A (A Child: Adoption Time Limits S44(3)) (Rev 1)

The upper two-year time limit in section 44(3) of the Adoption and Children Act 2002 does not automatically bar an adoption application where it was made shortly out of time. The court must construe the requirement purposively, having regard to its purpose, the significance of adoption, the applicant’s good faith, any prejudice, the local authority’s involvement and the child’s welfare. Where necessary, section 3 of the Human Rights Act 1998 requires section 44(3) to be read compatibly with Article 8.

The applicant sought to adopt A, whom she had brought from Saint Lucia as an infant in 2002 and cared for continuously in England. A regarded the applicant as her mother. The applicant gave written notice of intention to adopt on 1 June 2018. Her first application was returned for errors, and the second was received on 3 August 2020 and issued on 10 August 2020, just over two months outside the two-year period in section 44(3) of the Adoption and Children Act 2002.

The local authority supported the adoption and raised no objection to the delay. The issues were when the application and notice were made, whether the notice could be renewed or deemed renewed, and whether the statutory breach prevented the application proceeding.

1. The operative adoption application was the second application received on 3 August 2020. The earlier defective application could not satisfy section 44(3), which referred to the application on which the court could make an adoption order.
2. The notice of intention to adopt was given in writing on 1 June 2018. The applicant’s later discussions with the social worker amounted only to notice of an intention to issue an application and did not renew or replace the statutory notice.
3. The court adopted the purposive approach to statutory time limits explained in Re X (A Child: Surrogacy: Time-limit) [2014] EWHC 3135 (Fam), Dharmaraj v Hounslow London Borough Council [2011] EWCA Civ 312 and Newbold & Others v Coal Authority [2013] EWCA Civ 584. The purpose of the upper limit was to ensure that the local authority could provide reasonably up-to-date advice and reporting. It was not intended to bar an otherwise appropriate adoption permanently for a short, technical delay.
4. The relevant circumstances strongly favoured allowing the application to proceed: the applicant acted in good faith; the delay was just over eight weeks; the local authority had remained involved and could update its enquiries promptly; no party or the court suffered prejudice; and adoption would give lifelong legal recognition to the established parent-child relationship. A’s welfare throughout her life was paramount.
5. In the alternative, section 3 of the Human Rights Act 1998 required section 44(3) to be read compatibly with the Article 8 family-life rights of A and the applicant. Refusing to allow the application to proceed would deny the transformative legal and personal consequences of adoption and produce a nonsensical result.
6. The application could proceed. The court dispensed with the required medical reports and found no need to refer the case to the Secretary of State for the Home Department.

First-instance determination of the application by the High Court (Family Division). No prior appellate decision was stated.