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
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.
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:
- “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.
- 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.
- 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)  EWCA Civ 48,  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.
- 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”.
- 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)  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.
- 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)  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.
- 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.”
- 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)
- 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.”
- 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.