ECC (The Local Authority) v SM (A Child) & Ors

Sections 28 and 85 of the Adoption and Children Act 2002 must be read compatibly. Section 85 is a penal provision directed to permanent removal abroad for adoption abroad. It does not prohibit a temporary removal to prospective adopters overseas where the child will return to this jurisdiction for the making of a Convention adoption order. The court may therefore grant leave under section 28 for the statutory residence period preceding an adoption application to be spent abroad. Such leave should be time-limited and supported by undertakings to return, together with recognition that the child remains subject to the jurisdiction.

The local authority sought a placement order for a seven-year-old child whose proposed permanent placement was with her paternal uncle and aunt in the United States. The parents could not care for her. The mother opposed the plan principally because of anticipated difficulties with contact, while the father supported it in substance.

The United States had acceded to the 1993 Convention on Intercountry Adoption. The care plan was therefore changed from adoption in the United States to a Convention adoption in England followed by permanent removal. The prospective adopters could not live temporarily in England. The central issue was whether the ten-week residence requirement under section 42(2)(a) of the Adoption and Children Act 2002 could be spent in the United States, consistently with sections 28 and 85.

1. Placement order. Applying section 1 of the Adoption and Children Act 2002, the child’s need for permanence, the absence of parental care, the suitability of the assessed relatives, the child’s wish to join them and the immigration position made a placement order both right and necessary. The welfare requirement under section 52(1)(b) also justified dispensing with parental consent where necessary.
2. Construction of sections 28 and 85. Section 28(2) and (3) contemplate court-authorised removal of a child subject to a placement order, while section 28(4) confirms that removal for less than one month needs no leave. Sections 28 and 85 must be construed so that they do not conflict. Section 85, being penal, should be read restrictively. It applies to permanent removal from the United Kingdom for the purposes of adoption abroad, not to temporary removal pending the child’s return for a Convention adoption order in England.
3. Residence abroad. Following the principle established in Re A (Adoption: Removal) [2009] 2 FLR 597, the prospective adopters’ home base need not be in this jurisdiction. Section 28 therefore empowered the court to authorise the child to spend the section 42 residence period in the United States without infringing section 85.
4. Safeguards and order. Leave was granted for a maximum of six months. The order was conditional on undertakings to return the child, an acknowledgment that she remained subject to the jurisdiction, and return earlier if required. The judge expressed no concluded view on whether permanent leave could ever be granted under section 28.