In re B (A Minor) (Adoption Order: Nationality)

When deciding whether to make an adoption order, the court must consider all circumstances resulting from the adoption. It must give first consideration to the child’s welfare throughout childhood. Benefits arising from the acquisition of British citizenship or a right of abode cannot be excluded merely because they affect immigration status.

An adoption must involve a genuine transfer of parental responsibility. The court will not ordinarily make an order merely to secure immigration advantages. Benefits arising only after majority lack the priority accorded to welfare during childhood and will usually yield to the public policy against usurping the Home Secretary’s immigration functions.

A Jamaican girl entered the United Kingdom as a visitor when aged 14 and remained with her British grandparents after her leave expired. The Home Office refused an extension and proposed her return or deportation. Her grandparents applied to adopt her because adoption would confer British citizenship and a right of abode, enabling her to remain with them and continue her education.

Sumner J made the adoption order after finding that it would provide substantial welfare benefits during the girl’s remaining childhood. The Court of Appeal discharged the order because those advantages arose from the resulting right of abode rather than from adoption as such.

The central issue was whether, under section 6 of the Adoption Act 1976, the court should disregard benefits resulting solely from a change in the child’s immigration status.

1. Appeal allowed unanimously; the adoption order restored. Lord Hoffmann delivered the leading speech. Lord Nicholls, Lord Hope, Lord Hutton and Lord Millett expressly agreed with his reasoning.

2. Per Lord Hoffmann, section 6 of the Adoption Act 1976 required the court to consider all the circumstances and to give first consideration to the child’s welfare throughout childhood. The Court of Appeal’s exclusion of benefits resulting from a change in immigration status contradicted that statutory language. Substantial benefits during childhood remained relevant even though they arose because adoption conferred British citizenship and a right of abode.

3. Per Lord Hoffmann, immigration policy was a circumstance which the judge could consider. Parliament had nevertheless made citizenship an automatic consequence of an adoption order where the statutory nationality condition was met. It had not required the Home Secretary’s consent. The decision whether to make the order belonged entirely to the judge applying section 6. General immigration policy would be very unlikely to justify refusing an adoption which conferred real benefits during childhood.

4. Per Lord Hoffmann, adoption must fulfil its statutory purpose of transferring parental responsibility to the adopters. The court will refuse an “accommodation” adoption where the proposed adopters do not intend to exercise parental responsibility and seek only to obtain a right of abode for the child. The approach in In re A (An Infant) [1963] 1 W.L.R. 231 was applied.

5. Per Lord Hoffmann, circumstances arising after childhood must not be excluded altogether. They do not, however, constitute welfare benefits during childhood entitled to first consideration. Where adoption offers no substantial childhood benefit and principally gives the future adult a right of abode, that advantage will ordinarily yield to the policy against usurping the Home Secretary’s immigration discretion. The reasoning of Hobhouse LJ in In re K (A Minor) (Adoption Order: Nationality) [1995] Fam. 38 was approved. Broader remarks by Balcombe LJ were confined to benefits accruing after majority.

6. The proposed adoption involved a genuine transfer of parental responsibility: the girl was to live with her grandparents as their daughter. It also conferred substantial benefits during the remainder of her childhood. Sumner J had therefore correctly given those benefits first consideration.

1. House of Lords: Allowed the appeal unanimously and restored Sumner J’s adoption order.

2. Court of Appeal: Discharged the adoption order. It held that the judge had failed to distinguish the advantages of adoption itself from those arising through acquisition of a right of abode.

3. High Court: Sumner J made the adoption order. He held that section 6 of the Adoption Act 1976 required first consideration to be given to the substantial welfare benefits arising during the child’s remaining minority.

4. Leeds County Court: The grandparents commenced the adoption proceedings there before their transfer to the High Court following the Home Secretary’s intervention.