FAS v Bradford Metropolitan District Council & Anor [2015] EWHC 622 (Fam)

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Case No BD12Z01801

[2015] EWHC 622 (Fam)

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Venue Leeds Civil Hearing Centre

Date 13/03/2015

Coverdale House, LS1 2BH

Before

MR JUSTICE MOSTYN

Between

FASApplicant

Bradford Metropolitan District Council1 st Respondent

Secretary of State for the Home Department2 nd Respondent

Mr Rudd (instructed by Atkinson & Firth Solicitors) for Applicant

Ms Tai (instructed by Bradford Legal Services) for 1st Respondent

Mr Greatorex (instructed by Treasury Solicitors) for 2nd Respondent

Hearing Hearing dates: 4 & 5 March 2015

Judgment

Mr Justice Mostyn :

[1]This is my judgment on the application by FAS to adopt her first cousin once removed, MW. The application is dated 6 November 2011 and seeks a convention adoption order, which is misconceived as Pakistan, MW's homeland, is not a party to the Hague Convention of 29 May 1993 on the Protection of Children and Co-operation in respect of Inter-country Adoption. It has therefore been treated as an application for a mainstream adoption and on 27 January 2014 Holman J granted leave under section 42(6) Adoption and Children Act 2002 ("ACA") for the adoption application to proceed.

[2]FAS is 44 years old. Her father and MW's paternal grandmother were siblings. She was born in the UK and has British citizenship. She is married but has been separated from her husband for seven years. She has two adult sons with whom she lives in Bradford.

[3]MW was born on 18 November 1996 in Pakistan and is therefore 18 years old and legally an adult. The adoption application was made before his 18th birthday, as it had to be – see section 49(4) ACA. However, an adoption order may not be made after MW's 19th birthday – see section 47(9). An effect of an adoption order would be to grant British Citizenship to MW – see section 1(5) British Nationality Act 1981.

[4]It is not clear why Parliament has allowed an adoption order to be made in respect of a person who is legally an adult for all purposes. It represents a break with the past. Section 1(1) of the Adoption Act 1958 confined an adoption order to an "infant" and an infant was defined by section 57(1) as a person who had not attained the then legal age of majority of 21 (provided that he or she had not been married). The Adoption Act 1976 was to the same effect, save that by section 72(1) the age was reduced, in line with the legal age of majority, to 18. I suppose that this curious alteration in the 2002 Act was to align adoption law with child benefit and child support where payments can be made, or ordered to be made, for a "child" over the age of 18 who is in full time education (in the case of child support potentially up to the "child's" 20th birthday). At all events it is, as I say, extremely curious as the effect of an adoption order, as is well known, is to give "parental responsibility for a child to the adopters" (see section 46(1)) and to extinguish the parental responsibility of the natural parents (section 46(2)(a)), which are literally impossible concepts when the adopted person is not a child but is an adult.

[5]MW's mother is SW and his father is MWA. He is the fourth of five children. He has two elder brothers, an elder sister and a younger sister. His parents are separated. On separation the girls went to live with SW and the boys with MWA. His sisters live with their mother in the village of Panjeri, Bhimber District, which is in Kashmir in Pakistan. SW's address derives from a form of consent to adoption which was sent both to the court and to FAS about which I will have more to say later. The whereabouts of MWA and of MW's brothers are said to be unknown, although it is almost certain that they are all in Pakistan. However, in the visa application, to which I refer below, MW gives his address as Panjeri village, and so it seems probable that both parents after separation were living in the same place.

[6]On 18 June 2012 MWA made an application for UK entry clearance for a visa for him and MW to make a family visit to the UK. The application for MW, which was made on his behalf by his father, stated that: i) The purpose of the visit was a "family visit" for six weeks. ii) He would travel to the UK on 22 July 2012 and leave on 7 September 2012. iii) His address was Panjeri village, where he was living with his father. iv) When in the UK he would be staying with ZK in Bradford. v) A family relative in the UK is QHS who lives in Bradford.

[7]Nothing is known about ZK, other than his address and the fact that he works for HMRC. QHS is in fact FAS's brother but she told me that they fell out years ago and do not speak to each other.

[8]Visitors' visas for father and son were issued on 3 July 2012 and were valid until 3 January 2013.

[9]MW and his father in fact arrived in the UK on 15 September 2012. As I will explain, MW has lived permanently with FAS and her sons in Bradford since 20 October 2012. He did not return to Pakistan by 3 January 2013 and is therefore an unlawful overstayer.

[10]It is of note that on 9 December 2011 an office copy of MW's birth certificate was bespoken, presumably by his father, from the secretary of the Union Council in Panjeri. This office copy, the original of which is on the court file, was brought by MWA to the UK for the "family visit". It later accompanied FAS's adoption application of 6 November 2012.

[11]It is probable that MWA brought MW here for the purposes of adoption, as there can be no other reason why he bespoke and brought with him an office copy of MW's birth certificate. By section 83(4) and (5) ACA and the Adoption with a Foreign Elements Regulations 2005 (SI 2005 No. 392) strict conditions are imposed where such a course is proposed and it is a criminal offence under section 83(7) if a child is brought in for adoption in breach of those conditions. However, there is insufficient evidence to fix FAS with culpable participation in that plan even if there are aspects of the evidence which are highly questionable and suspicious, as I shall explain.

[12]Each of FAS and MW have prepared a "home made" witness statement. There are two identical versions of each on the court file with the dates 11 November 2013 and 10 December 2013. In her statement FAS explained that during a visit to Pakistan by her late father in 2001 he (her father) agreed with his sister, MW's grandmother, that he would adopt MW given the unhappy condition of the marriage of MW's parents. She stated:

"In connection (sic), I also confirm that in September 2012 I learned that MW came to England with his father. I managed to acquire a contact number of MW's father through a family friend and arranged to meet him. I met MW and his father at a family dinner gathering and insisted that he should honour and fulfil the concealed promise between my father and his late mother and invited MW and his father around (sic) my home."

On 17 December 2013 FAS made a formal witness statement. Here her account of the meeting and how it came about was different. At paras 14 and 15 she stated:

"In September 2012 I learned through the community that MW had come to England with his father. I arranged to travel over to Nelson in Lancashire where MW and his father were staying and we had dinner together. Having met MW and his father again I invited them to my home in Bradford and when they came to see me I asked MW if he would like to live with me. He has stayed with me from October 2012 to date."

In her oral evidence a yet further version of events was given by FAS. She told me that she had been invited to a dinner in Lancashire. She stated "When I got to the dinner party I discovered MWA and MW. It was a complete surprise." Her oral evidence was that there was no discussion about adoption on that occasion but that she invited father and son to her house for dinner.

[13]The oral evidence of FAS is that MWA and MW came to her house in Bradford for dinner on about 13 October 2012. On that occasion she said to MW, as a joke, "you are going to stay with me". Surprisingly, this dinner is not mentioned in either of FAS's witness statements, nor in MW's, although he (MW) does say that after the Lancashire gathering his father did ask whether he would consider living with FAS as part of her family. This apparently shocked him (MW) greatly. He stated "my whole world started to collapse around me".

[14]FAS is consistent in her three accounts that MW was left with her on a permanent basis on 20 October 2012. On that occasion MW was delivered not only with his passport but with the office copy of his birth certificate also.

[15]Just over two weeks later on 6 November 2012 FAS attended at the office of her then solicitors Ashwells Law LLP. There the application form seeking a convention adoption was filled in on her behalf by her solicitor Mr Iskar Khan. MWA also attended the office. A consent to adoption in the prescribed form was signed by him and witnessed by Mr Iskar Khan. That consent is not valid as Regulation 20 of the Adoption Agencies Regulations 2005 (SI 2005 No. 389) requires an adoption consent executed in England to be witnessed by a Cafcass officer. The consent was affixed to the application form and the whole thing, together with the birth certificate, was filed at the Bradford County Court the following day from where it was formally issued on 13 November 2012.

[16]On 12 November 2012 the then unissued application was placed before District Judge Lingard who ordered that by 20 November 2012 FAS was to file a statement explaining(a) how MW came to be placed with her,

(b) MW's immigration status,

(d) why there was no consent from MW's mother.

[17]On 19 November 2012 FAS wrote a letter in response to this order. There is no doubt that this letter was drafted by IK, a friend of FAS, who is computer literate. The letter is written in Times New Roman 12 point font, with single spacing. It has FAS's address at the top right of the letter. It is not justified. As to query (d) it was merely written "the child's parents are separated and the child's Father holds full Parental guardianship for the child". District Judge Lingard was not satisfied with this and ordered on 3 December 2012 that FAS was to give "a detailed explanation as to whether the mother consents". On 10 December 2012 IK prepared another letter, in identical format to the one before, where FAS stated "the mother becomes legally binding by his decision making and should have no objections".

[18]On 23 May 2013 the matter was transferred to the High Court. I do not need to trace the subsequent procedural history, other than to observe that in his judgment granting leave under section 42(6) ACA Holman J made it very clear that the grant should by no means be interpreted as a harbinger of success on the substantive application in circumstances where the application had not been served on the Home Secretary. That subsequently took place. She has participated in the proceedings and been represented by counsel who has strongly opposed the application on the ground that it represents a blatant circumvention of the immigration rules.

[19]I have stated above that in November 2013 statements were prepared by IK for FAS and MW and were signed by them on 11 November 2013 (and again on 10 December 2013). These were in IK's usual format of Times New Roman 12 point single spaced, although in contrast to the earlier letters they were justified.

[20]On 15 May 2014 MW's mother, SW, signed, or purported to sign a form of consent to MW's adoption. The form that she signed is a near verbatim replication of the prescribed Form A104. It was prepared in identical format to the letters prepared by IK on 19 November 2012 and 10 December 2012 in that it was written in Times New Roman 12 point font, with single spacing, with the address at the top right of the letter, and was not justified During the hearing it was thought that perhaps the consent letter of 14 May 2014 was a smaller point of font based on the photocopy in the court file. But the original is on the court file and it is clear that it is in 12 point font. . SW's consent is witnessed by Nosheen Iqbal, an advocate and Commissioner for Oaths, who attested it at Mirpur in Kashmir.

[21]The form of consent was posted to the court from Pakistan and is postmarked Mirpur 20 May 2014. On the same day a copy was sent to FAS in Bradford. This is identical to the one sent to the court save that it is a copy made on foolscap paper, which, as is well known, is the standard size of legal paper used on the subcontinent.

[22]FAS told me that the consent from SW posted to her came "out of the blue" and she and IK had nothing to do with its preparation. IK told me that he had not prepared it. FAS told me that she had no idea who had prepared the consent for SW to sign or how.

[23]I regret that I do not believe this evidence. In my judgment is it much more likely than not that(a) IK prepared the form for SW to sign;

(b) it was printed on A4 paper and sent to Pakistan for that purpose;

(d) the original was sent to the court.

[24]It would have been unremarkable for FAS to have been involved in obtaining SW's consent. The witnessing of the consent by a Commissioner for Oaths is valid for a consent given outside the UK. It would have been perfectly normal for what I believe happened to have happened

[25]On 20 February 2015 FAS made a third witness statement. She stated that she had been unsuccessful in tracking down MW's parents or for that matter the witness to SW's consent. In oral evidence she confirmed this. MW said the same; he asserted he had no idea where were his parents or his older siblings, who he imagined would by now be married. Were he to be forced to return to Pakistan he would be abandoned, homeless and destitute.

[26]Again, I find it difficult to accept this. We know SW's address as it is given on the consent form and written on the back of the envelopes which sent that form to the court and the foolscap copy to FAS. We know that in 2012 MW was living with his father in the same village. Moreover I am convinced having been told lies about the obtaining of SW's consent, that FAS knows precisely where SW is, and it is also likely that she knows the whereabouts of MWA.

[27]At the commencement of this case I asked Mr Rudd if he accepted that if MW had by now been granted indefinite leave to remain in this country FAS would not be pursuing this adoption application. Mr Rudd readily agreed, but in her evidence FAS made it very clear that irrespective of the immigration benefits of an adoption order she nonetheless very much wished that MW should become a full member of her family with the same status as her sons. In such circumstances Mr Rudd withdrew his concession. However, Mr Greatorex urges me to be realistic and to recognise that in truth and in reality the only relevant motive for this application is the glittering prize of citizenship and the right of abode.

[28]I now set out the applicable provisions in the ACA:

"Section 1(2): The paramount consideration of the court or adoption agency must be the child's welfare, throughout his life. Section 1(4): The court or adoption agency must have regard to the following matters (among others)– (a) the child's ascertainable wishes and feelings regarding the decision (considered in the light of the child's age and understanding), (b) the child's particular needs, (c) the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person, (d) the child's age, sex, background and any of the child's characteristics which the court or agency considers relevant, (e) any harm (within the meaning of the Children Act 1989) which the child has suffered or is at risk of suffering, (f) the relationship which the child has with relatives, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including– (i) the likelihood of any such relationship continuing and the value to the child of its doing so, (ii) the ability and willingness of any of the child's relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child's needs, (iii) the wishes and feelings of any of the child's relatives, or of any such person, regarding the child. Section 1(6): The court or adoption agency must always consider the whole range of powers available to it in the child's case (whether under this Act or the Children Act 1989); and the court must not make any order under this Act unless it considers that making the order would be better for the child than not doing so. Section 52(1): The court cannot dispense with the consent of any parent or guardian of a child to the child being placed for adoption or to the making of an adoption order in respect of the child unless the court is satisfied that– (a) the parent or guardian cannot be found or is incapable of giving consent, or (b) the welfare of the child requires the consent to be dispensed with."

Section 1(4): The court or adoption agency must have regard to the following matters (among others)– Section 1(6):

Section 52(1):

[29]I draw attention to the terms of section 1(2) which refers to the child's welfare "throughout his life". This is to be distinguished from section 6 of the Adoption Act 1976 (and its predecessors) which referred to the need to promote and safeguard the welfare of the child "throughout his childhood".

[30]Section 6 of the 1976 Act was the key provision in play in the decision of the House of Lords of In re B (A Minor) (Adoption

[31]Lord Hoffmann gave the sole speech of substance allowing the grandparents' appeal from the decision of the Court of Appeal refusing an adoption order. At 141G to 142A he set out two propositions as follows:

"The first is that the purpose of an adoption is, as section 12 of the Act says, to give parental responsibility for a child to the adopters. The court will therefore not make an adoption order when the adopters do not intend to exercise any parental responsibility but merely wish to assist the child to acquire a right of abode. This is what Cross J. in In re A. (An infant) [1963] 1 WLR 231, 236 called an “accommodation” adoption. The second proposition is that the court will rarely make an adoption order when it would confer no benefits upon the child during its childhood but give it a right of abode for the rest of its life. In such a case there are no welfare benefits during childhood to constitute the “first consideration.” The court is in effect being asked to use adoption to confer citizenship prospectively upon an adult. This is a power which Parliament has entrusted to the Home Secretary and the courts are reluctant to trespass upon the area of his authority."

And at 141E-G he concluded:

"I think it is wrong to exclude from consideration any circumstances which would follow from the adoption, whether they are matters which will occur during childhood or afterwards. This, as I have said, would be contrary to the terms of section 6. Such benefits may include a right of abode or a possibility of succession. But benefits which will accrue only after the end of childhood are not welfare benefits during childhood to which first consideration must be given. And if a right of abode will be of benefit only when the child becomes an adult, that benefit will ordinarily have to give way to the public policy of not usurping the Home Secretary's discretion. It is perhaps a curious feature of this case that if the Home Office had been willing to allow T. to remain in this country for the two years during which a residence order was in force, the case for an adoption, conferring a right of abode for life, would have been very much weaker. It would not have given T. any benefits during her childhood which she would not have been able to enjoy anyway."

[32]The first situation addressed by Lord Hoffmann is basically a fraudulent adoption application, where the applicants have to practise wholesale deceit about their future intentions, i.e. by pretending that they wish to incorporate the child fully into their family when in fact they have no such intention. Such situations, one would like to think, would be vanishingly rare.

[33]The central question that arises in this case is whether the second proposition has been abrogated by the alteration to the welfare text which now provides that the paramount (as opposed to the first) consideration is the child's welfare throughout his life. One can comprehend a literal argument that this is so. Lord Hoffmann's second proposition was based squarely on the wording of section 6 of the 1976 Act which confined the welfare considerations to those arising during childhood. Benefits that inured solely or mainly in adulthood, such as citizenship, were not within the remit of the section and therefore to give effect to them was to trespass on the power of the Home Secretary to grant citizenship and generally to control immigration. This argument becomes appreciably more difficult to mount in a literal way where the court's paramount consideration is the child's welfare throughout his life.

[34]In order to answer this central question it is necessary to ask: what welfare considerations Parliament was addressing when it added the words "throughout his life" to the traditional welfare prescription? Section 1 of the Children Act 1989 provides that "the child's welfare shall be the court's paramount consideration." Implicitly this captures only welfare matters arising during childhood. Had it meant to capture benefits arising in adulthood it would no doubt have said so, or have been amended to say so, when ACA was passed. The Consultation Paper "Adoption: a new approach" (December 2000: Cm 5017) does not shed any light on the issue. It merely states at para 4.14 that:

"In 2001, the Government will legislate to overhaul and modernise the legal framework for adoption, and in particular … [to]align the Adoption Act 1976 with the Children Act 1989, to make the needs of children paramount in making decisions about their future."

This is, in fact, what did not happen, as the new adoption welfare test is not aligned with that in the Children Act 1989. I have not received any submissions from counsel about statements in Parliament during the passage of the legislation deriving from Hansard, and I have not undertaken any independent research in this regard.

[35]A significant clue is however found in section 1(4)(c) of ACA. This provides that the court must have regard to the likely effect on the child (throughout his life) of having ceased to be a member of the original family and having become an adopted person. This suggests that the court must look ahead and consider carefully the disbenefits that might arise later in life as a result of being adopted. No doubt Parliament had in mind the extraordinary and tragic case of Re B (Adoption

[36]In his recent lecture to the Denning Society on 13 November 2014 entitled "Adoption: Complexities Beyond the Law" Lord Wilson of Culworth with his customary penetration and lucidity identified a number of other searing problems encountered in adulthood which derive from an adoption. I would detract from the integrity of the piece were I to quote snippets from it. Lord Wilson ended with these telling words:

"I am a passionate believer in the value of adoption in appropriate circumstances. Nevertheless I fear that, in making those orders, I never gave much attention to the emotional repercussions of them. In particular I fear that I failed fully to appreciate that an adoption order is not just a necessary arrangement for a child’s upbringing. Sir James Munby, the President of the Division, said only weeks ago that adoption has the most profound personal, emotional, psychological, social and perhaps also cultural and religious consequences. I totally agree. The order is an act of surgery which cuts deep into the hearts and minds of at least four people and which will affect them, to a greater or lesser extent, every day of their lives. As a result of the society’s invitation to me to speak to it this evening, I have belatedly been led to reflect on these complexities beyond the law."

[37]I am firmly of the view that when Parliament enacted the enhanced welfare test in section 1(2) ACA it was thinking about the long-term emotional repercussions of an adoption order. I am equally firmly of the view that it could not possibly have intended to have abrogated Lord Hoffmann's second proposition. It would have been extraordinary had it intended to do so. The control of immigration has been a driving force of all governments, of whichever political stripe, for decades. If Lord Hoffmann's second proposition has gone, and the benefit of citizenship solely or mainly taking effect in adulthood is, of itself, a welfare reason to make an adoption order then one can see that a large loophole will have been opened up in an area which is extremely tightly regulated.

[38]If this view were correct one can see a serious tension arising with para 316A of the Immigration Rules which provides: "Requirements for limited leave to enter the United Kingdom with a view to settlement as a child for adoption 316A. The requirements to be satisfied in the case of a child seeking limited leave to enter the United Kingdom for the purpose of being adopted (which, for the avoidance of doubt, does not include a de facto adoption) in the United Kingdom are that he:(i) is seeking limited leave to enter to accompany or join a person or persons who wish to adopt him in the United Kingdom (the "prospective parent(s)"), in one of the following circumstances: (a) both prospective parents are present and settled in the United Kingdom; or (b) both prospective parents are being admitted for settlement on the same occasion that the child is seeking admission; or (c) one prospective parent is present and settled in the United Kingdom and the other is being admitted for settlement on the same occasion that the child is seeking admission; or (d) one prospective parent is present and settled in the United Kingdom and the other is being given limited leave to enter or remain in the United Kingdom with a view to settlement on the same occasion that the child is seeking admission, or has previously been given such leave; or (e) one prospective parent is being admitted for settlement on the same occasion that the other is being granted limited leave to enter with a view to settlement, which is also on the same occasion that the child is seeking admission; or (f) one prospective parent is present and settled in the United Kingdom or is being admitted for settlement on the same occasion that the child is seeking admission, and has had sole responsibility for the child's upbringing; or (g) one prospective parent is present and settled in the United Kingdom or is being admitted for settlement on the same occasion that the child is seeking admission, and there are serious and compelling family or other considerations which would make the child's exclusion undesirable, and suitable arrangements have been made for the child's care; and

(ii) is under the age of 18; and

(iii) is not leading an independent life, is unmarried and is not a civil partner, and has not formed an independent family unit; and

(iv) can, and will, be maintained and accommodated adequately without recourse to public funds in accommodation which the prospective parent or parents own or occupy exclusively; and

(v) will have the same rights and obligations as any other child of the marriage or civil partnership; and

(vi) is being adopted due to the inability of the original parent(s) or current carer(s) (or those looking after him immediately prior to him being physically transferred to his prospective parent or parents) to care for him, and there has been a genuine transfer of parental responsibility to the prospective parent or parents; and

(vii) has lost or broken or intends to lose or break his ties with his family of origin; and

(viii) will be adopted in the United Kingdom by his prospective parent or parents in accordance with the law relating to adoption in the United Kingdom, but the proposed adoption is not one of convenience arranged to facilitate his admission to the United Kingdom." (a) both prospective parents are present and settled in the United Kingdom; or (b) both prospective parents are being admitted for settlement on the same occasion that the child is seeking admission; or (c) one prospective parent is present and settled in the United Kingdom and the other is being admitted for settlement on the same occasion that the child is seeking admission; or (d) one prospective parent is present and settled in the United Kingdom and the other is being given limited leave to enter or remain in the United Kingdom with a view to settlement on the same occasion that the child is seeking admission, or has previously been given such leave; or (e) one prospective parent is being admitted for settlement on the same occasion that the other is being granted limited leave to enter with a view to settlement, which is also on the same occasion that the child is seeking admission; or (f) one prospective parent is present and settled in the United Kingdom or is being admitted for settlement on the same occasion that the child is seeking admission, and has had sole responsibility for the child's upbringing; or (g) one prospective parent is present and settled in the United Kingdom or is being admitted for settlement on the same occasion that the child is seeking admission, and there are serious and compelling family or other considerations which would make the child's exclusion undesirable, and suitable arrangements have been made for the child's care; and

[39]One can immediately see that were MW to return to Pakistan and make an application under para 316A he would fail in limine being now 18 years of age. Further, in those cases where the sole or main benefit is citizenship and this will take effect mainly or solely in adulthood one can see that leave would usually be refused under subparagraph (viii).

[40]There have been three first instance decisions where Lord Hoffmann's speech has been considered expressly or tacitly in the light of ACA. In ASB & Anor v MQS

[2009] EWHC 2491 (Fam)

Bennett J was considering an application for leave under section 42(6) to proceed with an application by a couple seeking to adopt the female applicant's 17 year old Pakistani nephew. The case therefore had certain similarities to this. Curiously, the discussion in that case was confined to whether Lord Hoffmann's first proposition survived ACA. Nothing was said about the second proposition. At paras 37 and 38 Bennett J stated:

"Ms Kang, counsel for the applicants, did not seek to persuade me to reject Mr. Ruck Keene's central submission that the first of Lord Hoffmann's modest propositions survived the 2002 Act. Indeed she conceded that it must. In my judgment that was a correct concession. Under the 2002 Act the child's welfare throughout his life is the court's paramount consideration. If applicants for an adoption order use the court's procedures not to exercise parental authority in respect of the child but to assist him to acquire British nationality, such action is most unlikely to (indeed I would go so far as to say, cannot) be in the child's best interests. For the proposed adopters would have proved to have been irresponsible, indeed thoroughly devious if not dishonest and thus not acting in the child's best interests in a fundamental respect. Thus such behaviour ought to preclude the child being committed, indeed committed irrevocably, by adoption to the care of such applicants. …"

[41]I have explained above that I regard the first proposition as a rare creature. I do not understand why no mention is made of the second proposition at all, not even to say that in the opinion of the court it has passed into history (if that was indeed the court's view). In that case leave under section 42(6) was granted and an adoption order was made. Bennett J was satisfied that there was no order other than adoption that he could make that would secure the child's best interests throughout his life, and that adoption by the applicants of the child would confer real benefits on him throughout his life (see para 42).

[42]Re IH (A Child) (Permission to Apply for Adoption)

[2013] EWHC 1235 (Fam)

was another application under section 42(6) but on this occasion leave was refused. This was an application by an uncle of a Pakistani nephew who was aged 14. Again, the child was an overstayer, his visitor's visa having expired nearly 2 years before the hearing. Pauffley J did not find it necessary to refer expressly to Lord Hoffmann's speech, although it is plain that she had it well in mind. On the facts she rejected the application. At paras 94 and 95 she held:

"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. 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."

[43]Re B

[2014] EWHC 1284 (Fam)

was a very strange case. It was another leave application. The child was aged 18 at the time of the hearing, so Theis J found. He was essentially a Nigerian foundling encountered by a (Nigerian) pastor in a local park. Theis J followed ASB & Anor v MQS and proceeded on the basis that the only relevant operative part of Lord Hoffmann's speech was the first proposition. In the absence of any sensible contribution from the Home Secretary's subcontractors she found that the child's "lifelong welfare need, which are the court's paramount consideration, can only be met by the security and stability that an adoption order will bring. Only an adoption order will secure lifelong his relationship with [the applicants]" (see para 105).

[44]It will be apparent that I find none of these first instance decisions helpful in answering the central question which I have identified, namely whether Lord Hoffmann's second proposition remains operative.

[45]I have concluded, for the reasons I have given, that Lord Hoffmann's second proposition remains fully operative notwithstanding the advent of the enhanced welfare test in sections 1(2) and 1(4) ACA. I would re-express that proposition, in the light of ACA, as follows:

"The court will rarely make an adoption order when it would confer no benefits upon the child during its childhood but give it a right of abode for the rest of its life. This is not inconsistent with section 1(2) of ACA. The court is in effect being asked to use adoption to confer citizenship prospectively upon an adult. This is a power which Parliament has entrusted to the Home Secretary and the courts are reluctant to trespass upon the area of his authority."

[46]In this case I can see no benefits at all for MW deriving from an adoption order other than citizenship. If he were entitled to stay here I am sure that this application would not have been made. He would live with FAS and his second cousins. His life would be identical whether or not he was bestowed, as an adult, with the formal status of adoption.

[47]It by no means follows that if I were to refuse to make an adoption order the Home Secretary would inevitably move to expel MW back to Pakistan. It is true that MW is an illegal overstayer of long duration but throughout that period he has been living here while FAS's adoption application has been pending. During that period the Home Secretary has agreed to hold her hand pending this court's decision.

[48]It is true that section 117B(4) of the Nationality, Immigration and Asylum Act 2002 (as inserted by section 19 of the Immigration Act 2014) prescribes that in proceedings under the Immigration Acts little weight should be afforded by a court or tribunal to a private life that is established by a person at a time when he is in the UK unlawfully. This reflects Strasbourg jurisprudence. That might suggest that MW's prospects of resisting expulsion are bleak. But as I have sought to explain, by reference to sources both legal and historical, in R (Thebo) v Entry Clearance Officer Islamabad (Pakistan)

[2013] EWHC 146 (Admin)

the Home Secretary retains a discretion, outside the Immigration Acts or Rules, to permit someone in MW's position to stay here. That is a real, substantive and meaningful retained discretion. It is not mere window-dressing. If it is exercised unlawfully, irrationally or perversely it will be liable to be quashed in judicial review proceedings. The exercise of the discretion will inevitably have to give full weight to MW's Article 8 rights. Section 117B(4) does not apply to such an exercise.

[49]It seems to me, as Lord Hoffmann has clearly indicated, that I should not on facts of this case trespass on the Home Secretary's powers. MW can be assured that any application by him to the Home Secretary will be treated carefully and justly. If it is not then there is the safety-net of judicial review.

[50]Even if MW were deported to Pakistan I am by no means satisfied that his position would be nearly as dire as he makes out. I have little doubt that he would be able quickly to locate his father and brothers, or his mother and sisters, and be reunified with, and supported by, them.

[51]Finally, I should state that if I am wrong in my opinion that Lord Hoffmann's second proposition remains operative, and that it is in fact a dead letter, then I would have concluded that the inestimable life-long benefit of citizenship to MW would have driven me to make an adoption order. If that is the law then I expect that the government would want to look urgently at making an amendment to ACA to restore that proposition to life.

[52]At the conclusion of her careful Annex A report the author, Anita Clay, wrote:

"With regard to the issue of adoption, MW will be 18 in November this year and therefore the question [is] whether an adoption order is required. The issue really is whether MW, as an adult, will be granted permission to remain in the UK."

[53]I wholly agree. The true issue is not an adoption issue. Accordingly, in my discretion I refuse the application for an adoption order.

Order

Nationality)

[1999] 2 AC 136

. In that case in 1995 a child, T, then aged 14, and her mother, both Jamaican citizens, visited the mother's parents in the United Kingdom and were given leave to enter for six months. During that period the child went to school in England. When the mother returned to Jamaica the child remained with her grandparents in order to continue attending school. The Home Secretary refused to extend the child's leave to remain in the United Kingdom. The grandparents, who were British citizens, applied with the mother's consent for an adoption order in respect of the child. The Home Secretary intervened to oppose the application on the ground that adoption was being used as a means of acquiring right of abode in the United Kingdom. Order: Jurisdiction to Set Aside) [1995] EWCA Civ 48,

[1995] Fam 239

. The problem there was described succinctly by Simon Brown LJ: "It is difficult to imagine a more ill-starred adoption placement than that of a Kuwaiti Muslim's son with an Orthodox Jewish couple. This appellant was brought up believing himself a Jew, against a background of deep prejudice and hostility between Jews and Arabs, discovering only in adult life that ethnically he belongs to the opposing group." The application by the adopted child, made when he was 36, to set aside the adoption order was refused. It could only be set aside in wholly exceptional circumstances and the facts there, though extreme, were not in that class.

Cited in 1 later judgment

FAS v Secretary of State for the Home Department & Anor 2015