A and O (Children : Scotland), Re

An English Family Court may entertain an adoption application concerning Scottish children placed in England, irrespective of the children’s habitual residence. A placement remains effective for the purposes of the Adoption and Children Act 2002 even if there has been a technical breach of Scottish adoption procedure, unless the breach invalidates the placement under the applicable law.

Where an adoption application may require parental consent to be dispensed with, the parents must be able to participate effectively in the final hearing. In a forum non conveniens application, Scotland must be shown to be clearly or distinctly the more appropriate forum. The court may refuse a stay subject to the State or responsible local authority meeting necessary travel and accommodation costs.

Prospective adopters living in England applied under the Adoption and Children Act 2002 for adoption orders concerning two Scottish children placed with them in England by Dundee City Council. The placements followed compulsory supervision orders made by a Scottish Children’s Hearing under the Children’s Hearings (Scotland) Act 2011.

The parents challenged the lawfulness and procedural consequences of the placements and argued that proceedings should be stayed in favour of the Court of Session. The central issues were the English court’s jurisdiction, whether the applications satisfied the statutory preliminaries, and whether Scotland was clearly or distinctly the more appropriate forum.

1. Jurisdiction and statutory preliminaries. The English court’s jurisdiction to entertain an adoption application depended on the circumstances of the prospective adopters under sections 49–50 of the Adoption and Children Act 2002, not on the children’s habitual residence. It also had jurisdiction to dispense with parental consent under section 52(1)(b), irrespective of the parents’ nationality, domicile, habitual residence or presence in England.
2. The children had been placed for adoption by an adoption agency within section 42(2)(a) of the 2002 Act. Dundee City Council was acting both as implementation authority under section 144 of the Children’s Hearings (Scotland) Act 2011 and as an adoption agency. A technical breach of regulation 23 of the Adoption Agencies (Scotland) Regulations 2009 did not invalidate the placement or prevent the English court applying the 2002 Act. The parents and Dundee City Council were properly joined under FPR 14.3.
3. The court was not required to determine the children’s habitual residence before deciding the stay application. Section 1(6) required consideration of the powers available in the particular case. The court could, where necessary, use the High Court’s inherent jurisdiction to secure an appropriate alternative arrangement.
4. Forum non conveniens. Applying the principles in Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 and De Dampierre v De Dampierre [1988] AC 92, Scotland had to be shown to be clearly or distinctly the more appropriate forum. The parents’ ability to attend the final hearing throughout was an imperative consideration. Subject to Dundee City Council meeting their necessary travel and overnight accommodation costs, England was the more convenient forum.
5. The stay was refused. The adoption applications were remitted to Judge Singleton QC for hearing at Preston or Lancaster on the earliest available date, with further directions to minimise delay.

First-instance decision. The judgment arose from directions proceedings transferred from the Family Court at Blackburn and previously managed by Her Honour Judge Singleton QC. The case was remitted to Judge Singleton for determination of the adoption applications.