(Family Division, Pauffley J, 14 May 2013)
The 13-year-old child was born in Pakistan but had lived with the paternal uncle and aunt in the UK after travelling here with his parents approximately 2 years ago. The paternal uncle and aunt sought leave for the child to remain in the UK when the parents returned to Pakistan, outside of the immigration rules, on compassionate grounds, due to the mental health difficulties of the parents and their inability to care for him.
The child and his 29-year-old brother were served with Home Office removal notices. The older brother returned to Pakistan while the aunt and uncle provided a statement of application for leave to remain, claiming that they now had full responsibility of the child and wished to adopt him. The parents provided a declaration that they had handed over the care of the child.
The application was refused due to a lack of evidence that the child could not be cared for by his parents as he had been previously. The aunt and uncle brought an application for permission to begin an adoption application.
Section 42(5) of the Adoption and Children Act 2002 required the child to have lived with the applicants for not less than 3 years before the adoption application was made. The Secretary of State for the Home Department, intervening, submitted that the 3-year requirement existed for good reason and should not be waived in the circumstances of this case. There had been a full scale failure to comply with the immigration rules and the law relating to the adoption of a foreign child.
It was impossible to conclude that an adoption order was in the child's best interests, even setting aside the many matters which cast doubt upon the faith and integrity of the aunt and uncle. There was no sense that they had a true desire for their own reasons to adopt the child. They had five children already and their motivation was to help the parents by providing the child with the chance of a better life in the UK. While the guardian concluded that the child was being well cared for by the uncle and aunt, the emotional impact and circumstances in which the child was left in the UK was troubling.
Applications of this nature, particularly where immigration issues were intermingled should be determined promptly. The 12-month delay in this case was unacceptable as being fundamentally against the child's welfare interests and had been inimical to the proper operation of immigration controls.