Adoption of family member from Pakistan.
M was the 17-year-old nephew of ASB and KBS. He was born in Pakistan and was a Pakistani national. ASB and KBS were British citizens living in the UK. They were unable to have children and in 1995 held a family discussion at which it was agreed that they should adopt M. In 2002 ASB swore an affidavit in Pakistan accepting M as his son, adoption not being something available in Pakistani law. M remained with his mother in Pakistan. ASB and KBS visited him, paid for his education, sent money and presents and spoke to him regularly on the telephone. In June 2007, M's mother brought him to England on a visitor's visa and in September 2007 M started school in the UK. The family agreed that M should stay in the UK and ASB approached his local authority for a home study with the intention of adopting M. He also applied to extend M's visa. The local authority refused to start a home study until M's immigration status was established, and the Home Office could not extend M's visa, although ASB says that he was not aware of this.
M settled well in England, obtaining good results academically and being accepted by his community as the son of ASB and KBS. ASB gave the local authority formal notice of their intention to adopt M in June 2008. The local authority and M's children's guardian supported the making of an adoption order. Adoption would confer British citizenship on M and he would be able to stay in the UK permanently as part of the family unit which had been established.
The Secretary of State for the Home Department was joined as an intervener in the proceedings. The Department claimed that ASB required leave to bring the adoption proceedings and opposed both the grant of leave and the adoption order on the basis that ASB had been party to bringing M to England for the purposes of adoption unlawfully. It argued that M was almost 18 and could be returned to his family in Pakistan without impact on his welfare.
The court held that it was appropriate to consider whether adoption proceedings were being misused in order to circumvent immigration rules. If applicants for adoption are using adoption in order to acquire British nationality for the child rather than to exercise parental responsibility for him, an order is unlikely to be in the child's best interests. The court found that ASB and KBS had shown love and devotion to M since 1995 and were thoroughly committed to adopting M in order to become his legal parents. If M's visitor's visa had been obtained by deception it was not at the instigation or with the collusion of ASB or KBS.
The court found that M had a genuine relationship with ASB and KBS and regarded them as his parents. He was happy in their care and thriving academically, socially and emotionally. He retains meaningful contact with his birth family and is living with a family that meets his cultural and religious needs. There would be a real risk of a severe detrimental effect if the adoption order was refused and he had to be deported to Pakistan.
M had not lived with ASB and KBS for the required three out of the last five years and therefore leave was required before an application for adoption could be made. The court granted that leave and made the adoption order.
If M's family had applied for a visa to enter the UK for the purpose of adoption, it is clear that the application would have been refused. The UK Border Agency does not allow children into the UK who have been 'gifted' by family members, and the Immigration Rules require evidence that the child's parents were unable to care for him and that the child has or will break all ties with his birth family. Pakistan is not a signatory to the Hague Convention and does not have a domestic adoption system comparable to that of England. It would have been almost impossible for the applicants to adopt M in England through lawful channels.
The court did not ignore the fact that M was in the UK in breach of the Immigration Rules, but was not prepared to allow that breach to outweigh M's best interests. Bennett J acknowledged that the procedure for adopting a child from abroad may be 'long, perhaps arduous, and uncertain of success' and that 'the temptation in such cases to pull the wool over the eyes of the immigration authorities may be well nigh irresistible'.
Alexandra Conroy Harris, BAAF's Legal Consultant, prepared these notes
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|Title Annotation:||Legal notes: England and Wales|
|Author:||Harris, Alexandra Conroy|
|Publication:||Adoption & Fostering|
|Date:||Dec 22, 2009|
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