B v B and Ors (Section 83 ACA 2002 and Step-Parent Adoption)

Section 83 of the Adoption and Children Act 2002 is directed principally to preventing unsuitable or exploitative international adoptions. Properly interpreted, it does not extend to a British-resident step-parent who has an established de facto parental relationship with the child and has obtained a foreign adoption order following rigorous assessment. The purpose of bringing the child into the United Kingdom must be assessed by reference to the adopter’s intention at the time of entry. A failure to comply with s.83 does not automatically bar an adoption order. The court must weigh the child’s welfare against the relevant public policy, including the purpose of the statutory safeguards, the consequences of non-compliance, good faith and prejudice. Where necessary to avoid disproportionate interference with established Article 8 family life, the court may disapply s.83(1)(b) under the Human Rights Act 1998.

EB, a British citizen, applied to adopt YB, the adult daughter of his wife, RB. EB had acted as YB’s de facto father for over a decade and had obtained an adoption order in country X after extensive assessment. YB entered the United Kingdom with EB two months later for educational purposes, believing that the foreign order would be recognised. Country X was not a designated country for recognition of overseas adoptions. EB subsequently applied for an English adoption order shortly before YB’s eighteenth birthday.

The issue was whether the entry engaged s.83(1)(a) or s.83(1)(b) of the Adoption and Children Act 2002, and, if so, whether non-compliance prevented the making of an adoption order.

1. Disposition. An adoption order was made in favour of EB. There was no breach of s.83(1)(a) of the Adoption and Children Act 2002. The case fell outside s.83(1)(b). Alternatively, any breach did not prevent the order.
2. For s.83(1)(a), bringing a child into the United Kingdom must be done with the specific intention of obtaining an adoption order through the English courts. EB entered with YB for education, believing that the foreign adoption order would be recognised. He had no settled intention at that time to seek an English adoption order.
3. Although the literal conditions in s.83(1)(b) were satisfied, a purposive interpretation excluded this case. Section 83 and the Adoption with a Foreign Element Regulations 2005 addressed international adoptions involving unrelated children, inadequate assessment, payment and exploitation. They were not intended to capture a step-parent with longstanding family life with the child and a foreign adoption order following rigorous assessment. Section 86’s power to disapply s.83 for a partner of a parent, and the impracticability of complying with provisions requiring a prospective adopter to visit the child before adoption, reinforced that conclusion.
4. EB and YB had established family life for Article 8 purposes. Under s.3 of the Human Rights Act 1998, the legislation had to be read compatibly with Convention rights so far as possible. Applying s.83(1)(b) would prevent the family living together in the United Kingdom for twelve months and expose EB to potential criminal sanction. That interference would not be proportionate to the statutory aim.
5. If s.83(1)(b) applied, breach would still not automatically prevent adoption. Welfare remained paramount under s.1, but public policy had to be considered. The relevant factors included the purpose of the safeguard, the consequences of non-compliance, welfare consequences, good faith and prejudice. The breach was inadvertent, produced no adverse welfare consequences, and refusal would cause lifelong harm. The court therefore considered disapplication necessary under s.6 of the Human Rights Act 1998.
6. Having regard to YB’s wishes, longstanding relationship with EB, need for stability, absence of harm and the family’s future plans, adoption was in her best interests throughout her life.