X v X & Anor (Time Barred Adoption)

A breach of the three-month minimum notice period in section 44(3) of the Adoption and Children Act 2002 does not necessarily prevent an adoption order. The court should construe the requirement purposively, considering its purpose, the subject matter and background, and the effect of non-compliance on the parties and the court. Where the breach is technical and causes no disadvantage or prejudice, it may be waived. Alternatively, section 3 of the Human Rights Act 1998 may require the provision to be read down to protect the Article 8 rights of the child and family. The application was therefore allowed and the adoption order made.

Mr X applied on 26 September 2023 to adopt Z, his wife’s son, two days before Z’s eighteenth birthday. Mr X had adopted Z in Ukraine in 2015, but that adoption was not recognised in England and Wales. Notice of the intention to apply had been given to Y County Council on 7 July 2023, approximately two and a half months before the application, rather than the minimum three months required by section 44(3) of the Adoption and Children Act 2002.

The other statutory requirements for a step-parent adoption were satisfied. The central issue was whether the failure to comply with the lower time limit precluded the court from making an adoption order.

1. The application was granted and the adoption order was made.
2. The statutory requirements for the step-parent adoption were satisfied, including the required period of residence, the mother’s consent, the applicant’s habitual residence, issuance before Z’s eighteenth birthday, and the applicant’s status as step-parent.
3. The three-month minimum notice period in section 44(3) of the Adoption and Children Act 2002 was intended to allow the local authority to investigate, assess the parties and advise the court. Y County Council had completed a thorough rule 14.11 report and supported the application.
4. Following the purposive approach in Re A (A Child) (Fam D) and In re X (A Child) (Parental Order: Time Limit), the court considered the purpose of the requirement, the subject matter and background, and the effect of non-compliance. The breach was technical, lasted only two weeks, and caused no disadvantage or prejudice to any party or the court. It was therefore not a bar to the order.
5. As an alternative, section 3 of the Human Rights Act 1998 required the statutory provision to be read down so that the application complied with the parties’ and Z’s Article 8 rights. Refusal would have denied Z the opportunity to have his family relationship recognised in England and Wales, despite the Ukrainian adoption.

Not stated in the judgment.