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Louisa Gothard
Louisa Gothard
Senior Solicitor, Head of Family Law
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Jurisdiction in cross-border adoption cases (Re A and another (Children))
Date:15 JUN 2017
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Family analysis: The Family  Division’s guidance in Re A regarding applications by prospective adoptors in England for adoption orders in respect of Scottish children is considered by Lorraine Cavanagh, barrister, of St John’s Buildings.


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Original news

Re A and another (Children) [2017] EWHC 1293 (Fam), [2017] All ER (D) 17 (Jun)
The Family Division determined that the English courts had jurisdiction to hear an application by  prospective adopters living in England for an adoption order in relation to two Scottish children. The court also held that the proceedings did not need to be stayed so that the case could be heard in Scotland: England was the forum conveniens.

What was the background  to the case?

A Scottish local authority had concluded that the children’s best interests were served by adoption and recommended that a permanence order be applied for. The local authority identified prospective adopters in England and decided to apply to a Scottish children’s hearing for a compulsory supervision order (CSO) for the children to be placed with the English couple. The CSO provided for ongoing direct contact with the mother and father. After a period of time, the prospective adopters applied to their local court for an adoption order.

The application was made in accordance with section 47(2) of the Adoption and Children Act 2002 (ACA 2002). ACA 2002, s 47(4) did not apply because there was neither parental consent nor an English placement order, and ACA 2002, s 47(6) did not apply because there was no Scottish permanence order.

The parents resisted the application on the basis that the children ought to be rehabilitated to their care. The CSO recorded that ‘all aspects of [the mother’s] life appear to be improving dramatically’ and that the father ‘seems to be turning his life around’. The parents challenged the application proceeding in England and Wales on the basis of jurisdiction and forum conveniens.

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What issues arose for  the court’s consideration?

Jurisdiction

The parents submitted that the local authority had breached regulation 23(3) of the Adoption Agencies (Scotland) Regulations 2009, SSI 2009/154, by failing to comply with a duty to apply for a permanence order with authority to adopt. The court held that nothing in this breach, if breach it was, had the effect of preventing the local authority from placing the children for adoption, acting as it was as an adoption agency and an implementing authority under the CSO. Thus jurisdiction was a short point in the case.

Forum conveniens

The parents’ arguments were threefold.

First, they argued that sections 1(1)(a), 2(1) and 3(1) of the Family Law Act 1986 (FLA 1986) combined to deprive the Family Court and Family Division in England and Wales of jurisdiction to make an order under section 8 of the Children Act 1989 (ChA 1989) unless the child was habitually resident in England and Wales. Thus the jurisdiction of the court was inappropriately constrained to a binary decision: adoption order or not. And so the court could not properly perform its obligation under ACA 2002, s 1(6) to consider the whole range of powers available to it in a child’s case; nor could it meet the requirement in Re  B-S (Children) (Adoption: Application of Threshold Criteria) [2013] EWCA Civ 1146, [2013] All ER (D) 145 (Sep) to consider all the realistic options before concluding that an adoption order be made. Indeed it could not meet the procedural standards mandated by Articles 6 and 8 of the European Convention on Human Rights (ECHR), if its powers were limited by the lack of any ability to make such an order.

Secondly, they contended that as the children’s hearing continued to have, and to exercise, jurisdiction over the children, the adoption proceedings were better tried in the Court of Session in Scotland.

Thirdly, they maintained that, applying the principles set out in Spiliada Maritime Corp v Cansulex  Ltd, The Spiliada [1986] 3 All ER 843 to the facts of this case, the application should be stayed on the basis that Scotland, and not England, was the forum conveniens.

What did the court  decide, and why?

Jurisdiction

The Family Division concluded that the Family Court had jurisdiction to hear an application for an adoption order pursuant to ACA 2002 irrespective of whether the children were, or were not, habitually resident in England. The application had been properly made in accordance with ACA 2002, ss 42(2)(a) and 47(2) as the local authority was an adoption agency within the meaning of ACA 2002, s 42(8). Thus the English court had jurisdiction.

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