S & T (Children), Re

Applicants for an order under section 84 of the Adoption and Children Act 2002 who have never had a home in England cannot satisfy the requirements that the child be seen in the home environment by the local authority for the area in which the home is situated, or that notice be given to the appropriate local authority. The Convention on Protection of Children and Co-operation in respect of Intercountry Adoption does not alter that clear statutory meaning.

A parent’s consent may in principle be dispensed with in a Convention adoption. However, adoption requires the stringent conclusion that nothing else will do. A possibility of a more beneficial placement is insufficient. Where the evidence cannot realistically satisfy that test, and continuation offers no solid advantage to the children, the proceedings should end.

The children’s maternal great aunt and great uncle, resident in Illinois, applied under section 84 of the Adoption and Children Act 2002 for parental responsibility before a proposed Convention adoption in the United States. The children were wards of court following earlier litigation concerning their removal to Pakistan.

The applicants had never had a home in England. They sought to dispense with the father’s consent and to renew permission for the children to remain temporarily in the United States. The issues included the statutory viability of the section 84 application, whether consent could be dispensed with in a Convention adoption, the children’s habitual residence, and whether the evidence justified continuing the proceedings.

1. Section 84 application. The applicants could satisfy section 84(4), but could not satisfy sections 42(7)(b) and 44(9)(b) of the Adoption and Children Act 2002. Those provisions require the relevant home to be within the area of an English or Welsh local authority. The Convention and the Adoptions with a Foreign Element Regulations 2005 did not justify a different construction. The notice purportedly given to the local authority was therefore ineffective.
2. Consent. Sections 47(2)(c) and 52(1)(b), applied to section 84 orders by regulation 11, permit the court in principle to dispense with parental consent in a Convention case. Once consent has been dispensed with under domestic law, it is no longer consent that is necessary for the purposes of article 4(c)(2) of the Convention. The procedural difficulties under articles 14–17 and regulation 48 did not require determination.
3. Habitual residence. Applying the approach in C v M and In re R (Children), the children remained habitually resident in England and Wales. Their stays in the United States were deliberately intermittent and lacked stability, particularly because the orders required their return if directed by the court.
4. Dispensing with consent and continuation. The applicants could not establish that the father’s consent required dispensing with, applying the nothing else will do test. The fact that the applicants might offer a more beneficial environment was insufficient. The United States immigration requirements and the local authority’s doubts about the care threshold were relevant considerations but were not determinative.
5. There was no solid, evidence-based reason to believe that further evidence or cross-examination could bridge the evidential deficit. Nor was there any solid advantage to the children in continuing proceedings. Their welfare required finality. The section 84 application was dismissed, the children remained wards of court temporarily, and arrangements were made for their return to England and Wales and gradual return to the father’s care.