Z (A Child : Egyptian fostering UK adoption) (Rev 1)

In an international adoption case, the child’s welfare throughout life remains the paramount consideration. The court must undertake a global and holistic evaluation of every realistic option, weighing the benefits and disadvantages of adoption against alternatives. A child’s nationality, cultural, linguistic, religious and ethnic background is important, but no aspect of that background automatically prevails over the child’s welfare as a whole. The practical consequences of an adoption not being recognised abroad, including a possible “limping” adoption, must be considered. Adoption is permissible only where it is better for the child than making no adoption order and, in a necessary case, where nothing else will do. The court refused the child’s return to Egypt and made an adoption order in favour of the applicant.

The applicant, T, sought an adoption order for Z, a child born in Egypt who had been abandoned as a baby and placed with T and her Egyptian husband, K, under the Egyptian system of kafala or fosterage. Z entered the United Kingdom in 2013 on a visit and remained in T’s care. T applied for adoption and, alternatively, a Child Arrangements Order. The Egyptian Ministry of Social Solidarity opposed adoption and sought Z’s return to Egypt under the inherent jurisdiction. The local authority and Z’s guardian supported Z remaining with T. The central issues were whether the Ministry was a guardian whose consent had to be dispensed with, whether the statutory and regulatory circumstances prevented adoption, and which arrangement best promoted Z’s welfare throughout her life.

1. Disposition. The application by the Egyptian Ministry for Z’s return to Egypt was refused. The court concluded that Z’s welfare throughout her life required her to remain in England and become T’s adopted child.
2. Under Adoption and Children Act 2002, s 1, welfare throughout the child’s life was paramount. The court considered the whole range of available orders and could make an adoption order only if it would be better for Z than not doing so. The assessment had to include Z’s wishes and feelings, needs, relationships, background, the likely effect of leaving the original family, and the harm and instability associated with each option.
3. The court applied the global, holistic welfare evaluation described in B-S (Children) [2013] EWCA Civ 1146. “Nothing else will do” was not a freestanding shortcut. It was a concise expression of the proportionality and necessity requirement, applicable only after a full comparison of the realistic options.
4. Z’s Egyptian nationality, culture, language, heritage and possible religious identity were significant matters. They did not take precedence over her welfare as a whole. The evidence showed that removal from T, her psychological mother and primary carer, created a substantial risk of emotional and psychological harm, placement breakdown, renewed feelings of abandonment and possible exposure to discrimination and FGM. The proposed Egyptian placements were insufficiently assessed and lacked essential evidence about accommodation, education, language support, emotional support and permanence.
5. The court considered that adoption would not be recognised in Egypt and would create a “limping” adoption. That disadvantage, and the possible loss of Egyptian nationality and future access to Egypt, had to be weighed against the security, permanence, family membership and inheritance rights available through adoption in England.
6. The Ministry was not Z’s guardian within the meaning of Adoption and Children Act 2002, s 144 and Children Act 1989, s 5. Its opposition was nevertheless given due weight. Any breach of s 83 or the 2005 Regulations was a matter for the prosecuting authorities and did not bar the adoption application, although it was relevant to the welfare decision.