JL, Re (Rev 1)

Adoption jurisdiction in England and Wales is statutory. The inherent jurisdiction may supplement the statutory scheme, but cannot be used to circumvent or contradict it.

Where parents relinquish a baby for adoption, the Re B “nothing else will do” approach to non-consensual adoption does not apply in the same form. The court must instead apply the welfare principle and checklist in Adoption and Children Act 2002, s 1, including proper consideration of the parents’ wishes and all realistic options.

Valid consent under s 19 authorises placement for adoption and means that a placement order is neither necessary nor available. A child voluntarily accommodated for adoption is not “detained” for the purposes of article 36 of the Vienna Convention, although article 37 applies where a guardian is appointed.

The judgment determined common issues arising in two proceedings concerning babies born in England to foreign nationals and relinquished for adoption. JL’s Estonian mother had validly consented to adoption in England, and the local authority sought a placement order. AO’s Hungarian parents also wished adoption, but the local authority and guardian proposed that she be sent to Hungary for adoption, while her parents opposed that course.

The court considered the statutory adoption scheme, the limits of the inherent jurisdiction, the application of Brussels IIA, the effect of foreign nationality and cultural background, the Vienna Convention on Consular Relations, and the legal approach to consensual relinquishment cases.

1. Statutory jurisdiction. Decisions on adoption and measures preparatory to adoption fall outside Brussels IIA. Jurisdiction to make placement and adoption orders derives from the Adoption and Children Act 2002, together with Children Act 1989, Schedule 2, paragraph 19. The inherent jurisdiction may supplement the statutory scheme, but cannot be used to make an order which circumvents or conflicts with it.
2. Relinquished babies. The “nothing else will do” formulation in Re B [2013] UKSC 33 concerns non-consensual adoption. In a consensual relinquishment case, the parents’ decision is an important consideration in assessing necessity and proportionality, but is not decisive. The court and local authority must apply s 1 of the 2002 Act, give paramount consideration to the child’s lifelong welfare, evaluate the statutory factors, and analyse all realistic options, as required by Re B-S (Children) (Adoption: Application of Threshold Criteria) [2013] EWCA Civ 1146.
3. Consent and placement orders. Valid consent must be unconditional and given with full understanding of what is involved. Where consent under s 19 is valid, the agency is authorised to place the child for adoption. In the absence of care proceedings or another statutory condition, s 22 creates no obligation or power to apply for a placement order, and the court has no power to make one.
4. Consular notification. A child voluntarily relinquished for adoption or voluntarily accommodated is not “detained” for article 36 of the Vienna Convention. Article 37 nevertheless requires notification where a guardian is appointed. Foreign authorities may still need to be contacted where necessary to assess the child’s background, relatives and welfare.
5. JL. The local authority was authorised under s 19 to place JL for adoption in England. Its application for a placement order was dismissed because it had no standing to bring it and the court had no jurisdiction to make such an order. The court recorded that placement in England was in JL’s best interests.
6. AO. The proceedings concerned a measure preparatory to adoption and could not be transferred to Hungary under article 15 Brussels IIA. Section 85 prohibited removal to Hungary for adoption, absent the statutory conditions. The inherent jurisdiction could not authorise removal in a way that avoided the statutory safeguards. The court declined the requested orders, leaving the local authority to issue care proceedings and seek approval under Schedule 2, paragraph 19 if it wished to pursue placement in Hungary.

First-instance decision. The judgment records no prior appellate decision in the same proceedings.