The meaning of ‘for the purposes of adoption’

A High Court judge recently examined the correct interpretation of the phrase ‘for the purposes of adoption’ in section 83(1)(a) of the Adoption and Children Act 2002. Marcia Hyde and James Hoile analyse the ruling.

In Re A & B (Adoption: section 83 ACA 2002) [2024] EWHC 2837 (Fam) the Court considered the definition of “for the purposes of adoption”, set out in s.83(1)(a) of the Adoption and Children Act 2002 (“ACA 2002”). Further, whether breaches of the Adoption with a Foreign Element Regulations 2005, SI 2005/392 ((“the AFER 2005”) made under that section were a bar to the making of adoption orders.

The application before the court arose in circumstances where a paternal aunt, Z, had brought her two nieces to the UK, under the erroneous belief that a Guardianship Order from Pakistan was sufficient for their relocation. Z later applied for an adoption order under ss.46 and 51(1) ACA 2002. She was unopposed, but the case was transferred to the High Court to consider whether there had been a breach of the AFER 2005 and whether the court can or should disapply them. After considering all the evidence, the court granted the adoption orders.

Background facts

The children were born in Pakistan. Their paternal aunt, Z, was also born in Pakistan, and by the time of the application had lived in England for over 20 years and was a British Citizen. In 2010 the children’s parents executed a notarised deed in Pakistan, by which Z was appointed their Legal Guardian. Following the parent’s divorce in 2012, the caring arrangements broke down, the mother disappeared, and the children lived under the sole care of their father. Thereafter Z played an increasingly significant role in the children’s upbringing.

The children’s father died in June 2021. While he was unwell, Z had made enquiries about the possibility of bringing the children to the country under her permanent care, but came away with a false impression of the law. Z travelled to Pakistan in the autumn of 2021, where after taking legal advice, she initiated formal Guardianship proceedings and was granted a Guardianship Order in November 2021. Z was given full custody of the children, and permission to remove the children from the jurisdiction by the presiding judge. 

Z subsequently applied for visas. These were granted and the children travelled lawfully to the UK in November 2022. After their arrival, Z enquired about the process for obtaining passports for the children, at which point she was advised that she would need adoption orders. After taking further legal advice, Z applied for permission to apply for adoption before the usual three-year residence requirement (ss. 42-44 ACA 2002). The court granted her permission in November 2023, further directions were made appointing a guardian and notifying the Home Secretary in June 2024, and in August the case was transferred to the High Court.  

Section 83(1) ACA 2002: “for the purposes of adoption”

The focus of the hearing was s.83 ACA 2002, as set out below, and supported by the AFER 2005: 

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.”

Non-compliance of the AFER 2005 made under s83(4),(5) is a criminal offence, and it was the possibility of such a breach that led to the transfer to the High Court. As Z had brought two children, habitually resident outside of the country, to the UK, it fell for the court to consider whether they were brought “for the purpose of adoption”. The Court gave “for the purpose of” its ordinary definition, and took the definition of “adoption” as being that of a legal process of obtaining an adoption order through the English Courts, referring to the 2024 Home Office Guidance on Adopted Children s84 ACA 2002 and the explanatory notes to ACA 2002.

When applying this interpretation to Z’s application, the Judge found that Z had brought the children to the UK “for the purpose” of providing them with a permanent home and “to give [the children] love, home and a sense of belonging”. The court accepted that 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. As such s.83 ACA 2002 did not apply in the circumstances of this case and the AFER 2005 were therefore not engaged. 

Section 83 ACA 2002: What if this section did in fact apply?

The Court went on to consider how it should approach any breaches of the Statutory framework and AFER 2005 had it found that the children had been brought into the UK for the purpose of adoption. The court concluded it would have had the power to disapply the AFER 2005, where to do otherwise would be incompatible with the ECHR Article 8 rights vested in the parties.

The court considered the principles it should apply when interpreting non-compliance with Statutory provisions and AFER 2005. It cited Re TY (Preliminaries to Intercountry Adoption) [2019] EWHC 2979 (Fam), and identified the following matters as being relevant factors for consideration:

The court should:

1.  Consider the consequences of non-compliance rather than strictly adhering to the wording of the statute; 
2.  Interpret the law with the underlying purpose in mind;
3.  Consider the potential lifelong and irreversible consequences of allowing or denying an application; 
4.  Consider whether the parties acted in good faith;
5. Consider the potential prejudice to any party if the application proceeds.

Further, the court considered that the Supreme Court decision in RR v Secretary of State for Work & Pensions [2019] UKSC 52 required the court to override subordinate legislation if applying such would lead to a breach of an ECHR Right.

In reaching its decision, the Court took into account the welfare of the children, having regard to section 1(4) ACA 2002. It identified the following factors:

Conclusion 

The Court was ultimately satisfied that:

1.  Z had brought the children to this country for the purpose of providing them with a secure and permanent home and not for the purpose of adoption pursuant to s83(1) ACA 2002. 
2.  Section 83 ACA 2002 therefore did not apply and the AFER 2005 were not therefore engaged.

Marcia Hyde is a barrister and James Hoile is a pupil barrister at 42BR. Marcia appeared in Re A & B (Adoption: section 83 ACA 2002) [2034] EWHC 2837 (Fam) for the Children's Guardian.