N (Children : Adoption: Jurisdiction) [2015] EWCA Civ 1112 (02 November 2015)

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[leclerc]

Re: N (Children : Adoption: Jurisdiction) [2015] EWCA Civ 1112 (02 November 2015)

Having skim read this judgement I personally think that anyone on this forum with an interest in family law in the legal perspective and also the way in which jurisdiction over which country can deal with a request should read this judgement. Sir James Mumby is president of the appeals court in the family division, Lady Justice Black is president of the International Appeals court in the family division. The judgment goes through the English centred non consensual adoption plus the international context which I think may become more prevalent with more EU nationals migrating to the UK and with those already here.

Might be worth a full quote and stickie for this specific case....

[leclerc]

Re: N (Children : Adoption: Jurisdiction) [2015] EWCA Civ 1112 (02 November 2015)

Am working my way through this judgement over the weekend so this is likely to pop up quite a number of time during the period.

Firstly reference to be made on Article 15 Council Regulations(EC) No. 2201/2013
This relates to Jurisdiction and recognition of the court case(link to regulation: http://ec.europa.eu/civiljustice/par..._ec_vdm_en.pdf

The wider context relates to the idea of "non consensual adoption" as laid out in Section 52(1) of Adoption and Children Act 2006.
Link is here: http://www.legislation.gov.uk/ukpga/2002/38/section/52

There is mention of the Borsova Report "Legislation and pratice of the removal of children from their families in the Council of Europe Member states and the link is here: http://website-pace.net/documents/10...d-31c9c0144a32

[leclerc]

Re: N (Children : Adoption: Jurisdiction) [2015] EWCA Civ 1112 (02 November 2015)

The judgement then goes through a number of wider contexts of the case.

The first one is the History of Non consensual Adoption in the UK
The Acts are as follows although I won't try and link to each one:
Adoption of Children Act 1926 Section 2(3)
Adoption Act 1949 Section 3(1)
Adoption Act 1950 Section 3(1)(c)
Adoption Act 1958 Section 5(1)(b)
Adoption Act 1976 Section 16(2)(b)
and finally
Adoption and Children Act 2002 Section 2(1)...(link to this one is above).

There has basically always been powers to dispense with the consent of the parent under certain circumstances. However, up until the late 1960's, it was characterised by single mothers and illegitimate children. Due to contraceptive pills, abortion laws and the relaxation of divorce laws, adoption rates fell from previous levels in the 1970's.

The second one is about the understanding of the term "requires" within section 52(1)(b) of the Adoption and Children's Act 2002. They use a term from Strasbourg juridprudence which gives the meaning as imperative and something that is demanded of rather than what is merely option or reasonable or desireable.

The third is about the idea of "forced adoption" and the fact that there have been no successful Strasbourg challenges to Adoption.

The fourth is about the Judicial approach and this one quotes case law: Re:R(A child) Adoption Judicial Approach. it effectively states that it must be in the child's interests and that courts should not shy away from this simply to keep the child within the family.

I'll continue onwards tomorrow with this summary and links......

[leclerc]

Re: N (Children : Adoption: Jurisdiction) [2015] EWCA Civ 1112 (02 November 2015)

The final point was made in connection with the Vienna Convention and articles 36 and 37. I personally think that Article 37(b) would be interesting, ie that minors who have come over to the UK but are not classed as resident should have consular access.

http://legal.un.org/ilc/texts/instru...s/9_2_1963.pdf

I suspect that all EU migrants involved in child protection issues should make contact with their consulate in the UK for help.

[leclerc]

Re: N (Children : Adoption: Jurisdiction) [2015] EWCA Civ 1112 (02 November 2015)

We are now dealing with the Statutory framework in relation to Orders placing a child in the care of the Local Authority.
Most cases are brought under section 31(2)(b)(i): http://www.legislation.gov.uk/ukpga/1989/41/section/31

" (2) The court may only make a care order or supervision order if it is satisfied:-
(b) that the harm, or likelihood of harm is attributable to-
(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him."

Once harm has been defined and that the threshold for taking action has been reached then the Children's Act 1989 section 1(1) kicks in.
The key element to this is that "The Child's welfare shall be the courts paramount consideration."

Then there is the Welfare Checklist under section 1(3) of the Children's Act 1989 which relates to age, needs, effect, background, capability of parents and the options open to the court.
If an Adoption Order is being considered then section 1(2) of the Adoption and Children's Act 2002 provides for the fact of the child's interests throughout his life. Link is here: http://www.legislation.gov.uk/ukpga/2002/38/section/1

We have a further checklist within the Adoption and Children's Act 2002 with one of the most important parts being section 1(4)(c):

"The likely effect on the child(throughout their life) of having ceased to be a member of the original family and become an adopted person".
Some of the fundamental points that the courts should be looking at are as follows in relation to all of this.

The threshold for state intervention must be met, that nothing else will do but to intervene and that finally the pro's and cons of everything must be taken into consideration. That is badly worded by me and I may have to re look at this part and possibly re do this part of the post.

I will however draw on a case that was in Strasbourg Y vs. United Kingdom 2012, paragraph 134 in relation to specifically adoption orders:
http://www.bailii.org/eu/cases/ECHR/2012/433.html

[leclerc]

Re: N (Children : Adoption: Jurisdiction) [2015] EWCA Civ 1112 (02 November 2015)

Placement Orders is the next topic in relation to the Statutory framework.

If an Placement Order is made then a parent cannot revoke it unless they either have leave from the court to do so, or that the authority does not place the child for adoption.

In terms of Adoption Orders and the Statutory Framework we go back to the Adoption and Children's Act 2002
Section 50 deals with Adoptions for couples and Section 49 deals with Adoptions made by one person only. They must be UK residents to be an adoptive parent.

Section 42-45 deals with the preliminaries before and Adoption Order is made before the court.

Section 47 does allow for a parent or parents to oppose an adoption order, which must be with the leave of the court. However the parent(s) must prove that a significant change in circumstances have been made before it can be given. Just to go off topic on this point. Even if a parent does get leave and successfully argues that an adoption order cannot be made, it does not mean that the parent would then get the child back into their own care. It merely means that the adoption order cannot take place at that time.