B (A Minor), In re

The court held that in deciding whether to make an adoption order under the Adoption Act 1976 the judge must take into account all the circumstances and give first consideration to the welfare of the child throughout his or her childhood, as required by section 6 of the Adoption Act 1976. Benefits which would follow from the adoption, including acquisition of British citizenship under section 1(5) of the British Nationality Act 1981 and a resulting right of abode under section 2(1)(a) of the Immigration Act 1971, are matters the court must consider when they confer welfare advantages during childhood.

The court rejected the submission that benefits solely flowing from a change in immigration status must in all cases be ignored. The court distinguished (i) ‘‘accommodation’’ adoptions where adopters do not intend to exercise parental responsibility, and (ii) cases where the only benefit would accrue after majority; in such situations the court will normally refuse an adoption order to avoid usurping the Home Secretary's immigration discretion. Where, however, adoption would effect a genuine transfer of parental responsibility and would confer substantial welfare benefits during childhood, immigration policy will rarely justify refusal.

Background and facts:

• Ms B, a Jamaican national, entered the United Kingdom at age 14 to visit grandparents who are British citizens. She remained in the United Kingdom after an unsuccessful immigration application to extend leave. Her grandparents applied to adopt her so that she would acquire British citizenship under section 1(5) of the British Nationality Act 1981 and thereby a right of abode under section 2(1)(a) of the Immigration Act 1971.
• The grandparents were qualified to adopt and the mother consented. The adoption would secure Ms B's continued schooling and living with her grandparents for the remainder of her minority.

Procedural history:

• The initial application was made in Leeds County Court and, because the Home Secretary intervened, was transferred to the High Court where Sumner J granted the adoption order.
• The Court of Appeal discharged that order, holding that benefits solely arising from acquisition of a right of abode should be disregarded. The grandparents appealed to the House of Lords.

Issues:

• Whether the court should disregard benefits that would result solely from a change in immigration status when determining whether the child's welfare calls for adoption.
• Whether adoption may be used to secure citizenship or right of abode where the primary purpose is to obtain immigration advantage.

Reasoning and decision:

• The House of Lords held that section 6 of the Adoption Act 1976 requires the court to have regard to all circumstances and to give first consideration to the child’s welfare throughout childhood. Consequently benefits following from adoption, including citizenship and right of abode, are matters the court must take into account where they produce welfare benefits during childhood.
• The court adopted two limiting propositions: it will not make an adoption order where adopters do not intend to exercise parental responsibility (an "accommodation" adoption), and it will rarely make an order where any advantage would arise only after majority, since that would intrude upon the Home Secretary’s immigration discretion.
• On the facts the adoption involved a genuine transfer of parental responsibility and conferred substantial welfare benefits during Ms B’s remaining minority; the appeal was allowed and the High Court order restored.

Wider context:

The Lords noted the statutory allocation of immigration policy to the executive and indicated judicial reluctance to use adoption to confer citizenship prospectively on adults, but emphasised that where welfare advantages during childhood exist they are likely to outweigh general immigration policy considerations.

Appeal allowed. The House of Lords held that a court must consider all circumstances under section 6 of the Adoption Act 1976 and give first consideration to the child's welfare throughout childhood; benefits arising from adoption, including acquisition of British citizenship under section 1(5) of the British Nationality Act 1981 and consequent right of abode under section 2(1)(a) of the Immigration Act 1971, may be taken into account where they provide welfare advantages during childhood. The court distinguished ‘‘accommodation’’ adoptions and cases where benefits only accrue after majority, which may justify refusal so as not to usurp the Home Secretary's immigration discretion.

Application for an adoption order was made in Leeds County Court; the Home Secretary intervened and proceedings were transferred to the High Court (Sumner J), which granted the adoption order. The Court of Appeal (President Sir Stephen Brown, Morritt L.J., Sir Patrick Russell) discharged the order. The grandparents appealed to the House of Lords, which allowed the appeal. (House of Lords citation: [1999] UKHL 11.)