A & B (Adoption: section 83 ACA 2002), Re

The phrase “for the purpose of adoption” in section 83(1)(a) of the Adoption and Children Act 2002 concerns the intention to obtain an adoption order through the English courts. It does not mean bringing a child merely to live in an adoptive home. The statute does not require adoption to be the sole or dominant purpose. The court must determine the reason and intent behind bringing the child to the United Kingdom. Where the child was brought to provide a permanent home, and the prospective adopter genuinely believed that an overseas guardianship order was equivalent to adoption, section 83 may not be engaged. Alternatively, non-compliance with subordinate adoption regulations may exceptionally be disregarded where strict enforcement would unjustifiably and disproportionately interfere with the parties’ Article 8 rights.

The applicant, the paternal aunt of two sisters born in Pakistan, obtained a Pakistani guardianship order after their father’s death and brought them lawfully to the United Kingdom in November 2022. She believed that the order was equivalent to adoption and did not initially understand that a further English adoption order was required. She later applied under sections 46 and 51(1) of the Adoption and Children Act 2002.

The central issue was whether she had brought the children into the United Kingdom “for the purpose of adoption” within section 83(1)(a), thereby engaging the Adoption with a Foreign Element Regulations 2005. The court also considered the consequences of any regulatory non-compliance, the children’s welfare, and dispensing with their mother’s consent.

1. Section 83 interpretation. The phrase “for the purpose of adoption” refers to bringing a child into the United Kingdom with the intention that the child will become adopted through the English court process. It does not refer merely to bringing a child to live in an adoptive home. “Purpose” bears its ordinary meaning and the statute should not be read as requiring a sole or dominant purpose.
2. Application. The applicant brought the children to provide a secure and permanent home, pursuant to the family responsibilities created by the guardianship arrangements. She genuinely believed that the Pakistani order gave her the equivalent of adoption and did not expect to make a further adoption application. There was therefore no breach of section 83 and the 2005 Regulations were not engaged.
3. Alternative conclusion. If section 83 and the Regulations had applied, the court would have been able exceptionally to allow the adoption application to proceed despite non-compliance. The relevant approach, drawn from Re TY (Preliminaries to Intercountry Adoption) and the authorities there considered, focuses on the consequences and purpose of non-compliance, the statutory scheme, the consequences of making or refusing the order, good faith, prejudice, and Convention compatibility. In light of RR v Secretary of State for Work and Pensions, subordinate legislation may be disapplied where necessary to avoid incompatibility with Convention rights.
4. Welfare and consent. Adoption was proportionate and in the children’s best interests. Their welfare was paramount under section 1 of the 2002 Act. The mother’s consent was dispensed with under section 52(1)(b), because the children’s welfare required it. Adoption orders were made.