IH (A Child) (Permission to Apply for Adoption) [2013] EWHC 1235 (Fam)

This judgment is being handed down in private on 14 th May 2013. It consists of 103 paragraphs and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.

The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.

Case No BM12Z09876

[2013] EWHC 1235 (Fam)

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 14/05/2013

Before

MRS JUSTICE PAUFFLEY

Re IH (a child) (permission to apply for adoption)

Miss Ruth Manning for the applicants, MM and RB

The parents did not appear and were not represented

Mr Nicholas Cole for IH (the subject child) by his guardian ad litem

Mr Paul Greatorex for the Secretary of State for the Home Department

Venue Mr James Shaw for Birmingham City Council

Hearing Hearing date: 7 th May 2013

Judgment

Introduction

[1]This is an application for leave to make an adoption application pursuant to s.42(6) of the Adoption and Children Act 2002. Permission is required because the subject child has not lived with the applicants, his paternal uncle and aunt, for three years during the five years preceding the application.

[2]There is no consistent evidence, in fact, as to when the child first lived with the Applicants. Estimates vary considerably. On the basis of information supplied by Counsel on their behalf during the course of the hearing, the child has lived with the Applicants since November 2011; so for only six months as at the date when the permission application was begun, namely 15th May 2012.

[3]The application, so it is said, is supported by the child’s parents who are in Pakistan; and also by the Children’s Guardian who has no reason to believe on the basis of her inquiries that this is anything other than a genuine request to apply to adopt for welfare-based reasons.

[4]The leave application is resisted and firmly so by the Secretary of State for the Home Department (SSHD). It is argued that the three year requirement is there for a good reason and that it would only be appropriate for it to be waived if there is a substantial and compelling reason. It would be necessary, at a minimum, so it is said, for the application to appear appropriate in all other respects. Moreover, it is submitted that a number of matters point very firmly against permission being granted –(i) the fact that all the legal requirements where an applicant was applying to adopt a foreign child as well as the Immigration Rules have been circumvented or otherwise not complied with;

(ii) the general conduct of the Applicants and other family members as well as the way in which applications have been made gives rise to suspicion;

(iii) the inconsistencies, contradictions and general lack of credibility in the Applicant’s case; and

(iv) the length of time any permitted adoption proceedings would take to conclude during which period the child would remain here in breach of the immigration rules and apart from his parents.

[5]On behalf of Birmingham City Council, the position taken might best be described as one of neutrality. Whilst the report prepared under Part 14 of the Family Procedure Rules 2010 favours the making of an adoption order, it is pointed out that in certain respects the investigation thus far has been superficial. Mr Shaw’s Position Statement ends with this observation – “… it may be argued that this adoption application could be a route to secure a desired immigration status.”

[6]This exercise, perforce, is undertaken on the basis of a volume of documentary material. Had it been said by anyone, and it was not, that it was necessary for me to have heard oral evidence it would not have been possible on 7th May because no interpreter was present. As the hearing unfolded, it became clear that no oral evidence was required because the discretionary exercise could properly be undertaken on the basis of the written material.

[7]Some aspects of the case only emerged after the hearing was concluded. For only then was it possible for me to read the documents in detail. On the day when I heard submissions, 7th May, the bundle was not available to me until around about noon. I adjourned until 14.00 to read some of the material and then heard argument during the afternoon.

The facts

[8]I turn then to the background. IH who was born on 28th January 1999 is the son of MH and his wife ZB. They live in rural Pakistan. IH has two brothers: KH now aged 26 and ImH who is 21.

[9]The applicants are MM and his wife RB. MM is MH’s brother and thus IH’s paternal uncle. They live in the Birmingham area as do a number of other relatives of the parents.

[10]In January 2010, IH’s father and mother made applications for themselves and their three children to visit the UK. On 2nd February 2010, the Entry Clearance Officer in Abu Dhabi refused the applications.

[11]In August 2010, there was an appeal to the Asylum and Immigration Tribunal. Judge Frankish considered the parents’ written statements and heard evidence from two of their female relatives who live in the UK. According to the evidence given, IH’s father is an agriculturalist who makes a living, sufficient to support the family, from their land. The eldest son, KH, assists with the farming effort.

[12]On 16th September 2010, the appeal was allowed. The conclusion of the judgment was in these terms – “The first appellant (the father) has been twice before, paid for it himself and returned in accordance with visa conditions. He has a viable livelihood by which to support his family….The mother (paternal grandmother in England) is clearly unfit to travel. This may very well be the last opportunity for her son, daughter in law and grandchildren to visit her. That is a powerful motive for a visit. There are sufficient ties to motivate the family to return.”

[13]On 28th December 2010 IH’s family members were issued with visas valid until 28th June 2011.

[14]The family arrived in the UK on 22nd January 2011.

[15]By a letter dated 28th June 2011, Safaaz Solicitors applied on IH’s behalf for leave outside the Immigration Rules to remain in the UK on compassionate grounds and for his maternal aunt and uncle, MB and MA (i.e. not the present applicants), to assume responsibility for him.

[16]In the Home Office’s written response of 16th August 2011, it emerges that the basis of IH’s application was said to be that “Whilst in the United Kingdom it became apparent that most of (his) family members in Pakistan including (his) mother and elder brother were suffering from some Mental Health illness. It was also stated that (his) parents’ land was under threat so that they are no longer able to take care of (him). (His) parents have given their parental authority to (his) aunt and uncle in the UK, Mrs MB and Mr MA…. They are currently in the process of pursuing this matter through the courts.”

[17]On 12th September 2011, the Home Office wrote to Safaaz Solicitors asking for confirmation that IH had left the UK and, if not, an explanation as to the reasons by 26th September. There was no response to that letter.

[18]On 4th October, the Home Office wrote to MB and MA requesting that they should make urgent contact to discuss the arrangements for IH to travel back to Pakistan. If there had been no response by 11th October it was said that the United Kingdom Border Agency may take Enforcement Action against IH.

[19]On 27th October 2011, the eldest son of MM, IfT, now aged 29, wrote an email to the Integrated Access Team at Birmingham City Council. The message relates that IH who had visited with his parents earlier in the year had been left in IfT’s care. IfT also stated that IH was estranged from his birth parents, “who have expressed that they are struggling to meet his needs and are neglecting him by not providing him with the basic amenities in life and are unable to meet his emotional and supplementary needs.” IfT’s email ends with an indication that he was “currently seeking legal advice in relation to adopting this child.”

[20]In a second email on 27th October 2011, IfT requests a school placement for IH. He repeats the claim that he is currently caring for IH. He relates that a member of the child law centre is “looking into the immigration status of IH and social services had also been in contact, who advised that (he should) go down the legal route and apply for adoption or residence order,” which was said to be in process.

[21]On 1st / 2nd November 2011, IH and his brother ImH were served with IS.151A Removal Notices by the Home Office.

[22]On 2nd November, Heritage Solicitors – who are instructed on behalf of the Applicants in these proceedings – wrote to the Home Office enclosing a further application for Leave to Remain, signed by MM who described himself as “Guardian” supported by a Statement of Application.

[23]The Statement comprises the following information – that all of IH’s family members have now returned to Pakistan and he is currently living with MM and RB. IH’s father has transferred “full parental responsibility to his brother Mr MM and Mrs RB. He has signed a declaration to that effect.” MM and RB wished to adopt IH and become his legal guardians. IH has, in fact, become a member of their family now. “There has been a genuine transfer of parental responsibility and IH has broken all ties with his natural family.” IH’s parents were said to have left him with his paternal aunt and uncle because they “are not able to take care of him and neither is he able to take care of himself.” Mr MM and Mrs RB were said to be “currently in the process of complying with all legal obligations relating to the adoption process and are … submitting an application for an adoption order.” They would therefore like IH to be granted an extension of stay in the UK … “whilst they pursue this matter through the adoption process. This could take 8 – 12 months depending on the circumstances.”

[24]On 3rd November 2011, in Mirpur, Pakistan both of IH’s parents made solemn declarations that they had handed over their son to MM and RB who “will look after, maintain and be responsible for his future welfare … in all respects.” They state that the reason they had given their son to MM and RB was “because the mother of the child is unable and cannot do so because of her health problems.”

[25]Also on 3rd November 2011, IH was taken to a GP in Birmingham for a medical examination. Extracts from the resulting report are as follows – “Family history: his aunty says that his mother seems to be of low I.Q. and father is normal. She says his one brother is mentally handicapped. IH was said to have “answered everything and responded to questions but his response is a bit slow.”

[26]On 5th November 2011, ImH left the UK voluntarily on a flight to Pakistan. IH did not arrive at the airport. No information has been supplied as to the reasons why he did not leave in June 2011 in accordance with the requirements of his visa.

[27]On 22nd December 2011, IfT sent an email to Social Services notifying them that his parents, MM and RB were in the process of applying to the courts for an adoption order. He reminded the local authority that IH’s status to remain in the UK had expired.

[28]On 12th January, UKBA made a referral to Birmingham Social Services, requesting a home visit to clarify IH’s situation, his well-being and what educational provision was being made for him whilst the Agency was considering its decision.

[29]On 30th January 2012, a Mirpuri speaking social worker employed by the local authority conducted an initial assessment. She spoke with Mr MM, IfT and also to IH. The social worker was unable to speak with Mrs RB because she had gone out.

[30]MM said that he was happy for IH to live with the family and support him both financially and emotionally. He described the circumstances in which IH had arrived in this country and that his parents and brothers had returned to Pakistan leaving IH here.

[31]IfT provided the following information to the social worker – that IH’s older siblings have some form of disability, his parents were not able to cope with all three children and were therefore neglecting IH’s needs. IfT also said that IH had been led to believe his parents would be returning to the UK in the near future which is not true, but the family do plan to take him to Pakistan to visit his parents and brothers “once his leave to remain application has been decided.” IfT told the social worker that he would be obtaining a letter from IH’s parents stating that MM is his carer and able to give consent for medical treatment. IfT also said that MM was seeking legal advice in relation to IH’s legal status as he had originally travelled on a 6 month visitor’s visa which had expired. Initially, so it was said, MM had been looking to adopt IH but was now considering a Special Guardianship Order so that he could share parental responsibility.

[32]The social worker had a discussion with IH in his first language, Mirpuri. IH was reported to be an articulate young person. He said he enjoys school, is in Year 8 and has some friends. He told the social worker his parents had abandoned him but that he was happy to stay with his paternal uncle and family. He did not express a desire to return to Pakistan and said he did not miss his parents with whom he had been having telephone contact.

[33]Within her Analysis of Risk and Need, the social worker records that “IH did not display any signs to suggest he has been emotionally affected by the impact of separation from his birth parents; however he did not engage in detailed conversation about them and his life in Pakistan but focussed more on the current situation, the family he is residing with and drawing on the positives.”

[34]The outcome of the assessment identifies that IH was being well cared for, he was well supported and his needs were met. No further role for Children’s Services was identified.

[35]By a letter dated 8th May 2012, the Home Office refused IH’s further application for leave to remain. Lengthy reasons were given for the decision. It was stated that IH’s welfare had been fully considered. It was also said that no evidence had been put forward to suggest his health would be affected in Pakistan; and in the absence of any evidence to the contrary it was presumed that he would be safe and well cared for by his parents. No evidence had been put forward, so it was said, to suggest IH could not be supported by his parents as he had been previously.

[36]Heritage Solicitors responded to the decision of the Home Office by a letter of 23rd May 2012. The letter said that IH was disappointed to learn that his application for further leave to remain had been refused. The evidence put forward to show that “there were sufficiently exceptional circumstances preventing him from Pakistan and continuing with his family life” included this assertion – “there has been a genuine and full transfer of parental responsibility and IH has broken all ties with his original family. The parents of IH have left him with MM and RB to take care of him as their own child… They wish to adopt him and become his legal guardians.”

[37]There is no mention within that letter that one or other or both of IH’s parents have health problems. Likewise, no mention is made of any difficulty which might exist for the parents in resuming responsibility for looking after their son in Pakistan. Nothing is said about any illness suffered by IH’s eldest brother or any intellectual limitations on the part of the second eldest.

Litigation history – this application

[38]At around the same time, on 15th May 2012, the Applicants made an application for permission to begin an adoption application. Because the wrong form had been used it was necessary for the process to be re-started by the completion of the correct form.

[39]On 21st June 2012, the court received the proper documentation. Attached to the prescribed form was a short statement, headed “Details of Application.” It appears at pages 250 – 251 of the Bundle. There are only the most minor differences between that document and the Statement of Application in support of the Application to Extend IH’s Leave to Remain in the UK, as supplied to the Home Office by Heritage Solicitors on 2nd November 2011: see pages 170 – 171 in the Bundle and paragraph 21 above. The only disparities are those which necessarily arise from the different contexts in which the Statements are put forward.

[40]On 6th July 2012, His Honour Judge Cardinal directed that the Home Secretary should be notified of the application and that by 2nd August she should confirm whether or not she wished to intervene. Rather more curiously, given that the application was at the permission stage, the learned judge directed the local authority to file a report as would be required for a substantive adoption application under Part 14 of the Family Proceedings Rules 2010. The learned judge also joined IH as a party and appointed a CAFCASS officer to represent him.

[41]The order continues in these terms – “The attention of Cafcass is drawn to the following matters: the leave application; the question of the capacity of the birth parents to consent to the adoption; whether an adoption order is a suitable outcome in this case; the current immigration status of IH.”

[42]By a letter of 13th September 2012, the Secretary of State confirmed her wish to intervene.

[43]On 23rd October 2012, His Honour Judge Cardinal was faced with Mr Greatorex’s Skeleton Argument on behalf of the SSHD. Directions were given. The Applicants were required to file a statement dealing with the points raised by the Treasury Solicitor, as to the circumstances and timing of the application. They were also required to append medical reports “as to the capacity of both parents to consent to adoption and care for” IH.

[44]Simultaneously, the application was transferred to the High Court of Justice, Birmingham District Registry and listed for hearing before a High Court Judge – with an estimate of one day – on the first open date after 1st January 2013. Most unfortunately, it was not possible to secure an early hearing in Birmingham. On 25th February 2013, further directions were given, listing the case as a matter of urgency before a High Court Judge in the months of April or May. Permission was given to the parties to seek an earlier hearing date in London; and so it was that the case came before me on 7th May 2013, more than six months after the direction setting the matter down.

The statutory framework: the appropriate legal test

[45]By s.42(5) of the 2002 Act it is a condition “that the child must have had his home with the applicant or, in the case of an application by a couple, with one or both of them for not less than three years (whether continuous or not) in the five years preceding the application.” But pursuant to s.42(6), subsection (5) does “not prevent an application being made if the court gives leave to make it.”

[46]Section 83 of the 2002 Act imposes restrictions upon and creates criminal offences for bringing children into the UK for the purposes of adoption. The procedure for the adoption of a foreign child by applicants in the UK is governed by a lengthy and demanding set of requirements set out in the Adoptions with a Foreign Element Regulations 2005 (SI 2005/392).

[47]By regulation 3 – “A person intending to bring, or to cause another to bring, a child into the United Kingdom in circumstances where section 83(1) of the Act applies must—(a) apply in writing to an adoption agency for an assessment of his suitability to adopt a child; and

(b) give the adoption agency any information it may require for the purpose of the assessment.”

[46]Regulation 4 is in similarly mandatory terms – “(1) This regulation prescribes the conditions for the purposes of section 83(5) of the Act in respect of a child brought into the United Kingdom in circumstances where section 83 applies. (2) Prior to the child’s entry into the United Kingdom, the prospective adopter must—(a) receive in writing, notification from the Secretary of State that she has issued a certificate confirming to the relevant foreign authority— (i) that the person has been assessed and approved as eligible and suitable to be an adoptive parent in accordance with Part 4 of the Agencies Regulations or corresponding Welsh provision; and (ii) that if entry clearance and leave to enter and remain, as may be necessary, is granted and not revoked or curtailed, and an adoption order is made or an overseas adoption is effected, the child will be authorised to enter and reside permanently in the United Kingdom;

(b) before visiting the child in the State of origin— (i) notify the adoption agency of the details of the child to be adopted; (ii) provide the adoption agency with any information and reports received from the relevant foreign authority; and (iii) meet with the adoption agency to discuss the proposed adoption and information received from the relevant foreign authority;

(d) after that visit— (i) confirm in writing to the adoption agency that he has done so and wishes to proceed with the adoption; (ii) provide the adoption agency with any additional reports and information received on or after that visit; and (iii) notify the adoption agency of his expected date of entry into the United Kingdom with the child. (3) The prospective adopter must accompany the child on entering the United Kingdom unless, in the case of a couple, the adoption agency and the relevant foreign authority have agreed that it is necessary for only one of them to do so. (4) Except where an overseas adoption is or is to be effected, the prospective adopter must within the period of 14 days beginning with the date on which the child is brought into the United Kingdom give notice to the relevant local authority— (a) of the child’s arrival in the United Kingdom; and (b) of his intention— (i) to apply for an adoption order in accordance with section 44(2) of the Act; or (ii) not to give the child a home. (5) In a case where a prospective adopter has given notice in accordance with paragraph (4) and subsequently moves his home into the area of another local authority, he must within 14 days of that move confirm in writing to that authority, the child’s entry into the United Kingdom and that notice of his intention— (a) to apply for an adoption order in accordance with section 44(2) of the Act has been given to another local authority; or (b). not to give the child a home.

[48]So much then for the statutory and regulatory framework. I turn to consider the relevant guidance when the court is considering leave to make an adoption application.

[49]Miss Manning draws my attention, as does Mr Cole on behalf of the guardian, to the test as described in Re A; TL v. Coventry City Council and CC and A

[2007] EWCA 1383

and particularly to paragraph 10 where Wilson LJ (as he then was) said, “The researches of counsel do not reveal any reported decision referable to the grant of leave to apply for an adoption order under s.42(6) of the Act. But counsel were in agreement at the hearing before the judge as to the proper approach to any such application; and the judge accepted and endorsed the approach which they commended to him. Equally, before this court, counsel remain in agreement as to it; and, in turn, I consider that we should accept and endorse it. For, notwithstanding the absence of a decision referable to the grant of leave under s.42(6), there is a recent reported decision of this court referable to the grant of leave to apply for revocation of a placement order under s.24(2) of the Act. It is Re M and L, Warwickshire v. M

[2007] EWCA Civ 1084

. I would accept and hold that the legal principles relevant to the exercise of the discretion whether to grant leave pursuant to each of the subsections is identical. Thus the welfare of the child is a relevant consideration but, by virtue of s.1(7) of the Act, is not the paramount consideration: see [22] and [24] of my judgment in Re M and L. Another relevant consideration is whether the proposed application has a real prospect of success: see [29] of that judgment. Indeed I there observed:

"My view is that the requisite analysis of the prospect of success will almost always include the requisite analysis of the welfare of the child. For, were there to be a real prospect that an applicant would persuade the court that a child's welfare would best be served by [the substantive order sought], it would surely almost always serve the child's welfare for the applicant to be given leave to seek to do so. Conversely, were there not to be any such real prospect, it is hard to conceive that it would serve the welfare of the child for the application for leave to be granted. But I hesitate to suggest that analysis of welfare will always be satisfactorily subsumed within an analysis of prospect."

[50]Mr Greatorex emphasises that the Coventry City Council case had no immigration dimension; that the facts are striking and bear no relation to those of this case. As to that, he is quite correct. The application for permission in the Coventry case was brought by a local authority foster mother with whom the subject child had been placed when only six days old. She was nine months at the date of the appeal and had lived throughout with the foster mother who wished to apply to adopt. The local authority which held a placement order had indicated its intention to remove the child from the foster mother’s home. That is the context for the guidance contained within paragraph 10.

[51]Mr Greatorex’s perhaps bold submission is that I should approach the leave question on this basis – that if applicants do not comply with Immigration Rules, the court will not normally exercise its discretion to circumvent them. He also suggests that as a general rule, in order to surmount the permission hurdle it should be necessary to show “something exceptional,” something over and above ordinary welfare arguments. That, Mr Greatorex urges, should be the proper approach when the court is considering whether to sanction an application which does not comply with the residence arrangements contained within s.42(5) of the 2002 Act as well as the requirements of the Immigration Rules.

[52]Whilst Mr Greatorex’s arguments at first blush might appear attractive particularly against the background history of these proceedings, I decline his invitation to create a new test and for two reasons. First, I see no proper basis for further refinements to readily understandable and appropriately workable guidance. Secondly, as a matter of judicial precedent, as a puisne Judge, I am bound to apply the legal principles laid down by the Court of Appeal.

[53]Moreover, it seems to me that the existing framework is no straightjacket. A myriad of differing features will be of potential relevance whenever an application of this kind is confronted. Each and every case will turn on its own unique facts. In some instances there will be an extremely sound and realistic basis for exercising discretion so as to grant leave. In others, the circumstances will be such that the balancing exercise will come down against the giving of permission perhaps decisively so.

[54]So much then for the legal test. I turn to consider what is said about the way in which the guidance should be applied here.

Applying the guidance: submissions

[55]The Applicants’ submissions are succinctly summarised within Miss Manning’s two Skeleton Arguments. She says that the evidence comprised within her clients’ statements demonstrates that IH was suffering neglect at the hands of his parents due to their own health issues and the severe disabilities of IH’s two siblings. Miss Manning also suggests there is a real risk that if returned to Pakistan IH would suffer a serious detrimental effect because his family members are severely disabled and cannot care for him properly.

[56]Miss Manning and Mr Cole invite me to accept the application has a real prospect of success. Attention is drawn to the inquiries undertaken by the local authority and the guardian. The submission made is that the application is not advanced so as to assist IH to acquire a right of abode in the UK.

[57]Within her Supplementary Skeleton Argument Miss Manning cites a number of the anxieties raised by the SSHD and seeks to counter them by relying upon the guardian’s assessment as comprised within her position statement.

[58]In paranthesis, Miss Manning drew my attention to ZH (Tanzania)(FC) v. Secretary of State for the Home Department

[2011] UKSC 4

and submits that the SSHD could quite properly regularise IH’s continued stay here under a renewed consideration of his overall well-being and Article 8 rights.

[59]In all the circumstances, says Miss Manning, the Applicants have a real prospect of success and she therefore invites the grant of permission.

Additional information from the Applicants supplied during the course of argument

[60]During the course of argument and in answer to my specific questions, Miss Manning indicated that the reason her clients pursue this application is that they are very keen for IH to enjoy similar status to that of their own children; and for him to live with them forever. I observe, in passing, that the Applicants have not before expressed themselves in that way. They did so, via Miss Manning for the first time in court. No similar sentiments appear anywhere within the documents.

The guardian

[61]The guardian’s Position Statement provides unqualified support for the Applicants. It accentuates the mental health problems of IH’s mother, her poor physical health, the health problems of IH’s father, the schizoaffective disorder affecting IH’s oldest brother, the considerable assistance required by the parents’ second son because of his learning difficulties and the various medical reports recently supplied so as to substantiate those assertions.

[62]The guardian has interviewed “paternal uncle IfJ, who has recently visited the birth parents in Pakistan and is a qualified social worker.” I assume this is the same individual – the first name is identical – who sent emails to social services in the latter part of 2011 and contributed to the local authority’s initial assessment (see paragraphs 17, 18, 25 and 29 above). On the basis of all the material, it would seem that IfT, is the eldest son of the Applicants and thus IH’s cousin, not his uncle.

[63]At all events, IfJ / IfT reported to the guardian that IH’s mother appears very frail; K the oldest son “hears voices, talks to himself, wonders (sic) off and smears faeces”; ImH, the second eldest “presents as having severe learning difficulties.”

[64]Accordingly it is said by the guardian that if the court accepts the evidence put forward on behalf of the Applicants, a return to Pakistan even in the short term for an application to be made in accordance with the rules could place IH at risk of harm. During the course of her inquiries, the guardian has “heard nothing which has caused alarm bells to ring.” She has no reason to believe this is anything other than a welfare-based application.

The Secretary of State

[65]On behalf of the Secretary of State, Mr Greatorex, drew my attention to a decision of Bennett J, ASB and KBS v. MQS and the Secretary for the Home Department

[2009] EWHC 2491

and in particular to paragraph 35 where, having charted the development of the jurisprudence and considered its evolution against the 2002 statutory framework, he said this – 35. In my judgment it remains the court's obligation post the 2002 Act to be on its guard in adoption proceedings against misuse of such proceedings. Misuse of adoption proceedings to gain a right of abode (as opposed to exercising parental authority) is most unlikely to be in the child's welfare as well as undermining immigration policies and procedures. Paragraph 4 of Adoptions with a Foreign Element Regulations 2005 (S.I. 2005/393), made pursuant to s. 83 of the 2002 Act, demonstrate that the procedure for the adoption of a foreign child by applicants in the UK may be long, perhaps arduous, and uncertain of success. The temptation in such cases to pull the wool over the eyes of the immigration authorities may be well nigh irresistible. If the regulations are not complied with the offender may be guilty of a criminal offence – see s. 83 (7) of the 2002 Act. The procedural requirements include(i) the prospective adopter receiving notification that the appropriate certificate has been issued by the Secretary of State confirming him as eligible and suitable to be an adoptive parent and that the child will be authorised to enter and reside permanently in the UK,

(ii) the prospective adopter visiting the child in the state of origin,

(iii) before visiting the child notifying the adoption agency of certain matters,

(iv) after the visit confirming to the adoption agency the visit, providing any further information requested, and confirming the child's expected date of entry into the UK, and

(v) accompanying the child on entering the UK and thereafter giving notice to the adoption agency of the child's entry and of the intention to apply for an adoption order.

[66]In that case, Bennett J was seized of the substantive adoption application. He heard evidence over two days about the entire range of matters to be considered when an adoption order is sought. The subject child, who was 17 at the time of the hearing in 2009, had been brought to England on a family visit in 2007. He had been in continuous breach of the Immigration Rules from the time when his visa expired in late 2007.

[67]Those applicants had expressed a wish to adopt the child in 1995 when he was only three years old. Thereafter the couple considered, and Bennett J inferentially accepted, that their relationship with the child was different. In 2002, in Pakistan, the applicants became the beneficiaries of a guardianship order. They materially assisted the child by paying for him to be educated privately and in other respects as well. Bennett J found a number of facts broadly uncritical of the applicants in connection with immigration issues. He described them as “open, honest and sincere.” He resolved the adoption application in their favour and granted them leave to apply. He said, “Whilst (the child’s) welfare was not the paramount consideration in this connection, the immigration matters as I have found them to be, are not sufficient to persuade me to refuse leave. Indeed, now that I have conducted a full hearing into the merits and concluded that an adoption order should be made, it would be quite unjust not to grant leave. Even if leave had been sought at the outset of the application, which it should have been but was overlooked, I am confident that it would have been granted.”

The balancing exercise

[68]I have a duty to scrutinise the available information from all sources so as to assist in the overall decision as to whether permission should be given.

[69]On the one hand, I bear in mind everything said on behalf of the Applicants and the guardian as to the perceived purity of the Applicants’ motivation as well as the serious deficiencies within the parental home in Pakistan arising from the ill health of various family members. I also take account of IH’s good progress in the UK, the fact that he appears to be well settled at his current home, is making progress at school and that his welfare needs are said to be met.

[70]On the other hand, I must make some assessment of the way in which the application has been made, what has been said, whether there is consistency and cohesion so as to reassure me as to sincerity and motivation. When that exercise is undertaken by detailed evaluation of the written material, the result is far from reassuring.

The intermingling of immigration and adoption issues

[71]The application for leave to adopt, as a matter of fact, was launched against a background of two unsuccessful applications for leave to remain outside the Immigration Rules. Whilst, of itself, that is not a matter of overriding importance, it provides some background and may be indicative, to some extent at least, of the Applicants’ true motivation.

[72]I have referred already to the almost identical statements made in support of both the Immigration and Adoption applications (see paragraph 37 above). It would be an entirely permissible inference that having failed in their bid to extend his stay here using the immigration route, the Applicants resolved to pursue adoption.

[73]It is also the fact, and this is something which cannot be ignored, that there has been a full scale failure on the part of the Applicants to comply with the requirements of the Immigration Rules and the law relating to the adoption of a foreign child.

Inconsistencies and discrepancies

[74]Of even more significance though in the overall survey of relevant considerations is the trail of noteworthy inconsistencies in what has been said at various times, on a whole variety of issues, since visas were applied for in 2010. If there were only a few discrepancies of minor importance, it would be one thing. Here, there is a mass of material pointing in divergent directions which gives me every reason to doubt the Applicants’ integrity and indeed the authenticity of the application.

[75]Some are apparent from the necessarily detailed chronology between paragraphs 6 and 35 above. Others emerge from the evidence filed. The following merit explicit mention.

[76]In the latter part of 2011, there was a significantly fluid and changing situation surrounding the individuals who were proposing they should assume full legal responsibility, if not adoption, for IH. Between June and about October, MB and MA were putting themselves forward. By late October, IfT was saying he was both looking after IH and exploring adoption. In November that year, the current Applicants were said to be complying with all legal obligations relating to the adoption process.

[77]The statements made by family members in the UK as to the severance of ties between IH and his parents is glaringly inconsistent. The claims repeatedly made both to the Home Office and in support of the leave to adopt application were that IH has “broken all ties with his natural family.” In one of his emails to the local authority, IfT asserts that IH was “estranged from his birth parents”. And yet when the local authority undertook the initial assessment, it was rapidly established that no such severance or estrangement had occurred. IH, according to IfT, had been led to believe his parents would be returning to the UK, and he spoke with them regularly over the telephone.

[78]When, early this year, the local authority undertook further inquiries for the purposes of its Rule 14 report, the allocated social worker, was told IH has telephone contact with his parents and two brothers on a weekly basis. IH has said he is happy with this level of contact which demonstrates, so it is said, that his parents “remain interested in his welfare and desirous of maintaining a relationship” with him.

[79]There is discrepant information too as to the ability of the family in Pakistan to earn a livelihood. The Immigration Judge was led to believe the family made a living from the land. KH was said to work alongside his father. In June 2011, when the first application for leave to remain was made, it was claimed that IH’s parents’ land was under threat so they could no longer take care of him. That suggestion has not been repeated, so far as I can see, in any of the subsequent material supplied.

[80]As for the health of IH’s parents, there are very considerable variations in the accounts offered. Most recently, and in response to the court’s directions that they should supply medical reports, a family physician Dr AA has certified that the mother is very weak physically and has had three operations for different abdominal problems. His opinion is that she is unable to look after her family and even herself. In a separate report, the same doctor says the mother “must deal with emotional stress given the added burdens of life (required in the household chores) and task overload would no doubt lead to depression.” He confirms that “both parents have mental capacity and are able to make decisions for themselves.” Nothing is said about any intellectual or cognitive impairment.

[81]The same doctor has supplied a report about IH’s father in which he says that he has been a regular patient for 12 years. “He is a known case of Hypertension and IHD (ischaemic heart disease, I assume) for the past 7 years. He has been sent to ICU (intensive care unit, presumably) 4 times during those 7 years. He is on medication for IHD and is monitored by the cardiologist every three months.

[82]At the other end of the spectrum, in the early part of this year, in answer to a presumably direct question from the local authority social worker, Ms Carroll, the father stated that his own and the mother’s physical and mental health is good. It is also noteworthy that in November 2011, when questions were asked about the family’s medical history, IH’s “aunty” reported to the GP that IH’s mother’s IQ seemed low but father was normal. One brother was, according to that aunt, “mentally handicapped.”

[83]It should also be said that when in May 2012, Heritage Solicitors made representations to the Home Office asking for reconsideration of the decision refusing further leave to remain, no mention was made of the parents’ health problems nor, for that matter, of any mental illness or intellectual limitation suffered by either brother.

[84]As far as the health of IH’s older brothers is concerned, I am asked by the Applicants (and most especially, perhaps, by their son IfT in the reports he has made to the guardian) to accept that KH is now in a pitiful condition, smearing faeces, hearing voices and wandering off. His doctor, MH, reports him as “a case of a schizo-affective disorder”; he has been under the doctor’s care for two years and needs regular treatment (unspecified) and “supervision of family….”

[85]IfT contended in discussion with the guardian that the second eldest son “presents as having severe learning difficulties.” In their statements, the Applicants suggest that whilst the family was in the UK with them in 2011, it was necessary to buy “adult nappies for both the older children to avoid any accidents.” That suggestion of incontinence has to be compared with a letter, apparently dated 10th December 2012 from the Office of the Headmaster of a particular school in Panyam, Kashmir. Mr AA, presumably the Headmaster, certified that Mr ImH, son of MH “is having low intelligence quantity problem.” There was no suggestion from the aunt who accompanied IH to the GP in November 2011 that IH had two rather than one brother who is “mentally handicapped.”

[86]It is also of some relevance that the Applicants have given any number of different dates for the month when IH’s stay in their home began. In their statements of 6th August 2012, they said they were “given the opportunity to accommodate” IH after the 29th June 2011 application to remain was refused – so some time after 16th August 2011. In the very next paragraph of the Applicants’ statements, it is said that IH has been living with them for “almost a year” so from August 2011. But a little later, in the same statements, they say he has been living with them “since his arrival in the UK.” In discussion with Ms Carroll, the social worker who provided the Rule 14 report, it was said IH had been living with the Applicants and their family since March 2011.

[87]During the course of argument, in response to those evidential inconsistencies and having taken instructions, Miss Manning said the information within the documents is incorrect. She was told that IH only began to live with her clients permanently from about November 2011. Prior to that he had spent 3 or 4 days a week in their home and the remainder at another relatives’ home, that of the original sponsor and her husband, MB and MA.

[88]It is also highly significant that the parents’ statements, sent to the court on 1st March 2013 by Heritage Solicitors, were quite obviously prepared by lawyers, or just conceivably by a lay person, in this country. The typeface and the headings are identical to those of the Applicants’ statements, dispatched at the same time within the same envelope.

[89]Moreover, it would seem impossible, from the way in which the jurats at the end of the parents’ statements were completed, that the contents stemmed from them in response to instructions given. In each instance, the jurat is in these terms – “I believe the facts stated in this witness statement are true to the best of my knowledge and belief having first been translated to me in the Mirpuri language by _____ who is fluent in English and Mirpuri.” IH’s father signed his document, the mother affixed a thumbprint.

[90]IfT, who according to the guardian has recently returned from Pakistan, completed the certificate which appears at the very back of the parents’ statements, in these terms – “I, IfT, of Birmingham, confirm that I have read the statements of Mrs ZB and Mr MH and have translated to them word for word what has been written. They have understood the contents and signed the documents accordingly.” The very clear inference has to be that those statements were prepared in advance, almost certainly in England, and that IH’s parents were simply asked to confirm the contents. They cannot, it seems to me, be advanced as authentically the parents’ statements.

[91]My reading of the papers suggests that IfT has occupied a role of some significance at various stages in this lengthy process. He would appear to have been working away, largely in the background, seeking to ensure IH remains in the UK.

Welfare needs – best served by the making of an adoption order?

[92]I turn then next to consider, as I surely must, whether IH’s welfare needs would be best served by the making of the substantive order sought, namely an adoption order. I pause to remind myself of the effect of such an order. If made, IH would no longer have legal status as his parents’ son. He would be the son of MM and RB. His brothers would cease to be his brothers. The Applicants’ five children, now his cousins, would become his full siblings.

[93]Against the background of events these past two years, adoption for IH strikes me as altogether unreal. Even if he were to be made the subject of such an order, it seems vanishingly unlikely that he will begin to see his uncle and aunt as his father and mother. Until his parents returned to Pakistan in about May / June 2011, IH had lived with them in that country for all of his life. Even by January 2012, he seemed not to know what was happening to him, believed he had been “abandoned” but that his parents would be returning to Birmingham.

[94]Moreover, there is no sense in which the Applicants have a true desire for their own reasons to adopt a child. They have five already. Their motivation, so it seems to me, is so as to help IH’s parents by giving him the chance of a better life in the UK.

[95]I find it impossible to conclude, even if I were to leave on one side the many matters which cast doubt upon the good faith and integrity of the Applicants that an adoption order would be in IH’s best interests.

[96]I am conscious that in so saying, I am in conflict with the guardian. I see this application very differently to her almost certainly because it has been necessary for me to scrutinise the material in a way which she would not be required to do. Her role and mine are different. The guardian has carried out a welfare inquiry by listening to what she has been told by family members and others, as well as by witnessing relationships at first hand. She has had no opportunity to verify the various statements made about the health and other difficulties of both the parents and IH’s siblings. My task has been to assess a quantity of material, to consider whether there are reasons for caution in accepting at face value what emerges from the papers and to decide whether, in all the circumstances, leave to apply should be given.

[97]On one level, I am sure the guardian is correct to conclude that IH’s well-being is provided for within the Applicants’ home. He is doing well seemingly in all areas of his development. But I am troubled by the way in which he came to be in this country, by the likely emotional impact upon him of the sudden and probably unexpected departure of his parents and eldest brother from his everyday life and by the equally sudden disappearance some months later of his older brother. I note that in nothing IH has said to any one is there any hint he was not loved or cared for by his parents. Indeed, IH is said to be a very sociable, loving boy who enjoys family life. He is “as keen to give emotional warmth as he is to receive it” which, to my mind, strongly suggests he experienced a sound emotional upbringing from his parents during his formative years.

[98]Currently, the Applicants do not have parental responsibility although the document signed by IH’s parents on 3rd November 2011 may have been of some assistance, I know not, with the health and educational authorities.

[99]Had this been an application for an interim or even perhaps a full residence order, I should have concluded the matter in favour of the Applicants. As it is and for the reasons given, I decline to give permission to them to apply for adoption.

Finally – the conduct of an application of this kind

[100]Finally, I make the following observations about the way in which applications of this kind should be dealt with from the time of their inception. I do so, in part, because of an exhortation made on behalf of the SSHD but also because of my conviction that on the next occasion when something similar arises, it should be dealt with expeditiously.

[101]First and most important, in normal circumstances, applications for permission to adopt particularly those intermingled with immigration issues should be determined on submissions and promptly. The time lag here of twelve months between the launch and completion of proceedings represents an unconscionable and wholly unacceptable delay. It has been a period of legal limbo for IH which has been fundamentally against his welfare interests. In addition, the delay has been inimical to the proper operation of immigration controls, a matter of considerable importance to the SSHD.

[102]Second, I would urge any judge confronted with an application in which the SSHD makes clear her intention to intervene to consider transfer to the High Court, for hearing before a Judge of the Family Division. That should occur at the earliest possible moment and before giving directions for the filing of evidence and reports.

[103]In all likelihood, it will be necessary for there to be dialogue between the judge who first confronts the application and his / her Family Division Liaison Judge so as to decide the appropriate judicial tier and venue for hearing. These are disputes which, to my mind, fully deserve swift determination ordinarily within a matter of weeks rather than months.