"(1) When a court determines any question with respect to (a) the upbringing of a child, or (b) the administration of a child's property or the application of any income arising from it, the child's welfare shall be the court's paramount consideration. (2) In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child. (3) In the circumstances mentioned in subsection (4), a court shall have regard in particular to: (a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding); (b) his physical, emotional and educational needs; (c) the likely effect on him of any change in his circumstances; (d) his age, sex, background and any characteristics of his which the court considers relevant; (e) any harm which he has suffered or is at risk of suffering; (f) how capable each of his parents and any other person in relation to whom the court considers the question to be relevant is of meeting his needs; and (g) the range of powers available to the court under this Act in the proceedings in question. (4) The circumstances are that: (a) the court is considering to make, vary or discharge a s.8 order and the making, variation or discharge of the order is opposed by any party to the proceedings; or (b) the court is considering whether to make, vary or discharge a special guardianship order or an order under Part IV."
“(3A) A court deciding whether to make a care order— (a) is required to consider the permanence provisions of the section 31A plan for the child concerned, but (b) is not required to consider the remainder of the section 31A plan, subject to section 34(11). (3B) For the purposes of subsection (3A), the permanence provisions of a section 31A plan are— (a) such of the plan's provisions setting out the long-term plan for the upbringing of the child concerned as provide for any of the following— (i) the child to live with any parent of the child's or with any other member of, or any friend of, the child's family; (ii) adoption; (iii) long-term care not within sub-paragraph (i) or (ii); (b) such of the plan's provisions as set out any of the following— (i) the impact on the child concerned of any harm that he or she suffered or was likely to suffer; (ii) the current and future needs of the child (including needs arising out of that impact); (iii) the way in which the long-term plan for the upbringing of the child would meet those current and future needs.”
"(1) A placement order is an order made by the court authorising a local authority to place a child for adoption with any prospective adopters who may be chosen by the authority. (2) The court may not make a placement order in respect of a child unless: (a) the child is subject to a care order; (b) the court is satisfied that the conditions set out in s.31(2) of the 1989 Act (conditions for making a care order) are met; or (c) the child has no parent or guardian. (3) The court may only make a placement order if in the case of each parent or guardian of the child the court is satisfied: (a) that the parent or guardian has consented to the child being placed for adoption with any prospective adopters who may be chosen by the local authority and has not withdrawn the consent; or (b) that the parent's or guardian's consent should be dispensed with. This subsection is subject to s.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 lacks capacity (within the meaning of theMental Capacity Act 2005 ), or (b) the welfare of the child requires the consent to be dispensed with.”
"What is necessary is a complex question requiring an evaluation of all of the circumstances. As Lord Neuberger said at paragraph 77 of Re B, speaking of a care order, which in that case would be very likely to result in the child being adopted: “It seems to me inherent ins.1(1) of the Children Act 1989 that a care order should be a last resort because the interests of the child would self-evidently require her relationship with her natural parents to be maintained, unless no other course was possible in her interests (my emphasis). I emphasise the last phrase of that passage in her interests because it is an important reminder that what has to be determined is not simply whether any other course is possible but whether there is another course which is possible and in the child's interests. This will inevitably be a much more sophisticated question and entirely dependent on the facts of the particular case. Certain options will be readily discarded as not realistically possible, others may be just about possible but not in the child's interests; for instance, because the chances of them working out are far too remote. Others may in fact be possible but it may be contrary to the interests of the child to pursue them."
“24. In these circumstances, close attention needed to be paid to the nature and extent of the risks. As foreshadowed at the start of this judgment, there must be (to borrow a phrase from a different context) an intense focus on the type of risk that is involved, how likely it is to happen, and what the likely consequences might then be. Only by carrying out this exercise is it possible to know what weight to give to the risks before setting them alongside other relevant factors. So, for example, the risk of further physical harm to a child who has been severely injured by a denying parent is likely to be a factor of predominant weight. By contrast, to borrow from the evidence in this case, where a mother who untruthfully denies drinking goes to a park at night to drink alone, leaving her baby with its grandmother, the court will view that risk with a sense of proportion. 25. Similarly, close attention must be paid to the true significance of lies and lack of insight in the context of assessing welfare. Lies, however deplorable, are significant only to the extent that they affect the welfare of the child, and in particular to the extent that they undermine systems of protection designed to keep the child safe. However, as noted by Macur LJ in Re Y (A Child)[2013] EWCA Civ 1337 , they cannot be allowed to hijack the case. See also Sir James Munby P in Re A (A Child)[2015] EWFC 11 at [12]: “The second fundamentally important point is the need to link the facts relied upon by the local authority with its case on threshold, the need to demonstrate why, as the local authority asserts, facts A + B + C justify the conclusion that the child has suffered, or is at risk of suffering, significant harm of types X, Y or Z. Sometimes the linkage will be obvious, as where the facts proved establish physical harm. But the linkage may be very much less obvious where the allegation is only that the child is at risk of suffering emotional harm or, as in the present case, at risk of suffering neglect. In the present case, as we shall see, an important element of the local authority's case was that the father "lacks honesty with professionals", "minimises matters of importance" and "is immature and lacks insight of issues of importance". Maybe. But how does this feed through into a conclusion that A is at risk of neglect? The conclusion does not follow naturally from the premise. The local authority's evidence and submissions must set out the argument and explain explicitly why it is said that, in the particular case, the conclusion indeed follows from the facts.”
“This list provides structure for decisions and ensures that all welfare elements are taken into account. So in the present case the children’s particular needs under (b) include the need to stay together if at all possible, while their background under (d) includes their Ghanaian/black British heritage. In issue were the questions of harm and risk of harm under (e) and the ability of the parents to provide a secure environment and otherwise meet their needs under (f)(ii).”
“29. The next general matter concerns the significance of lies. The correct approach to lies in relation to fact-finding is well known and the Judge appropriately gave himself a Lucas direction in that context. Here the more pertinent matter for our purpose concerns lies in the context of welfare. Lies, however disgraceful and dispiriting, must be strictly assessed for their likely effect on the child, and the same can be said for disobedience to authority. In some cases, the conclusion will simply be that the child unfortunately has dishonest or disobedient parents. In others, parental dishonesty and inability to co-operate with authority may decisively affect the welfare assessment. But in all cases the link between lies and welfare must be spelled out.”
“41. The disadvantage of making a placement order is that LRP will be deprived of an upbringing within her natural family. LRP will not be brought up by a mother who is obviously able to demonstrate pleasing emotional warmth and affection for her child or by a father who, similarly, can be appropriately tender when minded to show that side of himself. It may be… in future [the child] will need some professional assistance so as to deal with issues of loss and identity if she is not to be brought up within her natural family. But experience suggests that so long as the adoptive family deals openly and sensitively with those matters – and age appropriately as the child grows – the potential for problems is markedly reduced, even eliminated... 43. The advantages of a placement order are many and obvious. Prospective adopters are required to submit themselves to a rigorous and very thorough assessment process over many months. Those who satisfy the selection criteria are ordinarily of the highest calibre. They may be confidently expected to provide extremely good parenting to any child who is matched with them in all areas of his / her development. They will protect LRP from harm of whatever kind. The overwhelming probability is that they will be able to provide her with the priceless gift of a happy, secure and stable childhood from which she will derive life-long advantages.”
“A great deal of the President's leading judgment is devoted to some very important questions relating to jurisdiction in adoption generally, which are not before this court on this appeal. In summary, these are (para [63]): (i) Does an English court have jurisdiction (a) to make an adoption order in relation to a child who is a foreign national, and (b) to dispense with the consent of a parent who is a foreign national? This was a difficult question, given that the Brussels IIA Regulation does not cover adoption or measures preparatory to adoption, nor is there any other international instrument covering the matter. The Court of Appeal answered both (a) and (b) in the affirmative and this issue is not before this court. (ii) If the English court does have such jurisdiction, how should that be exercised? The President gave guidance on this issue (paras [104]–[111]). Once again, this guidance is not before this court on this appeal…”
“8. I am acutely conscious of the concerns voiced in many parts of Europe about the law and practice in England and Wales in relation to what is sometimes referred to as ‘forced adoption’ but which I prefer, and I think more accurately, to refer to as non-consensual adoption. There is no shirking the fact that our approach in these matters has given rise to controversy abroad and particularly in Europe. I make no apology for repeating what I said, sitting at first instance, in Re E (Brussels II Revised: Vienna Convention: Reporting Restrictions)[2014] EWHC 6 (Fam) ,[2014] 2 FLR 151 , paras 13-15, a case involving a child from Slovakia: “13. Leaving on one side altogether the circumstances of this particular case, there is a wider context that cannot be ignored. It is one of frequently voiced complaints that the courts of England and Wales are exorbitant in their exercise of the care jurisdiction over children from other European countries. There are specific complaints that the courts of England and Wales do not pay adequate heed to BIIR and thatpublic authorities do not pay adequate heed to the ViennaConvention [on Consular Relations of24 April 1963 ]. “13. Leaving on one side altogether the circumstances of this particular case, there is a wider context that cannot be ignored. It is one of frequently voiced complaints that the courts of England and Wales are exorbitant in their exercise of the care jurisdiction over children from other European countries. There are specific complaints that the courts of England and Wales do not pay adequate heed to BIIR and thatpublic authorities do not pay adequate heed to the ViennaConvention [on Consular Relations of24 April 1963 ]. 14. In the nature of things it is difficult to know to what extent such complaints are justified. What is clear, however, is that the number of care cases involving children from other European countries has risen sharply in recent years and that significant numbers of care cases now involve such children. It is timely therefore to draw the attention of practitioners, and indeed the courts, to certain steps which can, and I suggest from now on should, be taken with a view to ameliorating such concerns. 15. It would be idle to ignore the fact that these concerns are only exacerbated by the fact that the United Kingdom is unusual in Europe in permitting the total severance of family ties without parental consent… Thus the outcome of care proceedings in England and Wales may be that a child who is a national of another European country is adopted by an English family notwithstanding the vigorous protests of the child’s non-English parents. No doubt, from our perspective that is in the best interests of the child – indeed, unless a judge is satisfied that it really is in the child’s best interests no such order can be made. But we need to recognise that the judicial and other State authorities in some countries that are members of the European Union and parties to the BIIR regime may take a very different view and may indeed look askance at our whole approach to such cases.”
“The fact that the law in this country permits adoption in circumstances where it would not be permitted in many European countries is neither here nor there …The Adoption and Children Act 2002 permits, in the circumstances there specified, what can conveniently be referred to as non-consensual adoption. And so long as that remains the law as laid down by Parliament, local authorities and courts, like everyone else, must loyally follow and apply it. Parliamentary democracy, indeed the very rule of law itself, demands no less.”
“Where adoption is in the child's best interests, local authorities must not shy away from seeking, nor courts from making, care orders with a plan for adoption, placement orders and adoption orders. The fact is that there are occasions when nothing but adoption will do, and it is essential in such cases that a child's welfare should not be compromised by keeping them within their family at all costs.”
“Of course, any judge should have a decent respect to the opinions of those who come here from a foreign land, particularly if they have come from another country within the European Union. As I said in Re K; A Local Authority v N and Others[2005] EWHC 2956 (Fam) ,[2007] 1 FLR 399 , para 26:“the court must always be sensitive to the cultural, social and religious circumstances of the particular child and family.”
“The court cannot shut its eyes to the possibility of creating the “limping infant” referred to in Cheshire's Private International Law, 7th ed (1965), p382, and if the child is domiciled in a country where the English order would not be recognised, he may “limp” not only there but in other places, and may find himself faced with a dispute in other countries whether the English order should be recognised or not.”
“In my judgment therefore, where the child is or may be domiciled abroad or is a foreign national or was until recently ordinarily resident there, the court should consider whether its order will be recognised elsewhere unless the case is one in which it is clearly for the welfare of the infant that an order should be made irrespective of its consequences elsewhere, as in refugee cases… With that exception, in my judgment in all cases where there is such a foreign element as I have described, evidence should be furnished to show that the order, if made, will be recognised by the foreign court and, if so, then the English court is free to proceed regardless of any question of foreign law or procedure, but if not, then the court will have to weigh the disadvantages of the child having one status here and another in other countries, or even a doubtful one, against the other considerations there may be in favour of adoption. The disadvantages may of course be serious in such matters as liability for military service, taxation (including death duties) and succession to property. It is not necessary, however, to prove what the child's domicile actually is, or to go into the adoption laws of the relevant foreign country, for in my judgment, as I have said, the problem is not one of jurisdiction or of applying the foreign law, substantive or procedural, but of considering factually whether, having regard to the foreign element, the English order will have general recognition, and if not whether the order would still be for the welfare of the infant.”
“Comity is an established common law principle based on courtesy, respect and reciprocity (see Buck v Att-Gen[1965] Ch 745 at 770). Whilst it has been noted, not always favourably, that the principle of comity is of “very elastic content” (see Dicey and Morris on Conflict of Laws 15 th Ed. at [1-008]), it has been accepted that, in the context of family law cases with an international element, the principle of comity encompasses administrative, judicial and social services. Within this context, and by way of example, in cases involving the Convention of25 October 1980 on the Civil Aspects of International Child Abduction it is well established the court should accept that, unless the contrary is proved, the administrative, judicial and social services in another jurisdiction are as adept at protecting children as they are in this jurisdiction (see Re H (Abduction: Grave Risk)[2003] 2 FLR 141 , Re M (Abduction: Intolerable Situation)[2000] 1 FLR 930 and Re L (Abduction: Pending Criminal Proceedings)[1999] 1 FLR 433 ).”
“… society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, whilst others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the province of the State to spare children all the consequences of defective parenting. In any event, it simply could not be done.”
“In a case such as this it is vitally important always to bear in mind two well- established principles. The first is encapsulated in what the Strasbourg court said in Y v United Kingdom(2012) 55 EHRR 33 ,[2012] 2 FLR 332 , para 134: “family ties may only be severed in very exceptional circumstances and … everything must be done to preserve personal relations and, where appropriate, to ‘rebuild’ the family. It is not enough to show that a child could be placed in a more beneficial environment for his upbringing. However, where the maintenance of family ties would harm the child’s health and development, a parent is not entitled under article 8 to insist that such ties be maintained (emphasis added).”
“142. Finally, the question of whether D needs ‘good enough’ parenting or ‘better than good enough’ parenting. There is, I think, a risk of this becoming mired in semantics. The reality is clear and simple. As Ms Randall put it, D has complex special needs (paragraph 76). The guardian expressed the same view when she said that D’s care needs are over and above those of other children of his age (paragraph 95) and said that, because of his own difficulties, D will need additional support both through childhood and as a young adult (paragraph 100). I agree with those assessments. 143. Ms Randall went on to express the view that in these circumstances D will require ‘better than good enough’ parenting in order to achieve his potential (paragraphs 76, 82). Although this is a conventional way of expressing it, the real point surely is this. What is required is parenting which is ‘good enough’, not for some hypothetical average, typical or ‘normal’ child, whatever that means, but for the particular child and having regard to that child’s needs and requirements. Where, as with D, the child has needs over and above those of other children of his age, then what is ‘good enough’ for him may well require a greater level of input. D, in my judgment, plainly will. That is the point, and that is what is relevant, and in this case highly relevant. The descriptive label is merely that, a convenient form of professional shorthand.”
“There is a lack of adequate healthcare, very little social support and the child protection organisation appears to be general and not like the social care system in this jurisdiction. Education is not compulsory and of a poor standard, life chances are limited and poverty is widespread”
“Dear Honourable Judge, I extend our sincere gratitude to the High Court - Family Division - for allowing our representatives to attend and observe the hearings in the matter concerning the welfare of Brazilian national [R], currently under your consideration. The Consulate recognises and deeply respects the vital role the Family Court plays in safeguarding the welfare and rights of children within the United Kingdom. ln cases such as this, which involve parties from another jurisdiction, we firmly believe that active cooperation between the UK Family Court and the Brazilian Consulate is not only appropriate but essential. Such collaboration can enrich the Court's understanding of the cultural, familial, and legal context of the child's background and contribute meaningfully to the pursuit of a just and informed resolution. While we fully appreciate and support the paramount importance of safeguarding every child from harm, we respectfully highlight that at the core of our concern for [R's] best interest lies the fundamental right of every child to experience the love, presence, and care of their family. ln line with this, the Brazilian Statute of the Child and Adolescent highlights in its Article 4 that the effective implementation of the rights to Family and community living, alongside health, nutrition, education, sports, leisure, vocational training, culture, dignity, respect and freedom are absolute priorities. ln this particular case, the mother… and the grandmother… have been working hard to overcome their social disadvantage in the UK and personal difficulties to be allowed to stay in [R's] life. Their resilience demonstrates the transformative power of love. Furthermore, [R's] extended family have also shown their willingness to support the mother and grandmother to provide both immediate and long-term care for [R]. We believe that a nurturing and stable family environment, in which a child feels safe, valued, and unconditionally loved, is central to their emotional, psychological, and social well-being. ln addition, as stated in our previous letter, the Consulate is committed to referring the case to the attention of social and health services in Brazil, and to provide our authorities with all the available information regarding the case. ln this regard, it seems pertinent to point out that recently, Brazil's healthcare system - SUS - has exported its Family Health Strategy Program (ESF) to the NHS. Laura Donnely, writing for The Telegraph about the program, highlighted that the ESF has been linked to significant improvements in health outcomes. The article also called attention to one of the tenets of the program, which is to help the vulnerable navigate the health system, for example, by making appointments with specialists, general practitioners, and dentists. lt concludes that the Brazilian approach "takes advantage of a strong community spirit" within the country. The ESF is one of the many health programs implemented throughout the country that Brazilians can benefit from, free of charge. With regards to the educational system, Brazil has embraced solid legislation based on an inclusive approach to ensure access, as well as permanence, and success for all students - including those with disabilities, global developmental disorders, high abilities, and specific learning needs. lt is supported by federal laws such as the Federal Law 13.L46/20t and the Decree 7.6LL/2Ott, among others. Our educational system is not without flaws but the current legislation ensures that the right path is in place to fulfil the educational needs of Brazilian families and reach the full potential of Brazilian children. We remain hopeful that through continued respectful dialogue and a holistic appreciation of all aspects of the case - social, cultural, emotional, legal, and relational - this Court will arrive at a decision that honours the family's dignity and provides a foundation for a life filled with love, connection, and opportunity, be it in the UK or Brazil. Thank you once again for this opportunity and for the care with which this matter is being considered. We look forward to continuing to support and contribute constructively to this process in any way that may be helpful.”