Family Division judge makes adoption order despite late application

An applicant could adopt a boy under English as well as Ukrainian law even though he applied slightly out of time, the High Court has ruled.

Mrs Justice Arbuthnot heard Mrs X is the mother of the boy Z and her husband Mr X - who is not Z’s father - applied to adopt him two days before his 18th birthday.

The family had been under the impression that Z’s legal adoption in Ukraine was valid here and found out only at the last minute that it was not.

Written notice of Mr X's intention to apply for an adoption order had been given to Y County Council on 7 July 2023 which was outside the period stipulated by section 44(3) of the Adoption and Children Act 2002.

Arbuthnot J said in X v X & Anor (Time Barred Adoption) [2024] EWHC 364 (Fam): “The issue I had to consider was whether the time limits set out in section 44(3) applied or whether the court could waive the lower time limit.

“The requirement was that notice of an intention to adopt had to be given not less than three months or more than two years prior to the time the application to adopt was made. Written notice was given two and a half months before the adoption application, rather than three months, two weeks less than required.”

She said she had to consider the underlying purpose of the statutory requirement, which was to enable the local authority to investigate the application, assess the parties and advise the court.

The council’s rule 14.11 report was “very thorough and supported the application. It set out that there were advantages and no disadvantages to an adoption order being made”, Arbuthnot J said.

“YCC took no issue with the failure to comply with Section 44(3), and the adoption social worker supported wholeheartedly the making of the order.”

She said Z had been adopted in Ukraine and believed that he was in the same legal position in this country. He had lived with Mr X as a family member for 16 years, Mr X was married to his mother, and the couple had another child.

Arbuthnot J said: “The failure to comply with Section 44(3) was a technical matter. I was satisfied that it was by chance that the applicant and his family discovered that an adoption order made in Ukraine was not valid here. It was luck that this came to light before Z was 18 – when it was likely to have been too late.”

She said the breach of the lower time limit did not cause any disadvantage or prejudice to any party or the court and would not be a bar to the adoption order being made.

Mark Smulian