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The court considered jurisdictional issues and procedural duties and obligations arising in cases involving babies born in the UK to foreign nationals and relinquished at birth for adoption. It particularly considered whether the authorities indicating that adoption was a last resort applied where mothers wanted the child’s existence to be concealed from family members, and the application of the reporting requirements in the Vienna Convention on Consular Relations 1963 art.36 and art.37.
Two cases involving babies born to mothers from Eastern Europe but relinquished at birth for adoption returned to court for further directions after the respective local authorities applied for placement orders.
In both cases, the mother had come to the UK to work and had concealed the pregnancy from her employer. Both wished to return to work immediately after the birth and did not want to look after the baby. In the first case, the father lived in Estonia and had no interest in the baby. The mother wanted him to be adopted in England and did not want family members in Estonia to become involved; in the other case, the parents were unmarried, both working in the UK, and not in a position to bring up the baby. They did not want to see her, know her gender, or be involved with her in any way. They wanted her to be adopted in England without their Hungarian relatives knowing of her existence, and without the baby being told anything about her origins.
The issues were:
(1) the court’s jurisdiction to make orders facilitating such placements;
(2) the factors for consideration when making decisions about relinquished babies, and the possible outcomes and procedures to be followed;
(3) whether the local authority was obliged by the Vienna Convention on Consular Relations 1963 art.36 or art.37 to inform the consular officials in the parents’ native country that the child had been voluntarily placed for adoption.
HELD: (1) The jurisdictional rules in Regulation 2201/2003 did not apply to decisions on adoption or measures preparatory to adoption. Jurisdiction derived wholly from the Adoption and Children Act 2002 and from the Children Act 1989 Sch.2 Pt II para.19. Domestic courts did not have to cede jurisdiction to the courts of the child’s nationality so the fact that babies were foreign nationals did not prevent domestic courts from making them the subject of UK placement orders, J (Children) (Brussels II Revised: Article 15), Re [2015] EWCA Civ 1112, [2016] 1 F.C.R. 217 followed. The inherent jurisdiction of the Family Division, which ordinarily supplemented the court’s statutory powers, was restricted by s.100 of the 1989 Act so that it could not be used to achieve an aim which had been expressly forbidden by statute (see paras 39-40, 42-43, 90 of judgment).
(2) The parents’ wishes and feelings about their baby’s future were likely to carry significant weight in the evaluation of the child’s welfare, but they were not decisive. A local authority could not guarantee that the baby’s existence would be kept confidential from extended family. However, the principle in B (A Child) (Care Proceedings: Appeal), Re [2013] UKSC 33, [2013] 1 W.L.R. 1911 that a child’s family ties should only be severed when nothing else would do did not automatically apply to uncontested adoptions where parents had expressed a wish for adoption to be outside of the natural family. That was because the degree of interference with family life rights was less than where the parent/child relationship was severed against the parents’ wishes. In the circumstances of the instant cases, local authorities could approve placement orders without first concluding that “nothing else will do”. However, they had to perform the thorough analysis of all available care options as required by B-S (Children) (Adoption: Leave to Oppose), Re [2013] EWCA Civ 1146, [2014] 1 W.L.R. 563 and R (A Child) (Adoption: Judicial Approach), Re [2014] EWCA Civ 1625, [2015] 1 W.L.R. 3273, applying s.1 of the 2002 Act, and making sure that they gave paramount importance to the child’s lifelong welfare and allocated appropriate weight to the factors in s.1(4), B (A Child) distinguished, BS (Children), R ( Child) and P (A Child) (Adoption: Step-parent’s Application), Re [2014] EWCA Civ 1174, [2015] 1 W.L.R. 2927 applied. The court identified five conclusions which might result from such an analysis. Obtaining parental consent to its plans, as required by s.52(5) of the 2002 Act, was crucial, as was compliance with the information and counselling requirements in the Adoption Agencies Regulations 2005 Pt 3 (paras 48-57, 90).
(3) Article 36 of the Convention did not apply where a child had been relinquished for adoption because the child was not being “detained”. However, local authorities had to ensure compliance with the guidance concerning voluntary accommodation in E (A Child) (Care Proceedings: European Dimension), Re [2014] EWHC 6 (Fam), [2014] 1 W.L.R. 2670 and Merton LBC v LB [2015] EWCA Civ 888, [2016] 2 W.L.R. 410. They also had to feel able to contact the foreign authorities if doing so would help them to better understand the child’s background. Also, if a child was joined as a party to proceedings, a guardian would be appointed, in which case the court was obliged by art.37 to notify the consular authorities, E (A Child) followed and LB applied (paras 58, 63-69, 90).
(4) In the first case, adoption could proceed without a placement order (paras 70-73, 90). In the second case, the proceedings fell outside the Regulation and could not, therefore, be transferred to Hungary. Section 85 of the 2002 Act clearly prevented the child’s removal to Hungary for adoption, and the court could not use its inherent jurisdiction to facilitate a placement in Hungary where the parents had not consented, because to do so would cut across the statutory scheme. If the local authority wished to proceed with its plan to place the baby in Hungary, it should issue care proceedings and request the appropriate permission under Sch.2 para.19 of the 1989 Act (paras 74, 79, 83, 86-90).
Applications granted in part.
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