IH (A Child) (Permission to Apply for Adoption)

Permission to apply for an adoption order under section 42(6) of the Adoption and Children Act 2002 requires a fact-sensitive discretionary assessment. The child’s welfare is relevant but is not paramount. The court must also consider whether the proposed adoption application has a real prospect of success.

The court declined to create an additional requirement of exceptional circumstances where the application involved immigration issues or non-compliance with immigration and adoption requirements. Those matters may nevertheless be highly relevant to motivation, credibility, welfare and the overall balance. Each case must be determined on its own facts.

MM and RB, the subject child’s paternal uncle and aunt, sought permission under section 42(6) of the Adoption and Children Act 2002 to apply for an adoption order. The child had not lived with them for the statutory three-year period.

The child had entered the United Kingdom with his parents on visitor visas and remained after the visas expired. Earlier applications for leave to remain had failed. The Secretary of State for the Home Department opposed permission, alleging non-compliance with immigration and foreign-adoption requirements, questionable motivation, inconsistencies and delay. The local authority was neutral, while the child’s guardian supported the application.

The central issues were the proper test under section 42(6), the significance of the immigration background and whether the proposed adoption had a real prospect of success and would serve the child’s welfare.

1. Application refused. The applicants were not given permission to apply for an adoption order.
2. Under section 42(6) of the Adoption and Children Act 2002, the principles governing permission were those identified in Re A; TL v Coventry City Council and CC and A [2007] EWCA 1383. The child’s welfare was relevant but, by section 1(7), was not paramount. The court also had to consider whether the proposed application had a real prospect of success.
3. The court rejected the Secretary of State’s proposed additional test requiring something exceptional before permission could be granted where immigration rules or foreign-adoption requirements had not been followed. The existing guidance was workable and required a fact-sensitive balancing exercise. The circumstances of each case might support or decisively oppose permission.
4. The applicants’ failure to comply with the immigration rules and the requirements of the Adoptions with a Foreign Element Regulations 2005 was relevant. So too were the close connection between the adoption and immigration applications, extensive inconsistencies about the child’s care and family circumstances, and doubts about the authenticity and motivation of the application.
5. Although the child was settled and progressing well in the applicants’ home, the court was not satisfied that adoption would serve his welfare. Adoption would legally transform his relationship with his parents, brothers and applicants, but the evidence did not suggest that he would genuinely regard his uncle and aunt as parents. A residence order might have produced a different result, but the proposed adoption did not have a sufficient welfare foundation.
6. Applications of this kind, particularly where immigration issues arise, should ordinarily be determined promptly on submissions. Transfer to the High Court should be considered at the earliest stage where the Secretary of State intends to intervene.