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Judge allows inter-country adoption to proceed despite failure to comply with pre-adoption requirements

An application for an inter-country adoption should not fail because of inconsequential errors made by the intending adopter, a High Court Family Division judge has ruled.

In TY (Preliminaries To Intercountry Adoption) [2019] EWHC 2979 (Fam), Cobb J said he took the view expressed by Sir James Munby in Re A & others (HFEA 2008) [2015] that the opportunity for a court in this country to consider adoption, particularly where it has been granted in another jurisdiction, should not be denied by “the triumph of form over substance”.

He would therefore allow the adoption application for TY by his maternal aunt CM to proceed despite instances of statutory non-compliance.

CM failed to comply with all pre-adoption requirements but the unnamed respondent local authority did not oppose the progress of the adoption application and said its investigations and duties had not been compromised or prejudiced by the non-compliance.

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The judge noted: “The local authority is satisfied that TY appears to be well-settled with Ms CM.

“That said, it is necessary for a court to be required to consider carefully any application, particularly one as significant as adoption, which appears, in its progress to or through the court, to contravene the clear requirements imposed by statute.”

He said delays caused by legal disputes over TY’s immigration status - eventually settled by the Upper Tribunal in TY’s favour - and visa delays by the Home Office meant these processes had consumed nearly four years.

CM complied with all the Jamaican adoption and UK immigration procedures and TY eventually arrived.

She should have notified the local authority of TY's arrival within 14 days but only did so later after which she received a letter from the local authority which said: “There is no current role for the adoption and post permanency team”.

CM took this statement to mean she did not need to adopt TY in the UK as well as Jamaica or take any further action. She learnt of the pre-adoption requirements only after taking legal advice.

The judge said: “The purpose of the requirement to notify the local authority within two weeks of a child's arrival is to enable social work checks to be made, in the early days a placement in this country, to ensure that arrangements for his/her care are satisfactory [including] the requirement for routine weekly visiting in the early days, and the offering of advice.

“In this case, it is obvious that the moment has passed; TY has now been in this jurisdiction for nearly nine months. Additionally, as it happens, TY was never caught by the private fostering arrangements as he was already 16 years old when he arrived in the UK, and is in any event a relative of Ms CM. The underlying purpose of this requirement could therefore be said to have even less relevance.”

The judge said Parliament could not have intended that an application for an adoption order must be barred forever “simply because of the failure of the applicant to comply strictly with this notice requirement”.

Mark Smulian

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