London Borough of Haringey v MA & Ors

Permission under paragraph 19 of Schedule 2 to the Children Act 1989 may lawfully be given for a child in local-authority care to live abroad with relatives while the possibility of adoption there is investigated. “Removal for the purpose of adoption” is wider than “placing a child for adoption with prospective adopters”. The latter requires the statutory circumstances creating the status and relationship of prospective adopters to have arisen.

The court considered that the 10-week requirement in section 84(4) of the Adoption and Children Act 2002 could, on a purposive construction, be satisfied in the child’s prospective foreign home. The home environment for section 42(7)(a) purposes likewise need not be in England and Wales. Nevertheless, because existing authority pointed the other way, the court refused the orders to avoid conflicting first-instance authority and granted permission to appeal.

The local authority cared for a child whose care plan was adoption. The only viable prospective adopters were the child’s paternal uncle and aunt, who lived in the USA. The authority proposed a staged plan involving assessment in England and the USA, followed by a possible parental responsibility order under section 84 of the Adoption and Children Act 2002 and adoption in the USA.

The authority sought permission under paragraph 19 of Schedule 2 to the Children Act 1989 to take the child abroad and a declaration that time spent abroad could count towards the statutory period under section 84(4). The central questions concerned the legality of the proposed assessment, the place of the child’s home, compliance with section 42(7), and Article 17 of the Hague Convention.

1. Permission and statutory distinction. The court held that the proposed removal fell within the broad expression “for the purpose of adoption” in section 85 of the Adoption and Children Act 2002. However, paragraph 19(9) of Schedule 2 to the Children Act 1989 did not apply. “Placing a child for adoption with prospective adopters” is a narrower concept. It requires parental consent or a placement order and the creation of the statutory status and relationship between the child and prospective adopters.
2. The proposed initial placement could therefore be treated as a foster placement for assessment, even though the ultimate aim was adoption abroad. The court agreed with the reasoning of Black J in ECC v M [2008] EWHC 332 (Fam) and rejected the Department’s wider construction.
3. Section 84(4). On a purposive construction, the “home” in section 84(4) could be the prospective foreign adoptive home. The provision was a trigger for an application and did not expressly require the home to be in England and Wales. The corresponding home environment for section 42(7)(a), as modified for section 84 applications, could likewise be abroad. Observation could include opportunities before and after a placement for adoption, and the relevant regulations were directory and capable of sensible, flexible application.
4. Convention. Article 17 of the Hague Convention was not engaged merely because day-to-day care was entrusted to potential adopters for assessment. The relevant change of status and relationship arose when the child was placed for adoption, after the Convention requirements had been met.
5. Disposition. Despite those conclusions, the court declined to approve the USA visit or make the declaration. Existing first-instance authority, including H County Council v B [2005] EWHC 3437 (Fam) and the underlying assumption in Re G (A Child) [2008] EWCA Civ 105, supported a contrary approach. To avoid divergent authority on matters of status and welfare, the court left the issue to the Court of Appeal and granted permission to appeal.

This was a first-instance decision. The court refused the requested approval and declaration, but granted permission to appeal because the proposed construction of the statutory scheme conflicted with existing authority and warranted appellate resolution.