A (A Child), Re

For an application under section 84(4) of the Adoption and Children Act 2002, the child’s home during the preceding ten weeks need not be in England and Wales. In an overseas adoption case it may be the prospective adopters’ actual home abroad.

Where an adoption agency is involved, section 42(7)(a) imposes no territorial restriction on the home environment. The agency may obtain sufficient opportunities to assess the child and prospective adopters abroad. Time before a formal adoptive placement may count towards the ten-week period.

A local authority may obtain approval under paragraph 19 of Schedule 2 to the Children Act 1989 for a temporary overseas assessment placement. That is not a placement for adoption merely because adoption is a possible future outcome.

A child in the local authority’s care could not return to her parents. Her paternal uncle and aunt, who lived in the United States, wished to adopt her. The local authority proposed a temporary visit and assessment placement with them in the United States, followed, if appropriate, by the statutory process for an overseas adoption.

Charles J refused approval under paragraph 19 of Schedule 2 to the Children Act 1989 and declined a declaration concerning the ten-week requirement in section 84(4) of the Adoption and Children Act 2002: [2008] EWHC 1722 (Fam). The local authority appealed. The central issues were whether the child could be sent abroad for assessment and whether the qualifying ten weeks could be spent in the prospective adopters’ home abroad.

1. Appeal allowed unanimously. Wall LJ, with whom Moore-Bick LJ and Thorpe LJ agreed, held that the proposed temporary placement in the United States could be approved and that the requested declaration should be granted.

2. Section 84(4) of the Adoption and Children Act 2002 does not prescribe where the child’s home with the applicants must be. Its natural application in an overseas adoption is to the applicants’ normal home abroad. A geographical restriction could have been expressed, as it was in section 42(7)(b), but was not.

3. Section 42(7)(a), applied to section 84 orders by regulation 11 of the Adoption with a Foreign Element Regulations 2005, requires sufficient opportunities for the adoption agency to see the child with the applicants in the home environment. It does not require that environment to be in England and Wales. The statutory purpose is assessment of the relationship in the prospective adopters’ real home. The agency may conduct that assessment abroad if it can properly do the necessary work.

4. The qualifying ten-week period may include time before a formal placement for adoption. The wording of section 42 assumes that assessment will usually occur during such a placement, but does not impose it as a condition. The court must nevertheless be satisfied that the statutory safeguards and reporting requirements have been met before making a section 84 order.

5. The proposed United States visit was a lawful use of paragraph 19 of Schedule 2 to the Children Act 1989. It was a temporary assessment under a care plan and the child would return to England. Adoption was the preferred, but not the only, possible result. The child was therefore not being placed for adoption within paragraph 19(9), and the arrangement was not prohibited by section 85.

6. The court rejected the suggestion that child protection required a different construction. Court control, the local authority’s duties, the applicable regulations and the eventual section 84 application supplied safeguards. The child had no existing family life with the prospective adopters, so Article 8 was not engaged.

• Court of Appeal (Civil Division): Allowed the local authority’s appeal, approved the temporary United States placement and granted the declaration sought: [2009] EWCA Civ 41.

• High Court, Family Division (Charles J): Refused approval under paragraph 19 of Schedule 2 to the Children Act 1989 and declined the declaration concerning section 84(4) of the Adoption and Children Act 2002: [2008] EWHC 1722 (Fam).