Adoption upheld despite immigration breach

LAW REPORT

Re H (a minor)(Adoption application); CA (Lord Justice Stuart-Smith, Lord Justice Peter Gibson and Lord Justice Thorpe) 3 May 1996

The fact that a child from overseas had been adopted by a childless couple in the United Kingdom because they could not have a child of their own did not prevent the welfare advantages to the child being sufficient to outweigh considerations of public policy in maintaining immigration regulations.

The Court of Appeal dismissed an appeal by the Secretary of State for the Home Department against an adoption order made by Mr Justice Holman on 13 November 1995.

Lisa Giovanetti (Treasury Solicitor) for the Home Secretary; Patricia Scotland QC and Khadim Al'Hassan (John Delaney & Co, Leeds) for the applicants; Richard H Bond (Official Solicitor).

Lord Justice Thorpe said the applicants, who were British citizens, had been unable in 14 years of marriage to have a child. IVF treatment having failed, they decided to adopt. A related couple living in Pakistan had by contrast a quiverful of children, eight in all, of whom H, the subject of this appeal, was the sixth. In 1992, when H was 12 years old, he came with his father to a family wedding in the UK. H's entry visa gave him permission to remain for six months as a visitor. Soon afterwards H began to live with the applicants as their son and had remained with them ever since. As H's natural mother explained:

"In Pakistan when a couple have no children and ask for one of yours you just give one as long as you know they are good people. God has given us so many children and they have none."

The judge found that the purpose of the arrangement was not to give H the advantage of British citizenship or a right of abode but to provide a child for the applicants who were desperate to have one. Although it was not done to meet or satisfy a welfare need of H, the judge found that the adults had nevertheless had his welfare in mind. He also recorded how well H had done in the applicants' care in the three years of their cohabitation and referred to a letter from H expressing his strong wish to be adopted by them.

In 1993 the Home Office refused an application for extension of H's visa. An application was made seeking H's adoption, which was supported by the Official Solicitor but opposed by the Home Secretary. He took the point of principle that an adoption order should be refused on the application of dicta from past cases as to how the balance should be struck between immigration regulations and welfare considerations urged in support of adoption.

Miss Giovanetti traced the development of this case law from Re H [1982] Fam 121 through Re W [1986] Fam 54 to Re K [1995] Fam 38. In Re H at p 133, Mr Justice Hollings had said:

If the court considers . . . that the true motive of the application is based on the desire to achieve nationality and the right of abode rather than the general welfare of the minor then an adoption order should not be made. . . In every case it is a matter of balancing welfare against public policy . . .

Miss Giovanetti submitted that a breach of immigration regulations could only be outweighed by the promotion of the child's welfare and not by any other consideration. Here, the applicants were not seeking to promote the child's welfare but to resolve the personal tragedy of infertility.

In his Lordship's judgment the paragraph cited from Re H had been elevated into a two-stage test which did not appear to have been Mr Justice Hollings's intention. A Family Division judge must dispose of an adoption application by reference principally to section 6 of the Adoption Act 1976. By that section he must have regard to all the circumstances, first but not paramount consideration being given to child welfare.

Although not referred to in the section, it was an important consideration that immigration regulations be upheld. A misuse of adoption as a device to circumvent immigration controls would always be fatal to an adoption application.

But in the end each case must turn on its own facts and in determining the case the judge should have regard to the statutory considerations as expressed in section 6 without the elaboration of stages and with due regard to the considerations expressed by the Court of Appeal in Re W.

The conclusion reached by the judge was clearly open to him within the discretion he had to exercise.

Paul Magrath, Barrister

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