A & Anor. v B & Anor.

In an international Convention adoption, the child’s welfare remains paramount. The court must consider the statutory welfare checklist, the full range of alternative orders and whether adoption would be better than no order.

A parent with parental responsibility may be removed as a party only in the most exceptional circumstances. That course may be justified where the parent lacks litigation capacity, cannot realistically participate or advance any relevant case, and continued participation would cause serious and foreseeable harm to the child through delay.

Where a parent lacks capacity to consent, consent may be dispensed with under section 52(1)(a) of the Adoption and Children Act 2002. The court must nevertheless assess the child’s welfare and ensure that dispensing with consent is necessary and proportionate under Article 8.

The applicants, the child’s maternal aunt and uncle, sought a Convention adoption order for a 17-year-old young woman who had moved from country A to England under the 1993 Hague Adoption Convention process. The child’s father and maternal grandmother had signed documents consenting to adoption. The birth mother remained habitually resident in country A but was said to have lost parental responsibility there because of serious mental illness.

The court concluded that, under domestic law, the mother retained parental responsibility and was therefore an automatic party. Expert evidence established that she lacked litigation capacity and capacity to understand or consent to the adoption. The central issues were whether she should be removed as a party, whether her consent should be dispensed with, and whether adoption was in the child’s lifelong welfare interests.

The application succeeded. The mother was removed as a party under rule 14.3(3)(b) of the Family Procedure Rules 2010, her consent was dispensed with under section 52(1)(a) of the Adoption and Children Act 2002, and an adoption order was made.

1. Parental responsibility. The mother retained parental responsibility under section 2(2)(a) of the Children Act 1989. The court applied domestic law because the child was now habitually resident and settled in England. It did not accept that the law of country A should determine the issue, particularly as no foreign court order capable of recognition had been produced.
2. Removal as a party. Removal is appropriate only in the most exceptional circumstances. The relevant considerations included the Convention authorities’ obtaining of the necessary consents, the child’s urgent immigration and educational position, the serious risk of emotional harm from further delay or return to country A, the mother’s profound and long-standing incapacity, the absence of any realistic alternative case she could advance, and the child’s wishes and welfare. Continued participation offered no practical benefit and carried substantial risks.
3. Dispensing with consent. The expert evidence established an impairment of the functioning of the mother’s mind and an inability to understand, retain, use or communicate information relevant to adoption. The statutory ground in section 52(1)(a) was therefore satisfied. The court also found that the child’s welfare required adoption within section 52(1)(b), although the statutory wording meant that the welfare imperative did not need to be established in exactly the same manner where incapacity was the ground relied upon.
4. Welfare and proportionality. The child’s welfare throughout her life was paramount. Adoption provided lifelong legal security, preserved her practical family relationships and secured her immigration position. Special guardianship, residence orders or no order would not provide equivalent security. Dispensing with consent was a grave interference with the mother’s Article 8 rights, but it was necessary and proportionate to safeguard the child’s future welfare.
5. The court emphasised that international adoptions under the 1993 Convention may be legally complex. Local authorities should obtain legal advice where appropriate and should ensure that applicants understand the process and evidential requirements.

This was a first-instance decision of the High Court (Family Division). The judgment does not state any prior appellate history.