The Court heard a case which raised important legal questions regarding the correct interpretation of Section 83 of the Adoption and Children Act 2002 (ACA 2002) and the possibility of making an adoption order in circumstances where the Adoption with a Foreign Element Regulations 2005 (AFER 2005) have not been fully complied with.

Background:

Ms. Z brought her teenage nieces, A and B, from Pakistan to the UK in 2022, pursuant to a guardianship order obtained in the Family Court in Pakistan. The aunt has dual citizenship after living for over 20 years in the UK and has no children of her own. In 2010, Ms. Z was appointed as legal guardian of the children through a notarised deed conferring all her parental rights to the children until their 21st birthdays. 

In 2012, the parents divorced and the children stayed with their dad, although A briefly lived with her mother. The mother’s whereabouts are unknown while Ms. Z played an increasingly significant role in the children’s lives. The father however died in 2021 and the children went to live with the applicant’s elderly mother. Before the father passed away, the applicant started to inquire about the possibility of adopting the children and bringing them to the UK. She also sought some legal advice in Pakistan and was told that adoption was not available to her in Pakistan, although she could apply for guardianship proceedings which she duly did. Ms. Z applied for visas and the children travelled lawfully with her to the UK. 

She applied for an adoption order under Sections 46 and 51(1) of ACA 2002. 

Decision: 

The High Court had to consider the definition of “for the purposes of adoption” as set out in Section 83(1)(a) of ACA 2002. All other elements of Section 83 were met as the applicant is a British resident; she had brought two children who are, or were at the time, habitually resident outside the British Isles into the UK. The major question was the “for the purposes of adoption”, as non-compliance with AFER 2005 is a criminal offence. 

The Court first noted that there is no statutory guidance on the meaning of this word. Based on the ordinary meaning of the words, the Court found that she did not bring the children ‘for the purposes of adoption’ instead her intention was to provide them with a permanent home and loving environment. As Section 83 did not apply, Adoption with a Foreign Element Regulations 2005 (AFER) was, therefore, not engaged.

However, the Court accepted that Ms. Z had genuinely believed that the orders obtained in Pakistan were the equivalent to an adoption order, and had only discovered the need to apply for an adoption order when HM Passport Office informed her of the need to do so. The pre-application adoption requirements set out in Sections 42 to 44 ACA 2022 were met and she was granted leave under subsection 42(6) ACA 2002 to make her adoption application.  

The Court also noted that it would have had the power to disapply AFER 2005, where there is a likely interference and incompatibility with Article 8 ECHR.

Implications:

This decision shows the Court’s commitment to the welfare of the children. The judgement offers a good clarification of the definition of “for the purposes of adoption”, as set out in Section 83(1)(a) of the Adoption and Children Act 2002. Applying the ordinary meaning, the Court made it clear that she was providing a home, rather than merely adopting them. 
In this landmark ruling, the Court also clarified that it has the power to disapply AFER 2005 if they are likely to interfere with Article 8 of the ECHR.