Judge warns councils applications for international adoption under 1993 Hague Convention “may not be at all straightforward”

A Family Court judge has warned local authorities that international adoptions under the 1993 Hague Convention “may not be at all straightforward” following a case that began with no party legally represented.

In A & Anor v B & Anor [2022] EWHC 2962 (Fam) Mrs Justice Judd said that 17-year-old B should be adopted by her maternal aunt and uncle, A and C, in the UK even though it had proven problematic to establish whether B’s mother retained any parental responsibilities.

An unnamed district council was handling the adoption and the matter had become pressing as B’s visa to remain in the UK was nearing expiry.

Judd J said B was born in an unnamed Asian country and her mother had soon after developed a severe mental illness while her father left home and severed contact.

B was brought up by her maternal grandparents for many years but they had both become ill and the family decided B should be adopted b y A and C and live in the UK.

Judd J said the Hague Convention was based on an agreed division of responsibility between the states concerned and in May 2018 both B's father and maternal grandmother had consented to B being committed to the social care department in country A and placing her in an adoptive home at the earliest opportunity.

The authority in country A approved B’s adoption in the UK and the local authority here completed an Article 15 report on A and C’s suitability, and in October 2020 they were told authorities in both countries had agreed the adoption.

A and C applied to their local court for an adoption order in September 2021 but was not issued until May 2022 at which point they became concerned as B’s visa would expire in September 2022 unless she was adopted by then.

Judd J said: “There is an issue in this case as to whether the mother has parental responsibility.

“The authorities in country A have stated that her parental responsibility was terminated by virtue of a provision within their family law as a result of incapacity. As a result her consent to the adoption was not sought or provided by that central authority.”

She said B was now in the UK “and plainly settled here so that she is integrated into a social and family environment”.

A and C submitted the mother's status, or lack of it, was pursuant to the law of country A.

Judd J said: “The question as to whether the 1996 [Hague Convention for the Protection of Children] applies turns on whether the termination of the mother's parental responsibility under the family law of country A comes within the definition of a decision on adoption or preparatory to it.

“Even if it does not, Article 16(1) requires the court to determine the matter by reference to the state of habitual residence of the child.

“Whether I apply domestic law outside of the Convention or Article 16(1) within it the answer is the same, that the mother's parental responsibility should be considered by reference to our law. I do not accept that I should look to the law of country A to decide this point, and there is no order of foreign court that is capable of recognition.”

She said that in such a case the litigation friend would usually be the Official Solicitor but this would take time and B’s visa might expire.

“If these proceedings are further delayed B may have to return to country A to go through the process of applying for another visa,” the judge said.

"If this happened, she would lose her college place (which is dependent on her being entitled to live and study here)."

A and C and the local authority asked the court to direct that the mother should be removed as a party and make a final adoption order.

Judd J said: “I have come to the conclusion that this step is necessary and justified in the very unusual and difficult circumstances of this particular case.”

This was because there is no doubt that the mother had been unable to exercise parental responsibility for B for many years.

Also, the adoption process has been going on since 2016 “and has taken its toll on B. She has suffered very significantly as a result of her precarious circumstances in country A…and has had to make a difficult adjustment when coming to live in this country”.

She added: “In all the circumstances, therefore I cannot see any advantage to anyone (including B's mother) in prolonging these proceedings, and very considerable disadvantages, including long term harm that B may suffer, in doing so.

“I am prepared…to make the order removing the mother as a party on the basis that is in necessary and in the interests of justice. To do otherwise would risk causing serious emotional harm to B.”

Judd J noted that when this case first came before her, “there did not appear to have been any input from lawyers at all, even from within the local authority who were not even represented at the most recent hearing in September”.

Had lawyers been instructed “I am sure they would have ensured that the application was accompanied by all the right documents and information at the start”

“The Convention Process is very thorough, and I can therefore appreciate that the local authority and adopters may have assumed that the application in this country was straightforward and somewhat administrative. In some cases that may be so, but not here.”

Judd J added: "It is important to emphasise the fact that an application for an international adoption under the 1993 Convention may not be at all straightforward.

“Local authorities must be aware of this and should consider obtaining legal advice in an appropriate case. They should also advise applicants accordingly so that they do not have unrealistic expectations of what the process entails.”

Mark Smulian