(Family Division, Sir James Munby, the President of the Family Division, 19 June 2015)
[The judicially approved judgment and accompanying headnote has now published in Family Law Reports  1 FLR 1011
Adoption – Intercountry adoption – Maternal family members sought to adopt children – Father had unlawfully removed children from jurisdiction – Mother had since died – Whether the father’s care of the children could be sufficient – Whether nothing else would do
Please see attached file below for the full judgment.The application under s 84 of the Adoption and Children Act 2002 was dismissed and the children were to be returned to the UK and gradually to the care of their father.
The two young children were wards of court due to their father's removal of them to Pakistan in 2012. There were also allegations of domestic violence inflicted by the father on the mother. In 2013 their mother died of cancer and while the father remained in Pakistan for some time, the children lived with maternal family members in the UK. In 2014 the maternal great aunt and uncle who lived in the USA initiated proceedings under s 8 of the Children Act 1989 seeking leave to remove the children from the UK to live with them in the USA. They sought an order under s 84 of the Adoption and Children Act 2002 and they would then seek an adoption order in Illinois. That process would be in accordance with the Hague Convention on Intercountry Adoption 1993 and would, therefore, comply with US immigration law. The father opposed the adoption.
Permission had already been granted for the applicants to remove the children from the UK for a 90-day period and they had accordingly travelled with the children to the USA. Further orders had been made permitting the children to remain in the USA during the proceedings and they had remained there ever since.
It was clear that the applicants would have difficulty meeting all of the requirements of s 50 of the 2002 Act particularly given that they had never had a home in this country. The provisions of s 42(7) and 44(9)(b) of the 2002 Act were clear and plain. For their application to be salvaged they would need to establish a home in this country even if on on a temporary basis.
The fact that the father did not consent to an adoption did not prevent the court from dispensing with the need for his consent in the case of a Hague Convention adoption. Neither the language of the Convention nor the provisions of the relevant regulations had that effect.
Despite the lengthy period that the children had spent in the USA, having regard to the carefully crafted orders permitting them to be removed from the jurisdiction and the provision requiring them to be returned at any time if directed so by the court, they remained habitually resident here.
An independent social worker reported that the father was able to meet the children's physical needs and his contact with them had been good, however, he had little insight into the pain and grief he had caused them by removing them from their mother. She concluded that he did not have the children's long-term interests at heart and that she could not recommend him as a long-term carer. However, she noted it was a finely balanced decision and despite his deficits his care might be considered good enough. In those circumstances the court could not be satisfied that nothing else would do.
There was no basis for any belief that prolongation of the process carried with it any realistic prospect of the court being satisfied that the father's consent required to be dispensed with and that nothing else would do. The deficit in the evidence was too great. The children's welfare required finality and the proceedings should be brought to an end.
The application was dismissed. The children would remain wards of court in the interim. They would be returned to the UK and gradually returned to the care of the father.
Case No: FD14P00572
Neutral Citation Number:  EWHC 1753 (Fam)
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Date: 19 June 2015
SIR JAMES MUNBY PRESIDENT OF THE FAMILY DIVISION
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In the Matter of S and T (Children)
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Mr Damian Garrido QC and Mr Edward Kirkwood (instructed by Turpin & Miller) for the applicants (the children’s maternal great aunt and great uncle)
Ms Janet Bazley QC and Mr Mark Jarman (instructed by Freemans) for the children’s father
Mr John Vater QC (instructed by Reading Borough Council) for the local authority
Mr Robin Barda (instructed by Cafcass Legal) for the guardian
Hearing dates: 5-7 May 2015
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Re S and T (Intercountry Adoption: USA)  EWHC 1753 (Fam)