(Family Division, Pauffley J, 15 March 2013)
The local authority sought permission to place the 4-year-old child with carers in the USA who had also adopted the child's older half sister. The family lived in the USA due to the man's employment but they remained domiciled in England and Wales.
At an earlier hearing a declaration of the couple's domicile was made and they were pronounced eligible to adopt the child pursuant to s 49 of the Adoption and Children Act 2002. The alternative option was for them to apply for a Hague adoption. However, neither route was available in order to create an adoption that would be legally binding in the USA. The latter would not be available until the couple became US citizens and they would only become eligible in 2014. It was, therefore, urgent and vital to find a way of placing the child with the couple until they could apply under the Hague Convention.
As the couple were registered foster carers it was possible to place the child with them pursuant to the Care Planning, Placement and Case Review (England) Regulations 2010. Regulation 12 explicitly referred to arrangements to place children outside the jurisdiction. Pursuant to s 42(2) of the ACA 2002 the child had to be placed with prospective adopters at least 10 weeks prior to the adoption application, ECC (The Local Authority) v SM was authority for the proposition that the 10 weeks could be spent outside the jurisdiction. A longer period could be permissible providing the English court retained jurisdiction and the child remained habitually residence in this jurisdiction.
As a result of the shared intention of the local authority and the couple the child would remain habitually resident in England and Wales either by virtue of the disregard provision in s 105(6) of the Children Act 1989 and/or on the fact that the local authority has no settled intention that the child should live in the USA.
Permission to remove the child to the USA under s 28 of the Adoption and Children Act 1989 was granted.