ASB & Anor v MQS

In an adoption application involving a foreign child, the child’s welfare remains the court’s paramount consideration under the Adoption and Children Act 2002. Immigration consequences cannot simply be excluded from the welfare assessment. However, the court must guard against adoption proceedings being used merely to obtain nationality or a right of abode, without any genuine intention to exercise parental authority. Where the applicants genuinely intend to parent the child and adoption would confer real benefits throughout the child’s life, immigration-policy considerations will rarely justify refusal. Leave under section 42(6) is discretionary. Welfare is relevant but not paramount on that issue, and the proposed adoption must have a real prospect of success.

The applicants, a married couple, sought to adopt the respondent, their 17-year-old nephew and a Pakistani national. He had entered the United Kingdom with leave as a visitor, which later expired, and remained there. The Secretary of State intervened, alleging that the applicants had participated in deception concerning the purpose of his entry, that the adoption application was being used to circumvent immigration controls, and that adoption should therefore be refused.

The court also had to determine whether leave was required under section 42 of the Adoption and Children Act 2002, because the child had not lived with the applicants for the required period. The central issues were whether the applicants genuinely intended to exercise parental authority, how the child’s welfare and immigration position should be assessed, and whether leave should be granted.

1. Adoption and immigration status. The authority of In Re B (A Minor) (Adoption Order: Nationality) [1999] 2 A.C. 136 had to be read with section 1 of the Adoption and Children Act 2002. The court must consider all relevant welfare consequences, including benefits arising from the child’s immigration status or nationality. Immigration policy cannot operate as an exclusionary rule.
2. Misuse of adoption proceedings. The court must remain alert to adoption being used merely as a device to secure nationality or a right of abode. An adoption order should not be made where the applicants do not intend to exercise parental authority. Such conduct is inconsistent with the child’s welfare and the responsibility involved in an irrevocable adoption order. This principle survived the 2002 Act.
3. The applicants were honest and had not participated in the deception which the court found was probably practised by the child’s parents or maternal uncle. They had a genuine, long-standing parental relationship with the child and intended to exercise parental authority.
4. Applying section 1, the court found that adoption would provide substantial benefits throughout the child’s life. His wishes, settled life, education, family relationships, cultural and religious continuity, and the serious detriment likely to follow refusal all favoured adoption. Immigration-rule breaches by other family members carried little weight in the circumstances. Article 8 considerations reinforced, but did not determine, the welfare conclusion.
5. Leave to apply. Leave was required under section 42(5) and (6), because the residence condition was not met. Following Re A; Coventry County Council v CC and A [2007] EWCA Civ 1383, [2008] 1 F.L.R. 959, welfare was relevant but not paramount, and the prospect of success was a relevant consideration. Having heard the merits and concluded that adoption should be ordered, the court granted leave.
6. Leave was granted and the child was ordered to be adopted by the applicants.

First-instance decision. No earlier judicial decision in the same proceedings is stated.