B v B and Ors (Section 83 ACA 2002 and Step-Parent Adoption) [2026] EWHC 97 (Fam)

[2026] EWHC 97 (Fam)

Case No ZE/06/25

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

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

Date 26/01/2026

Before

MR JUSTICE MACDONALD

Between

EBApplicant

RBFirst Respondent

London Borough of HaveringSecond Respondent

YBThird Respondent

The Applicant appeared in person for in person

The First Respondent appeared in person for in person

Ms Sally Homer (instructed by LB of Havering) for Second Respondent

Professor Rob George KC and Ms Mavis Amonoo-Acquah (instructed by Dawson Cornwell LLP) for Third Respondent

Hearing Hearing dates: 25 November 2025

Approved Judgment

This judgment was handed down remotely at 10.30am on 26 January 2026 by circulation to the parties or their representatives by e-mail.

.............................

MR JUSTICE MACDONALD

[1]In this matter I am concerned with an application for an adoption order under the Adoption and Children Act 2002 (hereafter “the 2002 Act”) by EB, the step-father of the subject young person, YB. YB was born in January 2007 and is now aged 19. YB lives in country X. The first respondent is YB’s biological mother, RB, who is married to the applicant step-father. YB’s biological father is deceased. The application is supported by the second respondent local authority, the London Borough of Havering, and by YB’s Children’s Guardian, Tafadzwa Matsika.

[2]EB represents himself before the court, as does RB. YB is represented through her Children’s Guardian by Professor Rob George of King’s Counsel and Ms Mavis Amonoo-Acquah of counsel. The local authority is represented by Ms Sally Homer of counsel.

[3]In circumstances where the court is entirely satisfied that a step-parent adoption order is in the best interests of YB, having regard to the matters set out in s.1 of the 2002 Act, the primary question for the court is the proper legal route to a step-parent adoption order in this case. Specifically, YB having been brought to the United Kingdom by EB within 12 months of a step-parent adoption order being made in his favour in country X, whether this case is one that falls outside the scope of s.83 of the 2002 Act, such that the requirements in s.83 do not fall for consideration by the court, or whether the making of a step-parent adoption order in this case requires the court to rely on the authorities holding that the court may disapply the provisions of s.83 of the 2002 Act where to do so is necessary in order to prevent a disproportionate interference with the Art 8 right to respect for private and family life of the prospective adopter and child.

[4]In deciding this case, I have had the benefit of a court bundle (containing the documents from the adoption proceedings in country X, EB’s statement of facts and witness statement, RB’s witness statement, the Annex A report, the analysis of the Children’s Guardian, a letter from the Department of Education and a letter from the Home Office), an agreed bundle of authorities and comprehensive and helpful Skeleton Arguments from Professor George and Ms Amonoo-Acquah on behalf of YB and Ms Homer on behalf of the local authority. At the conclusion of the final hearing I announced my decision, with reasons to follow, and made an adoption order in favour of EB. I now set out my reasons for doing so.

BACKGROUND

[5]EB is a British citizen. He divides his time between the United Kingdom and country X. YB is the biological daughter of RB and SM. SM died when YB was 4 years old, in a gang related incident. YB has a younger half-brother, QB, aged 12, who is the biological child of RB and whose father is also deceased. EB and RB married on 24 November 2022, having been in a relationship for 7 years prior to their marriage. Accordingly, EB has fulfilled the role of YB’s de facto father since YB was 7 years of age and has been her step-father for 3 years.

[6]Following their marriage, and with the agreement of both children, EB applied in country X to adopt YB and QB. After an extensive process of legal, social work and psychological assessments, the High Court in country X made adoption orders in respect of YB and QB in favour of EB on 24 July 2024.

[7]At the time those adoption orders were made, it was the intention of the family that YB would accompany EB to the United Kingdom in order to study, with the family continuing their arrangement of spending time in both the United Kingdom and country X. In line with this plan, EB and YB travelled to the United Kingdom in early September 2024, some 2 months after the adoption order had been made in country X.

[8]Following their arrival in the United Kingdom, the family discovered that the adoption order made in country X was not recognised in the United Kingdom. Country X is not a country specified in the Adoption (Designation of Overseas Adoptions) Order 2013. Accordingly, YB was not entitled to a British passport by reason of EB being a British citizen. In the circumstances, in March 2025 YB returned to country X after the family became concerned that she would overstay her six month visitor’s visa.

[9]Prior to YB’s departure from the United Kingdom in March 2025, on 8 October 2024 EB gave notice to the local authority as adoption agency of his intention, as YB’s step-father, to adopt her. EB issued an application for an English adoption order in respect of YB on 14 January 2025, immediately prior to YB’s 18th birthday. During the case management stage of these proceedings, the court invited both the Secretary of State for Education and the Secretary of State for the Home Department to intervene in these proceedings in circumstances where the case raised issues concerning the scope of s.83 of the 2002 Act in the context of an international step-parent adoption. Both the Secretary of State for Education and the Secretary of State for the Home Department declined the court’s invitation to intervene. The DfE provided a written response, to which I shall come.

[10]The local authority has filed and served an Annex A report which recommends that an adoption order is made in favour of EB with respect to YB. In her report filed in these proceedings, the Children’s Guardian likewise recommends that an adoption order be made. RB gives her consent to an adoption order being made in EB’s favour.

RELEVANT LAW

[11]Procedurally and legally, the domestic adoption process comprises two key stages. First, the legal and administrative requirements contained within the relevant primary and secondary legislation must be met. Second, and the paramount consideration of the court, an adoption order must be in the best interests of the subject child throughout her life, having regard to the matters set out in s.1(4) of the 2002 Act:

“1 Considerations applying to the exercise of powers (1) Subsections (2) to (4) apply whenever a court or adoption agency is coming to a decision relating to the adoption of a child. (2) The paramount consideration of the court or adoption agency must be the child’s welfare, throughout his life. (3) The court or adoption agency must at all times bear in mind that, in general, any delay in coming to the decision is likely to prejudice the child’s welfare. (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 (c. 41)) which the child has suffered or is at risk of suffering, (f) the relationship which the child has with relatives, with any person who is a prospective adopter with whom the child is placed, 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. (5) In placing a child for adoption, an adoption agency in Wales must give due consideration to the child’s religious persuasion, racial origin and cultural and linguistic background. (6) In coming to a decision relating to the adoption of a child, a 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. (7) In this section, “coming to a decision relating to the adoption of a child”, in relation to a court, includes— (a) coming to a decision in any proceedings where the orders that might be made by the court include an adoption order (or the revocation of such an order), a placement order (or the revocation of such an order) or an order under section 26 or 51A (or the revocation or variation of such an order), (b) coming to a decision about granting leave in respect of any action (other than the initiation of proceedings in any court) which may be taken by an adoption agency or individual under this Act, but does not include coming to a decision about granting leave in any other circumstances. (8) For the purposes of this section— (a) references to relationships are not confined to legal relationships, (b) references to a relative, in relation to a child, include the child’s mother and father. (9) In this section “adoption agency in Wales” means an adoption agency that is— (a) a local authority in Wales, or (b) a registered adoption society whose principal office is in Wales.” (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 (c. 41)) which the child has suffered or is at risk of suffering, (f) the relationship which the child has with relatives, with any person who is a prospective adopter with whom the child is placed, 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. (a) coming to a decision in any proceedings where the orders that might be made by the court include an adoption order (or the revocation of such an order), a placement order (or the revocation of such an order) or an order under section 26 or 51A (or the revocation or variation of such an order), (b) coming to a decision about granting leave in respect of any action (other than the initiation of proceedings in any court) which may be taken by an adoption agency or individual under this Act, (a) references to relationships are not confined to legal relationships, (b) references to a relative, in relation to a child, include the child’s mother and father. (a) a local authority in Wales, or (b) a registered adoption society whose principal office is in Wales.”

[12]The nature, scope and effect of an adoption order made under the 2002 Act is set out in s.46 of the 2002 Act as follows: “46 Adoption orders(1) An adoption order is an order made by the court on an application under section 50 or 51 giving parental responsibility for a child to the adopters or adopter.

(2) The making of an adoption order operates to extinguish— (a) the parental responsibility which any person other than the adopters or adopter has for the adopted child immediately before the making of the order, (b) any order under the 1989 Act or the Children (Northern Ireland) Order 1995 (S.I. 1995/755 (N.I. 2)), (c) any order under the Children (Scotland) Act 1995 (c. 36) other than an excepted order, and (ca) any child assessment order or child protection order within the meaning given in section 202(1) of the Children’s Hearing (Scotland) Act 2011, (d) any duty arising by virtue of an agreement or an order of a court to make payments, so far as the payments are in respect of the adopted child’s maintenance or upbringing for any period after the making of the adoption order. “Excepted order” means an order under section 9, 11(1)(d) or 13 of the Children (Scotland) Act 1995 or an exclusion order within the meaning of section 76(1) of that Act.

(3) An adoption order— (a) does not affect parental responsibility so far as it relates to any period before the making of the order, and (b) in the case of an order made on an application under section 51(2) by the partner of a parent of the adopted child, does not affect the parental responsibility of that parent or any duties of that parent within subsection (2)(d).

(4) Subsection (2)(d) does not apply to a duty arising by virtue of an agreement— (a) which constitutes a trust, or (b) which expressly provides that the duty is not to be extinguished by the making of an adoption order.

(5) An adoption order may be made even if the child to be adopted is already an adopted child.

(6) Before making an adoption order, the court must consider whether there should be arrangements for allowing any person contact with the child; and for that purpose the court must consider any existing or proposed arrangements and obtain any views of the parties to the proceedings.” (a) the parental responsibility which any person other than the adopters or adopter has for the adopted child immediately before the making of the order, (b) any order under the 1989 Act or the Children (Northern Ireland) Order 1995 (S.I. 1995/755 (N.I. 2)), (c) any order under the Children (Scotland) Act 1995 (c. 36) other than an excepted order, and (ca) any child assessment order or child protection order within the meaning given in section 202(1) of the Children’s Hearing (Scotland) Act 2011, (d) any duty arising by virtue of an agreement or an order of a court to make payments, so far as the payments are in respect of the adopted child’s maintenance or upbringing for any period after the making of the adoption order. (a) does not affect parental responsibility so far as it relates to any period before the making of the order, and (b) in the case of an order made on an application under section 51(2) by the partner of a parent of the adopted child, does not affect the parental responsibility of that parent or any duties of that parent within subsection (2)(d). (a) which constitutes a trust, or (b) which expressly provides that the duty is not to be extinguished by the making of an adoption order.

[13]The conditions that must be satisfied before the court can make an adoption order are set out in s.47 of the 2002 Act as follows: “47 Conditions for making adoption orders(1) An adoption order may not be made if the child has a parent or guardian unless one of the following three conditions is met; but this section is subject to section 52 (parental etc. consent).

(2) The first condition is that, in the case of each parent or guardian of the child, the court is satisfied— (a) that the parent or guardian consents to the making of the adoption order, (b) that the parent or guardian has consented under section 20 (and has not withdrawn the consent) and does not oppose the making of the adoption order, or (c) that the parent’s or guardian’s consent should be dispensed with.

(3) A parent or guardian may not oppose the making of an adoption order under subsection (2)(b) without the court’s leave.

(4) The second condition is that— (a) the child has been placed for adoption by an adoption agency with the prospective adopters in whose favour the order is proposed to be made, (b) either— (i) the child was placed for adoption with the consent of each parent or guardian and the consent of the mother was given when the child was at least six weeks old, or (ii) the child was placed for adoption under a placement order, and (c) no parent or guardian opposes the making of the adoption order.

(5) A parent or guardian may not oppose the making of an adoption order under the second condition without the court’s leave.

(6) The third condition is that the child— (a) is the subject of a Scottish permanence order which includes provision granting authority for the child to be adopted, or (b) is free for adoption by virtue of an order made, under Article 17(1) or 18(1) of the Adoption (Northern Ireland) Order 1987 (S.I. 1987/2203 (N.I. 22)).

(7) The court cannot give leave under subsection (3) or (5) unless satisfied that there has been a change in circumstances since the consent of the parent or guardian was given or, as the case may be, the placement order was made.

(8) An adoption order may not be made in relation to a person who is or has been married. (8A) An adoption order may not be made in relation to a person who is or has been a civil partner.

(9) An adoption order may not be made in relation to a person who has attained the age of 19 years.

(10) In this section, “Scottish permanence order” means a permanence order under section 80 of the Adoption and Children (Scotland) Act 2007 (asp 4) (including a deemed permanence order having effect by virtue of article 13(1), 14(2), 17(1) or 19(2) of the Adoption and Children (Scotland) Act 2007 (Commencement No. 4, Transitional and Savings Provisions) Order 2009 (S.S.I. 2009/267)).” (a) that the parent or guardian consents to the making of the adoption order, (b) that the parent or guardian has consented under section 20 (and has not withdrawn the consent) and does not oppose the making of the adoption order, or (c) that the parent’s or guardian’s consent should be dispensed with. (a) the child has been placed for adoption by an adoption agency with the prospective adopters in whose favour the order is proposed to be made, (b) either— (i) the child was placed for adoption with the consent of each parent or guardian and the consent of the mother was given when the child was at least six weeks old, or (ii) the child was placed for adoption under a placement order, and (c) no parent or guardian opposes the making of the adoption order. (a) is the subject of a Scottish permanence order which includes provision granting authority for the child to be adopted, or (b) is free for adoption by virtue of an order made, under Article 17(1) or 18(1) of the Adoption (Northern Ireland) Order 1987 (S.I. 1987/2203 (N.I. 22)).

[14]Provisions relevant to dealing with step-parent adoptions are also contained in s.51(2) of the 2002 Act:

“51 Adoption by one person (1) An adoption order may be made on the application of one person who has attained the age of 21 years and is not married or a civil partner. (2) An adoption order may be made on the application of one person who has attained the age of 21 years if the court is satisfied that the person is the partner of a parent of the person to be adopted. (3) An adoption order may be made on the application of one person who has attained the age of 21 years and is married if the court is satisfied that— (a) the person’s spouse cannot be found, (b) the spouses have separated and are living apart, and the separation is likely to be permanent, or (c) the person’s spouse is by reason of ill-health, whether physical or mental, incapable of making an application for an adoption order. (3A) An adoption order may be made on the application of one person who has attained the age of 21 years and is a civil partner if the court is satisfied that— (a) the person’s civil partner cannot be found, (b) the civil partners have separated and are living apart, and the separation is likely to be permanent, or (c) the person’s civil partner is by reason of ill-health, whether physical or mental, incapable of making an application for an adoption order. (4) An adoption order may not be made on an application under this section by the mother or the father of the person to be adopted unless the court is satisfied that— (a) the other natural parent is dead or cannot be found, (b) by virtue of the provisions specified in subsection (5), there is no other parent, or (c) there is some other reason justifying the child’s being adopted by the applicant alone, and, where the court makes an adoption order on such an application, the court must record that it is satisfied as to the fact mentioned in paragraph (a) or (b) or, in the case of paragraph (c), record the reason. (5) The provisions referred to in subsection (4)(b) are— (a) section 28 of the Human Fertilisation and Embryology Act 1990 (disregarding subsections (5A) to (5I) of that section), or (b) sections 34 to 47 of the Human Fertilisation and Embryology Act 2008 (disregarding sections 39, 40 and 46 of that Act).” (a) the person’s spouse cannot be found, (b) the spouses have separated and are living apart, and the separation is likely to be permanent, or (c) the person’s spouse is by reason of ill-health, whether physical or mental, incapable of making an application for an adoption order. (a) the person’s civil partner cannot be found, (b) the civil partners have separated and are living apart, and the separation is likely to be permanent, or (c) the person’s civil partner is by reason of ill-health, whether physical or mental, incapable of making an application for an adoption order. (a) the other natural parent is dead or cannot be found, (b) by virtue of the provisions specified in subsection (5), there is no other parent, or (c) there is some other reason justifying the child’s being adopted by the applicant alone, (a) section 28 of the Human Fertilisation and Embryology Act 1990 (disregarding subsections (5A) to (5I) of that section), or (b) sections 34 to 47 of the Human Fertilisation and Embryology Act 2008 (disregarding sections 39, 40 and 46 of that Act).”

[15]Chapter 6 of the 2002 Act deals with adoptions with a foreign element. As this court observed in Re S (Domestic Adoption of Child of Foreign National)

[2025] EWFC 288

at [41]:

“[41] Chapter 6 of the 2002 Act is titled “Adoptions with a Foreign Element”, with the chapter sub-heading being “Bringing children into and out of the United Kingdom”

. The term ‘adoptions with a foreign element’ is not defined in Chapter 6 nor in the glossary contained in Schedule 6 of the 2002 Act. However, it is plain from the wording of ss.82 to 87 that Chapter 6 of the 2002 Act governing adoptions with a foreign element is concerned with children brought into the jurisdiction for the purposes of adoption (s.83), conferring parental responsibility prior to adoption abroad (s.84), children taken out of the jurisdiction for the purposes of adoption (s.85), overseas adoptions (s.87) and adoptions proceeding under the 1993 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (hereafter “the 1993 Hague Convention”) (ss.88 and 89).”

[16]The restrictions on bringing children into the United Kingdom for the purposes of adoption are set out in Chapter 6 at s.83 of the 2002 Act as follows: “83 Restriction on bringing children in(1) This section applies where a person who is habitually resident in the British Islands (the “British resident”)— (a) brings, or causes another to bring, a child who is habitually resident outside the British Islands into the United Kingdom for the purpose of adoption by the British resident, or (b) at any time brings, or causes another to bring, into the United Kingdom a child adopted by the British resident under an external adoption effected within the period of twelve months ending with that time. The references to adoption, or to a child adopted, by the British resident include a reference to adoption, or to a child adopted, by the British resident and another person.

(2) But this section does not apply if the child is intended to be adopted under a Convention adoption order.

(3) An external adoption means an adoption, other than a Convention adoption, of a child effected under the law of any country or territory outside the British Islands, whether or not the adoption is— (a) an adoption within the meaning of Chapter 4, or (b) a full adoption (within the meaning of section 88(3)).

(4) Regulations may require a person intending to bring, or to cause another to bring, a child into the United Kingdom in circumstances where this section applies— (a) to apply to an adoption agency (including a Scottish or Northern Irish adoption agency) in the prescribed manner for an assessment of his suitability to adopt the child, and (b) to give the agency any information it may require for the purpose of the assessment.

(5) Regulations may require prescribed conditions to be met in respect of a child brought into the United Kingdom in circumstances where this section applies.

(6) In relation to a child brought into the United Kingdom for adoption in circumstances where this section applies, regulations may— (a) provide for any provision of Chapter 3 to apply with modifications or not to apply, (b) if notice of intention to adopt has been given, impose functions in respect of the child on the local authority to which the notice was given.

(7) If a person brings, or causes another to bring, a child into the United Kingdom at any time in circumstances where this section applies, he is guilty of an offence if— (a) he has not complied with any requirement imposed by virtue of subsection (4), or (b) any condition required to be met by virtue of subsection (5) is not met, before that time, or before any later time which may be prescribed.

(8) A person guilty of an offence under this section is liable— (a) on summary conviction to imprisonment for a term not exceeding six months, or a fine not exceeding the statutory maximum, or both, (b) on conviction on indictment, to imprisonment for a term not exceeding twelve months, or a fine, or both.

(9) In this section, “prescribed” means prescribed by regulations and “regulations” means regulations made by the Secretary of State, after consultation with the Assembly.” (a) brings, or causes another to bring, a child who is habitually resident outside the British Islands into the United Kingdom for the purpose of adoption by the British resident, or (b) at any time brings, or causes another to bring, into the United Kingdom a child adopted by the British resident under an external adoption effected within the period of twelve months ending with that time. (a) an adoption within the meaning of Chapter 4, or (b) a full adoption (within the meaning of section 88(3)). (a) to apply to an adoption agency (including a Scottish or Northern Irish adoption agency) in the prescribed manner for an assessment of his suitability to adopt the child, and (b) to give the agency any information it may require for the purpose of the assessment. (a) provide for any provision of Chapter 3 to apply with modifications or not to apply, (b) if notice of intention to adopt has been given, impose functions in respect of the child on the local authority to which the notice was given. (a) he has not complied with any requirement imposed by virtue of subsection (4), or (b) any condition required to be met by virtue of subsection (5) is not met, (a) on summary conviction to imprisonment for a term not exceeding six months, or a fine not exceeding the statutory maximum, or both, (b) on conviction on indictment, to imprisonment for a term not exceeding twelve months, or a fine, or both.

[17]Section 83 of the 2002 Act came into force on 30 December 2005. The wording of s.83(1)(b) of the 2002 Act was amended on 1 October 2007 by the Children and Adoption Act 2006 ss.14(1) and 17(2) to extend the original six month period to twelve months.

[18]In the circumstances of this case, s.86 of the 2002 Act, which provides a power to modify the provisions of s.83 of the 2002 Act through secondary legislation, is also relevant: “86 Power to modify sections 83 and 85(1) Regulations may provide for section 83 not to apply if— (a) the adopters or (as the case may be) prospective adopters are natural parents, natural relatives or guardians of the child in question (or one of them is), or (b) the British resident in question is a partner of a parent of the child, and any prescribed conditions are met.

(2) Regulations may provide for section 85(1) to apply with modifications, or not to apply, if— (a) the prospective adopters are parents, relatives or guardians of the child in question (or one of them is), or (b) the prospective adopter is a partner of a parent of the child, and any prescribed conditions are met.

(3) On the occasion of the first exercise of the power to make regulations under this section— (a) the statutory instrument containing the regulations is not to be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament, and (b) accordingly section 140(2) does not apply to the instrument.

(4) In this section, “prescribed” means prescribed by regulations and “regulations” means regulations made by the Secretary of State after consultation with the Assembly.” (a) the adopters or (as the case may be) prospective adopters are natural parents, natural relatives or guardians of the child in question (or one of them is), or (b) the British resident in question is a partner of a parent of the child, (a) the prospective adopters are parents, relatives or guardians of the child in question (or one of them is), or (b) the prospective adopter is a partner of a parent of the child, (a) the statutory instrument containing the regulations is not to be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament, and (b) accordingly section 140(2) does not apply to the instrument.

[19]Section 86 of the 2002 Act falls to be read with s.140 of the Act, which provides as follows with respect to the promulgation or orders, rules and regulations under the 2002 Act: “140 Orders, rules and regulations(1) Any power to make subordinate legislation conferred by this Act on the Lord Chancellor, the Secretary of State, the Scottish Ministers, the Assembly or the Registrar General is exercisable by statutory instrument.

(2) A statutory instrument containing subordinate legislation made under any provision of this Act (other than section 14 or 148 or an instrument to which subsection (3) applies) is to be subject to annulment in pursuance of a resolution of either House of Parliament.

(3) A statutory instrument containing subordinate legislation— (za) under section 3ZA(6), (a) under section 9 which includes provision made by virtue of section 45(2), (b) under section 92(6), 94 or 123(6), or (c) which adds to, replaces or omits any part of the text of an Act, is not to be made unless a draft of the instrument has been laid before, and approved by resolution of, each House of Parliament.

(4) Subsections (2) and (3) do not apply to an Order in Council or to subordinate legislation made— (a) by the Scottish Ministers, or (b) by the Assembly, unless made jointly by the Secretary of State and the Assembly.

(5) A statutory instrument containing regulations under section 63(2) made by the Scottish Ministers is to be subject to annulment in pursuance of a resolution of the Scottish Parliament.

(6) The power of the Department of Health, Social Services and Public Safety to make regulations under section 63(2) is to be exercisable by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (S.I. 1979/ 1573 (N.I. 12)); and any such regulations are to be subject to negative resolution within the meaning of section 41(6) of the Interpretation Act (Northern Ireland) 1954 (c. 33 (N.I.)) as if they were statutory instruments within the meaning of that Act.

(7) Subordinate legislation made under this Act may make different provision for different purposes or areas.

(8) A power to make subordinate legislation under this Act (as well as being exercisable in relation to all cases to which it extends) may be exercised in relation to— (a) those cases subject to specified exceptions, or (b) a particular case or class of case.

(9) In this section, “subordinate legislation” does not include a direction.” (za) under section 3ZA(6), (a) under section 9 which includes provision made by virtue of section 45(2), (b) under section 92(6), 94 or 123(6), or (c) which adds to, replaces or omits any part of the text of an Act, (a) by the Scottish Ministers, or (b) by the Assembly, unless made jointly by the Secretary of State and the Assembly. (a) those cases subject to specified exceptions, or (b) a particular case or class of case.

[20]The term “partner” in s.86(1)(b) is defined in s.144(7) of the 2002 Act, which provides that “For the purposes of this Act, a person is the partner of a child’s parent if the person and the parent are a couple but the person is not the child’s parent.” Section 144(4) of the 2002 Act defines “couple” to include a married couple. As matters stand, the regulations promulgated under the 2002 Act do not include regulations made pursuant to s.86(1)(b) of the 2002 Act.

[21]The relevant regulations are the Adoption with a Foreign Element Regulations 2005 (hereafter “the AFER 2005”) and the Adoption Agencies Regulations 2005 (hereafter “the AAR 2005”). Regulation 3 of the AFER 2005 provides as follows with respect to the requirements for bringing a child into the United Kingdom:

“Requirements applicable in respect of bringing or causing a child to be brought into the United Kingdom 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.” (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.”

[22]Regulation 4 of the AFER 2005 provides as follows with respect to the conditions applicable to a child brought into the United Kingdom: “Conditions applicable in respect of a child brought into the United Kingdom 4. —(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(2) 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) discuss with the adoption agency 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, has been given.” (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(2) 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) discuss with the adoption agency the proposed adoption and information received from the relevant foreign authority; (c) visit the child in the State of origin (and where the prospective adopters are a couple each of them); and (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. (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.

(b) not to give the child a home,

[23]In relation to a child brought into the United Kingdom, certain functions are imposed on the local authority in accordance with Regulation 5 of the AFER 2005 as follows:

“Functions imposed on the local authority 5. —(1) Where notice of intention to adopt has been given to the local authority, that authority must— (a) if it has not already done so, set up a case record in respect of the child and place on it any information received from the— (i) relevant foreign authority; (ii) adoption agency, if it is not the local authority; (iii) prospective adopter; (iv) entry clearance officer; and (v) Secretary of State, or as the case may be, the Assembly; (b) send the prospective adopter’s general practitioner written notification of the arrival in England or Wales of the child and send with that notification a written report of the child’s health history and current state of health, so far as is known; (c) send to the integrated care board or Local Health Board (Wales), in whose area the prospective adopter has his home, and to NHS England if the prospective adopter's home is in England, written notification of the arrival in England or Wales of the child; (d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (e) ensure that the child and the prospective adopter are visited within one week of receipt of the notice of intention to adopt and thereafter not less than once a week until the review referred to in sub-paragraph (f) and thereafter at such frequency as the authority may decide; (f) carry out a review of the child’s case not more than 4 weeks after receipt of the notice of intention to adopt and— (i) visit and, if necessary, review not more than 3 months after that initial review; and (ii) thereafter not more than 6 months after the date of the previous visit, unless the child no longer has his home with the prospective adopter or an adoption order is made; (g) when carrying out a review consider— (i) the child’s needs, welfare and development, and whether any changes need to be made to meet his needs or assist his development; (ii) the arrangements for the provision of adoption support services and whether there should be any re-assessment of the need for those services; and (iii) the need for further visits and reviews; and (h) ensure that— (i) advice is given as to the child’s needs, welfare and development; (ii) written reports are made of all visits and reviews of the case and placed on the child’s case record; and (iii) on such visits, where appropriate, advice is given as to the availability of adoption support services. (2) Part 7 of the Agencies Regulations or corresponding Welsh provision (case records) shall apply to the case record set up in respect of the child as a consequence of this regulation as if that record had been set up under the Agencies Regulations or corresponding Welsh provision. (3) In a case where the prospective adopter fails to make an application under section 50 or 51 of the Act within two years of the receipt by a local authority of the notice of intention to adopt the local authority must review the case. (4) For the purposes of the review referred to in paragraph (3), the local authority must consider— (a) the child’s needs, welfare and development, and whether any changes need to be made to meet his needs or assist his development; (b) the arrangements, if any, in relation to the exercise of parental responsibility for the child; (c) the terms upon which leave to enter the United Kingdom is granted and the immigration status of the child; (d) the arrangements for the provision of adoption support services for the adoptive family and whether there should be any re-assessment of the need for those services; and (e) in conjunction with the appropriate agencies, the arrangements for meeting the child’s health care and educational needs. (5) In a case where the local authority to which notice of intention to adopt is given (“the original authority”) is notified by the prospective adopter that he intends to move or has moved his home into the area of another local authority, the original authority must notify the local authority into whose area the prospective adopter intends to move or has moved, within 14 days of receiving information in respect of that move, of— (a) the name, sex, date and place of birth of child; (b) the prospective adopter’s name, sex and date of birth; (c) the date on which the child entered the United Kingdom; (d) where the original authority received notification of intention to adopt, the date of receipt of such notification whether an application for an adoption order has been made and the stage of those proceedings; and (e) any other relevant information.” (a) if it has not already done so, set up a case record in respect of the child and place on it any information received from the— (i) relevant foreign authority; (ii) adoption agency, if it is not the local authority; (iii) prospective adopter; (iv) entry clearance officer; and (v) Secretary of State, or as the case may be, the Assembly; (b) send the prospective adopter’s general practitioner written notification of the arrival in England or Wales of the child and send with that notification a written report of the child’s health history and current state of health, so far as is known; (c) send to the integrated care board or Local Health Board (Wales), in whose area the prospective adopter has his home, and to NHS England if the prospective adopter's home is in England, written notification of the arrival in England or Wales of the child; (d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (e) ensure that the child and the prospective adopter are visited within one week of receipt of the notice of intention to adopt and thereafter not less than once a week until the review referred to in sub-paragraph (f) and thereafter at such frequency as the authority may decide; (f) carry out a review of the child’s case not more than 4 weeks after receipt of the notice of intention to adopt and— (i) visit and, if necessary, review not more than 3 months after that initial review; and (ii) thereafter not more than 6 months after the date of the previous visit, unless the child no longer has his home with the prospective adopter or an adoption order is made; (g) when carrying out a review consider— (i) the child’s needs, welfare and development, and whether any changes need to be made to meet his needs or assist his development; (ii) the arrangements for the provision of adoption support services and whether there should be any re-assessment of the need for those services; and (iii) the need for further visits and reviews; and (h) ensure that— (i) advice is given as to the child’s needs, welfare and development; (ii) written reports are made of all visits and reviews of the case and placed on the child’s case record; and (iii) on such visits, where appropriate, advice is given as to the availability of adoption support services. (a) the child’s needs, welfare and development, and whether any changes need to be made to meet his needs or assist his development; (b) the arrangements, if any, in relation to the exercise of parental responsibility for the child; (c) the terms upon which leave to enter the United Kingdom is granted and the immigration status of the child; (d) the arrangements for the provision of adoption support services for the adoptive family and whether there should be any re-assessment of the need for those services; and (e) in conjunction with the appropriate agencies, the arrangements for meeting the child’s health care and educational needs. (a) the name, sex, date and place of birth of child; (b) the prospective adopter’s name, sex and date of birth; (c) the date on which the child entered the United Kingdom; (d) where the original authority received notification of intention to adopt, the date of receipt of such notification whether an application for an adoption order has been made and the stage of those proceedings; and (e) any other relevant information.”

[24]Finally with respect to the domestic statutory regime, the AAR 2005 set out the duties and functions of the adoption agency in cases engaging s.83 of the 2002 Act. Regulation 30E of the AAR 2005 provides follows with respect to the duties of the adoption agency:

“Duties of the adoption agency in a section 83 case 30E. —Where the adoption agency decides in a section 83 case to approve a prospective adopter as suitable to adopt a child, the agency must send the Secretary of State— (a) written confirmation of the decision and any recommendation the agency may make in relation to the number of children the prospective adopter may be suitable to adopt, their age range, sex and likely needs; (b) all the documents and information which were passed to the adoption panel in accordance with regulation 30; (c) the record of the proceedings of the adoption panel, its recommendation and the reasons for its recommendation; (d) if the prospective adopter applied to the Secretary of State for a review by an independent review panel of a qualifying determination, the record of the proceedings of that panel, its recommendation and the reasons for its recommendation; and (e) any other information relating to the case which the Secretary of State or the relevant foreign authority may require.” (a) written confirmation of the decision and any recommendation the agency may make in relation to the number of children the prospective adopter may be suitable to adopt, their age range, sex and likely needs; (b) all the documents and information which were passed to the adoption panel in accordance with regulation 30; (c) the record of the proceedings of the adoption panel, its recommendation and the reasons for its recommendation; (d) if the prospective adopter applied to the Secretary of State for a review by an independent review panel of a qualifying determination, the record of the proceedings of that panel, its recommendation and the reasons for its recommendation; and (e) any other information relating to the case which the Secretary of State or the relevant foreign authority may require.”

[25]Regulation 34 of the AAR 2005 provides as follows with respect to the function of the adoption agency in a case that engages s.83 of the 2002 Act:

“Function of the adoption agency in a section 83 case 34. —(1) This paragraph applies where in a section 83 case the adoption agency receives from the relevant foreign authority information about a child to be adopted by a prospective adopter. (2) Where paragraph (1) applies, the adoption agency must— (a) send a copy of the information referred to in paragraph (1) to the prospective adopter unless it is aware that the prospective adopter has received a copy; (b) consider that information and meet with the prospective adopter to discuss the information; and (c) if appropriate, provide a counselling service for, and any further information to, the prospective adopter as may be required.” (a) send a copy of the information referred to in paragraph (1) to the prospective adopter unless it is aware that the prospective adopter has received a copy; (b) consider that information and meet with the prospective adopter to discuss the information; and (c) if appropriate, provide a counselling service for, and any further information to, the prospective adopter as may be required.”

[26]As I noted at the outset, this case also requires that the court engage with the authorities that have held that the court may disapply the statutory provisions of s.83 of the 2002 Act, and the relevant provisions of the AFER 2005, where to do so is necessary to prevent a disproportionate interference with the Art 8 right to respect for private and family life.

[27]The starting point is In re Adoption Application (Non-Patrial: Breach of Procedures)

[1993] Fam 125

. In that case, decided under the Adoption Act 1976, Douglas-Brown J held that there was no power provided by statute to waive or dispense with or authorise breaches which have already taken place of s.11 of the 1976 Act and that, even in the absence of statutory provision, the court hearing an adoption application must take account of considerations of public policy when deciding the application and, if the application is founded on the illegal conduct of the applicants, the court should take that into account. The decision in In re Adoption Application (Non-Patrial: Breach of Procedures) was approved by the Court of Appeal in In re G (Adoption: Illegal Placement)

[1995] 1 FLR 403

. In In re G (Adoption: Illegal Placement), albeit in comments that were obiter in circumstances where the appeal concerned the correct venue of proceedings, Balcombe LJ held that where there had been a proved breach of the adoption legislation, the court was not prohibited from making an order notwithstanding the absence of a statutory dispensing and retrospective power. Balcombe LJ was clear that the court must take the breach into account and consider whether public policy required that the order should be refused because of the applicant’s wrongdoing, while giving first consideration to the welfare of the child.

[28]In Re C (A Minor) (Adoption Illegality)

[1999] 2 WLR 202

was again a case decided under the 1976 Act. Having been satisfied that the applicant had sought to achieve her objective in disregard of the legal processes laid down by Parliament for the protection of children, and having posed the rhetorical question “If such breaches are to count for nothing, at least nothing of any practical consequence, what one might ask is the point of maintaining the authorised procedures?” Johnson J concluded as follows:

“On reflection it seems to me that the situation and the difficulty that arises in these cases is one that was foreseen by Parliament. The prohibitions in the Adoption Act 1976, and I think particularly of sections 11 and 57, are not of the kind that one would ordinarily expect to find in the criminal law. Yet the fact is that Parliament did specifically provide that breaches of these prohibitions would amount to offences under the criminal law. It is a matter of speculation but it may be that Parliament recognised that breaches of these prohibitions could not in reality lead the court to a decision contrary to the welfare of a child. Perhaps, and I speculate, Parliament provided the criminal remedy so that whilst a breach of the due process might itself not constitute a bar to the adoption, then at least those involved would have exposed themselves to criminal prosecution. Of course there is the practical problem that the offences are to be dealt with only summarily and prosecution may be difficult because of the limitation period. However social workers, charitable organisations and voluntary support groups may wish to consider whether or not they should act in defiance of the criminal law.”

[29]As I have noted, s.83 of the 2002 Act came into force on 30 December 2005 and the wording of s.83(1)(b) of the 2002 Act was amended on 1 October 2007 by the Children and Adoption Act 2006 ss.14(1) and 17(2) to extend the original six month period to twelve months.

[30]In Re X

[2008] EWHC 1324 (Fam)

, Munby J (as he then was) was concerned with an application for an adoption order under the 2002 Act in a matter he was satisfied was “a case of an unlawful inter-country adoption” that breached English adoption law. Munby J held that the principles that could be derived from Re K (Adoption and Wardship)

[1997] 2 FLR 221

, In Re C (Adoption: Legality)

[1999] 1 FLR 370

and Re R (No 1)(Inter-Country Adoption)

[1999] 1 FLR 1014

, Flintshire County Council v K

[2001] 2 FLR 476

and Re M (Adoption: International Adoption Trade)

[2003] 1 FLR 1111

, included that where, after careful analysis, welfare and public policy point towards differing outcomes for the child, welfare will prevail.

[31]In Re TY (Preliminaries to Intercountry Adoption)

[2019] EWHC 2979 (Fam)

[2020] 1 FLR 739

, Cobb J (as he then was) again considered the proper approach under the 2002 Act to an application to allow an adoption application to proceed in the context of a failure to comply with the requirements of the adoption legislation. In that case, the failures comprised the failure to comply with the requirement in regulation 4(4) of the AFER 2005 to notify the Local Authority of the child’s arrival within the jurisdiction within two weeks and the failure to comply with the requirement in s.44(3) of the 2002 Act by issuing the adoption application less than 3 months after notifying the local authority. In addition, there was an issue as to whether the requirement in s.42(5) of the 2002 Act as applied by rr. 4(4) and (9) of the AFER 2005 had been complied with. At [21], and having considered the authorities concerning the failure to comply with time limits in the context of applications for parental orders under s.54 of the Human Fertilisation and Embryology Act 2008 (in circumstances where the breaches of the adoption legislation alleged in the case concerned time limits), Cobb J articulated a the following principles:

“... In considering the failures to adhere to these time-limits, Ms Cronin has urged me to take a purposive view of the statute, and to respect TY’s and Ms CM’s human rights. She has referred to a number of authorities including Re X (Surrogacy: time limit) [2014] EWHC 3135 (Fam), [2015] 2 WLR 745, [2015] 1 FLR 349; KB & RJ v RT [2016] EWHC 760 (Fam); and Re A & B (No.2 Parental Order) [2015] EWHC 2080 (Fam). [2016] 2 FLR 446. I further drew attention in argument to Sir James Munby P’s judgment in Re A & Others (HFEA 2008) [2015] EWHC 2602, [2016] 1 WLR 1325, [2017] 1 FLR 366 at [59]/[60]. From these authorities, I feel able to extract the following propositions: i) The focus of the court’s analysis should be upon the consequence of the non-compliance as opposed to the imperative wording of the provision (Re X at [37]); “the emphasis ought to be on the consequences of non-compliance” (per Lord Steyn in Regina v Soneji and another [2005] UKHL 49, [2006] 1 AC 340, at [23]); ii) If there is a breach of a statutory procedural requirement, the modern approach is to look at the underlying purpose of the requirement, whether departure from it contravenes the letter of the statute and if so, whether it renders it a nullity; (Re X at [39]/[41]); a “purposive” interpretation should be adopted (Re X at [39]); iii) The consequences of making or not making the order (or in this case of allowing the application to proceed) should be considered; this would be particularly pertinent if the consequences could be lifelong and irreversible (Re X at [54]); iv) The Human Rights Act 1998 requires an interpretation which gives effect to the rights enshrined therein (Re X at [44]); v) Relevant to the exercise of discretion (in considering whether to adhere strictly to the letter of the statute or not) would be whether the parties had acted in good faith (Re A & B at [45], [52], [65]); vi) Consideration should be given to whether any party suffer prejudice if the application is allowed to proceed (Re X [65], cited in KB & RJ at [38]).”

[32]In the foregoing context, Cobb J came to the following conclusion with respect to the purposive interpretation of the 2002 Act in the context of a breach of s.83:

“Parliament cannot really have intended that the application for an adoption order, with all its transformative characteristics would have to fail in limine and barred forever simply because of the failure of the applicant to comply strictly with this notice requirement (or indeed the earlier notice requirement) in the legislation. An adoption order, after all, ‘… has an effect extending far beyond the merely legal. It has the most profound personal, emotional, psychological, social and, it may be in some cases, cultural and religious, consequences. It creates what Thorpe LJ in Re J (Adoption: Non-Patrial) [1998] INLR 424, 429, referred to as “the psychological relationship of parent and child with all its far-reaching manifestations and consequences”

. Moreover, these consequences are lifelong and, for all practical purposes, irreversible’ (Sir James Munby P in Re X (A Child) (Parental

[33]In Re A and B (Adoption: Section 83 ACA 2002)

[2024] EWHC 2837

[2025] Fam 11

, Cobb J (as he then was) further expanded on point (iv) above, i.e. that the Human Rights Act 1998 requires an interpretation which gives effect to the rights enshrined therein. In this context, Cobb J considered what is meant by the term “for the purposes of adoption” in s.83(1)(a) of the 2002 Act. With respect to that question, he held as follows:

“[32] There is no statutory guidance on what is meant by “for the purpose of adoption” in section 83(1)(a) of the ACA 2002. The word ‘adoption’ in this context refers, in my judgment, to the process of obtaining an adoption order through the English Courts...”

And “[35] What about phrase ‘for the purpose of…’? This phrase should, in my view, be given its ordinary meaning. It conveys the reason or intent behind an action or decision; the phrase designates an action with a specific objective. Of course, very often people act with more than one ‘purpose’, but I regard it as neither appropriate nor necessary to import the word ‘sole’ or ‘dominant’ before ‘purpose’; generally, it will be clear from the evidence in a case involving children being brought from abroad what the ‘purpose’ is of bringing children into this country. It will be for that child to become – through English court process – an adopted, and therefore full and legally secure, member of the family bringing them here...”

[34]In Re A and B (Adoption: Section 83 ACA 2002), Cobb J concluded that there had been no breach of s.83 of the 2002 Act. However, he further held that if he was wrong on either his interpretation of s.83 of the 2002 Act, or in applying the law to the particular facts of that case, there would have been a legitimate route through s.83 of the 2002 Act and the AFER 2005 which would have permitted him to make the adoption orders. Having expressed the view that the AFER 2005 were targeted at potentially unsuitable carers seeking to bring unrelated infants to this jurisdiction to create a family by way of adoption, and referred to the list of principles he set out in Re TY (Preliminaries to Intercountry Adoption), Cobb J held as follows: “[45] Developing the point in (iv) above, as I said in Re TY at [32](ii), it is essential to recognise and give effect to the rights of the children and the Applicant for a family life under

Article 8 of the ECHR

, buttressed in this and other cases by Article 3 of the UN Convention on the Rights of the Child. In Re TY at [32], I said this: ‘Any interference with those rights must be both proportionate and justified. For the court to thwart their wholly reasonable joint ambition for an adoption order in this country at this stage, an ambition which has been both long-held and conscientiously pursued, would represent an unjustified and disproportionate interference with those rights’. [46] The conclusions I reached in Re TY in respect of the application of the HRA 1998 in this type of situation were reassuringly validated by the Supreme Court less than one week later, by its judgment in RR v Secretary of State for Work & Pensions

[2019] UKSC 52

specifically at [27], [28], [29], [30] and [32]. The Supreme Court held that it is not unconstitutional for a public authority, court or tribunal to disapply a provision of subordinate legislation which would otherwise result in acting incompatibly with a Convention right, where this is necessary in order to comply with the Human Rights Act 1998. In delivering the judgment of the court in RR, Lady Hale referenced In Re P (& Ors)

[2008] UKHL 38

(sub nom In re G (Adoption: Unmarried Couple)

[2009] AC 173

) in which at [116] she had said that: ‘The courts are free simply to disregard subordinate legislation which cannot be interpreted or given effect in a way which is compatible with the Convention rights. Indeed, in my view, this cannot be a matter of discretion. Section 6(1) requires the court to act compatibly with the Convention rights if it is free to do so’. In her conclusions on the main appeal in RR she said this at [27]: ‘There is nothing unconstitutional about a public authority, court or tribunal disapplying a provision of subordinate legislation which would otherwise result in their acting incompatibly with a Convention right, where this is necessary in order to comply with the HRA. Subordinate legislation is subordinate to the requirements of an Act of Parliament. The HRA is an Act of Parliament and its requirements are clear’. [47] In light of all of this, I am satisfied that I would have had the power to disapply the AFER 2005, given their likely interference and incompatibility with the significant and established Article 8 rights vested in the Applicant and the children under the ECHR.” ‘Any interference with those rights must be both proportionate and justified. For the court to thwart their wholly reasonable joint ambition for an adoption order in this country at this stage, an ambition which has been both long-held and conscientiously pursued, would represent an unjustified and disproportionate interference with those rights’. ‘The courts are free simply to disregard subordinate legislation which cannot be interpreted or given effect in a way which is compatible with the Convention rights. Indeed, in my view, this cannot be a matter of discretion. Section 6(1) requires the court to act compatibly with the Convention rights if it is free to do so’. ‘There is nothing unconstitutional about a public authority, court or tribunal disapplying a provision of subordinate legislation which would otherwise result in their acting incompatibly with a Convention right, where this is necessary in order to comply with the HRA. Subordinate legislation is subordinate to the requirements of an Act of Parliament. The HRA is an Act of Parliament and its requirements are clear’.

[35]Finally, with respect to the authorities, this court in C and D v E (International Surrogacy and Domestic Adoption)

[2025] EWFC 68

[2025] 2 FLR 637

held as follows as regards the applicability of ss. 83, 92 and 95 of the 2002 Act in the context of an application for an adoption order in respect of a child born via surrogacy in the United States:

“It is not the role of the Family Court to investigate and prosecute criminal offences, including those constituted by a breach of ss.83, 92 and 95 of the 2002 Act. Further, there is nothing in the wording of the 2002 Act that suggests that an adoption cannot be made under the 2002 Act where an offence under ss.83, 92 and/or 95 is committed. This is consistent with the provisions of s.1 of the 2002 Act, which stipulate that the child's best interests are the paramount consideration when deciding whether to make an adoption order. However, the breach of ss.83, 92 and 95 of the 2002 Act, if it occurs, will be relevant to the question of whether it is in the subject child's best interests to make the adoption order sought, the court being required to consider whether the child's best interests outweigh any public policy consideration against granting an adoption order where an offence under the 2002 Act has been committed.”

SUBMISSIONS

[36]Within the foregoing legal framework, and with the support of EB, RB, and the local authority, on behalf of YB Professor George and Ms Amonoo-Acquah properly concede that, in circumstances where s.83 of the 2002 Act applies to any ‘external adoption’ by a British resident (that being any non-Convention adoption “effected under the law of any country or territory outside the British Islands” regardless of whether it would otherwise fall within the understanding of an adoption under the Act per s.83(3)) YB’s adoption in country X falls within the scope of s.83 of the 2002 Act. They submit, however, that there has been no breach of s.83(1)(a) or (b) in this case.

[37]With respect to s.83(1)(a) of the 2002 Act, Professor George and Ms Amonoo-Acquah contend that the question of whether YB was brought to the United Kingdom “for the purposes of adoption” is a question of fact and, on the facts of this case, it is clear that when she was brought to this jurisdiction EB did not have a settled intention to adopt YB in the jurisdiction of England and Wales (the formulation used by this court in C and D v E (International Surrogacy and Domestic Adoption)).

[38]In this regard, they rely on(a) the fact that EB and RB commenced a lawful adoption application in country X;

(b) lawfully obtained an adoption order in country X;

(d) brought YB to the United Kingdom on the six month visa waiver programme; and

(e) believed the adoption order from country X would be recognised in the United Kingdom and only discovered it was not, and sought legal advice and made a domestic adoption application, after YB had entered the country for the purpose of education and had been living here for some months. In this context, Professor George and Ms Amonoo-Acquah submit that the evidence makes plain that YB was not brought to the United Kingdom “for the purposes of adoption” within the meaning of s.83(1)(a) of the 2002 Act.

[39]With respect to s.83(1)(b), Professor George and Ms Amonoo-Acquah properly recognise that, as a matter of fact, EB brought YB to the United Kingdom 2 months after the adoption in country X was finalised and that, on a strict reading, the provisions of s.83(1)(b) of the 2002 Act and the consequential provisions of the AFER 2005 are therefore engaged. However, Professor George and Ms Amonoo-Acquah submit that, on a purposive interpretation of the legislation, this case falls outside the ambit of s.83(1)(b) in circumstances where a step-parent adoption is not a category of adoption that Parliament intended to come within the scope of s.83.

[40]In support of this submission, Professor George and Ms Amonoo-Acquah contend that s.83 of the 2002 was enacted in the context of a long history of cases in which applicants pursued international adoptions for money by way of what Munby J (as he then was) described in Re M (Adoption: International Adoption Trade)

[2003] EWHC 219 (Fam)

, 1 FLR 1111 at [4] as an “evil and exploitative trade”. In the circumstances, they submit that Parliament’s intention in enacting s.83 of the 2002 Act was to address cases in which prospective adopters bring a child who is a stranger to them into this jurisdiction for the purposes of adoption, having made payment to secure the child in a foreign jurisdiction, after that child has been removed from his or her birth mother in circumstances that induce or pressure her to part with her child. In this context, Professor George and Ms Amonoo-Acquah submit that the present case falls into a wholly different category and one far from the contemplation of Parliament when enacting s.83 of the 2002 Act.

[41]In particular, in stark contradistinction to cases of the nature typified by Re M (Adoption: International Adoption Trade), Professor George and Ms Amonoo-Acquah rely on the following features of this case: i) EB is YB’s step-father and has cared for her as her father for 10 years, meeting all of her needs since she was 7 years of age. ii) EB applied for an adoption order in respect of YB in country X and underwent an extensive assessment in accordance with the legal and administrative framework in that jurisdiction, which assessment was wholly positive. iii) YB has been adopted by EB in a rigorous process that complied with the laws governing adoption in that jurisdiction and resulted in an adoption order being approved by the High Court of country X, a State of the Commonwealth.

[42]In the context of the facts of this case being far removed from the cases which they contend s.83 was designed to address, Professor George and Ms Amonoo-Acquah contend that to apply the demands of s.83(1)(b) and the consequential provisions of the AFER 2005 to a step-parent adoption would be contrary to public policy. They submit that were step-parents in the position of EB to come within the scope of s.83 of the 2002 Act, the 12 months period provided for by s.83(1)(b), as amended, it would prevent a step-parent and a child with a pre-existing and potentially longstanding relationship from living together in the step-parent’s country of habitual residence for a year following a foreign authority ratifying a step-parent adoption as being in the child’s best interests. Further, they contend that were step-parents to come within s.83 of the 2002 Act, they would be exposed to criminal (including penal) sanction in the event that they, not unreasonably but unwittingly, sought to continue their family life in the step-parent’s country of habitual residence following a lawful foreign adoption.

[43]That a step-parent applicant for an adoption order in respect of a foreign child was not intended to fall within the scope of s.83(1) of the 2002 Act is further demonstrated, submit Professor George and Ms Amonoo-Acquah, by the fact that a step-parent would be incapable of complying with certain of the consequential provisions of AFER 2005 in circumstances where, by definition, the applicant step-parent has an existing relationship with the child who is the subject of the application.

[44]By way of example, rr.4(2)(b)(i) to (iii) of the AFER 2005 requires a prospective adopter to notify the adoption agency of the details of the child to be adopted, provide the adoption agency with any information and reports received from the relevant foreign authority and discuss with the adoption agency the proposed adoption and information received from the relevant foreign authority “before visiting the child in the State of origin” (emphasis added). However, Professor George and Ms Amonoo-Acquah submit that a step-parent will not only already have ‘visited’ the child but will likely be residing with, and caring for that child. In EB’s case, this has been the position for a decade. Such a parent will, say Professor George and Ms Amonoo-Acquah, never be able to comply with rr.4(2)(b)(i) to (iii) of the AFER 2005. This, they contend, would not be a “sensible result”.

[45]Professor George and Ms Amonoo-Acquah remind the court that s.3(1) of the Human Rights Act 1998 (hereafter “the 1998 Act”) stipulates that “So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights”, and that s.6 of the 1998 Act requires the court as a public body to give effect to the parties’ right to respect for private and family life that already exists between YB, RB and EB. Whilst acknowledging that s.83 has a legitimate aim in a democratic society (namely to prevent unassessed and potentially unsuitable persons resident in this country from travelling abroad and adopting a child in exchange for money and / or in exploitative circumstances), Professor George and Ms Amonoo-Acquah contend that it is not a legitimate aim that encompasses the facts of this case. Accordingly, Professor George and Ms Amonoo-Acquah submit that the application of the restrictions imposed by s.83(1)(b) to the facts of this case would not pursue a legitimate aim of the legislation and, as such, would constitute a disproportionate and unnecessary interference in the parties’ Art 8 rights.

[46]Finally, with respect to their primary submission, Professor George and Ms Amonoo-Acquah also drew the court’s attention to s.86 of the 2002 Act, which provides a power to modify the provisions of s.83 of the 2002 Act through secondary legislation. Section 86(1)(b) provides that s.83 will not apply where “the British resident in question is a partner of a parent of the child”. That category includes EB in circumstances where he is the “partner” of RB for the purposes of s.86(1)(b) having regard to ss.144(7) and 144(4) of the 2002 Act.

[47]Research undertaken by Professor George and Ms Amonoo-Acquah established that no regulations have yet been made pursuant to s.86(1)(b) of the 2002 Act. The letter received from the Secretary of State for Education was silent on this issue. However, Professor George and Ms Amonoo-Acquah submit that, by the enabling power contained in s.86(1)(b), Parliament expressly recognised the desirability of step-parent adopters not being caught by the provisions of s.83 of the 2002 Act, providing further support for their submission that the facts of this case were never intended to, and do not, fall within the scope of s.83 of the 2002 Act. In this regard, Professor George and Ms Amonoo-Acquah draw the attention of the court to the letter received from the Department of Education in which the Secretary of State declined the invitation to intervene in these proceedings. In that letter, the DfE asserts that “It is a matter for the court as to whether section 83 applies on the facts of any given case, and/or whether section 83 has been complied with…”.

[48]By way of a secondary submission, Professor George and Ms Amonoo-Acquah contend that even if this case does come, on a strict interpretation, within the scope of s.83 of the 2002 Act, the breach of s.83(1)(b) that would result in this case is not of a nature that would prevent the making of an adoption order as being in YB’s best interests, applying the principles in the authorities summarised above.

DISCUSSION

[49]Having regard to the erudite submissions of leading and junior counsel, I am satisfied that there has been no breach of s.83(1)(a) in this case. I am further satisfied that this case falls outside the scope of s 83(1)(b) of the 2002 Act on its facts. If I am wrong about that latter conclusion, I am in any event satisfied that the failure to comply with the requirements of s.83(1)(b) of the 2002 Act that results does not, on the particular facts of this case, prevent the making of an adoption order. My reasons for so deciding are as follows.

Section 83(1)(a)

[50]I am satisfied that EB did not breach s.83(1)(a) of the 2002 Act when he brought YB into the United Kingdom in early September 2024. As noted by Cobb J (as he then was) in Re A and B (Adoption: Section 83 ACA 2002), the phrase “for the purpose of adoption” in s.83(1)(a) conveys the reason or intent behind an action or decision. In this context the phrase designates an action, namely entering the United Kingdom, with a specific intent, namely obtaining an adoption order through the English courts.

[51]Whilst it is not disputed that EB entered the United Kingdom with YB in early September 2024, on the evidence before the court there is nothing to suggest that at the time he took that action EB had an intention, let alone a settled intention, to adopt YB in the jurisdiction of England and Wales. Rather, I am satisfied that the evidence demonstrates plainly that at the time he entered the United Kingdom, EB believed that the adoption order made by the High Court of country X would be recognised in this jurisdiction without the need for any further step being taken in this jurisdiction. In that context, there is no evidence, whether in the form of preparatory steps, statements of intent or otherwise, to suggest he intended to make an application for an English adoption order at the point her entered this jurisdiction with YB. Rather, I am satisfied that EB’s reasons for entering the United Kingdom with YB centred on her education. I am satisfied that no breach of s.83(1)(a) occurred.

Section 83(1)(b)

[52]Turning to s.83(1)(b) of the 2002 Act, I acknowledge that EB is “a person who is habitually resident in the British Islands”, that he brought into the United Kingdom “a child adopted by the British resident under an external adoption” and that this occurred “within the period of twelve months” ending with the date he brought YB into this jurisdiction. I likewise accept that the only exception to the application of s.83 expressly provided by the 2002 Act is that set out in s.83(2), which provides that s.83 does not apply “if the child is intended to be adopted under a Convention adoption order.” However, I am satisfied that Parliament likewise did not intend a person in the position of EB to be caught by the provisions of s.83(1)(b) of 2002 Act.

[53]As set out above, EB has been YB’s de facto father for over a decade and her step-father since he married her mother 3 years ago. YB has therefore grown up with EB as a father figure since she was 7 years of age and RB, EB, YB and QB had been living as a family for over 10 years at the time EB and YB entered the United Kingdom in September 2024, after he adopted YB in country X. The adoption process in country X required a home study by the Department of Human Services and a psychological assessment was completed. The adoption application was prepared and presented in the High Court of country X by the Attorney General in July 2023. In the foregoing context, I am satisfied that there is in practice a real existence of close personal ties between EB and YB amounting to family life for the purposes of

Art 8 of the ECHR

(see Marckx v Belgium

(1979) 2 EHRR 330

and K v United Kingdom (1986) 50 DR 199). That conclusion is not negated by the fact that EB has spent time between country X and the United Kingdom for the purposes of work (see Pini and Others v Romania

[2005] 2 FLR 596

[54]As recognised by Cobb J (as he then was) in Re A and B (Adoption: Section 83 ACA 2002), s.83 and Part 2 of the AFER 2005 are targeted at potentially unsuitable carers seeking to bring unrelated infants to this jurisdiction to create a family by way of adoption. Section 83 of the 2002 Act and Part 2 of the AFER 2005 were enacted in the context of cases in which applicants pursued international adoptions in circumstances where the exchange of money risked the creation of a market in foreign children to adopt and the concomitant exploitation of women in often disadvantaged and vulnerable socio-economic positions. Parliament’s intention in creating and enacting s.83 of the 2002 Act was to address cases in which prospective adopters brought into the jurisdiction a child who was a stranger to them for the purposes of adoption, often having made payment to secure the child and without any or any adequate assessment of their ability to meet the needs of the child, after that child had been removed from his or her birth mother in circumstances that induced or pressured the mother to part with her child. In stark contrast to this situation, EB is a step-parent seeking an adoption order in respect of the child of his partner who he has been caring for since she was 7 years old, a situation that has been endorsed by an order arising out of a rigorous process of assessment and evaluation prior to judicial scrutiny of the merits of an adoption. Adopting a purposive interpretation of s.83, these are not circumstances that Parliament intended s.83(1)(b) to cover.

[55]I am reinforced in that conclusion by the fact that the 2002 Act specifically provides for regulations to be made by the Secretary of State that disapply s.83 where the “British resident in question is a partner of a parent of the child”, pursuant to s.86(1)(b), and “the prospective adopter is a partner of a parent of the child”, pursuant to s.86(2)(b). The enabling power in s.86 of the 2002 Act encompasses the situation of EB as a step-parent seeking an adoption order in respect of his partner’s child. The term “partner” in s.86(1)(b) is defined in s.144(7) of the 2002 Act, which provides that “For the purposes of this Act, a person is the partner of a child’s parent if the person and the parent are a couple but the person is not the child’s parent.” Section 144(4) of the 2002 Act defines “couple” to include a married couple. In the circumstances, whilst no regulations have yet been promulgated pursuant to s.86(1), I am satisfied that in providing a power for the Secretary of State to make regulations that disapply s.83 where the British resident and prospective adopter is the partner of the parent of the child, Parliament expressly recognised that, depending on the facts of the case, a step-parent adoption may fall outside the circumstances s.83 of the 2002 Act was intended to cover.

[56]My conclusion is further reinforced by the fact that it will be difficult, if not impossible, for a person in the position of EB to comply with certain of the regulations in the AFER 2005, which have been promulgated in the context of the requirements of s.83 of the 2002 Act.

[57]As submitted by Professor George and Ms Amonoo-Acquah, r. 4(2)(b)(i)-(iii) of the AFER 2005 provide that “before visiting the child in the State of origin” the prospective adopter must notify the adoption agency of the details of the child to be adopted, provide the adoption agency with any information and reports received from the foreign authority and discuss the proposed adoption with the adoption agency (emphasis added). However, a step-parent in the position of EB will likely already have been living with the child, in this case for over a decade. As such, it will be impossible for them to comply with these regulations “before visiting” the child. Similarly r.4(2)(c), which requires the prospective adopter to “visit” the child in the State of origin, and r.4(2)(d), which requires the prospective adopter to take certain steps “after that visit”, lose much of their sense in the context of a step-parent who already lives with the child as part of his or her family. That it is not possible for a step-parent, who is otherwise entitled on the basis of being a British resident to apply for an adoption order with respect to a step-child habitually resident outside the British Islands, to comply with the conditions applicable to bringing that child lawfully into the United Kingdom is further evidence that Parliament did not intend a person in the position of EB to be caught by the provisions of s.83(1)(b) of 2002 Act.

[58]Finally with respect to the reasons underpinning my conclusion that Parliament did not intend a person in the position of EB to be caught by the provisions of s.83(1)(b) of 2002 Act, for the reasons set out above I am satisfied that there is in practice a real existence of close personal ties between EB and YB amounting to family life for the purposes of Art 8. Accordingly, s.3(1) of the 1998 Act requires the court, so far as it is possible to do so, to read primarily legislation and subordinate legislation in a way that is compatible with the Art 8 rights engaged in this case.

[59]It is important to remember that s.3(1) is a rule of interpretation. It does not entitle the court to act as a legislator and compatibility is to be achieved only so far as possible through interpretation (Hounslow LBC v Powell

[2011] 2 AC 186

at [62]). Within these confines, were s.83(1)(b) to be interpreted as encompassing a person in EB’s situation, that interpretation would result in a number of consequences that I am satisfied would amount to an interference with his right to respect to private and family life under Art 8(1) that could not be justified as being necessary in a democratic society by reference to Art 8(2).

[60]Were a step-parent with a pre-existing and longstanding de facto parental relationship with the child adopted in the foreign jurisdiction to come within the scope of s.83 of the 2002 Act, the 12 month period provided for by s.83(1)(b) would prevent that step-parent and a child from living together in the step-parent’s country of habitual residence for a year following the making of a foreign adoption order. In this case, unless EB chose to forego his employment and return to live in country X full time, that enforced hiatus would prevent him from resuming family life with YB in his country of habitual residence for a period of 12 months following his adoption of YB in country X, notwithstanding they had lived as a family prior to that time for over 10 years without concern. Further, were a step-parent with a pre-existing and longstanding family relationship with the child adopted in the foreign jurisdiction to come within the scope of s.83(1)(b), they would be exposed to potentially penal sanction in the event they sought to continue their pre-existing and established family life in the step-parent’s country of habitual residence following a lawful foreign adoption, as is the case here if the court finds that the circumstances in which EB finds himself come within the scope s.83 of the 2002 Act.

[61]The Art 8 right to respect for private and family life is a qualified right. Interference with the Art 8(1) right to respect for private and family life will be justified where, pursuant to Art 8(2), that interference is in accordance with the law and is necessary in a democratic society. Where the interference is in accordance with the law, as it is in this case, the court must go on to consider the question of necessity. The question of necessity will involve determining whether the interference corresponds to a pressing social need and is proportionate to the legitimate aim pursued (see Sunday Times v United Kingdom

(1979) 2 EHRR 245

). I acknowledge that s.83 of the 2002 Act meets a pressing social need (namely, the pressing social need of preventing unassessed and potentially unsuitable persons resident in this country from travelling abroad and adopting a child in exchange for money and / or in circumstances that are exploitative). However, I am not satisfied that the interference in the right to respect for private of family life of YB, EB, RB and QB that would result from the application of s.83(1)(b) to the circumstances of the present case is proportionate to the legitimate aim pursued.

[62]Preventing a British resident step-parent from living in England and Wales with his adopted child, in respect of whom he has fulfilled the role of father for over a decade, for a period of 12 months following a lawful adoption in another jurisdiction, and exposing him to criminal sanction for doing so, is not a proportionate means of discouraging or preventing prospective adopters from bringing into the jurisdiction a child who is a stranger to them, having made payment to secure the child and without any or any adequate assessment of their ability to meet the needs of the child, following the child being removed from his or her birth mother in exploitative circumstances. As such, interference in the right to respect for private and family life of YB, EB, RB and QB that would result from applying s.83(1)(b) in this case cannot be justified by reference to the terms of Art 8(2). In circumstances where s.3(1) of the 1998 Act requires the court, so far as it is possible to do so, to read primary legislation and subordinate legislation in a way that is compatible with the Art 8 rights engaged in this case, this analysis further supports the conclusion that Parliament did not intend a person in the position of EB to be caught by the provisions of s.83 of 2002 Act.

[63]In the foregoing circumstances, I am satisfied that s.83 of the 2002 Act, and its associated provisions, should be interpreted in a manner that ensures that a person in the position of EB is not caught by those provisions. In my judgement, s.83 of the 2002 Act was not intended by Parliament to capture a case such as this. Namely, a British resident step-parent seeking a domestic adoption order in respect of the child of his partner, who he has been caring for as her de facto father for many years and who benefits from an adoption order in another jurisdiction arising out of a rigorous process of assessment and evaluation prior to judicial scrutiny of the merits of an adoption. This case falls into a wholly different category to the cases in the contemplation of Parliament when it enacted s.83 of the 2002 Act to address the issue of international adoptions involving the exchange of money and the concomitant exploitation of women in disadvantaged and vulnerable socio-economic circumstances abroad.

[64]If I am wrong in that conclusion, however, and for reasons I shall come to at the end of this judgment, I am in any event satisfied that any consequential breach of s.83(1)(b) by EB does not act to prevent an adoption order being made on the facts of this case.

Adoption Order

[65]In deciding whether to grant an adoption order the court must have regard to matters set out in s.1 of the 2002 Act. The court has the benefit in this case of the careful analysis of the Children’s Guardian and the conclusions of the High Court of country X as to YB’s welfare.

[66]YB very much wishes to be adopted by EB in this jurisdiction. She already views EB as her father in circumstances where he has fulfilled that role for a significant part of her minority. Given her age and level of maturity, YB expresses these views in the context of an understanding of the implications of an adoption order being made in EB’s favour. When speaking to the Children’s Guardian, YB stated that she understood that being adopted by EB meant that he would become her “official father”. YB described a positive relationship with EB and stated that she felt this would give her “more stability”. When speaking to the Children’s Guardian, YB was consistent in her view that she considered EB as her father and has a positive relationship with him. YB told the Children’s Guardian that she wanted the Judge to know that she “really hoped that the adoption order would be granted”.

[67]As I have noted at a number of points in this judgment, EB has been involved in YB’s life since she was a young child and fulfilled the role as her father throughout that extended period. YB has a need for safety, security and stability within the family of which she has been a part for over a decade and will continue to be a part of for the remainder of her life. In my judgement, that need will be best met by an adoption order in this jurisdiction. In circumstances where the family’s long term plan is to reside in the United Kingdom, YB’s safety, security and stability will be further enhanced by her having the same status in the United Kingdom as she has in country X, that of the child of both her mother and the person she considers to be her father. YB also needs to be able to remain lawfully within the country in which her family intend to reside. In circumstances where YB is now an adult, EB can no longer pass onto her his British citizenship. However, upon an adoption being made, the ability of YB to access other potential routes to confirmation of permanent immigration clearance in the United Kingdom will be increased.

[68]YB was born and raised in country X, is now 18 years old and is of Black Caribbean heritage. She is Roman Catholic and attended a Catholic secondary school in country X. YB’s first language is English. As set out in her report, the Children’s Guardian discussed the impact of adoption on her identity. YB did not consider that the adoption would impact on who she is or how she feels as she already considers EB to be her father.

[69]There is no evidence before the court that YB has suffered or is at risk of suffering harm in the care of EB and her family. The assessments undertaken both in country X and in this jurisdiction identify that, in the care of both the mother and EB, YB’s welfare needs are well met. This includes her emotional needs in circumstances where, as the Children’s Guardian observed, “she has a close and loving relationship with her mother and stepfather”. EB is already YB’s legal parent under the law of country X and the court in country X already approved his adoption as being in YB’s best interests. That approval was given by the High Court of country X following a rigorous and extended period of assessment of EB’s ability to meet YB’s needs over nearly 2 years, a process that is cogently evidenced before this court and which revealed no risk of harm.

[70]I am satisfied that there would be a risk to YB of emotional harm were this court not to meet her need for safety, security and stability within the family of which she is part for may years, and will continue to be a part of for the remainder of her life, by making an adoption order. In addition to the practical disadvantages that would flow from YB not having her adoption in country X reflected in an adoption order in this jurisdiction, I consider that having a different legal status in this jurisdiction risks having a profound emotional impact on YB in terms of her identity and sense of belonging within her family, particularly in circumstances where it is the intention of the family to centre their family life in this jurisdiction. The risk of emotional harm to YB will be ameliorated by the making of a domestic adoption order.

[71]In considering the likely effect on YB, throughout her life, of having ceased to be a member of the original family and become an adopted person, it can be seen from the facts set out above that the making of an adoption order would not result, in any meaningful sense, in YB ceasing to be a member of her original family. Her birth father is deceased. Her mother has cared for her with EB for an extended period of time with EB fulfilling the role as YB’s father for all purposes. Within this context, the granting of an adoption order in this jurisdiction will not result, from YB’s perspective, in any substantial change to her lived experience over the past decade or more.

[72]When speaking to the Children’s Guardian, YB identified her extended family members as her maternal grandmother and aunt. She described having a positive relationship with them. YB also has a close relationship with QB. She stated that she, her mother and QB spend most of their time together. YB’s relationship with her mother, EB, her brother, all of whom are able to provide her with a secure environment in which she can develop and otherwise meet her needs, and her wider family will continue. This will be to YB’s obvious benefit. EB, RB and QB all wish for YB to be adopted by EB in this jurisdiction. The consent of RB was witnessed by a notary in country X and is evidenced in the bundle. In confirming the question of consent, the Children’s Guardian was satisfied that RB understood the content of the document she signed and that she had given her consent unconditionally. While YB is now legally an adult, RB understood that EB would also be legally considered YB’s next of kin in situations where YB for any reason was unable or did not have the capacity to make decisions for herself as an adult. The Children’s Guardian notes that there is what she describes as “universal support” from YB’s wider family for an adoption order to be made in this jurisdiction, to reflect the existing position in country X.

[73]Within the foregoing context, and the paramount consideration of the court being YB’s welfare, throughout her life, I am entirely satisfied that it is in her best interests for an adoption order with respect to YB to be made in favour of EB.

[74]Finally, if, contrary to the conclusion I have set out above, I am wrong in deciding that the 2002 Act should be interpreted such that a person in the position of EB is not caught by the provisions of s.83(1)(b) of 2002 Act, then the consequential breach of s.83(1)(b) by EB that arises must also be factored into the court’s decision whether to make an adoption order in YB’s best interests, in circumstances where such a situation requires careful analysis of both public policy and of the welfare conclusions reached above.

[75]In this case, the public policy reflected in s.83 of the 2002 Act is that of preventing harm to children arising out of international adoptions involving the exchange of money and the concomitant exploitation of women in disadvantaged and vulnerable socio-economic positions. The authorities set out above make clear that the breach of s.83 of the 2002 Act does not prevent an adoption order being made. That this is the position is also made clear from the wording of r.30E of the AAR 2005, which recognises that an adoption agency may approve a prospective adopter “in a s.83 case” and notify the Secretary of State accordingly. It is important, however, in circumstances where s.83 of the 2002 Act has been put in place by Parliament in order to protect children from exploitation and harm in the context of international adoption, that this principle is kept within its proper boundaries.

[76]In In Re C (A Minor) (Adoption Illegality), Johnson J recognised the tensions that are raised where the court is faced with an application for an order that will meet the best interests of the child in the context of a failure to comply with laws put in place by Parliament with the intention of protecting children:

“At least superficially, and I appreciate that there are compelling considerations the other way, there is an immediate humanitarian instinct to disregard the niceties of the statutory procedures. Under section 6 of the Adoption Act 1976 welfare is to be the first but not the only, still less the paramount, consideration. If the statutory procedures are there to protect British children, why should these disadvantaged children be denied the same protection? If it was not proper for this applicant to adopt a British child is there to be one set of criteria for the British child and another and lower set for this brown Mayan Indian child? Indeed a cynical observer might question the point of compliance with proper procedures if the court is to be perceived as always granting applications such as the present. Counsel's researches disclose only one reported case in which adoption was refused after breach of the procedures and that was a case in which there was the alternative of a claim by the natural family. Mr. Jackson asked me to give a firm indication that the procedures are there to be followed and must be followed. Such exhortations may I suspect be of little practical effect if followed lamely by the making of an order regardless of the breaches of the process. There is thus a tension between, on the one hand, the need to achieve the least disadvantageous result for the particular child; and, on the other hand, the need to ensure that regardless of race or cultural background children generally do receive the protection that Parliament intended.”

[77]It must be remembered that whilst the paramount consideration of the court is the subject child’s welfare, throughout his or her life, welfare is not the only consideration in this context. As Balcombe LJ made clear in In re G (Adoption: Illegal Placement), whilst the court is not prohibited from making an order where there has been breach of the adoption legislation, and notwithstanding the absence of a statutory dispensing and retrospective power, the breach must be taken into account and consideration given to whether public policy requires the order to be refused because of the breach, while giving first consideration (now paramount consideration) to the welfare of the child. Munby J (as he then was) made clear in Re X that a careful analysis of welfare, as undertaken above, and public policy is required.

[78]The relevant statutory requirement in this case is the prohibition on entering the United Kingdom within 12 months of the making of the foreign adoption order in contravention of s.83(1)(b) of the 2002 Act. In this case, EB’s entry into the United Kingdom with YB some 2 months after an adoption order had been made by the High Court in country X does contravene the letter of s.83(1)(b) of the 2002 Act. Against this, however, the consequences of non-compliance have been minimal in this case. The local authority has confirmed that the fact that EB entered the jurisdiction with YB two months after the adoption order was made has not prevented it from undertaking a comprehensive assessment, EB and YB having also been subjected to significant assessment in the context of the application to adopt YB in country X. The breach (assuming, again, that my conclusion that the 2002 Act should be interpreted such that a person in the position of EB is not caught by the provisions of s.83(1)(b) of 2002 Act is wrong) has had no adverse welfare consequences. Conversely, not making an adoption order by reason of the breach of s.83(1)(b) would be wholly antithetic to YB’s welfare in the context of the welfare analysis that I have set out above. It is plain that not making an order would have lifelong results for YB. Whilst she would be recognised as EB’s daughter in many parts of the Caribbean, she would not be recognised as his daughter in the country of which he is a citizen and in which the family plan to settle. This would disavow a central aspect of YB’s identity as EB’s daughter in the country of his residence.

[79]Finally, there is no evidence in this case that EB acted in anything other than good faith when he entered the United Kingdom in September 2024, on the basis of his misunderstanding of the effect of the adoption order made in country X. I accept EB’s evidence with respect to the steps that he took to try to comply with the not uncomplicated legal regime governing his position and that of YB. As such, any breach by EB of s.83(1)(b) was inadvertent. I am satisfied that no party has, or will, suffer prejudice from that inadvertent breach.

[80]In the circumstances, even if I am wrong in my conclusion that the 2002 Act should be interpreted such that a person in the position of EB is not caught by the provisions of s.83(1)(b) of 2002 Act, I am satisfied that the welfare considerations in this case plainly outweigh the public policy considerations underpinning s.81(1)(b) of the 2002 Act. The resulting breach comprises EB bringing YB into the United Kingdom 2 months after the granting of the adoption order in country X rather than the twelve months required by s.83(1)(b) in the context of the longstanding family life between EB and YB. In such circumstances, I am satisfied the disapplication of s.83(1)(b) is necessary in this case, pursuant to s.6 of the Human Rights Act 1998, in order to prevent a disproportionate interference with the Art 8 rights of YB, EB, RB and QB.

CONCLUSION

[81]For the reasons set out above, I am satisfied that there has been no breach of s.83(1)(a) of the 2002 Act in this case and that this case falls outside the scope of s 83(1)(b) of the 2002 Act. Again for the reasons set out above, if I am wrong about that latter conclusion, I am in any event satisfied that the failure to comply with the requirements of s.83(1)(b) of the 2002 Act that results does not, on the particular facts of this case, prevent the making of an adoption order. Accordingly, and as I have noted, at the conclusion of the final hearing I made an adoption order in respect of YB in favour of EB.

Order

Time Limit)

[2014] EWHC 3135 (Fam)

[2015] Fam 186

, sub nom Re X (A Child) (Surrogacy: Time Limit)

[2015] 1 FLR 349

, at para [54].) Parliament surely intended a ‘sensible result’. To rule that the adoption application should not be permitted to proceed on the basis of this non-compliance with what appears to be a mandatory requirement would not be a ‘sensible result’.” ‘… has an effect extending far beyond the merely legal. It has the most profound personal, emotional, psychological, social and, it may be in some cases, cultural and religious, consequences. It creates what Thorpe LJ in Re J (Adoption: Non-Patrial) [1998] INLR 424, 429, referred to as “the psychological relationship of parent and child with all its far-reaching manifestations and consequences”. Moreover, these consequences are lifelong and, for all practical purposes, irreversible’ (Sir James Munby P in Re X (A Child) (Parental Order: Time Limit)