FAS v Secretary of State for the Home Department & Anor

When deciding whether to make an adoption order, the court must assess every kind of welfare benefit and detriment affecting the child throughout the child’s life. The assessment is not confined to emotional consequences or to childhood.

If adoption by a British citizen would automatically confer citizenship and best promote lifelong welfare, the court should ordinarily make the order. The state’s interest in immigration control then carries very little weight. Automatic citizenship under section 1(5) of the British Nationality Act 1981, however, requires the person to remain under 18 when the adoption order is made.

FAS applied to adopt MW, her Pakistani relative, after he entered the United Kingdom as a visitor and remained beyond the expiry of his leave. Mostyn J refused the application in [2015] EWHC 622 (Fam). He construed section 1(2) of the Adoption and Children Act 2002 as limiting lifelong welfare considerations to emotional consequences and assumed that adoption would confer British citizenship.

FAS appealed. The issues were whether section 1(2) required consideration of every welfare consequence throughout life and whether an order made after MW turned 18 could confer citizenship under section 1(5) of the British Nationality Act 1981. A subsidiary issue was whether an adoption order could materially assist an application for leave to remain based on article 8.

1. Appeal dismissed unanimously. Sales LJ held, with Macur and Briggs LJJ agreeing, that the judge had misconstrued section 1(2) of the Adoption and Children Act 2002. The appeal nevertheless failed because MW was no longer a minor and an adoption order could not confer British citizenship under section 1(5) of the British Nationality Act 1981.

2. The natural meaning of “throughout his life” in section 1(2) requires the court to consider all welfare interests that adoption may affect during the child’s entire life. The provision contains no restriction by type of benefit. Section 1(4), including section 1(4)(c), supports that broad construction. It would be arbitrary to confine the assessment to emotional matters.

3. Re B (A Minor) (Adoption Order; Nationality) [1999] 2 AC 136 was based on the different wording of section 6 of the Adoption Act 1976. That provision accorded priority to welfare during childhood. Its approach to benefits arising only after childhood therefore did not govern the amended lifelong assessment. The case nevertheless supported treating practical and citizenship-related benefits arising during the statutorily relevant period as welfare considerations.

4. If adoption by a British citizen would automatically confer citizenship and, after all lifelong benefits and detriments are considered, adoption best promotes the child’s welfare, the court should ordinarily make the order. General immigration-control interests have very little significance and cannot properly be reinforced indirectly through refusal of the adoption order.

5. Section 50(1) of the British Nationality Act 1981 defines a minor as a person under 18. The extended meaning of “child” in section 49(5) of the Adoption and Children Act 2002 does not alter that definition. Because MW was already 18, section 1(5) could not confer citizenship and the principal welfare benefit identified below disappeared.

6. An adoption decision is not a calculation of material benefits alone. The court must examine the emotional consequences of ending one parent-child relationship and replacing it with another, including consequences arising later in life and across countries.

7. MW’s private and family life had been established while his immigration position was known to be precarious. In the absence of exceptional circumstances, article 8 offered no prospect of leave to remain. A speculative immigration advantage could not justify the adoption order.

1. Court of Appeal (Civil Division): In [2015] EWCA Civ 951, the court unanimously dismissed the appeal. It rejected the judge’s construction of section 1(2) of the Adoption and Children Act 2002, but upheld the refusal of an adoption order because section 1(5) of the British Nationality Act 1981 could not confer citizenship after MW turned 18.
2. High Court, Family Division: Mostyn J, in [2015] EWHC 622 (Fam), refused the adoption order. He treated lifelong welfare under section 1(2) as confined to emotional consequences and assumed that an order would confer British citizenship.