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Session 1998-99
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Judgments -- In Re B (A Minor) (A.P.)


  Lord Nicholls of Birkenhead   Lord Hoffmann
  Lord Hope of Craighead   Lord Hutton   Lord Millett



ON 11 MARCH 1999


My Lords,

I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Hoffmann. For the reasons he gives I would allow the appeal.


My Lords,

Mr. and Mrs J live in Leeds. They come from Jamaica. When they emigrated to the United Kingdom nearly 40 years ago, Mrs J left behind a daughter D who subsequently married a Mr. B. They had a daughter, Ms B, who is now nearly 18. In April 1995, when she was 14, Ms B came with her mother to the United Kingdom to visit her grandparents in Leeds. They were given leave to enter the United Kingdom for six months. At the end of that period, Mrs B returned home. But Ms B remained with Mr. and Mrs J, who had applied for an extension of her leave. She had been put into school in Leeds and was doing very well. Her mother and grandparents wanted her to finish her education here. She was thought to have good prospects of taking A levels and going to a university.

The application for an extension was unsuccessful. The Home Office said that Ms B must return to Jamaica or be deported. Meanwhile, her father had become ill and subsequently died. Her mother had another grown-up daughter and they all lived together with four of the daughter's children in a primitive concrete house without a toilet or electricity. They had very little money and were often hungry. So the Mr. and Mrs J were appalled at the prospect of Ms B having to leave her school in Leeds and go back to Jamaica. But they were advised by a Law Centre that there was only one way in which Ms B could become entitled to stay in the United Kingdom. That was for Mr. and Mrs J, who were British citizens, to adopt her as their own child. She would then become a British citizen by virtue of section 1(5) of the British Nationality Act 1981:

     "Where after commencement an order authorising the adoption of a minor who is not a British citizen is made by any court in the United Kingdom, he shall be a British citizen as from the date on which the order is made if the adopter or, in the case of a joint adoption, one of the adopters is a British citizen on that date."

By section 2(1)(a) of the Immigration Act 1971 Ms B, as a British citizen, would have a right of abode in the United Kingdom.

On 30 May 1996 Mr. and Mrs J applied in the Leeds County Court for an adoption order. The Home Secretary intervened to oppose the order and the proceedings were transferred to the High Court. In October 1997, when Ms B was just 16, they came before Sumner J.

As grandparents, Mr. and Mrs J were qualified to adopt Ms B. By section 11 of the Adoption Act 1976, a "relative" (defined in section 72(1) to include a grandparent) is entitled to make arrangements for the adoption of a child without the intervention of an adoption agency. Ms B's mother gave her consent, so the condition of parental agreement in section 16 was satisfied. Nevertheless, the adoption obviously had some unusual features. Ms B had only two years of minority left. And although the benefits to her from being able to spend those two important years living with her grandparents and going to school in Leeds were plain and obvious, it would not ordinarily be necessary for her to be adopted. Were it not for her precarious immigration status, she could simply have stayed with her grandparents or, if the situation needed to be formally regulated, the court could have made a residence order under the Children Act 1989. But the Home Office made it clear that if the court merely made a residence order, it would nevertheless order her deportation. Thus the acquisition of British citizenship by adoption was an essential element in securing her the advantages of living with her grandparents and continuing at her school.

In deciding whether to make an adoption order, the judge was required to exercise his discretion in accordance with section 6 of the Adoption Act 1976:

     "In reaching any decision relating to the adoption of a child a court or adoption agency shall have regard to all the circumstances, first consideration being given to the need to safeguard and promote the welfare of the child throughout his childhood, and shall so far as practicable ascertain the wishes and feelings of the child regarding the decision and give due consideration to them, having regard to his age and understanding."

The judge recorded the submission on behalf of the Home Office as being that an adoption order was being sought "not because adoption is itself the best arrangement for the child but because, as a Jamaican citizen, it is the only mechanism whereby she can secure all the very real benefits of living with her grandparents." Therefore, argued the Home Office, even if such an order were in Ms B's best interests, it would be contrary to immigration policy and should not be made. But the judge came to the conclusion that he could not ignore the welfare benefits to Ms B merely because they were dependent upon the acquisition of a right of abode. Section 6 required him to give them "first consideration" and they were so strong that immigration policy was insufficient to override them. He therefore made the order.

This order was discharged by the Court of Appeal. In a judgment given by the President (Sir Stephen Brown) with which Morritt L.J. and Sir Patrick Russell agreed, the court held that the judge had not distinguished the advantages of "adoption as such" from those of acquiring a right of abode. Apart from those benefits which would flow from the right of a abode, the adoption order would have no advantages for the child.

My Lords, the issue in this appeal is therefore a very clear one. Mr. Underwood, in his printed case, stated the proposition which he advanced on behalf of the Home Secretary as follows: "The court should ignore benefits which would result solely from [a] change in immigration status when determining whether the child's welfare calls for adoption."

This was the proposition accepted by the Court of Appeal. But in my opinion it is contrary to the express terms of section 6 of the Act of 1976 and not supported by authority.

Section 6 requires the judge to have regard to "all the circumstances" and to treat the welfare of the child "throughout his childhood" as the first consideration. I do not see how, consistently with this language, the court could simply have ignored the considerable benefits which would have accrued to T during the remainder of her childhood. That the order would enable her to enjoy these benefits was a fact which the court had to take into account. No doubt the views of the Home Office on immigration policy were also a circumstance which the court was entitled to take into account, although it is not easy to see what weight they could be given. Parliament has not provided, as I suppose it might have done, that the adoption of a non-British child should require the consent of the Home Secretary. On the contrary, it has provided that the making of an adoption order automatically takes the child out of the reach of the Home Secretary's powers of immigration control. The decision whether to make such an order is entirely one for the judge in accordance with the provisions of section 6. In cases in which it appears to the judge that adoption would confer real benefits upon the child during its childhood, it is very unlikely that general considerations of "maintaining an effective and consistent immigration policy" could justify the refusal of an order. The two kinds of consideration are hardly commensurable so as to be capable of being weighed in the balance against each other.

The cases upon which Mr. Underwood relied do not in my opinion go nearly far enough to support the exclusionary rule which he was advancing. They appear to me to justify two more modest propositions. The first is that the purpose of an adoption is, as section 12 of the Act says, to give parental responsibility for a child to the adopters. The court will therefore not make an adoption order when the adopters do not intend to exercise any parental responsibility but merely wish to assist the child to acquire a right of abode. This is what Cross J. in In re A. (An infant) [1963] 1 W.L.R. 231, 236, called an "accommodation" adoption. The second proposition is that the court will rarely make an adoption order when it would confer no benefits upon the child during its childhood but give it a right of abode for the rest of its life. In such a case there are no welfare benefits during childhood to constitute the "first consideration." The court is in effect being asked to use adoption to confer citizenship prospectively upon an adult. This is a power which Parliament has entrusted to the Home Secretary and the courts are reluctant to trespass upon the area of his authority.

A striking case in the latter category is In re K. (A Minor) (Adoption Order: Nationality) [1995] Fam. 38. The application by a British citizen to adopt her niece from Sierra Leone came before the judge eight days before the child's eighteenth birthday. The judge made the order but it was set aside by the Court of Appeal. Hobhouse L.J. said, at p. 50:

     "[The judge] infringed the public policy of not allowing an application for an adoption order to be a substitute for the criteria and procedures under the Immigration Act 1971. Because of the age of K., there were no substantial welfare considerations which could be invoked to justify the adoption order."

I respectfully agree. It is true that there are some passages in the judgment of Balcombe L.J. which, read literally, might suggest that there was a general rule that the court should not take into account "those benefits which flow from the acquisition of British nationality" (see, for example, at p. 45). But I think that the context limits these remarks to benefits which will accrue only after majority. The judgment of Hobhouse L.J. makes it clear that if the child had been younger, the welfare considerations to be taken into account might well have been substantial, even though they would no doubt have flowed from the child's acquisition of a right of abode. Neill L.J. agreed with both judgments, which suggests that he did not think that there was any difference between them.

I think it is wrong to exclude from consideration any circumstances which would follow from the adoption, whether they are matters which will occur during childhood or afterwards. This, as I have said, would be contrary to the terms of section 6. Such benefits may include a right of abode or a possibility of succession. But benefits which will accrue only after the end of childhood are not welfare benefits during childhood to which first consideration must be given. And if a right of abode will be of benefit only when the child becomes an adult, that benefit will ordinarily have to give way to the public policy of not usurping the Home Secretary's discretion. It is perhaps a curious feature of this case that if the Home Office had been willing to allow Ms B to remain in this country for the two years during which a residence order was in force, the case for an adoption, conferring a right of abode for life, would have been very much weaker. It would not have given Ms B any benefits during her childhood which she would not have been able to enjoy anyway.

But the present case, on the evidence before the judge, did not fall within either of the two propositions I have been discussing. First, the adopters and the natural mother contemplated a genuine transfer of parental responsibility. Ms B was to live with Mr. and Mrs J as their daughter. Secondly, the adoption order conferred substantial welfare benefits upon Ms B during the remainder of her childhood. To these the judge rightly gave first consideration. I would therefore allow the appeal and restore the judge's order.


My Lords,

I have had the advantage of reading in draft the speech which has been prepared by my noble and learned friend Lord Hoffmann. I agree with it, and for the reasons which he has given I also would allow the appeal.


My Lords,

I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Hoffmann. I agree with it, and for the reasons he gives I too would allow the appeal.


My Lords,

I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Hoffmann. I agree with it, and for the reasons he gives I too would allow the appeal.


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