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Law for social workers (Part 1)

Posted on August 18, 2016 by suesspiciousminds

This piece is aimed at social workers, but it isn’t exclusively for them. Basically, the law has moved very fast in care proceedings since I started writing this blog, and on Twitter yesterday there was a conversation about there not being an easy place for social workers to find out what they now need to know.  So the idea here is two short(ish) pieces that tell you all of the important legal principles and then in part 2, what the specific tests are for each sort of order.

 

None of this is intended to be a substitute for getting legal advice from your own lawyer, it is just a guide to what sort of things the Court is looking for, and what tests they are applying. If you’re very confident about the basics, you can skip to Part 2  (though not immediately, because I am still writing it!)

 

The Acts

 

We all know, I think, that there are two main pieces of legislation involved in care proceedings.

 

The Children Act 1989

http://www.legislation.gov.uk/ukpga/1989/41/contents

 

and The Adoption and Children Act 2002

http://www.legislation.gov.uk/ukpga/2002/38/contents

 

There are a few others that come up occasionally – the Mental Capacity Act 2005,  the Care Act 2015, the Children and Families Act 2014 and various mental health Acts, Housing Acts, if you’re really really unlucky Education Acts.  And of course, the Human Rights Act 1998 permeates everything. In terms of the Human Rights  Act – the big bits that you need to know is that a social worker, as part of the State, owes parents duties under the Human Rights Act – they owe parents an article 6 right to fair trial (which is not limited just to Court, but involves fairness in all decisions) and interference by the State with parents Article 8 rights to private and family life, which can only be done where it is PROPORTIONATE and NECESSARY.

 

Key principles of the Acts

 

  1.  The Child’s Welfare is the Court’s paramount consideration when making any decision – it won’t be the only consideration, but it is the main one.
  2. The Court can only make an order if satisfied that doing so is better for the CHILD than making no order  (the ‘no order principle’)
  3. Any delay is harmful to the child, and has to be justified (the ‘no delay principle’)
  4. The Court should try to make the least serious of the orders available to it, if that will meet the child’s needs  (‘the least interventionist principle’)
  5. There’s a set of guidance of the main issues for the Court to consider when making decisions about children – the Welfare Checklist. Parliament has given us that as a valuable toolkit to reach the right decisions, and you stand the best chance of making the right decisions if you use it.

 

And from Human Rights, the key principles are :-

FAIRNESS  – in all decisions, strive to be fair – take things into account, even when they don’t fit with your hypothesis or initial thoughts, listen to what parents have to say, be honest about what you are seeing, recognise change when it is happening, be willing to consider that you might be wrong. Try to approach the task of working with a family in the way that you would hope someone would work with you if the roles were reversed. Recognise that for a parent, the State can be a scary and powerful force – you might not feel powerful yourself, but be alive to the possibility that that is the way the State can come across. Imagine someone coming into YOUR home, looking in YOUR cupboards, criticising YOUR relationship. It might need to be done, but be aware that it doesn’t feel nice to be on the receiving end.

NECESSITY – is it NECESSARY to do X or Y?  Not just is it helpful or useful or desirable, but did it NEED to be done? And even if it NEEDED to be done, did it NEED to be done in that particular way?

PROPORTIONALITY – looking at what you’re worried about and what you want to do about it, and thinking hard about whether what you want to do is proportionate to the worries that you have.

All of those principles really boil down to being a REASONABLE person – if you are reasonable, and try to do the job in a REASONABLE way, the Court’s are more likely to be receptive to what you’re saying and you are going to be less exposed in the witness box than someone who goes around like a bull in a china shop.

 

The threshold criteria

 

In order for the Court to make an Emergency Protection Order, or a Care Order or Supervision Order, or Interim Care Orders or Interim Supervision Orders, they need to be satisfied that the threshold criteria is met. If there’s no threshold criteria, the Court CANNOT make the order.

The burden of proof (who has to prove it) is on the Local Authority. It is for the Local Authority to PROVE that the child has suffered significant harm, or is at risk of such harm, NOT for the parent to prove that the child isn’t.

The standard of proof (how sure does the Court need to be) is the BALANCE OF PROBABILITIES.  If a Court thinks that something is MORE LIKELY THAN NOT to have happened (in percentage terms 50.000001% or higher) then that is sufficient.  If a Court thinks that the LA has NOT proved that, even if there’s a 49.99999999% chance of it having happened, then in law it did NOT happen. When it comes to factual issues, the law is binary – if it is MORE LIKELY THAN NOT to have happened, then it happened, if not, it DIDN’T.  And if it is exactly 50-50 (which doesn’t happen often, but it HAS happened) then the burden of proof means that the LA failed to prove it was more likely than not, so it DIDN’T happen.

The threshold criteria itself

 

s31 (2)A court may only make a care order or supervision order if it is satisfied—

(a)that the child concerned is suffering, or is likely to suffer, significant harm; and

(b)that the harm, or likelihood of harm, is attributable to—

(i)the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or

(ii)the child’s being beyond parental control.

 

The likely to suffer has been quite tricky to resolve over the years – basically, if you’re going to say that a child is LIKELY to suffer significant harm, you need to :-

 

(a) Prove some facts

(b) Prove that those facts mean that there is a risk of significant harm

(c) Prove that it is MORE LIKELY THAN NOT that the risks involved ‘cannot sensibly be ignored’

 

So you don’t HAVE to show that the risk is MORE LIKELY THAN NOT to materialise.  Sometimes, if the level of the possible risk would be very serious, there can be a lesser chance of it happening as long as there is a FACTUAL basis for saying that the risk exists and it cannot be ignored.

 

Case law

The Acts themselves only give you so much – most of the legal arguments are about how to intepret those Acts – what precisely does such and such a word mean, what has to be taken into account when deciding whether such and such applies. Rather than different Courts across the country having the same arguments over and over and coming to different decisions in different places, when an important point of principle is decided  (for example – WHEN does the threshold criteria have to be satisfied? When proceedings were issued? When they finish? What if the child was in foster care for 2 months before issue – the child wasn’t at any risk in that placement…)  a senior Court – the High Court, the Court of Appeal, the Supreme Court decides a case that deals with that point, and that’s the answer from then on  (in this example, threshold has to be satisfied when the Local Authority ‘took protective measures’  – that could be by issuing, or it could be by a section 20 placement or written agreement)

The next time THAT issue comes up, the Court is able to say ‘well, that’s been decided now, there’s a PRECEDENT for it, and we’ll follow that’.   The Children Act has been around for over 25 years and you would think that all of these technical and interpretation questions would have been sorted out years ago now, but they still keep coming, and occasionally the interpretations change or shift a bit.

For basically ALL of the things that a social worker might want to do, or ask the Court for, knowing what the Act itself says is just the tip of the iceberg. The really important information, and the wording that you are working to is set out in case law.  And as I said, it changes.

 

Part 2 is going to tell you what the current case law says about the various tests – and I’ll keep this up to date when it changes. The law is moving quickly at the moment, particularly in relation to adoption.

 

 

I hope this has been useful, feel free to pass it on, email it around, print it out and stick it on notice boards.

If this is your first encounter with Suesspicious Minds – normally there is more sarcasm and 80s pop culture, and weird cases that might make you wince or cry or laugh, so pop in again.

 

If you enjoyed the piece, or the blog, please visit the website about my book, and if it takes your fancy, pre-order it.  I’m 85% of the way to getting it published now, thanks to loads of support and help from very cool people. Be like Fonzie and be cool too.

 

https://unbound.com/books/in-secure

 

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Revocation of adoption order

Posted on August 11, 2015 by suesspiciousminds

In this case, Pauffley J had to decide whether to revoke an adoption order that was made in 2004.  That is a very unusual application to hear, and still more unusual to grant.  The only successful applications I’m aware of before this were ones where the adoption order was made before an appeal could be heard and thus the revocation was just to restore the ‘status quo’ so that the appeal could be heard.

 

The major reported case was the one involving the Webster family, where adoption orders were made on the basis of physical injuries and a Court was later persuaded that the injury had been the result of scurvy, itself the result of a failure of a brand of formula milk to have sufficient vitamin C.  The Court there, as a result of the passage of time and public policy issues declined to revoke the adoption orders.

http://www.bailii.org/ew/cases/EWCA/Civ/2009/59.html

 

The other notable case involved the young man who had been adopted by a Jewish couple and brought up as a Jew but who learned in later life that his father had been a Kuwaiti muslim and his mother a Catholic  – the adoption meant that he felt he was unwelcome and misplaced in both sets of communities –  he could not live in Israel because of his ethnicity, and was unable to settle in Kuwait because he was officially Jewish.   That case also refused to revoke the adoption order  – rather controversially. Re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239

http://www.bailii.org/ew/cases/EWCA/Civ/1995/48.html

 

Thus, you can see that such an application faces a considerable uphill task, when you look at those two cases (where an ordinary member of the public thinking about the facts would have almost certainly revoked both of the orders)

  1. The key passages from each were considered by Bodey J in Re W (Inherent Jurisdiction: Permission Application: Revocation and Adoption Order) [2013] 2 FLR 1609.
  3. I could not improve upon Bodey J’s analysis. He observed it was common ground that “the only possible vehicle for revocation would be the inherent jurisdiction of the High Court … but only in exceptional circumstances.” Bodey J cited a passage from Re B (supra) where Swinton Thomas LJ said this – “To allow considerations such as those put forward in this case to invalidate an otherwise properly made Adoption Order would in my view undermine the whole basis on which Adoption Orders are made, namely that they are final and for life, as regards the adopters, the natural parents and the child. In my judgment, (Counsel) is right when he submits that it will gravely damage the lifelong commitment of adopters to their adoptive children if there is the possibility of the child, or indeed the parents, subsequently challenging the validity of the Order.”
  4. Bodey J also referred to the judgment of Wall LJ (as he then was) in Re Webster v Norfolk County Council) and to the following extract – “Adoption is a statutory process; the law relating to it is very clear. The scope for the exercise of judicial discretion is severely curtailed. Once Orders for Adoption have been lawfully and properly made, it is only in highly exceptional and very particular circumstances that the court will permit them to be set aside.”

 

[There is one reported case called Re M 1991, where the Court did use the inherent jurisdiction to revoke the adoption order, but there’s no link to it, and it is not one that I know at all.   The only links to it are via paysites, but here is a summary I have found of it, via Jonathan Herring in New Law Journal http://www.newlawjournal.co.uk/nlj/content/family-revoking-adoptions

 

 

Wall LJ gave as an example of an exceptional case where an adoption order had been set aside as Re M (Minors) (Adoption) [1991] 1 FLR 458 where two girls had been adopted by their mother and stepfather. The father had consented to the adoption but had not been aware that the mother was suffering from terminal cancer at the time. The wife died soon after, but the stepfather struggled to care for the girls and they returned to their father. The Court of Appeal was willing to set aside the consent order. The primary reason was that the father had consented on the basis of a mistake and that the father would not have consented had he known the truth about his wife’s medical condition.

 

[And a step-parent adoption is a rather different kettle of fish, and the father in that case had consented, but it was a classic issue of him not having been given the accurate state of affairs at the time of that consent]

 

PK v Mr and Mrs K 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/2316.html

 

In 2004, PK had been removed from her mother, and placed with adopters, Mr and Mrs K.  However, within 2 years, Mr and Mrs K had placed PK with relatives in Ghana, who went on to considerably mistreat PK.

 

  1. On any view, PK’s childhood has been troubled and disrupted. It might have been thought that when, aged almost four, she became an adopted child her future was assured. Almost certainly, the expectation of the judge who made the adoption order was that PK would enjoy stability, consistency and security as the adopted child of Mr and Mrs K. No professional involved with PK at the time she was adopted could have envisaged that within two years she would be cast out from the home of Mr and Mrs K and sent to live with extended family members in Ghana.
  2. Nor could there have been any indication that whilst in Ghana, PK would be abused by the adults with whom she had been sent to live. Her experience of adoption, particularly the arrangements made for her after the age of six, would seem to have been extremely abusive. She is desperate to draw a line under that part of her life.
  3. When, last year, PK returned to England, she was reunited with her biological mother and maternal grandmother. She is delighted to be back with them.

 

So, should the adoption order be revoked?  There seem to be many positive reasons why it should be. The child has no relationship at all with the adopters, who have (let’s be frank) badly let her down, and is now with her biological family.  But as a matter of law, it is the adopters who have any legal rights about her and not her biological family.  Her biological mother is no longer her mother in law.

 

  1. PK has extremely strong feelings about her legal status. It is very important to her that the court takes account of her wishes and firm views which are that she should no longer be the adopted child of Mr and Mrs K but instead revert to having legal status as a member of her biological family.
  2. PK very much wishes to once more assume the last name of her biological mother to reflect that she is her child and belongs to that family. She urges me to permit her to change her name enabling her to apply for an amended birth certificate and a passport showing that her name is the same as that of her natural mother.
  3. PK remains frightened and wary of Mr and Mrs K. She does not wish them to know precisely where she is living.
  4. There is no potential difficulty, as there was in Re W, Bodey J’s case, arising out of the need to notify PK’s natural parents or for that matter her adoptive parents. In this instance, all of those adults who should be aware of the application have been served. There is no prospective trouble. Mr and Mrs K, by their inaction, have signified their lack of interest in PK’s future. It is probably fair to assume their position is one of tacit acceptance.
  5. PK’s mother and grandmother are thrilled to have her restored within their family. They are committed to providing for her long term future; and fully support her applications.
  6. If I were to decline to revoke the adoption order and refuse to allow PK to change her name back to that of her natural mother, it seems to me that there would be profound disadvantages in terms of her welfare needs. PK would continue to be, in law, the child of Mr and Mrs K. They would have parental responsibility and the legal rights to make decisions about and for her. But there would be considerable, maybe even insuperable, obstacles in the way of them exercising parental responsibility for PK given that they play no part in her life and she wishes to have nothing to do with them.
  7. Moreover, against the background described, there would be emotionally harmful consequences for PK if she were to remain the adopted child of Mr and Mrs K.

 

 

The only counter argument was the “public policy” argument that an adoption order is one that ought to be final and secure and that in revoking orders that principle is undermined and weakened.

 

 

Whilst I altogether accept that public policy considerations ordinarily militate against revoking properly made Adoption orders and rightly so, instances can and do arise where it is appropriate so to do. This case, it seems to me, falls well within the range of “highly exceptional and very particular” such that I can exercise my discretion to make the revocation order sought.

 

 

  1. The only advantage of a refusal of the application to revoke the adoption order would be the public policy considerations in upholding a validly made adoption order.
  2. I am in no doubt. The right course is to allow both applications in these highly exceptional and very particular circumstances and for the reasons given.

 

 

Absolutely the right decision.    [I would also have set aside the adoption order in Re B.  And I would have lost sleep over Webster, but ultimately I think that the passage of time since the orders were made and that the children had made new homes and new lives probably tipped the balance]

 

I don’t think that this is an ‘open the floodgates’ type of case  (though as Jack of Kent points out, the whole point and value of floodgates is that they can open, so it isn’t a bad thing), because the features are just so extraordinary and that informs the entire decision.

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Adoption of an adult

Posted on March 16, 2015 by suesspiciousminds

 

It is a peculiar wrinkle of the Adoption and Children Act 2002 that an adoption order can be made on a 19 year old PROVIDED that the application was lodged before that person’s 18th birthday.  It does not happen very often, but it comes about once in a while.

 

Mostyn J was asked to consider such an application in FAS v Bradford MDC 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/622.html

 

and it takes us into interesting directions.

This was an application by a woman living in Britain to adopt her cousin once removed MW, who is now legally an adult, being aged between 18 and 19. The application was made before his 18th birthday. The major difference between the adoption order being made or not being made would be that MW would be legally able to enter Britain and remain here.

The Court had to consider , when dealing with this application the welfare paramountcy principle.

Section 1(2):

The paramount consideration of the court or adoption agency must be the child’s welfare, throughout his life.

 

This is an important issue, because the ‘throughout his life’ is only in the Adoption and Children Act 2002, and is different to the wording of the Children Act 1989 where it is ‘throughout his childhood’ and also it is a change from the ‘throughout his childhood’ wording in the 1976 Adoption Act.

Obviously, if the Court is dealing with a person who is now 18, then the welfare throughout his childhood is no longer an issue, since he is no longer a child. But welfare throughout his life IS an issue.

Mostyn J was interested in why this change of wording had come about, and investigated it doggedly. He does not really get to the bottom of it, and if he was unable to, I suggest that nobody else will.

This is as close as he gets:-

what welfare considerations Parliament was addressing when it added the words “throughout his life” to the traditional welfare prescription? Section 1 of the Children Act 1989 provides that “the child’s welfare shall be the court’s paramount consideration.” Implicitly this captures only welfare matters arising during childhood. Had it meant to capture benefits arising in adulthood it would no doubt have said so, or have been amended to say so, when ACA was passed. The Consultation Paper “Adoption: a new approach” (December 2000: Cm 5017) does not shed any light on the issue. It merely states at para 4.14 that:

    1. “In 2001, the Government will legislate to overhaul and modernise the legal framework for adoption, and in particular … [to] align the Adoption Act 1976 with the Children Act 1989, to make the needs of children paramount in making decisions about their future.
    2. 34. This is, in fact, what did not happen, as the new adoption welfare test is not aligned with that in the Children Act 1989. I have not received any submissions from counsel about statements in Parliament during the passage of the legislation deriving from Hansard, and I have not undertaken any independent research in this regard.
  1. A significant clue is however found in section 1(4)(c) of ACA. This provides that the court must have regard to the likely effect on the child (throughout his life) of having ceased to be a member of the original family and having become an adopted person. This suggests that the court must look ahead and consider carefully the disbenefits that might arise later in life as a result of being adopted. No doubt Parliament had in mind the extraordinary and tragic case of Re B (Adoption Order: Jurisdiction to Set Aside) [1995] EWCA Civ 48, [1995] Fam 239. The problem there was described succinctly by Simon Brown LJ:

    “It is difficult to imagine a more ill-starred adoption placement than that of a Kuwaiti Muslim’s son with an Orthodox Jewish couple. This appellant was brought up believing himself a Jew, against a background of deep prejudice and hostility between Jews and Arabs, discovering only in adult life that ethnically he belongs to the opposing group.”

    The application by the adopted child, made when he was 36, to set aside the adoption order was refused. It could only be set aside in wholly exceptional circumstances and the facts there, though extreme, were not in that class.

 

Why does this matter?  Well, because there’s existing authority from the House of Lords in 1999  (dealing with the ‘throughout his childhood’ test that existed then) saying that matters that are consequential to the adoption such as inheritance rights or rights of abode are not things that can properly be considered as part of the ‘paramountcy’ principle, and that if the benefit is purely to allow a right of residence as a matter of public policy that is better left to the Secretary of State.

 

  1. I draw attention to the terms of section 1(2) which refers to the child’s welfare “throughout his life”. This is to be distinguished from section 6 of the Adoption Act 1976 (and its predecessors) which referred to the need to promote and safeguard the welfare of the child “throughout his childhood”.
  2. Section 6 of the 1976 Act was the key provision in play in the decision of the House of Lords of In re B (A Minor) (Adoption Order: Nationality) [1999] 2 AC 136. In that case in 1995 a child, T, then aged 14, and her mother, both Jamaican citizens, visited the mother’s parents in the United Kingdom and were given leave to enter for six months. During that period the child went to school in England. When the mother returned to Jamaica the child remained with her grandparents in order to continue attending school. The Home Secretary refused to extend the child’s leave to remain in the United Kingdom. The grandparents, who were British citizens, applied with the mother’s consent for an adoption order in respect of the child. The Home Secretary intervened to oppose the application on the ground that adoption was being used as a means of acquiring right of abode in the United Kingdom.
  3. Lord Hoffmann gave the sole speech of substance allowing the grandparents’ appeal from the decision of the Court of Appeal refusing an adoption order. At 141G to 142A he set out two propositions as follows:

    “The first is that the purpose of an adoption is, as section 12 of the Act says, to give parental responsibility for a child to the adopters. The court will therefore not make an adoption order when the adopters do not intend to exercise any parental responsibility but merely wish to assist the child to acquire a right of abode. This is what Cross J. in In re A. (An infant) [1963] 1 WLR 231, 236 called an “accommodation” adoption. The second proposition is that the court will rarely make an adoption order when it would confer no benefits upon the child during its childhood but give it a right of abode for the rest of its life. In such a case there are no welfare benefits during childhood to constitute the “first consideration.” The court is in effect being asked to use adoption to confer citizenship prospectively upon an adult. This is a power which Parliament has entrusted to the Home Secretary and the courts are reluctant to trespass upon the area of his authority.”

    And at 141E-G he concluded:

    “I think it is wrong to exclude from consideration any circumstances which would follow from the adoption, whether they are matters which will occur during childhood or afterwards. This, as I have said, would be contrary to the terms of section 6. Such benefits may include a right of abode or a possibility of succession. But benefits which will accrue only after the end of childhood are not welfare benefits during childhood to which first consideration must be given. And if a right of abode will be of benefit only when the child becomes an adult, that benefit will ordinarily have to give way to the public policy of not usurping the Home Secretary’s discretion. It is perhaps a curious feature of this case that if the Home Office had been willing to allow T. to remain in this country for the two years during which a residence order was in force, the case for an adoption, conferring a right of abode for life, would have been very much weaker. It would not have given T. any benefits during her childhood which she would not have been able to enjoy anyway.”

Does Lord Hoffman’s second proposition from Re B – that the Court will rarely make an adoption order that confers no benefits on a child during their childhood but has benefits which bear fruit in later life, stand, given that the paramountcy principle is now ‘throughout their life’ rather than ‘throughout their childhood’?

It is a damn good point.

Mostyn J felt that Lord Hoffman’s proposition was important – the Secretary of State for the Home Office had powers about immigration and who could enter the country and remain here – a family Court should be reluctant to take that power for themselves and there must be a concern that adoption could be used as a loophole to circumvent this, if the only tangible benefit for the person being adopted would be their right to live in the UK.

 

  1. In his recent lecture to the Denning Society on 13 November 2014 entitled “Adoption: Complexities Beyond the Law” Lord Wilson of Culworth with his customary penetration and lucidity identified a number of other searing problems encountered in adulthood which derive from an adoption. I would detract from the integrity of the piece were I to quote snippets from it. Lord Wilson ended with these telling words:

    “I am a passionate believer in the value of adoption in appropriate circumstances. Nevertheless I fear that, in making those orders, I never gave much attention to the emotional repercussions of them. In particular I fear that I failed fully to appreciate that an adoption order is not just a necessary arrangement for a child’s upbringing. Sir James Munby, the President of the Division, said only weeks ago that adoption has the most profound personal, emotional, psychological, social and perhaps also cultural and religious consequences. I totally agree. The order is an act of surgery which cuts deep into the hearts and minds of at least four people and which will affect them, to a greater or lesser extent, every day of their lives. As a result of the society’s invitation to me to speak to it this evening, I have belatedly been led to reflect on these complexities beyond the law.”

  2. I am firmly of the view that when Parliament enacted the enhanced welfare test in section 1(2) ACA it was thinking about the long-term emotional repercussions of an adoption order. I am equally firmly of the view that it could not possibly have intended to have abrogated Lord Hoffmann’s second proposition. It would have been extraordinary had it intended to do so. The control of immigration has been a driving force of all governments, of whichever political stripe, for decades. If Lord Hoffmann’s second proposition has gone, and the benefit of citizenship solely or mainly taking effect in adulthood is, of itself, a welfare reason to make an adoption order then one can see that a large loophole will have been opened up in an area which is extremely tightly regulated.

 

Mostyn J looked at the three reported authorities dealing with a similar issue where Lord Hoffman’s speech had been dealt with post the 2002 Adoption and Children Act, but did not find that they resolved the point.  In all three of the reported cases, the Court went on to make the adoption order, but none specifically addressed whether Lord Hoffman’s second principle applied (focussing rather on his first principle that the Court should not allow an adoption where the application is made in bad faith)

 

  1. I have concluded, for the reasons I have given, that Lord Hoffmann’s second proposition remains fully operative notwithstanding the advent of the enhanced welfare test in sections 1(2) and 1(4) ACA. I would re-express that proposition, in the light of ACA, as follows:

    “The court will rarely make an adoption order when it would confer no benefits upon the child during its childhood but give it a right of abode for the rest of its life. This is not inconsistent with section 1(2) of ACA. The court is in effect being asked to use adoption to confer citizenship prospectively upon an adult. This is a power which Parliament has entrusted to the Home Secretary and the courts are reluctant to trespass upon the area of his authority.”

  2. In this case I can see no benefits at all for MW deriving from an adoption order other than citizenship. If he were entitled to stay here I am sure that this application would not have been made. He would live with FAS and his second cousins. His life would be identical whether or not he was bestowed, as an adult, with the formal status of adoption.

 

Mostyn J says explicitly that he has done so on the basis of his interpretation that Lord Hoffman’s second proposition still applies, and that if it did not, he would have made the adoption order.

Finally, I should state that if I am wrong in my opinion that Lord Hoffmann’s second proposition remains operative, and that it is in fact a dead letter, then I would have concluded that the inestimable life-long benefit of citizenship to MW would have driven me to make an adoption order. If that is the law then I expect that the government would want to look urgently at making an amendment to ACA to restore that proposition to life.

 

 

 

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