SL (A Child) (Adoption : Home In Jurisdiction)

For an adoption order under the Adoption Act 1976, the child’s qualifying “home” during the preceding 12 months need not be in England or Wales and need not be the same home as that relevant to the local authority’s investigation. The applicant must have a home within the jurisdiction when notice is given under section 22(1), enabling the relevant local authority to see the child and applicant in the home environment. The requirements in sections 13(2) and 13(3)(b) are separate and independent. They must be construed sensibly and purposively, consistently with the statutory purposes of testing the placement and securing a useful local-authority report.

Ms H, a single woman, applied to adopt SL, a child with profound difficulties who had been found abandoned in Hong Kong. The Hong Kong court had authorised the Director of Social Welfare to consent to the adoption and to place SL with Ms H. Ms H and SL lived in London when she gave notice under section 22(1) and issued the adoption application, but moved to Scotland two days later. The issue was whether the English court retained jurisdiction and whether the statutory home and local-authority requirements could be satisfied after that move.

1. Jurisdiction. The English court had jurisdiction. SL was in England when the application was made within section 62(2) of the Adoption Act 1976, and Ms H was domiciled in a part of the United Kingdom for section 15(2). Scotland was within the United Kingdom for that purpose, applying Schedule 1 to the Interpretation Act 1978.
2. Construction of the home requirements. Re Y (Minors) (Adoption: Jurisdiction) [1986] 1 FLR 152 correctly established that the local authority referred to in section 13(3)(b) must be an authority in England or Wales. Consequently, the home environment relevant to that subsection must also be in England or Wales.
3. However, the further formulation in Re Y that the section 13(2) home must also be a home in the area of that local authority was obiter and could not be accepted as an accurate statement of the law. The section 13(2) home need not be the same home as the section 13(3)(b) home and need not be in England or Wales.
4. Sections 13(2) and 13(3)(b) impose separate requirements serving different purposes. Section 13(2) tests the strength and security of the placement by requiring the child to have lived with the applicant for the prescribed period. Section 13(3)(b) aims to secure sufficient opportunities for the local authority to see the child and applicant together in the home environment and prepare its report under section 22(2). Neither purpose requires the two homes to coincide.
5. SL had had his home with Ms H throughout the relevant period, including while living in Hong Kong, London and Scotland. The London local authority had sufficient opportunities to see him with Ms H in their London home. The requirements of sections 13(2) and 13(3)(b) were therefore satisfied, and the adoption order was made. Consent by the Hong Kong Director was accepted under section 16(1)(b)(i), and parental agreement was dispensed with under section 16(2)(a) because the parents could not be found.