement of 9th January, I made the following recitals:
“The Home Office, having failed to indicate whether it wished to intervene in these adoption proceedings by today’s date as ordered by District Judge Simmonds on 29th November, and upon the court indicating that it intends to make a declaration in relation to B’s age, and upon the court making a court request for information to the Home Office as specified in the form EX660 of today’s date, and upon the court inviting B’s current immigration solicitors to provide the solicitors for the guardian with copies of the documents and his immigration file by 23rd January…”
I made an order that included the following:
“1. The solicitor for the guardian do forthwith serve a copy of this order and a copy of B’s witness statement dated 9th January (along with its exhibits) on the Secretary of State for the Home Department via the Home Office liaison team at HMCTS.”
2. That the Home Office do notify the guardian’s solicitors by 14th February whether it intends to apply to intervene in these adoption proceedings, and if it does, to issue such an application by 4 p.m. on 17th February.
3. In the event that such an application is issued, there is to be a directions hearing listed before me on 25th February to consider any directions that need to be made as a result of such an application with a time estimate of 30 minutes.”
- I made provision that if the application to intervene was not made, the hearing on 25 February could be vacated. I listed the matter for a substantive hearing on 6th March with a time estimate of one day to consider (and this was recorded on the face of the order) (1) whether to make a declaration in relation to B’s age, and (2) to decide whether to make an adoption order in relation to B. I made directions for the filing of further evidence, both by the applicants and by B, and I made provision, if the Guardian was so advised, to file any further report. I made directions for the filing of skeleton arguments.
- That order was sent to the Home Office by B’s solicitor. The solicitor phoned the Home Office liaison team on 20th January to check what the correct address was. They were told that the information, the EX660 and the order should only be served by fax. They sent an unsealed copy of the order I had made on 16th January by fax to the Home Office on 20th January. On 26th January they sent the sealed copy of the order by fax to the Home Office. They also sent the EX660 to the Home Office so they were aware of what was required.
- B’s solicitors corresponded with the court on two occasions to see whether the court had heard anything from the Home Office. They vacated the hearing on 6th March because details had not been obtained from the Home Office in response to the EX660 and re-listed the matter for today. They informed the Home Office of this revised timetable. They finally contacted the Home Office on 26th March. They faxed the Home Office a letter asking if they were going to respond to the EX660 or to any of the directions that had been made by the court. No response has been received from the Home Office.
- It is quite clear the Home Office has been given every opportunity to participate and engage in these proceedings, not only through the efforts of the court but also by the solicitor for B.
- In accordance with my directions made on 16th January, both B and the applicants have prepared further statements that have been filed and I have read them.
- The only updated information is the letter referred to above from Capita on behalf of the Home Office asking for a form to be completed in relation to B’s application for reconsideration of the refusal of his application for leave to remain. As I have indicated, that is against a background (as far as I am able to understand because the Home Office has not responded to the EX660) that B arrived here in early 2008 on what appears to have been a six month visa which was not renewed. Mr. and Mrs A sought to regularise his position by their application in April 2010. That was acknowledged on 17th May 2010 when there was a request to the former immigration solicitors by the Home Office for a form and a method of entry questionnaire to be completed. This was completed and returned.
- As I have indicated, that application was determined in August 2010. The only information I have in relation to that is the way the reasons for refusal are summarised in the letter from the immigration solicitors to the UKBA on 12th May 2011. At p.2 of that letter they set out the basis of their refusal, effectively rejecting that any Article 8 rights had been established in favour of B to enable him to stay here.
- It is of note on the information I have about the process that took place in 2010, it appears at no stage was any issue raised in relation to B’s age. New solicitors were instructed in early 2011 and they made the application in May 2011. Despite the chasing letters listed above and nearly three years having passed since that application was made, no response was received until the letter from Capita on behalf of the Home Office on 28th March. It appears to be accepted by the Home Office, that the application in May 2011 was for a reconsideration of the refusal of B’s leave to be able to remain here.
Against that background, it is not surprising that the Court eventually decided that they were unlikely to get any joy out of the Home Office (in A J Herbert’s lovely phrase the parties had been engaged in “frequent although one-sided correspondence”) and turned their attention to a forensic exercise of whether blood could be extracted from a stone, as that was more likely to be productive…
- I am quite satisfied this application is not a device, by any stretch of the imagination, to gain a right of abode. Mr. and Mrs. A have responsibly taken all necessary steps at each stage to seek to regularise the position regarding their care of B. They fully cooperated with the private fostering assessment that was prompted by their application regarding B’s immigration position. They then promptly and responsibly applied for a residence order, which was made by the court. As I have said, they have subsequently assisted in supporting applications to regularise B’s immigration position. They could not have done any more.
- I am satisfied the applicants, the solicitor for B and the court could not have done more to seek to engage the Home Office in these proceedings; but they simply have not responded. I am quite clear this application cannot be delayed any further. I am, of course, acutely aware that if the court does go on to grant an adoption order, it confers nationality, but I can see no more the court could have done to seek to engage the Home Office in these proceedings.
- It is of particular concern there appears to have been a complete failure to comply with what, in my experience, has always been an effective procedure for this court to obtain relevant immigration information, namely through the EX660 procedure. It is normally expected that that request will be responded to within 28 days. My recent experience in other cases is that the response is normally well within that time frame. In this case the EX660 request is now 63 days old. I sincerely hope this is an isolated occasion where there has been non-compliance with the request made by the court, but I will take steps to ensure that the circumstances of this case are drawn to the attention of the Home Office.
- I am quite clear this application, in the particular circumstances of this case, should proceed and there should be no further delay.
The age issue
- The next issue the court has to consider is B’s age. One of the matters that raised by the statement from Mr. S is B’s date of birth. It is raised in an unhelpful way because the statement has been provided and the issue raised, but the Home Office have been unwilling to participate in the case to assist the court further.
- What is said or implied by the statement from Mr. S is that when B was brought to this jurisdiction in January 2008, it was on a passport that gave a different date of birth, namely 17th September 1987. This would make B 20 years of age when he arrived in 2008 and would make him 26 ½ years of age now.
- With the application made by Mr. and Mrs. A, they submitted birth certificates setting out his date of birth as 17th September 1995. As far as I can see in all steps they have taken in relation to B, not only in relation to his immigration position but in all other aspects of his life, they have operated on the basis that this is his date of birth. That would have made B about 12 ½ years of age when he came to this jurisdiction in early 2008.
- Firstly, to determine whether the court has jurisdiction to be able to consider this application because, by virtue of s.49(4) ACA 2002 an application for an adoption order may only be made if the person to be adopted has not attained the age of 18 years on the date of the application.
- The application was made on 1st June 2013. If B’s date of birth is 17th September 1987, he was clearly over 18 at that time. However, if his date of birth was 17th September 1995, he was under 18 at the time when the application was issued and so the court has jurisdiction. In addition, the court would only have power to make an adoption order pursuant to s.47(9) in relation to a person who has not attained the age of 19 years. Clearly, that would be the position if B’s date of birth was in 1995, but it would not if his date of birth was in 1987.
- Secondly, I consider it an important and integral aspect of B’s welfare for the uncertainty that has been raised in relation to his age to be resolved.
It is established law that the Court can make a factual determination following their own assessment of the age of a young person (that chiefly flows from the case law about unaccompanied asylum seekers, where they are entitled to certain services if they are under 18 and thus from time to time the Local Authority is placed in a position of deciding whether someone who appears to be much older is really a child). The Court took a variety of factors into account
- Having considered all the evidence from these different sources I am satisfied, on the balance of probabilities, that B’s date of birth was 17th September 1995 and, as a result, he was 17 years of age when this application was issued and this court consequently has jurisdiction.
- On the information that I have seen it is inconceivable that B would have been able to live a life if he was eight years older than he is. This is particularly bearing in mind that he has been attending school and college, and been exposed to the various agencies, particularly the local authority, through the reports that have been prepared in relation to B’s care and placement with Mr. and Mrs. A, without somebody questioning or raising such a significant issue regarding his age.
- Whilst I acknowledge the question of growth in height is not determinative, in the context of this case it is an important part of the evidential picture. Particularly when looking at the alternative age which during the relevant period he would have been between 22 and 25. It is highly unlikely, in my judgment, that there would have been a growth of 20cm in height between those ages, and it is much more likely that that growth in height would have taken place between the ages of 15 and 17.
- I have no reason to doubt the account give by Mr and Mrs A regarding B’s age. They have boys of their own, some of whom are young adults. They have had his care for over five years and have seen nothing to suggest he is 7 years older than they have understood he is.
- In reaching my conclusion, I have also taken into account that it is likely that the person who brought B over to this jurisdiction from Nigeria probably had an incentive for B to be an adult rather than a minor. This is due to the circumstances in which he was brought here and the circumstances that he has described during the period of time that he was living with uncle Femi between early 2008 and early 2009.
- For those reasons I will make a declaration in relation to B’s age, being satisfied as I am on the balance of probabilities that he was born on 17 September 1995.
The Court then went on to consider the adoption application itself, having satisfied itself that the Court had jurisdiction to make the order. Those reasons are not terribly interesting or important in themselves, but it is the second example of the High Court treating certain types of adoption as being different in character to the non-consensual or forced adoption that are tied up with the “nothing else will do” and Re B-S principles (the first being the step-parent adoption case). That may be of interest in the as yet unanswered question about whether Re B-S applies to adoptions where the mother has relinquished the child.
The Court did, of course, make the order
Having carefully considered the matters in the welfare checklist I am satisfied B’s lifelong welfare need, which are the court’s paramount consideration, can only be met by the security and stability that an adoption order will bring. Only an adoption order will secure lifelong his relationship with Mr. and Mrs. A.