I have been waiting since Re B-S for one of these cases to come up, and it finally has.
Where a family member is put forward to care for a child, and that family member lives in America, the net effect of American immigration law is that in order to be able to get the child into the country to live with that family member, you’d need an adoption order. Nothing less than that would do for American immigration authorities. BUT, does that amount to ‘nothing else will do’ for the English family Court?
Re S and T (children) 2015 looks at that issue.
Much of the case also involves the horrid rigmarole because in order to apply for an adoption order in England, the prospective adopters need to be habitually resident in England or Wales AND to have had a home in England for 10 weeks before the application. (In practice, this is an utter nightmare in any case where the relatives are American, as it just causes logistical problems that don’t arise in any other country). So if you are interested in those matters those are in the early parts of the judgment, and it shows you the tangle that the process can become.
But my real interest is in the analysis of whether the US immigration requirements of ‘adoption or you’re not coming in’ amount to ‘nothing else will do’
This case is made more complex because they were initially private law proceedings brought about because the father removed the children to Pakistan, their mother later died of cancer, and it seems that the children have been actually living in America since July 2014 (as a result of a ‘holiday’ order made by Singer J, permitting the children, who were wards of Court, to go and stay with their maternal great aunt and great uncle for a defined period of time. It is the great aunt and great uncle who applied for an adoption order under s84 Adoption and Children Act 2002, with the intention of later applying for an adoption order under US law.
[There are complicated technical reasons why they had to do it that way round, but basically if the English Court didn’t make an Adoption Order, they wouldn’t be able to get one in America, and the children wouldn’t be able to live with them]
The father was not consenting to the plan of adoption, and was actively opposing it, and there was no Placement Order (or application for a Placement Order)
- The issues: can the father’s consent be dispensed with?
- The father opposes the making of any adoption order and any order under section 84 of the 2002 Act. The applicants submit that his consent can be dispensed with. He disputes this.
- In my judgment, it is clear that there is nothing in section 84 itself to preclude the court dispensing with the father’s consent. Regulation 11(1)(p) is clear recognition that section 52(1) applies to an order under section 84. Moreover, Form A61, the application form to be used in applications under section 84, contains, in Part 3, para (j), provision for an application to dispense with parental consent. The father’s argument, however, is based on the wording of Articles 4 and 16 of the Convention which, he submits, plainly contemplates that a Convention adoption such as is proposed in this case cannot proceed in the absence of parental consent.
- I have set out the relevant passages already, but for convenience I will repeat the critical wording. Article 4(c)(2) provides that an adoption can take place “only” if:
“the persons … whose consent is necessary for adoption … have given their consent freely.”
Article 16(1)(c) provides that the Central Authority of the State of origin “shall”:
“ensure that consents have been obtained in accordance with Article 4.”
Article 16(2) provides that the Central Authority of the State of origin “shall”:
“transmit to the Central Authority of the receiving State … proof that the necessary consents have been obtained.”
- The Convention does not contain any provisions identifying what consents are necessary. On a plain reading of the Convention, it leaves it to the domestic law of the State of origin to determine what, if any consents, are “necessary”. This is borne out by paragraph 129 of the Explanatory Report on the Convention drawn up by G Parra-Aranguren:
“The persons whose consent is necessary on behalf of the child are determined by the applicable law: it will usually include … the child’s biological parents.”
- English domestic law enables the court to “dispense with” a parent’s consent in accordance with section 47(2)(c) of the 2002 Act if the requirements of section 52(1)(b) are satisfied. Those provisions apply both where the application is for an adoption order and where the application is for an order under section 84: see regulation 11(1)(l). They likewise apply in a Convention case: see regulation 55.
- The point is, ultimately, a very short one, incapable of much elaboration, but, in my judgment, where the court has “dispensed” with a parent’s consent in accordance with sections 47(2)(c) and 52(1)(b), that parent’s consent is no longer “necessary” within the meaning of Article 4(c)(2). It is not “necessary” because it has been “dispensed with”. It follows, in my judgment, that the court can in principle, as the applicants contend, dispense with the father’s consent in the present case.
The President having decided that the Court COULD dispense with father’s consent, then had to decide whether it SHOULD.
- The issues: should the father’s consent be dispensed with?
- The father submits that, even taking all the available material at its highest, there is no basis upon which the court could properly dispense with his consent and that on this ground alone I should dismiss the applicants’ claim here and now.
- In short, the father’s case is that, although he has been the subject of many serious findings – a proposition not challenged before me – they cannot be determinative. Indeed, it is said, they are not sufficient, on a proper welfare analysis, to justify the severing of the children’s relationship with him through adoption.
- It is properly common ground before me that, if the father’s consent is to be dispensed with, the applicants have to demonstrate that “nothing else will do”: see In re B (A Child) (Care Proceedings: Threshold Criteria)  UKSC 33,  1 WLR 1911,  2 FLR 1075, In re B-S (Children) (Adoption Order: Leave to Oppose)  EWCA Civ 1146,  1 WLR 563,  1 FLR 1035, and Re R (A Child)  EWCA Civ 1625. As the Strasbourg court said in Y v United Kingdom (2012) 55 EHRR 33,  2 FLR 332, para 134, “It is not enough to show that a child could be placed in a more beneficial environment for his upbringing.” The local authority makes the same point when it observes, and I agree, that what might ‘tip the balance’ in a private law case does not necessarily suffice to justify adoption in the face of parental opposition.
- Putting the issue into context, there are two striking features of this case. The first is that the local authority, having considered the matter very carefully, has doubts (a) whether the ‘threshold’ in section 31 of the 1989 Act is met and (b) whether, even if threshold is met, it would apply for a care order, let alone a placement order. The second is that, in truth, adoption is being considered here only because of the seeming imperatives of United States of America immigration law. As the local authority puts it, the issue of adoption would certainly not have arisen but for the stance of the United States of America’s authorities. Counsel for the guardian was equally explicit: “It is purely the immigration requirements of the USA which dictate that although the dispute is between family members, a placement with the applicants will require an adoption process.”
- I make clear that neither of these factors can alone, or in combination, be determinative. One can, for example, conceive of a case in which “nothing else will do” precisely because of a requirement of foreign immigration law. But they are, nonetheless, very striking features of this case which must, at the very least, give one pause for thought.
The President is saying there that the US immigration requirement for adoption as a pre-requisite for the child living in the country MIGHT amount to “nothing else will do” or it MIGHT not. It isn’t determinative either way, and will depend on the merits and background features of the case. [It appears that with strong reasons why the child can’t live with birth parents and has to live elsewhere, the immigration component might tip the balance, but where the ‘threshold’ component is weak, that it might not]
In looking at what might amount to ‘threshold’ against father, the President identified these matters
- What are the matters alleged against the father? They include, but are not limited, to the specific matters found by Sir Peter Singer as set out in his judgment given on 1 October 2014:
i) Domestic violence of the father inflicted on the mother in August 2012 (judgment, paras 28-29): details can be found in the maternal uncle’s statement dated 11 April 2014.ii) The fact that the father removed the children to Pakistan in December 2012 without the mother’s consent (judgment, para 80(i)) – something emotionally abusive of both the mother and the children.
iii) The fact that the father in effect abandoned the children between March 2013 and April 2014 (see paragraph 2 above), though he claims this was on the basis of legal advice he received in Pakistan.
iv) The unlikelihood of the father fostering any kind of relationship between the children and the maternal family (judgment, para 79) – though this is something he now says he will do: see his statement dated 31 October 2014.
v) The fact that the father put forward two bogus documents: a purported will of the mother dated 29 August 2013 and a purported “confession” of the mother (judgment, paras 80(ii) and 80(iii)).
vi) The fact that the father “laid the ground for attempting” to obtain the insurance monies arising out of the mother’s death (judgment, para 80(v)).
I am of course concerned with those matters which are relevant to the children’s welfare. It is hard to see that (v) and (vi), however deplorable, go to that issue.
- As against this, the following matters have to be borne in mind:
i) Sir Peter Singer’s finding that the applicants and the children’s maternal uncle “deliberately” did not inform the father of the death of the mother “in order, as they sought, better to advance their own case for the children to remain with the mother’s family and in order to distance themselves from him for reasons which, because of his behaviour, are apparent” (judgment, para 80(vi)).ii) The quality of the contact between the father and the children as demonstrated, for example, by the records of contact sessions on 15, 17, 21 and 23 October 2014
I think that the Guardian’s conclusions are interesting and telling (it is not really a right way to approach the law)
“I do not believe the father can meet the children’s global needs to the extent that [the applicants] can. I have sought in this report to delineate the differences between the father as a potential long term carer for the children in Pakistan and their great aunt and uncle in the USA.
The father’s position is not without merit and this is a finely balanced decision. If there was no one but the children’s father to care for them it is likely that despite his deficits he might be considered good enough. However if there is an alternative, and I accept that the mechanism for achieving an adoption placement for the children in the USA is inchoate, I take the view for the reasons adumbrated within this report, that this is preferable and in the children’s best lifelong interests than living with their father in Pakistan.
I fall back on the aspiration that this Court can do better for these children than place them with their father in Pakistan; it can honour and make possible their mother’s legacy because she knew what was best for her daughters.
That comes very close to (if not actually arriving at) a conclusion that if there were no relatives in America, the children should be with their father, but because the children would have a better life with the relatives in America, adoption is the right plan. That’s precisely the opposite conclusion of Y v United Kingdom 2012 (the case that launched Re B and all that followed it) http://www.bailii.org/eu/cases/ECHR/2012/433.html “It is not enough to show that a child could be placed in a more beneficial environment for his upbringing.”
If the Court were approaching this as a pure ‘beauty contest’ – who comes across better, who might be able to meet the child’s needs better, with whom might the child have a better life, the maternal great aunt and great uncle would have won hands-down. It is decidedly possible that if the great aunt lived in Ilford, not Illinois, and the order was a private law order rather than adoption, that the Court would have gone with that option. There’s no presumption in private family law that a father would beat a grandparent or aunt. Re E-R 2015 for example http://www.familylawweek.co.uk/site.aspx?i=ed144557
But that’s not the approach with adoption.
It clearly isn’t the strongest set of ‘threshold’ or risks that father might pose the children, and the Guardian’s analysis whilst intending to be a reason why the Court should make the adoption order and allow the children to live /stay with their maternal family in America actually makes the legal argument as to why the Court shouldn’t.
- In these circumstances, the first question I have to consider is whether, on the evidence currently before me, I could be satisfied that the father’s consent “requires” to be dispensed with (the language of section 52(1)(b) of the 2002 Act) within the principles set out in Re P (Placement Orders: Parental Consent)  EWCA Civ 535,  2 FLR 625, and In re B-S (Children) (Adoption Order: Leave to Oppose)  EWCA Civ 1146,  1 WLR 563,  1 FLR 1035; whether I could be satisfied that “nothing else will do.” The short answer is that I could not be so satisfied. I agree with the father that the material at present before the court falls far short of meeting the required standard. Taking the matters I have summarised in paragraph 68 above at their highest, the case for adoption is simply not made out. One really only has to consider what is said in the reports of LB and JP and, equally significant, what those reports do not say.
- This being so, the second question is whether the proceedings should nonetheless continue. This comes down to two questions: (1) Is there some solid, evidence based, reason to believe that with further forensic activity – the testing of the existing evidence by cross-examination or giving the parties an opportunity to adduce further evidence – the conclusion might be different? This requires a robust and realistic appraisal of what is possible, an appraisal which is evidence based, with a solid foundation, not driven by sentiment or a hope that ‘something may turn up’. (2) Is there some solid advantage to the children in continuing the proceeding?
- In my judgment, there is no basis in the materials currently before the court for any belief that prolongation of the process carries with it any realistic prospect of the court ever being satisfied that the father’s consent requires to be dispensed with, that nothing else will do. The deficit in the existing evidence is simply too great to imagine that there is any realistic prospect of the gap being bridged. And in the circumstances, not least bearing in mind the length of time these proceedings have been going on, far from there being any solid advantage to the children in continuing the proceedings, their welfare requires finality now.
- The proceedings should now be brought to an end.
- I am very conscious that the consequence of this, in a sense, is that the father wins by default. The children go to him because the only alternative is ruled out because adoption is ruled out. But it is fundamentally important that children are not to be adopted merely because their parenting is less than perfect, indeed, perhaps, only barely adequate. To repeat what was said in Y v United Kingdom (2012) 55 EHRR 33,  2 FLR 332, para 134, “It is not enough to show that a child could be placed in a more beneficial environment for his upbringing.”
So the children were to be brought back to England by August, and to go back to the care of their father.
This, I think, is only the second reported case where a child was taken from prospective adopters who had been caring for the child for a significant period of time, and placed with either a parent or family member. The first of course was Holman J’s https://suesspiciousminds.com/2014/12/05/i-would-put-this-as-a-must-read-adoption-case-dynamite/
In that case, the interest of the child being placed with an aunt outweighed that of remaining with prospective adopters, in this one, the interest of the children being placed with dad outweighed that of remaining with prospective adopters who were family members. (Blood is thicker than water, but parental blood is thicker than blood, perhaps)
Of course this one is rather different, since there hadn’t been any Court determination that adoption was the right plan for the child, and the plan of adoption arose solely as a result of US immigration law, but it does show that the Court is willing to implement the philosphy of Y v UK in real life cases and to reach decisions that it feels to me would not have been made in 2011.
Good luck anybody running a case with an American relative in getting the case done within 26 weeks.