Case Nos: MA08Z00276, U20090592
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
MANCHESTER DISTRICT REGISTRY

Sitting at:
Preston Combined Court Centre
The Law Courts
Ring Way
Preston
Lancashire PR1 2LL

Date: Friday, 23rd October 2009

Before:

MR JUSTICE BENNETT
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Re N
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Transcribed by Cater Walsh Transcription Limited
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MISS F JUDD QC and MISS C GRUNDY appeared on behalf of the CHILD, by his CHILDREN’S GUARDIAN
THE MOTHER appeared in Person

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JUDGMENT

MR JUSTICE BENNETT:  

1.	IN was born on 6th November 1991 and is therefore nearly 18 years old.  His mother, HN, was married to TK, the father of IN.  IN’s parents, both Armenian nationals, separated many years ago.  I believe that IN has not seen his natural father from a very early age.

2.	SN, who is a British national, has spent many years working abroad as a consultant to the British Government.  Before meeting HN he was married three times and has four children. SN worked for a number of years in Armenia where he met HN.  On 21st August 2004, they were married in Armenia.

3.	IN has always looked upon SN as his father.  When IN was about 13 years old (that is, in about 2004 or 2005) he, his mother and SN held a discussion out of which came the united proposal that SN should adopt IN.  Proceedings were started in Armenia.  After some two years of court proceedings, on 13th July 2007, SN lawfully adopted IN according to the laws of Armenia.  During those court proceedings, IN’s natural father was “acknowledged as unknown absent”.  

4.	It is quite apparent from an examination of the Armenian court documents exhibited to SN’s statement of 2nd January 2009 that the matter was very thoroughly investigated.  HN gave her consent to the adoption.  So the adoption was confirmed, as was IN’s change of surname from K to N.  IN’s birth certificate was amended to show SN as IN’s father, and also HN as IN’s mother, which I take it to be the Armenian court confirming not only that HN was of course IN’s mother but also that she was one of his parents and thus retained parental responsibility.

5.	IN was being educated in Cyprus at SN’s expense.  The school closed and IN returned to Armenia.  The family decided to relocate back to England permanently.  Visas were obtained for IN and HN.  In about September 2007, IN moved to England where he has been living ever since.  He has been doing well at school.  He has obtained eight GCSEs and is studying for five A levels

6.	In July 2008, in England, SN applied to adopt IN pursuant to the Adoption and Children Act 2002 (“the 2002 Act”).  However, SN had, quite inadvertently, failed to comply with regulations 3 and 4 of the Adoptions with a Foreign Element Regulations 2005.

7.	In October 2008, the matter was transferred to the High Court.  In his February 2009 statement, SN explained that he believed that his adoption of IN would be straightforward and so he did not consult a solicitor.  He was quite unaware of the regulations to which I  have just referred.

8.	On 16th March 2009, prior to the hearing before Mr Justice Ryder on 19th March, Miss Clare Grundy, counsel for IN through his guardian, set out in written submissions certain difficulties and strongly hinted that the best course of action might be for SN to apply for a declaration that the English courts recognised the Armenian adoption order.

9.	Meanwhile, according to SN’s statement of 28th May 2009, there were difficulties between IN and HN and indeed between IN and himself.  He thus did not at that stage wish to proceed with the English adoption proceedings.  However, matters were resolved between IN, HN and SN and, as SN’s statement says, he sought a declaration from the English court that the law of England recognised the adoption order made in Armenia on 13th July 2007.

10.	On 10th June 2009, IN’s guardian reported that it was in his best interests that the English court recognised the Armenian order of adoption.  The guardian set out all the considerations under the “welfare” checklist of section 1 of the 2002 Act, all of which pointed positively towards recognition, not the least of which was that IN very much wished for the adoption order to be recognised.

11.	In March 2009, the Home Office was told of SN’s application for adoption and the proposal to seek a declaration.  It was invited to say whether the SSHD wished to intervene.  A chasing letter was sent on 23rd June.  It was not until 10th August did the Home Office respond that the SSHD, having considered the facts, did not wish to intervene.

12.	On 6th July 2009, the case came before Mrs Justice Black.  I am told (and have absolutely no reason to doubt) that she said that she was satisfied that it was in IN’s best interests for the declaration to be made.  She discharged paragraph 7 of the order of Mr Justice Ryder of 19th March (that is to say, an order for expert evidence about the process in Armenia leading to the adoption order to be obtained) because she was satisfied that the evidence before her demonstrated that the Armenian order for adoption was made after a rigorous procedure and enquiries.  But she detected what she believed would be a serious impediment.  If the declaration was granted SN would assume sole parental responsibility for IN.  HN’s parental responsibility for IN would cease.  I am told that Mrs Justice Black said that for HN to have her parental responsibility removed from her would be highly undesirable, i.e. not in the best interests of anybody, most of all IN.  Therefore she adjourned the matter for further consideration.

13.	What troubled Mrs Justice Black was section 67 of the 2002 Act and in particular section 67(3)(b).  Chapter 4 of the 2002 Act (that is to say, section 66 to 76 inclusive) is headed “Status of adopted children”.  Section 66(1) defines the meaning of “adoption” for the purposes of Chapter 4.  (a) is adoption by an adoption order or a Scottish or Northern Irish adoption order.  (b) relates to an order made in the Isle of Man or any of the Channel Islands.  (c) is an adoption effected under the law of a Convention country.  (d) is an overseas adoption, and it is (e) with which I am concerned:  

“(1) In this Chapter ‘adoption’ means...

(e) an adoption recognised by the law of England and Wales and effected under the law of any other country;

and related expressions are to be interpreted accordingly.”

14.	The relevant part of section 67, which is headed “Status conferred by adoption”, are subsections (1) to (4) inclusive.  They are:

“(1) An adopted person is to be treated in law as if born as the child of the adopters or adopter. 

(2) An adopted person is the legitimate child of the adopters or adopter and, if adopted by - 

(a)	a couple, or 

(b)	one of a couple under section 51(2), 

is to be treated as the child of the relationship of the couple in question.

(3) An adopted person -

(a)	if adopted by one of a couple under section 51(2), is to be treated in law as not being the child of any person other than the adopter and the other one of the couple, and 

(b) in any other case, is to be treated in law, subject to subsection (4), as not being the child of any person other than the adopters or adopter; 

but this subsection does not affect any reference in this Act to a person’s natural parent or to any other natural relationship.

(4) In the case of a person adopted by one of the person’s natural parents as sole adoptive parent, subsection (3)(b) has no effect as respects entitlement to property depending on relationship to that parent, or as respects anything else depending on that relationship.”

15.	I go back to quote the relevant part of section 51 which is headed “Adoption by one person”.  Section 51(2) provides as follows:

“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.”

16.	I should also refer to section 88 which was drawn to my attention by Miss Judd QC who appears, together with Miss Clare Grundy, for IN.  Section 88 is headed “Modification of section 67 for Hague Convention adoptions”.  It provides as follows:

“(1) If the High Court is satisfied, on an application under this section, that each of the following conditions is met in the case of a Convention adoption, it may direct that section 67(3) does not apply, or does not apply to any extent specified in the direction.”

17.	Subsection (2) then sets out the various conditions that have to be complied with.

18.	It is, in my judgment, quite apparent that, had SN been granted an adoption order by the English court, IN would have been treated as the child of SN and HN, i.e. both would have had parental responsibility for IN.  But Mr Justice Black was concerned that the consequences of the declaration sought by SN would be to bring IN within section 67(3)(b), and that therefore IN would be treated solely as SN’s child, and thus that HN would be deprived of any parental responsibility.

19.	I am satisfied, after hearing submissions from Miss Judd, that I can allay the concerns expressed by Mrs Justice Black.  The concerns, if I may say so, were entirely understandable because Miss Judd concedes, rightly in my view, that the wording of section 67(3) of the 2002 Act, if read absolutely literally, certainly would appear to deprive HN of parental responsibility for IN once the declaration had been made.

20.	Section 1(1) and (2) of the 2002 Act together provide that, whenever a court is coming to a decision relating to the adoption of a child, its paramount consideration must be the child’s welfare throughout his life.  These subsections incorporated a radical change from the Adoption Act 1976 under which the child’s welfare was the court’s first consideration and then only during his childhood.  

21.	In my judgment, a decision whether to grant a declaration as sought in the instant case is a decision “relating to the adoption of a child” (see section 1).  Thus the court must take as its paramount consideration in considering whether to grant the declaration IN’s welfare throughout his life.  Like Mrs Justice Black, I am satisfied that the facts of this case demand that the court recognise the Armenian adoption order.  SN, to all intents and purposes, has been IN’s father for many yeas.  IN looks to him as his father.  IN very much wishes that he be recognised in English law as the child of SN.  HN wants that to happen as well.  They are and have been for many years a family and should be recognised as such.  

22.	Furthermore, in my judgment, it is very much in IN’s best interests that HN should continue to be recognised in law as his other parent.  She, of course, gave birth to him and has cared for him throughout his childhood.  I have absolutely no doubt she will continue to do so even after IN becomes an adult in a few days time.  Under the welfare checklist in section 1, I am satisfied that IN needs to have HN exercising parental responsibility as well as SN, and the value of HN remaining as one of IN’s parents (i.e. recognised by English law) is of the highest importance.

23.	Under Article 8 of the European Convention on Human Rights, IN, SN and HN are entitled to protection from interference in their family rights.  IN surely is entitled under Article 8 to his mother continuing to be one of his parents, both at law and practically.  If IN’s, or indeed HN’s, rights are to be interfered with, can it possibly be said that section 67(3)(b) comes within Article 8.2?

24.	Section 50 of the 2002 Act makes provision for an adoption by a couple.  Section 50(2) plainly makes provision for adoption of a child by the step-parent and its parent, inter alia.  Section 51(2) makes provision, inter alia, for the adoption of a child by its step-parent provided that the step-parent is the partner of a parent of the child.  Thus it is plain to me that the 2002 Act permits an adoption order to be made by an English court of a child by a parent and step-parent, or by a step-parent alone if the partner of a parent of the child, without the parent in either case being deprived of his or her parental responsibility.

25.	Did then, it should be asked, Parliament intend when enacting section 67(3)(b) to deprive a parent of parental responsibility in relation to her child adopted by her husband or partner with her consent under a foreign adoption order which is in the child’s best interests and which, it may be added, did not deprive her of parental responsibility under the law of that foreign country?  In the best interests of the child my answer should be in the negative.  But does the proper interpretation of section 67(3)(a) and/or (b) allow such a result?  In my judgment, it does for the following reasons:

26.	First, because, in my judgment, it would produce an absurd result.  An adoption order could have been obtained by SN of IN from the English court which would not have had the result of depriving HN of parental responsibility.  If, in the instant case, the declaration were to the effect that HN was deprived of parental responsibility, it would, in my judgment, be not only an absurd but a thoroughly unjust result.

27.	Second, such an absurd result would fly in the face of previous jurisprudence.  I refer in particular to Re Valentine’s Settlement [1965] Ch 226, which approved a passage in the judgment of Lord Justice James in Re Goodman’s Trusts [1881-85] All ER 1138 at 1154.  Lord Denning in Re Valetine’s Settlement, giving judgment, referred to the proposition stated by Lord Justice James and set it out as follows:

“’The family relation is at the foundation of all society, and it would appear almost an axiom that the family relation, once duly constituted by the law of any civilized country, should be respected and acknowledged by every other member of the great community of nations.’

That was a legitimation case, but the like principle applies to adoption. But when is the status of adoption duly constituted?  Clearly it is so when it is constituted in another country in similar circumstances as we claim for ourselves.  Our court should recognise a jurisdiction which mutatis mutandis they claim for themselves: see Travers v Holley and Holley [1953] 2 All ER 794 at 800.  We claim jurisdiction to make an adoption order when the adopting parents are domiciled in this country and the child is resident here. So also, out of the comity of nations, we should recognise an adoption order made by another country when the adopting parents are domiciled there and the child is resident there.”

28.	Furthermore, in Dicey, Morris & Collins “The Conflict of Laws”, there is a helpful passage, at paragraph 20-133:

“If the foreign adoption was designed to provide some immoral or mercenary object, like prostitution or financial gain to the adopter, it is improbable that it would be recognised in England.  But, apart from exceptional cases like these, it is submitted that the court should be slow to refuse recognition to a foreign adoption on the grounds of public policy merely because the requirements for adoption in the foreign law differ from those of the English law.”

29.	Third, in my judgment, if section 67(3)(b) is to be read literally in the instant case, it is, as I have said, contrary to IN’s best interests.

30.	Fourth, for the reasons I have expressed, it would also be contrary to Article 8 of the European Convention on Human Rights.  Under section 3 of the Human Rights Act 1998, primary and subordinate legislation, so far as is possible, must be read and given effect in a way which is compatible with Convention rights.  Indeed it can legitimately be asserted that the courts are required to interpret legislation so as to uphold Convention rights unless the legislation itself is clearly incompatible with the Convention that it would be impossible so to do.  That, in my judgment, is not this case.

31.	Fifth, I refer to section 66 and the meaning of adoption.  Miss Judd has drawn my attention to “related expressions are to be interpreted accordingly”.  I accept her submission that an adopted person is a related expression to be interpreted accordingly; so an adopted person should be an adopted person under subsections (1)(a) to (e).  Section 67 is part of Chapter 4 and so should be interpreted generally as encompassing a person adopted in this country or otherwise.

32.	Sixth, as I have said, I have had my attention drawn to section 88 of the 2002 Act.  As Miss Judd submits, that section modifies section 67 for Hague Convention adoptions and provides that, if certain conditions are met, the court may direct that section 67(3) does not apply.  The first of those conditions is that “under the law of the country in which the adoption was effected, the adoption is not a full adoption”.  Section 67(3) refers to section 51(2).  If section 67(3) was only concerned with an adoption that had been made in England and Wales (i.e. literally under section 51(2)), there would be no need to give the court the power to modify it by section 88.

33.	I am satisfied that section 67(3) must be interpreted in the light of all of those considerations and must be read down so as to uphold the Article 8 rights of the family and particularly IN in this case.

34.	Miss Judd has submitted that the correct interpretation of section 67(3)(a) requires the modification of it in the following way: “If adopted by one of a couple under section 51(2)” - and then Miss Judd submits that the following words should be read into it - “or its equivalent if the adoption order was made abroad and recognised in England and Wales pursuant to section 66”.  I would only slightly modify her submission to this effect: that after the words section 51(2), it is necessary to read into it the following words “or its equivalent under the foreign law of an adoption order made abroad which is recognised in England and Wales pursuant to section 66”.

35.	So, in my judgment, I am satisfied for all those reasons that section 67(3), and in particular (b), does not have the effect, if a declaration is made in favour of SN, of depriving HN of parental responsibility for IN jointly with SN.  

36.	Accordingly, I shall declare, being satisfied that the parental responsibility of HN is retained jointly with that of SN, that the adoption order of 13th July 2007 of the Armenian court be recognised by the law of England and Wales.

37.	I am pleased to be able to come to this decision as I think any other decision would not just have been harsh but a rank injustice.

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