A v B & Anor

Non-compliance with the statutory safeguards governing non-Convention intercountry adoption does not create an absolute bar to an adoption order. The court must determine factually whether the child was brought to the United Kingdom for adoption. Where the statutory regime is engaged, non-compliance is a serious matter and a criminal offence, but its consequences are assessed within the welfare decision. An adoption order may be made only in exceptional circumstances demanded by the child’s welfare throughout life. The court must preserve the protective purpose of the statutory safeguards while avoiding an interpretation that prevents an order promoting the child’s welfare. The child’s welfare remains the paramount consideration under the Adoption and Children Act 2002.

The applicant, a British national, sought to adopt X, a Moroccan child who had been declared abandoned and placed with her under a Moroccan kafala order. X entered the United Kingdom in May 2023, and the applicant applied for an adoption order in September 2023. Morocco is not a party to the 1993 Hague Convention on intercountry adoption. The central issues were whether X had been brought to the United Kingdom for the purposes of adoption, whether the restrictions in section 83 of the Adoption and Children Act 2002 and the Adoptions with a Foreign Element Regulations 2005 had been breached, and whether an adoption order could nevertheless be made.

1. Section 83 engaged. The court determined, on the evidence, that the purpose of bringing X to the United Kingdom was to adopt him. The Moroccan kafala formed part of a wider plan to achieve that purpose. Treating the purpose as solely the performance of kafala obligations would create an impermissible legal fiction. Section 83 of the Adoption and Children Act 2002 and the Adoptions with a Foreign Element Regulations 2005 were therefore engaged, and the applicant had breached them unwittingly.
2. Effect of non-compliance. The statutory scheme identifies consequences for breach, including criminal liability and altered procedural requirements, but does not prohibit the court from making an adoption order. The silence of the legislation as to such a prohibition was purposeful. Non-compliance is an important factor in the welfare assessment, but is not an absolute bar.
3. The safeguards in section 83 serve an important protective purpose and must not be diluted. Nevertheless, in exceptional circumstances demanded by the child’s welfare throughout life, the court may make an adoption order despite non-compliance. The court did not need to disapply secondary legislation or read down the statutory scheme under section 3 of the Human Rights Act 1998.
4. X’s welfare required adoption. His parents could not be traced, he had been declared abandoned, and the evidence supported the permanence and security of the proposed family placement. Parental consent was dispensed with under section 52(1)(a) of the Adoption and Children Act 2002. An adoption order was made.

First-instance decision in the High Court (Family Division). No appellate history was stated in the judgment.