Ruth Cabeza for the local authority; PA-K, the mother, did not appear and was not represented; Christopher Hames for the child.
The local authority applied for permission to remove a child, born in June 2008, from the United Kingdom so that she might be placed with a view to adoption with Mr and Mrs X who had adopted her elder half sister in 2003. Mr and Mrs X, British citizens, were living in the United States of America largely as the result of Mr X's employment but remained domiciled in England and Wales. Leave to remove the child was required under section 28(2)(b) of the Adoption and Children Act 2002 because she had been made the subject of a placement order in July 2009, the mother had not given her written consent and the proposal was for removal for more than one month.
Application granted. There were powerful welfare arguments for acceding to the application. However, as a result of the interplay between the United Kingdom and the United States in relation to adoption, the only way for Mr and |Mrs X to secure an adoption order was under the Hague Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption (1993). Since such an application could not be made until they had become United States citizens the likelihood was that any Convention adoption proceedings would not be concluded before the end of 2015. It was therefore both urgent and vital in terms of welfare planning to find a mechanism for placing the child with Mr and Mrs X in the interim and until such time as they were able to apply for an adoption order. In re M (A Child) (Adoption: Placement outside Jurisdiction) [2011] Fam 110 was authority for the proposition that the ten week period required under section 42(2) of the Adoption and Children Act 2002 might be spent outside the jurisdiction notwithstanding the apparent prohibition contained in section 85 of the 2002 Act which should not be taken as covering what were temporary removals pending a return to apply for a Convention adoption order in the jurisdiction. Her Ladyship detected no impediment to permitting a longer period provided the court retained jurisdiction. Pursuant to article 2 of the Hague Convention it was essential that the child continued to be habitually resident in England. Her Ladyship was entirely satisfied that the child, as the result of an intention shared by the local authority, Mr and Mrs X and, indeed, the court, would remain habitually resident in England. The placement in the United States with the Xs was either disregarded by application of section 105(6) of the Children Act 1989 and/or on the fact that the local authority had no settled intention that the child should live in the United States. In those circumstances, it was straightforward to give the local authority permission under section 28 of the 2002 Act to remove the child from the United Kingdom and to place her with Mr and Mrs X for a time-limited visit which, in the first instance, was envisaged to be of one-year's duration; her Ladyship appended a draft order in the hope that it might be of assistance to other practitioners and judges (paras 5,13,14,17,18,19, 28, 29, 30).
Children Act 1989, s 105(6)
Adoption and Children Act 2002, ss 28(2)(b), 42(2), 85
Hague Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption (1993), art 2