G (A Child) v C & Ors

A child may have a home with two prospective adopters throughout the ten-week period required by section 84(4) of the Adoption and Children Act 2002 although one adopter is absent for part of that period. The question is one of fact and degree. The court should consider the domestic relationship, effective parental control and whether the adoption agency had an adequate opportunity to assess each adopter.

For an adoption abroad, confirmation under regulation 10(b)(iv) of the Adoptions with a Foreign Element Regulations 2005 must come from the foreign equivalent of an adoption agency. It may be conditional upon completion of the applicable adoption and immigration procedures. The statutory safeguards remain mandatory and cannot be overridden merely because compliance appears difficult.

The mother appealed against an order under section 84(1) of the Adoption and Children Act 2002. The order gave the child's paternal aunt and her husband parental responsibility so that they could take the child to the United States and apply to adopt her there. The mother accepted that adoption was in the child's interests but preferred placement within the United Kingdom.

The prospective adopters had established a temporary home in England during the statutory ten-week period. The wife cared for the child throughout, while the husband was present for three weeks. His Honour Judge Vincent held that the child nevertheless had her home with both applicants for the purposes of section 84(4).

The appeal raised two central questions: whether section 84(4) required both applicants' continuous physical presence, and whether the necessary written confirmation under regulation 10(b)(iv) of the Adoptions with a Foreign Element Regulations 2005 had been obtained.

1. Permission to appeal was granted, but the appeal was adjourned for 28 days. The challenge to the construction of section 84(4) of the Adoption and Children Act 2002 was dismissed. The court deferred the final disposition so that the required foreign-authority confirmation could be sought.

2. Section 84(4) did not require both prospective adopters to be physically present with the child throughout the preceding ten weeks. The phrase that the child's home was with the applicants required a sensible and purposive construction. Its purposes included allowing a domestic relationship to develop and enabling the English adoption agency to assess the applicants and their relationships with the child.

   Whether the requirement was met was a question of fact and degree. Relevant matters included the home provided, the time spent with the child, effective parental control and the adequacy of the opportunity to assess each adopter. The husband's presence for three weeks was sufficient on the evidence. A complete or merely nominal presence would probably have produced a different result.

3. The judge had no power simply to override regulation 10(b)(iv) of the Adoptions with a Foreign Element Regulations 2005. The safeguards against unregulated removal of children abroad served a legitimate purpose. Neither section 3 of the Human Rights Act 1998 nor Article 8 permitted the court to disregard them.

4. The “relevant foreign authority” required to give confirmation under regulation 10(b)(iv) was the foreign equivalent of an English adoption agency, rather than an immigration authority. The confirmation could be conditional. It was sufficient for the agency to confirm, from its knowledge and experience, that the child would be authorised to enter and reside in the foreign country once the relevant domestic and foreign adoption procedures had been completed.

5. The local authority and guardian were invited to seek that confirmation from the American adoption agency. If satisfactory fresh evidence were produced, the court intended to dismiss the appeal and confirm the order. Written compliance with regulation 10(c) and the other relevant safeguards was also required before the adjourned hearing.

• Court of Appeal (Civil Division): Permission to appeal was granted. The challenge under section 84(4) of the Adoption and Children Act 2002 was rejected, but the appeal was adjourned for 28 days so that evidence satisfying regulation 10(b)(iv) could be obtained.
• High Court: His Honour Judge Vincent made an order on 1 February 2008 under section 84(1), giving the prospective adopters parental responsibility for the child before her proposed removal to the United States for adoption.