Thomson & Ors, R (on the application of) v The Minister of State for Children

The Secretary of State retained a discretion, arising from the Crown’s common-law or prerogative powers and recognised within the intercountry adoption scheme, whether to issue a certificate of eligibility and suitability. That discretion was not unfettered. It had to be exercised consistently with the statutory scheme and the Secretary of State’s role in safeguarding the integrity of intercountry adoptions.

In the exceptional circumstances considered, the Secretary of State was entitled to suspend Cambodian adoptions before matching, withdraw an unacted-on certificate, and reject proposed alternative safeguards. The decision was rational, proportionate and procedurally fair. Published descriptions of the ordinary process did not create a legitimate expectation that pending applications would continue. Article 8 did not confer a right to adopt a further child or engage a child’s private or family life merely because a sibling of the same heritage was desired.

Six couples sought judicial review of decisions concerning a temporary suspension imposed on intercountry adoptions from Cambodia on 22 June 2004. The fifteenth claimant, already adopted from Cambodia by one couple, challenged the effect of the suspension on the proposed adoption of a sibling.

The claimants challenged the Secretary of State’s power to withhold or withdraw certificates, the choice of the suspension point, the treatment of pending applications, the exceptional circumstances procedure, and the compatibility of the decisions with common-law fairness and Convention rights. The central issues were whether the Secretary of State had acted within her powers, whether pending applicants had enforceable expectations, and whether the suspension was irrational, discriminatory or disproportionate.

1. Judicial review and disclosure. The application for specific disclosure was dismissed. The material already disclosed gave a sufficient and accurate account of the decision-making process.
2. Power to suspend and withhold certificates. The Secretary of State retained a discretion whether to issue a certificate contemplated by regulation 5(a) of the Adoption (Bringing Children into the United Kingdom) Regulations 2003. The power derived from the Crown’s common-law or prerogative powers, within the statutory scheme. It was justiciable and had to be exercised consistently with the overall scheme and the Secretary of State’s particular role. It was not an unfettered discretion.
3. The Secretary of State was entitled to act on evidence of systemic corruption, falsified documents, trafficking and inadequate safeguards in Cambodia. The selected cut-off point, before the Cambodian authorities issued a matching report, was rational and proportionate because control of the process then passed to the Cambodian authorities and further wrongdoing could occur before United Kingdom authorities regained control.
4. Withdrawal of the certificate. The Secretary of State could withdraw a certificate communicated to Cambodia but not acted upon by the Cambodian authorities. The court left open the different questions that might arise after a Cambodian adoption had taken place or the certificate had otherwise been acted upon.
5. Legitimate expectation. Statements that the ordinary process “will” occur described the process as it then operated. They did not promise that pending applications would continue despite a future suspension. The claim therefore failed at the first stage. Detrimental reliance was not legally essential, but the pressing public interest would in any event have justified the suspension without warning.
6. Fairness and exceptional circumstances. The extra-statutory procedure gave applicants a fair opportunity to make representations and was compatible with common-law fairness. The court did not need to decide whether Article 6 applied, but held that the procedure would satisfy it if applicable. There was no evidence that the Secretary of State had unlawfully fettered her discretion or that effective alternative safeguards were reasonably available.
7. Convention rights. Article 8 did not guarantee adoption or a right to extend an existing family by acquiring a sibling. The fifteenth claimant’s Article 8 rights were not engaged by the suspension. In any event, the suspension was justified and proportionate to the pressing public interest in protecting children from trafficking and abuse.
8. The applications for specific disclosure and judicial review were dismissed.

Not stated in the judgment. This was a first-instance decision of the Administrative Court.