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ADOPTION: ASB and KBS v MQS [2009] EWHC 2491 (Fam)

Date:20 OCT 2009

(Family Division; Bennett J; 13 October 2009)

Under Adoption and Children Act 2002, s 42(1)(b), (5), (6), when the child had not had his home with the applicant adopters for not less than 3 of the 5 years before the date of the application for the adoption order, applicant adopters required leave to apply for the order. In this case, while the biological family of the child had probably deceived the immigration authorities, by obtaining a 6-months visitor's visa for the 15-year-old child when their true intention had been that the child would remain indefinitely in England with the British couple who had informally 'adopted' the child when he was 10, the applicant adopters had been unaware of any such deception and had played no part in it. Once it had become clear to the applicants that the child was going to remain in England with them, they had contacted the authorities, seeking an extension of the visa and taking steps to adopt the child.

The earlier authority, Re B (Adoption Order: Nationality) [1999] 2 AC 136 must be read in the light of the 2002 Act, in particular of the requirement under the 2002 Act that the child's welfare was the paramount consideration, and the requirement that the child's welfare was to be considered 'throughout his life' not only his childhood. However, s 1 of the 2002 Act was not an exhaustive catalogue of considerations for the court, and it remained the court's obligation, post the 2002 Act, to be on its guard in adoption proceedings against misuse of such proceedings, as misuse of adoption proceedings to gain a right of abode was most unlikely to be in the child's best interests; applicant adopters who tried to use the court's procedures not to exercise parental authority in respect of a child, but to assist him to acquire British nationality, would have acted irresponsibly, indeed deviously if not dishonestly, and would not have been acting in the child's best interests in a fundamental respect.

The court granted leave notwithstanding the immigration matters, and then granted an adoption order, having no doubts that adoption by the applicants would confer real benefits of the child throughout his life. Immigration considerations could not, in these circumstances, justify refusal of the adoption order.