A & Anor v A Local Authority & Anor

An adoption arrangement made privately, or involving payments which may constitute criminal offences, is not automatically a bar to an adoption order. The court must determine whether the statutory offences have been established and must then apply the paramount consideration of the child’s welfare throughout life, having regard to the welfare checklist. Where the evidence shows that payments were loans rather than consideration for the adoption, and the proposed adopters provide excellent and continuous care, adoption may properly be ordered if it best secures the child’s permanence and welfare.

The applicants sought an adoption order for a child who had lived with them almost from birth. The child’s birth parents supported the application. The arrangement had been made privately, and the applicants had paid substantial sums to the birth parents, raising issues under the Adoption and Children Act 2002.

The matter was referred for fact-finding after a circuit judge raised concerns about possible illegal payments. The central issues were whether the payments were made for or in consideration of the adoption, whether the applicants had deliberately misled the social worker, and whether adoption was in the child’s welfare interests.

1. The court found that the applicants and birth parents were genuine and honest, despite minor differences in their evidence. The applicants had notified the local authority soon after the introduction and had not deliberately attempted to conceal the arrangement.
2. Private adoption arrangements contravened section 92 of the Adoption and Children Act 2002. Arranging an adoption otherwise than through a recognised adoption agency was an offence under section 93. Payments made for or in consideration of adoption were addressed by section 95(1). Nevertheless, the Act contained no provision making such an offence an automatic bar to an adoption order.
3. The court accepted that the £4,900 paid by the applicants was not paid for or in consideration of the child’s adoption. It was treated as financial assistance and a loan, a substantial part of which had been repaid. The court therefore found no criminal payment offence on the facts.
4. Under section 1(2) of the Adoption and Children Act 2002, the child’s welfare throughout life was paramount. The court also had regard to section 1(4), the welfare checklist. The child had received excellent care from the applicants since shortly after birth, and removal would be wholly contrary to his interests.
5. Alternative arrangements, including a residence order under section 8 of the Children Act 1989 and special guardianship under section 14(a), had been considered. Adoption was the only route providing proper permanence throughout the child’s childhood and life. An adoption order was accordingly made in favour of the applicants.

The judgment records that the adoption application first came before His Honour Judge Cardinal on 14 October 2014. Concern about possible illegal payments led to allocation of the matter to the High Court and a fact-finding hearing was directed on 30 October 2014. The High Court thereafter determined the factual and welfare issues at first instance.