The recent case of B (Adoption Assessment) | [2025] EWHC 103 (Fam) (“Re B”) concerned an intercountry adoption order application for a child known as “B”. The Judge did not make an Adoption Order due to a failure to comply with all of the requirements of the Adoption and Children Act 2002.
This case explores the complexities that can arise when making an application for a domestic adoption order in the UK following time spent living overseas, where the child has been previously adopted in a jurisdiction which is not recognised as a legal adoption in the UK.
It also highlights the issue of differences in the adoption processes between countries and the questions that may arise in interpreting legislation that pre-dates significant changes brought by the widespread use of technology which has enabled global connectivity on an unprecedented scale.
The background
The applicants, a married couple, one of whom is a British national, lived in the United Arab Emirates (“UAE”) when they adopted B in 2019. B was born in Sierra Leone and was adopted there with the assistance of a UAE-registered Clinical Psychologist, a lawyer in Sierra Leone and the Director of an orphanage.
After the adoption order was made in Sierra Leone, the adoptive parents stayed there for a period of time and then the family flew to the UAE. B thrived in the applicants’ care and also kept in touch with older birth siblings in Sierra Leone. After five years, the applicants planned to move to England and applied for an adoption order in the UK, complying with both the domicile and notice requirements.
The applicants gave notice to an adoption agency (on behalf of the local council) and the allocated social worker prepared an Annex A report, that was wholly positive. Proceedings were issued and B was joined as a party with a Cafcass Guardian appointed. The Guardian filed their report, which was also positive and recommended an adoption order be made.
However, concerns were raised as to whether the local authority assessment for the Annex A report was sufficient to meet the requirements of section 42(7)(b) of the Adoption and Children Act 2002. The case was transferred to the High Court Judge, The Honourable Mrs Justice Frances Judd, who found that the statutory requirements had not been met.
The legal issues
Sierra Leone is not a signatory to the 1993 Hague Convention and adoption orders made there are not automatically recognised in England and Wales.
Therefore, the adopters were required to make an application for an adoption order in the UK under domestic law to enable B to enter the country as a British citizen and to ensure that B’s position as their child and child of the wider family would be recognised in English law.
When making a decision relating to the adoption of a child, the paramount consideration of the court is the child’s welfare throughout their life. The court must also consider the impact of any delay to the decision, which is likely to prejudice the child’s welfare.
The court must have regard to all the matters set out in the adoption welfare checklist at Section 1(4) of the Adoption and Children Act 2002. This sets out a number of statutory requirements for the applicants, as well as for the child, and notice requirements for submitting the application for adoption.
Section 42(7) of the Act sets out that:
An adoption order may not be made unless the court is satisfied that sufficient opportunities to see the child with the applicant or, in the case of an application by a couple, both of them together in the home environment have been given—
(a) where the child was placed for adoption with the applicant or applicants by an adoption agency, to that agency,
(b) in any other case, to the local authority within whose area the home is.
As B was not placed with the applicants by an adoption agency, Section 42(7) of the Act applied to them. The local authority in England prepared and filed an Annex A report on the suitability of the adopters. An Annex A report should adhere to the statutory requirements and make a recommendation about whether an adoption order, another order, or no order would be in the child’s best interests.
The court’s decision
The Annex A report fell under scrutiny and the Court was not satisfied that there had been sufficient opportunities for the social worker to see the child with the adopters together in the home environment, having conducted part of their assessment by video link with B and the applicants in their home in Dubai over the course of nine hours, including a virtual tour of their home. The other part of the assessment was carried out over two days in England, with the social worker observing the family at the hotel where the family was staying and at a lunch in a nearby town.
The Judge stated that the true intention of the Act must have been for the prospective adopter and child or children to have all been seen in person at home, even if the ‘home’ concerned was not the family’s only or even main home. This did not include the virtual home visit made possible through the use of technology, or the social worker seeing the family at a hotel, or out in the community. The Judge noted that the strict regulations for the adoption of children in England and Wales are in place to ensure the safety and protection of children, and that it is unlikely that Parliament intended that children who are adopted by applicants whose main home is overseas should be afforded less protection under the law.
The Judge recognised the serious consequences of not granting the application, the likely distress this would cause to the applicants, and the impact of the delay upon B, however, she emphasised that she would be content to adjourn the application for a number of months to enable the family to make arrangements for an assessment that would meet the statutory requirements and resume the proceedings.
The Birketts view
This case highlights the importance of fully understanding the legal requirements of the adoption process under UK law and the consequences of decisions taken at an early stage, in order to stand the best chances of being successful in an application.
The Judiciary in England and Wales have in other cases been willing to read legislation ‘purposively’ and interpret it in a manner that recognises and gives effect to the rights of children and families under Article 8 of the European Convention on Human Rights and Article 3 of the UN Convention on the rights of the child. It is accepted that Judges have discretion in certain circumstances, however, every case will be determined on its individual facts it cannot be assumed or guaranteed that a Judge will make an order despite a failure to meet a statutory requirement.
At Birketts, our Family Team includes a number of lawyers who have significant experience with adoption matters, including those with an international element. We would be happy to advise you at any stage in your family’s adoption journey.
If you have any questions relating to adoption, please contact Lucy Birch, Resolution Accredited Adoption specialist lawyer, or another member of the Birketts Modern Families Team.
Disclaimer
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article, please contact the author in the first instance. Law covered as at February 2025.
Key Contacts
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at February 2025.