FAS v Bradford Metropolitan District Council & Anor

An adoption order will rarely be made where it confers no benefit during the adoptee’s childhood but principally secures citizenship or a right of abode in adulthood. That principle remains applicable under the Adoption and Children Act 2002, notwithstanding the requirement to consider welfare throughout the person’s life. The court must not trespass upon the Home Secretary’s responsibility for immigration and nationality. Long-term emotional consequences of adoption are relevant welfare considerations, but citizenship alone will not ordinarily justify adoption where the application is in substance an attempt to secure immigration status.

FAS applied to adopt MW, her first cousin once removed, who had been born in Pakistan and had lived with her in Bradford since October 2012. The application was made before MW’s eighteenth birthday. He was an unlawful overstayer and an adoption order would have conferred British citizenship.

Holman J had granted leave under section 42(6) of the Adoption and Children Act 2002. The Secretary of State opposed the substantive application, contending that it was an attempt to circumvent immigration controls. The central issue was whether the principle stated in In re B (A Minor) (Adoption Order: Nationality) [1999] 2 AC 136 remained applicable under the 2002 Act.

1. Application refused. The court declined to make an adoption order.
2. The application was treated as a mainstream adoption application because Pakistan was not a party to the Hague Convention on inter-country adoption. The court considered the statutory framework, including the child-welfare provisions and the statutory age limits. An order could still be made before MW’s nineteenth birthday, although he was already legally an adult.
3. Lord Hoffmann’s second proposition in In re B (A Minor) (Adoption Order: Nationality) [1999] 2 AC 136 remained fully operative under the 2002 Act. The court would rarely make an adoption order where it conferred no benefits during childhood but secured a right of abode for life. Using adoption to confer citizenship prospectively upon an adult would trespass upon powers entrusted to the Home Secretary.
4. The reference in section 1(2) of the Adoption and Children Act 2002 to welfare throughout the person’s life did not abrogate that principle. Section 1(4)(c) was directed particularly to the long-term emotional and other consequences of adoption, including the consequences of severing membership of the original family.
5. On the facts, the only real benefit of adoption to MW was citizenship. His life with FAS would be materially the same without an adoption order. The court therefore should not determine what was in substance an immigration question by making an adoption order.
6. The Secretary of State retained a substantive discretion outside the Immigration Acts and Rules to permit a person in MW’s position to remain in the United Kingdom. That discretion had to take proper account of his Article 8 rights and was subject to judicial review if exercised unlawfully, irrationally or perversely.
7. The evidence concerning the circumstances in which MW came to the United Kingdom and the obtaining of his mother’s consent was unreliable. Even if the court’s construction of the 2002 Act were wrong, it would have made an adoption order because of the substantial lifelong benefit of citizenship. That observation was obiter.

First-instance decision. No earlier appellate decision in the present proceedings was stated.