The young person and her mother, each foreign nationals, moved to the United Kingdom where they lived with the prospective stepfather for a number of years before he applied to adopt the young person, shortly before she turned 18. The application was supported by the mother, the local authority and strongly by the young person through her children’s guardian (who had been automatically appointed pursuant to FPR r 16.3(1) when the young person was joined as a party to proceedings). Where the birth father opposed the application two key issues arose for consideration: (i) whether the appointment of the children’s guardian triggered the duty under article 37(b) of the Vienna Convention on Consular Regulations 1963 to notify the foreign consulate in “any case where the appointment of a guardian or trustee appears to be in the interests of a minor … who is a national of the sending state” or, alternatively, whether the court ought to exercise its discretion to do so; and (ii) whether to dispense with the birth father’s consent to the adoption pursuant to section 47(2)(c) of the Adoption and Children Act 2002.
On the application—
Held, application granted. The phrase “guardian of a child” had statutory meaning under sections 5 and 105 of the Children Act 1989, which provided a comprehensive statutory regime for the nomination and appointment of guardians where a child no longer had a parent with parental responsibility. It was that protective jurisdiction of guardianship which underpinned article 37 of the Vienna Convention on Consular Regulations 1963. Such a guardian, with responsibilty for the protective upbringing of a child, was different from the role of a children’s guardian appointed to represent the child’s interests solely during court proceedings. Accordingly, the appointment of a children’s guardian in proceedings concerning a foreign national subject child did not automatically trigger the operation of article 37 of the Convention and it followed that, in the present circumstances, there was no duty to notify the foreign consulate of the proceedings. While, in the absence of a duty, the court retained a discretion to notify the foreign consulate, there was no need to do so in the present case where, inter alia, the proceedings were not to be transferred abroad, the foreign consulate could add nothing further to proceedings and the adoption order of a now 18-year-old was unlikely to have the effect in the foreign jurisdiction of depriving the birth father his rights there. Further, on a proper consideration of all the evidence the young person’s welfare required the birth father’s consent to be dispensed with and an adoption order to be made in due course (paras 29–30, 31, 32–34, 56, 67).
Sharon Segal (instructed by Goodman Ray Solicitors LLP) for the stepfather and birth mother.
James Niven-Phillips, solicitor (of Cafcass Legal Services) for the child, by the children’s guardian.
Nigel Cholerton (instructed by Legal Services, A Borough Council) for the local authority.
The birth father did not appear and was not represented.