TY (Preliminaries To Intercountry Adoption)

Procedural non-compliance with statutory preconditions to an intercountry adoption application is not necessarily fatal. The court should examine the provision’s purpose, the consequences of non-compliance, good faith, prejudice and the parties’ Convention rights. Substantial compliance may satisfy the conditions governing the applicable residence period.

Whether a child has “had his home with” an applicant is a flexible question of fact. Physical cohabitation throughout the qualifying period is unnecessary where the evidence establishes an integrated parent-child relationship, sustained care and concern, and a home arranged and provided by the applicant.

An aunt applied to adopt her 18-year-old nephew, whom she had previously adopted in Jamaica. The English application had been issued three days before his eighteenth birthday. The Jamaican order was not recognised as an overseas or Convention adoption.

The application was referred from the Central Family Court because the applicant had notified the local authority of the child’s arrival late and had given less than three months’ notice of her intention to adopt. The court also had to determine whether the child had “had his home with” her for the applicable period, although they had not physically cohabited throughout it.

1. The adoption application was permitted to proceed. The late notices under section 44 of the Adoption and Children Act 2002 and regulation 4(4) of the Adoption with a Foreign Element Regulations 2005 were not fatal. The proper approach concentrated on the purpose of the requirements and the consequences of non-compliance, rather than treating mandatory language as conclusive.

2. The arrival notice enables early checks, visits and advice concerning the placement. Its practical purpose had largely passed because the child had been living in England for nearly nine months. The three-month notice enables the local authority to investigate and report. That purpose could still be achieved because the authority could undertake its assessment without prejudice and already possessed an earlier positive assessment of the applicant.

3. The applicant had acted in good faith and had complied with the material intercountry-adoption requirements. She had been assessed and approved, obtained the required certificate, visited the child and accompanied him into the United Kingdom. Regulation 9 contemplated non-compliance with regulations 3 and 4. Her very substantial compliance was sufficient to treat the statutory conditions as met, reducing the “had his home with” period from three years to six months.

4. Preventing the application from proceeding would permanently foreclose an adoption carrying profound and irreversible consequences. It would also amount to an unjustified and disproportionate interference with the applicant’s and child’s rights to family life under article 8 of the European Convention on Human Rights. They would suffer irremediable prejudice, whereas the local authority’s statutory work had not been compromised.

5. The child had “had his home with” the applicant throughout the relevant six months. That expression required a flexible, fact-sensitive assessment rather than uninterrupted physical cohabitation. Their integrated parent-child relationship, daily communication, shared periods of residence, involuntary separation, and the applicant’s longstanding provision of care, supervision and a home satisfied the requirement.

6. Had that requirement not been satisfied, the court would have been minded to grant leave under section 42(6). Such leave may be granted at any stage, including the final hearing. The local authority was directed to undertake the Annex A assessment, after which the application would be listed for final hearing.

High Court (Family Division): The application was referred from the Central Family Court under the applicable family procedure practice direction because of apparent non-compliance with the statutory pre-adoption requirements. The High Court permitted it to proceed to assessment and final hearing.