MW (A Child)

On an application for leave to apply for an adoption order under section 42(6) of the Adoption and Children Act 2002, the court must consider the child’s welfare and give it appropriate weight, although welfare is not paramount. The court must also consider whether the application is made in good faith and for proper reasons, and whether it has a reasonable or realistic prospect of success. Possible collusion to obtain immigration status requires careful investigation, but does not necessarily defeat an application for leave. The court may grant leave where waiting for the statutory period would make adoption impossible because the child would pass the statutory age limit.

Mrs AS applied for leave to make an adoption application concerning M, a 17-year-old boy born and brought up in Pakistan. M had lived with Mrs AS in England since October 2012. She was his first cousin once removed and therefore could not apply without leave because he had not lived with her for the period required by section 42 of the Adoption and Children Act 2002.

The application raised concerns about M’s welfare, the absence of evidence from his mother, his immigration status, and the possibility that the adoption application was contrived to secure immigration status and citizenship. The issue was whether leave should be granted to enable an adoption application to proceed.

1. Leave granted. The application for leave under section 42(6) of the Adoption and Children Act 2002 was granted. The decision concerned leave only and did not determine whether an adoption order would ultimately be made.

2. Section 42 did not prescribe the test for granting leave. The court nevertheless had to consider and give weight to M’s welfare, although welfare was not the paramount consideration. It also had to consider whether the application appeared to be made in good faith and for good and appropriate reasons, and whether the proposed adoption application had a reasonable or realistic prospect of success.

3. On the evidence then available, there was no apparent significant harm or upset likely to result from allowing the application to proceed. M appeared to regard Mrs AS as his mother and appeared to wish to be adopted. The account of the circumstances in which he came to live with her was credible on its face, although the possibility of collusion required much closer investigation.

4. Waiting for the full three-year period would have made any adoption application ineffective because M was already approaching the statutory upper age limit of 19. That practical consequence supported granting leave.

5. The local authority was directed to investigate M’s living circumstances and relationships with Mrs AS and her family. The Secretary of State for the Home Department was to be kept informed and provided with the local authority’s report. Mrs AS had a heavy duty to locate and inform both birth parents and provide them with the relevant documents.

6. The matter was listed for further directions before a High Court judge. Any resistance by the Secretary of State would be relevant to the ultimate adoption decision, but would not itself be decisive. An adoption order was unlikely unless both birth parents had been served and their views ascertained.