Mr & Mrs T v IM & Ors [2025] EWHC 1470 (Fam)

[2025] EWHC 1470 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
IN THE MATTER OF THE ADOPTION AND CHILDREN ACT 2002
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 16/06/2025
Before
THE HONOURABLE MRS JUSTICE JUDD
Between
Mr. and Mrs. TApplicantsIM1 st RespondentLondon Borough of Islington2 nd RespondentD3 rd Respondent
Hilka Hollmann of Dawson Cornwell and Kathryn Cronin for ApplicantsThe 1 st Respondent appeared in person for in personKathryn Blair (instructed by London Borough of Islington Legal Services) for 2 nd RespondentEva Holland of Cafcass Legal for 3 rd RespondentHearing Hearing dates: 13 th February 2025
Approved JudgmentThis judgment was handed down remotely at 10.30am on 16 th June 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................THE HONOURABLE MRS JUSTICE JUDDThis 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.

Introduction and Background

[1]This is an application for an adoption order with respect to a little boy (D) who is nearly four. He and his birth parents were all born in Sierra Leone. The applicants are British Nationals living in the United Arab Emirates (“the UAE”).[2]The applicants decided some time ago that they wished to adopt a child from Sierra Leone. Before doing so they had undergone an adoption assessment in the UAE by a Consultant Psychologist, Dr. Andrea Tosatto, and obtained a letter of no objection from the British Embassy. They also underwent medical assessments and provided clear police checks.[3]The applicants were introduced to a lawyer in Sierra Leone, Emma Banya. This has become a well-trodden path as there are a number of applicants, habitually resident in the UAE, who have applied to adopt children from Sierra Leone. They have, in the main, all involved the same two professionals, namely Dr. Tosatto and Ms. Banya.[4]Ms. Banya provided the applicants with information about D, who had been placed in an orphanage by his birth parents shortly after he was born because they could not afford to bring him up. She also advised and represented them through the legal process. On 28th March 2022 the Ministry of Gender and Children’s Affairs gave approval for D to be fostered by the applicants and then on 6th October 2022 to the adoption. On 30th March 2022 D was placed in the care of a probation officer and freed for adoption by a court order, and then moved to a Care Centre (Network for Children in Need Care Centre) with financial support provided by the applicants.[5]Although the applicants met D online and immediately fell in love with him, they were unable to visit Sierra Leone until after the adoption hearing in November 2022 as a result of the serious illness of one of the members of their wider family. They attended the hearing itself via Zoom and, according to their statement, they were asked a number of questions by the court, including how much they knew about the culture of Sierra Leone, for some more personal details, and to explain why they had not visited.[6]Once the family crisis was over (within a very short time after the adoption hearing) the applicants went to Sierra Leone to meet D in person. They spent time at the orphanage with him and also with the birth parents. The birth parents told the applicants that they were very sure that it was in D’s best interests for him to be adopted by them.[7]After spending two weeks in Sierra Leone, the applicants had to leave D behind for a while so that they could organise a passport for him and make sure that all the paperwork was in order. He remained in the orphanage for another few weeks before the female applicant was able to go and collect him. He has lived with them now for over two years.[8]The applicants are hoping to return to live in the UK soon. As adoptions in Sierra Leone are not automatically recognised here, they have applied for a domestic adoption order so that they can secure his position as their son under the laws of this country and also obtain a British passport for him. To that end, they applied in November 2023 for an order granting them permission to give notice to the local authority and to apply for an order, although D had not lived with them for the requisite period of three years as is required by s42(5) of the Adoption and Children Act 2002. The applicants gave notice to the Regional Adoption Agency (“RAA”) where the female applicant had last had a home.[9]The application for an adoption was made in August 2024. I made directions joining D as a party and inviting the Cafcass High Court Team to provide a Guardian for him. The Secretary of State for the Home Office and the Secretary of State for the Department of Education were both informed of the application and both decided that they did not wish to intervene. The Embassy of Sierra Leone was informed about the proceedings.[10]The matter was listed before me in February 2025. The hearing was attended virtually by the birth parents and the applicants. I adjourned that hearing so that I could be provided with more information about the process of assessment that had been undertaken by the RAA, and to allow the Guardian to speak to the birth parents. I have now been provided with further information in writing and am satisfied that I can now deal with the application. Statutory Requirements[11]All the statutory references in this section are to the Adoption and Children Act 2002. The applicants are married and both over the age of 21 (s50). I am satisfied that they are both domiciled in the UK (s49(2)), as they were both born here, have wider family here, and return regularly for holidays. They intend to move back here as a family in the near future. D is under 19 and has not been married (s47(8) and (9)). They were granted permission to apply before the period of three years (s42(5) and (6)). They gave notice to the RAA within the requisite time period (s44(3). The local authority which is prescribed is the one in whose area they last had their home (s44(9) and Regulation 3 of the Local Authority (Adoption)(Miscellaneous Provisions) Regulations 2005). They have filed adoption medical reports for themselves and D dated May 2024. Consent of the birth parents[12]The birth parents were not married at the time of the birth, but they have married since. Both of them have provided their formal, signed and witnessed consent to the adoption which complies with the requirements of rule 14.10(2)(a) Family Procedure Rules and Form A104. They attended the hearing in Sierra Leone, and also the hearing before me in February. They spoke to the Guardian afterwards and confirmed their consent. They do not appear to have had independent legal advice, but they told the Guardian that they agreed with the adoption and understood what it entailed. They also said that they were happy to receive information about D which was happening in accordance with the order made in Sierra Leone.[13]The applicants regularly send the birth parents information by WhatsApp about D’s progress, and are engaged in life story work for him. The assessment process[14]Pursuant to section 42(7) ACA 2002:
“an adoption order may not be made unless the court is satisfied that sufficient opportunities to see the child with the applicant, or in the case of an application by a couple, both of them together in the home environment have been given (a) Where the child was placed for adoption with the applicant or applicants by an adoption agency, to that agency, (b) In any other case, to the local authority within whose area the home is.”
[15]D was not placed with the applicants by an agency so it is s42(7)(b) which applies.[16]In Re SL [2004] EWHC 1283, Munby J (as he then was) stated, following the earlier authority of Re Y (Minors)(Adoption: Jurisdiction) [1986] 1 FLR 152, that the home environment referred to in the predecessor to s42(7)(b) of the 2002 Act must be in England and Wales: “..the only statutory obligation in this connection would seem to be that they spend sufficient time there to enable the local authority concerned to see all parties together in their ‘home environment’ as provided by [s13(3)(b)] and properly to investigate the circumstances as required by s[22]. What that will involve in terms of residence will be a question to be decided in the light of the facts of each case”.[17]This position was confirmed by the Court of Appeal in Re A (Adoption: Removal) [2009] EWCA Civ 41; [2009] 2 FLR 597. Wall LJ stated that there was no requirement that the home specified in s42(7)(a) needed to be in the jurisdiction, unlike s42(7)(b) where it did. At paragraph 92, Moore-Bick LJ added that he considered the purpose of subsection (b) was to ensure that where no adoption agency was involved, a local authority takes responsibility for carrying out the necessary assessment before an adoption order is made.[18]In the light of those authorities, it is plain that the home referred to in s42(7)(b) must be in this country.[19]In the case of Re B (Adoption Assessment) [2024] EWFC 103 (Fam), I was concerned with a case involving applicants who were habitually resident in the UAE, and whose assessment had taken place virtually in their home abroad and in person, in a hotel and an observation over lunch in the community, in this country. I concluded that this was not sufficient for the requirements of s42(7)(b) which required the prospective adopters and child to be seen in a home environment. The process which is mandated is a very important safeguard to ensure that the assessment is a robust one in the best interests of the child and that the same standards are applied to families whose main home is abroad as to those who are habitually resident here.[20]This case is different from Re B in that the assessment did take place in the home where the family stay when they come to visit relatives. D has his own bedroom there, and his own toys. It is not, however, in the same area as the RAA which did the assessment, as the authority to which the applicants gave notice of their intention to adopt, and which is prescribed by the regulations, is the one in whose area one of the couple last had their home (as set out earlier).[21]There is something of an anomaly between what is required by s42(7)(b) and Regulation 3 if the agency concerned is not the same. Nonetheless, the clear aim is to ensure that there will be an identifiable agency to take responsibility for carrying out the assessment.[22]I adjourned the previous hearing to ask the RAA to provide some more details as to the assessment they carried out and how it would compare with a fully domestic case. I am grateful to the Team Manager for filing a statement to clarify the situation. For families in this country between 6 and 9 assessment sessions would usually take place, each one lasting between 1 and 2 hours. Sometimes there are fewer but longer sessions. Most sessions would take place in person with one or two being online.[23]In this case the agency carried out 6 assessment sessions. As the family were only here for three weeks, 4 assessment sessions took place online and two in person. The in-person assessments were extended in time so that they lasted between 5 and 6 hours in total. Had there been any issues which needed further clarification, more sessions would have been arranged.[24]Having read the statement, I entirely endorse the decision of the RAA to carry out the sessions in the home environment where the family usually stay, albeit it was outside their area.[25]Having read all of the evidence including that of the Team Leader, the Annex A report and the reports of the Guardian, I am satisfied that the requirements of s42(7)(b) are met, albeit the agency which carried out the assessment is not the one in whose area the home is. That difference is procedural rather than one of substance and should not be such as to vitiate the process that has taken place.[26]Whilst more of the assessment sessions have taken place virtually than would happen if the applicants were habitually resident here, I am satisfied this adaptation has been adapted without compromising its overall quality. I note that the Guardian has also met with the applicants and child and is entirely satisfied as to the level and quality of care he is being given.[27]I therefore conclude that the necessary assessments have taken place in accordance with the statute, and so I will turn to matters of welfare. Sections 92, 93 and 97[28]S92 Restriction on arranging adoptions etc:
“(1) A person who is neither an adoption agency nor acting in pursuance of an order of the High Court or the family court must not take any of the steps mentioned in subsection (2). (2)The steps are— (a) asking a person other than an adoption agency to provide a child for adoption, (b) asking a person other than an adoption agency to provide prospective adopters for a child, (c) offering to find a child for adoption, (d) offering a child for adoption to a person other than an adoption agency, (e) handing over a child to any person other than an adoption agency with a view to the child’s adoption by that or another person, (f) receiving a child handed over to him in contravention of paragraph (e), (g) entering into an agreement with any person for the adoption of a child, or for the purpose of facilitating the adoption of a child, where no adoption agency is acting on behalf of the child in the adoption, (h) initiating or taking part in negotiations of which the purpose is the conclusion of an agreement within paragraph (g), (i) causing another person to take any of the steps mentioned in paragraphs (a) to (h). (3) Subsection (1) does not apply to a person taking any of the steps mentioned in paragraphs (d), (e), (g), (h) and (i) of subsection (2) if the following condition is met. (4)The condition is that— (a) the prospective adopters are parents, relatives or guardians of the child (or one of them is), or (b) the prospective adopter is the partner of a parent of the child. (5) References to an adoption agency in subsection (2) include a prescribed person outside the United Kingdom exercising functions corresponding to those of an adoption agency, if the functions are being exercised in prescribed circumstances in respect of the child in question.1 (6) The Secretary of State may, after consultation with the Assembly, by order make any amendments of subsections (1) to (4), and any consequential amendments of this Act, which he considers necessary or expedient. (7) In this section— (a)“agreement” includes an arrangement (whether or not enforceable), (b)“prescribed” means prescribed by regulations made by the Secretary of State after consultation with the Assembly.” (a) asking a person other than an adoption agency to provide a child for adoption, (b) asking a person other than an adoption agency to provide prospective adopters for a child, (d) offering a child for adoption to a person other than an adoption agency, (e) handing over a child to any person other than an adoption agency with a view to the child’s adoption by that or another person, (f) receiving a child handed over to him in contravention of paragraph (e), (g) entering into an agreement with any person for the adoption of a child, or for the purpose of facilitating the adoption of a child, where no adoption agency is acting on behalf of the child in the adoption, (h) initiating or taking part in negotiations of which the purpose is the conclusion of an agreement within paragraph (g), (i) causing another person to take any of the steps mentioned in paragraphs (a) to (h). (a) the prospective adopters are parents, relatives or guardians of the child (or one of them is), or (b) the prospective adopter is the partner of a parent of the child. (a)“agreement” includes an arrangement (whether or not enforceable), (b)“prescribed” means prescribed by regulations made by the Secretary of State after consultation with the Assembly.”
[29]S93 Offence of breaching restrictions under section 92:
“(1) If a person contravenes section 92(1), he is guilty of an offence; and, if that person is an adoption society, the person who manages the society is also guilty of the offence. (2) A person is not guilty of an offence under subsection (1) of taking the step mentioned in paragraph (f) of section 92(2) unless it is proved that he knew or had reason to suspect that the child was handed over to him in contravention of paragraph (e) of that subsection. (3) A person is not guilty of an offence under subsection (1) of causing a person to take any of the steps mentioned in paragraphs (a) to (h) of section 92(2) unless it is proved that he knew or had reason to suspect that the step taken would contravene the paragraph in question. (4) But subsections (2) and (3) only apply if sufficient evidence is adduced to raise an issue as to whether the person had the knowledge or reason mentioned. (5) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months, or a fine, or both.”
[30]S97 Sections 92 to 96: interpretation:
“In sections 92 to 96— (a)“adoption agency” includes a Scottish or Northern Irish adoption agency, (b)“payment” includes reward, (c) references to adoption are to the adoption of persons, wherever they may be habitually resident, effected under the law of any country or territory, whether within or outside the British Isles .”
[31]It is clear from the statute, and the decision of MacDonald J in C and D v E (International Surrogacy and Domestic Adoption [2025] EWFC 68 that these provisions apply to both domestic and overseas adoptions.[32]In this case the applicants were initially informed about adoption in Sierra Leone by others who had adopted children there, and as a result of this they requested a Home Study report from a locally (to them) based professional, Dr. Tossato. At around the same time they contacted Emma Banya, a lawyer in Sierra Leone, who was also recommended to them. She provided the applicants with D’s details and the orphanage where he was living, and navigated them through the legal process.[33]The paperwork shows that all of this was overseen by the courts of Sierra Leone and the Ministry of Gender and Children’s Affairs. D is said to have been relinquished by his parents to an orphanage shortly after he was born in mid 2021. This is well before the order made in favour of the applicants in March 2022, which ought to allay any fears that the birth parents did this in contemplation of any proposed adoption by the applicants. In those circumstances the evidence shows that the applicants were seeking to adopt a child who was already in an orphanage and went through official channels before they were permitted to foster and then adopt him. In those circumstances I do not find that there was any breach of section 92 of the Act. Decision[34]In coming to a decision in relation to adoption, the welfare of the child throughout his life is the court’s paramount consideration.[35]D is too young to give his views, but from all the reports he is happy and thriving in the care of the applicants, and regards them as his parents. He is receiving care of a very high quality and is thoroughly integrated into the family. He had a difficult start in life and was said to be malnourished when he came to live with them but he has adapted very well. The author of the Annex A report notes that D’s early experiences may have caused him trauma which could become apparent in the future, but that the applicants are prepared for this and have been given advice as to how to seek help if needed.[36]D is healthy and well. The applicants have contact with the birth parents and send them news about D. As D grows up, he will have access to information about them and wider members of the birth family. He has never been looked after by them, but as he grows up it will be important for him to understand his background and culture.[37]The applicants have a lot of experience of children and prepared themselves to adopt in advance. They have an understanding of the culture of Sierra Leone and will ensure that D grows up with that knowledge. There are several other families in the UAE who have adopted children from Sierra Leone, and so there is a network of support. The family have a good standard of living and lots of support where they live now and also in the UK.[38]It is the view of the Guardian that the applicants are very well attuned to D’s needs and totally committed to him. They are meeting all of his needs and will continue to do so.[39]In all the circumstances, I am satisfied that adoption is in D’s best interests throughout his life, and that no lesser or other order would meet his needs. He is already adopted under the law of the country of his birth, and regards the applicants as his parents. It is important that he is also adopted under the law of this country, so that his rights as a full member of the family are recognised.[40]I am satisfied that there will be contact between D and his birth family in the form of news via WhatsApp and other social media as determined by the applicants. In time, there may be a meeting in person but the timing of that is not possible to determine. The applicants are fully committed to life story work and can be trusted to make such arrangements as are right for D as he grows up.[41]I am very grateful for the assistance I have had in this case from the lawyers concerned, including Ms. Kathryn Cronin who provided submissions as to the effect of section 92 of the Act. It has also been helpful to have had the assistance of the Cafcass High Court Team and Ms. Holland of Cafcass Legal who has provided invaluable experience and continuity in this and other cases.