A and Another v Local Authority 2015
This is a short judgment by Keehan J, involving a case where a couple who wanted children had entered into a private arrangement with a woman who had been pregant and considering termination. They agreed that the couple would have the child and later adopt the child.
(That is a criminal offence, since it is prohibited for individuals to arrange adoption between themselves, it has to be done through an authorised agency UNLESS the High Court approve it in advance. I remain mystified as to how anyone asks the High Court for that approval without committing the offence first, since you would be unable to be either Person A asking Person B if they might be willing to enter into an arrangement about adoption, or Person B offering to enter into such an arrangement. So you’d have to be Person A going to the High Court saying “I’ve no idea if Person B is up for letting me adopt their unborn baby, but is it alright if I ask them?” That might seem like a rather scattergun approach to finding a baby to adopt, since it might take until Person Q before you find someone who with no prior discussion says “Yes, that would be fine”)
s92 Adoption and Children Act 2002 (1)A person who is neither an adoption agency nor acting in pursuance of an order of the High Court must not take any of the steps mentioned in subsection (2).
(2)The steps are
(a)asking a person other than an adoption agency to provide a child for adoption,
(b)asking a person other than an adoption agency to provide prospective adopters for a child,
(c)offering to find a child for adoption,
(d)offering a child for adoption to a person other than an adoption agency,
(e)handing over a child to any person other than an adoption agency with a view to the child’s adoption by that or another person,
(f)receiving a child handed over to him in contravention of paragraph (e),
(g)entering into an agreement with any person for the adoption of a child, or for the purpose of facilitating the adoption of a child, where no adoption agency is acting on behalf of the child in the adoption,
(h)initiating or taking part in negotiations of which the purpose is the conclusion of an agreement within paragraph (g),
(i)causing another person to take any of the steps mentioned in paragraphs (a) to (h).
and then s93 clarifies that taking those steps is an offence, punishable by a £10,000 fine or up to six months imprisonment
93 Offence of breaching restrictions under section 92
(1)If a person contravenes section 92(1), he is guilty of an offence; and, if that person is an adoption society, the person who manages the society is also guilty of the offence.
(2)A person is not guilty of an offence under subsection (1) of taking the step mentioned in paragraph (f) of section 92(2) unless it is proved that he knew or had reason to suspect that the child was handed over to him in contravention of paragraph (e) of that subsection.
(3)A person is not guilty of an offence under subsection (1) of causing a person to take any of the steps mentioned in paragraphs (a) to (h) of section 92(2) unless it is proved that he knew or had reason to suspect that the step taken would contravene the paragraph in question.
(4)But subsections (2) and (3) only apply if sufficient evidence is adduced to raise an issue as to whether the person had the knowledge or reason mentioned.
(5)A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months, or a fine not exceeding £10,000, or both.
The police in this case decided to take no action.
[If you are wondering why this is adoption and not surrogacy, it is because the couple who were going to care for the child had no biological material involved in the conception – surrogacy is where the child is concieved with genetic material from at least one of the people who are going to be caring for the child]
The next issue was that the prospective adopters had given the birth mother money. In this case a loan of £5,000. (If you want to imagine me doing Russell Harty style air quotes around the word loan, feel free) and that loan was paid back (same again) although many of the repayments were in cash and there was no proof of that.
Again, it is a criminal offence to make payments to someone in order to facilitate adoption of a child.
95 Prohibition of certain payments
(1)This section applies to any payment (other than an excepted payment) which is made for or in consideration of”
(a)the adoption of a child,
(b)giving any consent required in connection with the adoption of a child,
(c)removing from the United Kingdom a child who is a Commonwealth citizen, or is habitually resident in the United Kingdom, to a place outside the British Islands for the purpose of adoption,
(d)a person (who is neither an adoption agency nor acting in pursuance of an order of the High Court) taking any step mentioned in section 92(2),
(e)preparing, causing to be prepared or submitting a report the preparation of which contravenes section 94(1).
(2)In this section and section 96, removing a child from the United Kingdom has the same meaning as in section 85.
(3)Any person who
(a)makes any payment to which this section applies,
(b)agrees or offers to make any such payment, or
(c)receives or agrees to receive or attempts to obtain any such payment,
is guilty of an offence.
(4)A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months, or a fine not exceeding £10,000, or both.
As the Judge explains, there are very good public policy reasons why the law prohibits a person who wants a child paying someone to hand over that child to them for adoption – it would be a very easy thing for a rich person to exploit a poor mother in that scenario
There are very strong public policy considerations against permitting monies to be paid for the handing over of a child or for the adoption of a child. There are very strong public policy considerations against permitting privately arranged adoptions. The reasons for those are all too obvious. On occasions the court is aware that privately arranged adoptions have taken place in circumstances which are wholly inimicable to the welfare of the child concerned.
In this case, the prospective adopters had been caring for the baby for nearly a year and caring for the baby well. The professionals involved were of the view that the adoption order they were applying for should be made, as were the baby’s biological parents.
The Judge explained
However, whilst criminal offences may or may not have been committed, either by arranging a private adoption or making payments, there is no provision in the 2002 Act which sets out that such offences are a bar to the court going on and nevertheless approving and making an adoption order; that is because the ultimate consideration for the court is the welfare best interests of the child.
The Judge went on to make the adoption order.
Clearly the right thing to do in this case.
With unlawful payments made under adoption, AND excessive payments made under Surrogacy Arrangements, the Court is more and more taking a welfare-centred approach that any illegal actions can be cancelled out by the benefit of making the orders sought. Does this have the effect of watering down the protection offered to vulnerable mothers (particularly mothers living in poverty and in countries where £5000 is a huge amount of money) ? All that is happening to people who want a baby who make unlawful or even criminal payments is that they get a smack on the wrist (sometimes not even that) and the Court still makes the orders.
Very difficult. Nobody wants to make an example of people just for the sake of it or to move the baby from carers who clearly loved the child and were doing a good job and had been ignorant of the law; but if there’s no consequence in practice for breaking the law what’s the point of having it?
My admittedly limited research hasn’t turned up any prosecutions for offences under section 93 or section 95 of the Adoption and Children Act 2002. And whilst you might think that this is because the Act has provided a deterrent and so people aren’t committing the offences, this case shows that it isn’t the case. It is more that you simply can’t concieve of either a jury convicting someone like this or a Judge removing the child from them.