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In re H. (A Minor) (Adoption: Non-patrial)

Publisher United Kingdom: High Court (England and Wales)
Author Family Division
Publication Date 5 March 1982
Citation / Document Symbol [1982] Fam 121, [1982] 3 All ER 84, [1982] 3 WLR 501, 4 FLR 85
Cite as In re H. (A Minor) (Adoption: Non-patrial), [1982] Fam 121, [1982] 3 All ER 84, [1982] 3 WLR 501, 4 FLR 85, United Kingdom: High Court (England and Wales), 5 March 1982, available at: http://www.refworld.org/docid/3ae6b6920.html [accessed 23 August 2014]
DisclaimerThis is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

In re H. (A MINOR) (ADOPTION: NON-PATRIAL)

FAMILY DIVISION

[1982] Fam 121, [1982] 3 All ER 84, [1982] 3 WLR 501, 4 FLR 85

Hearing Date: 15, 16 February, 5 March 1982

5 March 1982

Index Terms:

Adoption -- Adoption order -- Non-patrial -- Non-patrial infant entering United Kingdom for limited stay -- Extension of stay refused -- Residents in United Kingdom seeking to adopt infant -- Secretary of State refusing application for settlement by adoption -- Whether court bound by Secretary of State's decision in considering adoption application -- Whether court entitled to hear evidence given in immigration proceedings -- Children Act 1975 (c. 72), s. 3 n1 -- Immigration Act 1977 (c. 77), ss. 2 (1) (b), 3

n1 Children Act 1975, s. 3: see post, p. 506c.

Held:

H., having been abandoned by his family in Pakistan, entered the United Kingdom in December 1978, when he was 14, on a short-term visitor's permit. His entry was arranged by his uncle, who was settled in London. H. joined the uncle's household, and family discussions took place as to the possibility of the uncle adopting H. In March 1979 the uncle applied on H.'s behalf for an extension of his stay. He gave as the reason that H. wanted to see "cultural and social aspects of life in Britain." That application was refused. On the uncle's request, the application was reconsidered as an application for settlement by adoption but the Secretary of State was neither satisfied that there had been a genuine transfer of parental responsibility for H. nor that the application was not one of convenience to enable H. to remain in this country. The refusal to extend H.'s stay was confirmed and appeals to an adjudicator and to the Immigration Appeal Tribunal were rejected. In 1980 the uncle and his wife became citizens of the United Kingdom by naturalisation and applied to adopt H. The Official Solicitor was appointed guardian ad litem and, in his report, stated that although his inquiries had not entirely removed the doubt that the application for adoption was designed to circumvent immigration control, the applicants could be regarded as standing in loco parentis and that the benefit of adoption was not confined to the acquisition of British nationality but would give H. the social, legal and psychological benefit of belonging to a family.

On the question whether the court should make an adoption order: --

Held, granting the application, that the duty of the court under section 3 of the Children Act 1975 was to consider all the circumstances and give first consideration to the welfare of the minor; that the minor's welfare outweighed any one factor but did not outweigh all factors and the court had to ensure that the adoption procedure was not used for the primary object of achieving nationality or patriality; that, accordingly, the court had to pay great regard to the decision of the Secretary of State under the Immigration Act 1971 and in particular to his considerations of public policy and, if relevant, national security but, where part of the motive behind the adoption application was to achieve for the minor the emotional, psychological, social and legal benefits of adoption, the court in a proper case should make an adoption order overriding the immigration decision or even an immigration rule; and that the court was satisfied, having regard to all the other circumstances, that the welfare of H. overrode the immigration decision and, therefore, the court would make the order for H.'s adoption (post, pp. 506A-E, 510G-H, 511C-E, H -- 512B, 513B-C).

In re A. (An Infant) [1963] 1 W.L.R. 231 and In re R. (Adoption) [1967] 1 W.L.R. 34 considered.

Per curiam. This application illustrates the importance where a foreign national is concerned of notice being given to the Secretary of State pursuant to rule 18 of the Adoption (High Court) Rules 1976 and rule 4 (3) of the Adoption (County Court) Rules 1976 so that the Secretary of State is given the opportunity of intervening if he wishes, especially so as to ensure that considerations of national security are not overlooked. Perhaps consideration should be given to making an amendment to the rules to cover this aspect specially (post, p. 513E-G).

Cases referred to in the Judgment:

A. (An Infant), In re [1963] 1 W.L.R. 231; [1963] 1 All E.R. 531. D. (An Infant) (Adoption: Parent's Consent), In re [1977] A.C. 602; [1977] 2 W.L.R. 79; [1977] 1 All E.R. 145, H.L.(E.).

Hollington v. Hewthorn & Co. Ltd. [1943] K.B. 587; [1943] 2 All E.R. 35, C.A. K. (Infants), In re [1965] A.C. 201; [1963] 3 W.L.R. 408; [1963] 3 All E.R. 191, H.L.(E.).

Mohamed Arif (An Infant), In re [1968] Ch. 643; [1968] 2 W.L.R. 1290; [1968] 2 All E.R. 145, Cross J. and C.A.

R. (Adoption), In re [1967] 1 W.L.R. 34; [1966] 3 All E.R. 613. Reg. v. Secretary of State for the Home Department, Ex parte Zamir [1980] A.C. 930; [1980] 3 W.L.R. 249; [1980] 2 All E.R. 768, H.L.(E.).

Cases cited in the Judgment:

W. (An Infant), In re [1971] A.C. 682; [1971] 2 W.L.R. 1011; [1971] 2 All E.R. 49, H.L.(E.).

Introduction:

ORIGINATING SUMMONS

In August 1980 Dr. N. and his wife made application for an adoption order in respect of their nephew, H., then aged nearly 16, a national of Pakistan. Notice was given to the Secretary of State under rule 18 of the Adoption (High Court) Rules 1976. The application was heard in chambers and adjourned into open court for judgment.

The facts are stated in the judgment.

Counsel:

Nicholas Mostyn for the applicants.

E. James Holman for the guardian ad litem.

Simon D. Brown and Peter Goldsmith for the Secretary of State.

Judgment-READ:

Cur. adv. vult. March 5.

PANEL: Hollings J.

Judgment One:

HOLLINGS J. read the following judgment. This adoption application came to be made in the following circumstances. On December 31, 1978, H., the second son of nine children of a family in Pakistan was given leave to enter the United Kingdom by Home Office Immigration Control. He was then aged 14, born in Lahore on November 7, 1964. He told the immigration officer that he wished to visit his paternal grandparents and his paternal uncle, Dr. N., who is the male applicant in these proceedings. He was given leave to enter for one month, subject to a condition prohibiting employment. His grandparents had entered the United Kingdom in 1977 and were settled here and living in Birmingham. Dr. N. entered the United Kingdom from Pakistan in 1968. He studied successfully at Southampton, Edinburgh and Birmingham Universities obtaining degrees at each, ending with a Ph.D. in December 1979 in chemical engineering at the last of these universities. His wife, the female applicant, was a Ugandan Asian. She entered the United Kingdom in 1971. She and her husband met while they were studying and married in May 1974.

Dr. N. has been employed since 1978, and now holds a responsible and well-paid position in a well-known company as a chemical engineer. He and his wife have a home in Harrow and have four children of their own aged from 6 to 1 1/2 years. It was Dr. N. who had arranged for his parents, H.'s grandparents, to enter and settle in the United Kingdom.

On entering the United Kingdom in December 1978, H. went to live with his uncle in Harrow. So far, the facts are undisputed. According to H. and Dr. N., H. had sought his uncle's help because he had been turned out of his home where he lived with his father and his siblings and was destitute. He and Dr. N. say that until he was aged 12 he had lived in Pakistan in the home of his grandparents who had cared for him until they came to England in 1977. H.'s parents had been unhappily married and eventually divorced. H.'s mother left Lahore for Karachi, and the nine children of their marriage were left in the custody of the father in Lahore. H., however, was treated differently from the others, his father and the other children seeming to blame H. as the cause of his parents' separation. After he was turned out of the home by his father in about September 1978 H. claims that he spent the next few months living rough in the streets until he was taken in by an aunt, and it was she who put him in touch with Dr. N., his paternal uncle. Dr. N. sent him the air fare and so he came to England.

On January 28, 1979, Dr. N. wrote a letter for H. to the Home Office asking for an extension of H.'s stay. The Home Office on March 6, 1979, asked for reasons, and Dr. N., in H.'s name, replied on March 22, 1979, stating where he was living and requesting an extension of H.'s stay "for six months only," adding "I am requesting this extension merely to be able to see the cultural and social aspects of life in Britain. I shall be leaving Britain by next September."

Dr. N. told me that in the meantime he had been holding discussions with the family in the United Kingdom, and by telephone with some of the family, including H.'s father, in Pakistan, with a view to him and his wife adopting H., and it was decided that they should seek to do this. On March 18, 1979, Dr. N. wrote to the London Borough of Harrow Social Services for advice about adoption, and he received advice a few days later. On April 16, 1979, he gave the London Borough of Harrow notice of his intention to adopt. On April 17, 1979, Dr. N. wrote again to the Home Office a letter which has been put in in these proceedings without objection, requesting the necessary instructions and relevant papers to adopt H. and setting out briefly the circumstances in which H. had been rejected by his family. In that letter he referred to the fact that H. had come to the United Kingdom as a visitor about three months before and that his passport was already with the Home Office for an extension of his stay.

The Secretary of State, however, when he considered the application for an extension was not aware of the letter of April 17, 1979. This again appears from the Home Office statement, and on April 27, 1979, he refused the application on the ground that he could not be satisfied that H. was a genuine visitor who would leave at the end of his permitted stay or that he would not become a charge on public funds.

On April 28, 1979, Dr. N. by letter requested the Home Office to reconsider the decision and extend the time until a decision about adoption was reached. Dr. N.'s application on behalf of H. was ultimately treated by the Secretary of State as an application for settlement by means of adoption, but the refusal was confirmed on February 6, 1980. An appeal was lodged on behalf of H. According to the Home Office statement, the Home Office made various inquiries and H. and Dr. N. and Mrs. N. were interviewed, as a result of which the appeal was rejected by the Secretary of State. Further appeals under the immigration rules to an adjudicator and to the Immigration Appeal Tribunal were also rejected, and the grounds of the rejection as notified to H. were as follows:

"Dr. N. has applied on your behalf for a variation of your leave to enter in order to adopt you, but the Secretary of State is not satisfied that there has been a genuine transfer of parental responsibility nor is he satisfied that the adoption is not one of convenience arranged to enable you to remain in the country."

On May 13, 1980, Dr. and Mrs. N. became naturalised United Kingdom citizens. On August 12, 1980, Dr. and Mrs. N. issued the originating summons for adoption of H. In accordance with the Adoption (High Court) Rules 1976, the Official Solicitor was appointed guardian ad litem of H., and the Official Solicitor took steps to enable him to prepare his confidential report. On his advice, notice of the hearing of the application was, pursuant to rule 18 of the Adoption (High Court) Rules 1976, served upon the Home Office. The Treasury Solicitor thereupon gave notice that he wished, as solicitor for the Home Office, to attend and be heard on the question whether an adoption order should be made, pursuant to rule 19 of the Adoption (High Court) Rules 1976. Accordingly, at the hearing before me the Secretary of State, the Official Solicitor as guardian ad litem of H., and the applicants were each represented by counsel and I have been greatly assisted by the argument and submissions of each of them.

In the meantime, the Official Solicitor, carrying out the duties placed on him by the Adoption (High Court) Rules 1976, obtained a report from the London Borough of Harrow Social Services and kept in touch with the progress of the

Immigration Act 1971 proceedings and appeals. Two letters from the Home Office are annexed to the Official Solicitor's confidential report dated April 22 and June 29, 1981. In the latter, the Home Office say, inter alia:

"It is noted that in your official capacity you are making extensive inquiries... which seem to be leading towards a favourable outcome for the adoption of H. Be that as it may, we would like to put on record our concern from an immigration viewpoint that in this case the appellant and his sponsors would have thereby succeeded in a significant circumvention of the immigration control and may be an example for others to follow."

No steps have yet been taken by the Home Office to deport H. I understand that this is partly out of consideration for these proceedings and partly because in any event if, as is likely, full use were made of the appeal system, H. would still today be in the United Kingdom. H. has, ever since December 31, 1978, lived with the applicants. I am satisfied that he has been in their "actual custody" throughout this period within the meaning of section 3 of the Adoption Act 1958, as amended by the Children Act 1975. This is an essential prerequisite of an adoption order.

The consent of H.'s parents has been sought by the Official Solicitor. I am satisfied that H.'s father has given his written consent with full knowledge of the implications. Having considered the steps which have been taken by the Official Solicitor to ascertain whether H.'s mother consents, I can say that I am satisfied on the evidence in her case too that her consent has been properly obtained in accordance with section 6 of the Adoption Act 1958 and in particular rule 7 (2) (b) of the Adoption (High Court) Rules 1976.

If an adoption order is made, this will have the effect of conferring United Kingdom citizenship and the right of abode or "patriality" upon H., for section 19 of the Adoption Act 1958 confers United Kingdom citizenship upon a foreign minor in respect of whom an adoption order is made in favour of an adopter who is a United Kingdom citizen, as is the case here; and by section 2 (1) (a) of the Immigration Act 1971 the right of abode in the United Kingdom under that Act is conferred if the person concerned is a United Kingdom citizen by adoption.

The Official Solicitor as guardian ad litem has the specific duties laid on him by the Adoption (High Court) Rules 1976. He has carried out those duties, which include making relevant inquiries and obtaining relevant reports. He has filed a confidential report to which I think, however, it is proper that I should refer in part at this stage. The report is by the Assistant Official Solicitor. He says that having completed his inquiries he has ascertained that the applicants wish to adopt H. because of the rejection that he has suffered by his parents following their divorce, and because they wish to provide him with parental love and a home. He is satisfied of the stability of the applicants' marriage and that H. wishes to be adopted by the applicants. He states that the Official Solicitor is thus satisfied that an adoption order if made will safeguard and promote the child's welfare throughout his childhood. (This is a reference to section 3 of the Children Act 1975.) He further says that he has naturally been concerned to ascertain as far as possible whether the principal purpose of this application could be regarded as an attempt to secure an "accommodation order" designed to circumvent the immigration control procedures of this country, and that although he must concede that his inquiries do not entirely remove his doubts, the Official Solicitor is, on balance, of the view on the evidence available to him, that the applicants can properly be regarded as standing fully in loco parentis to H., that the benfit which an adoption order would confer upon H. would not be confined to the acquisition of British nationality but would give the child social, legal and psychological benefits of belonging to a family and that the refusal of an adoption order and H.'s subsequent removal to Pakistan would be likely to jeopardise considerably H.'s future wellbeing.

Annexed to the Official Solicitor's report is an account of an interview of the applicants and H. by a representative of the Official Solicitor, and the report of a social worker on behalf of the London Borough of Harrow upon the applicants and H., a letter from the British Consulte General who has interviewed H.'s mother and given some indication of her present circumstances in Karachi, a letter from H.'s father in Lahore, and a report of a representative of the Official Solicitor of an interview of H.'s grandparents in Birmingham.

The Official Solicitor's report is not, of course, binding upon this court, but supplied as it is pursuant to the duty to do so imposed by the Act and Rules, this court is not only entitled to but is bound to have regard to its findings and recommendations. This case therefore demonstrates in acute form the conflict or even collision which can occur and seems bound to occur from time to time between immigration policy and procedures and adoption law and procedures; for as Mr. Brown, who appears on behalf of the Secretary of State, properly concedes, this court clearly has jurisdiction to consider the adoption application and to make an adoption order notwithstanding the adverse decision in the immigration proceedings under the Immigration Act 1971. In exercise of this jurisdiction, this court has to have regard to the provisions of section 3 of the Children Act 1975 which provides:

"In reaching any decision relating to the adoption of a child, a court... 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 a child regarding the decision and give due consideration to them, having regard to his age and understanding."

On the other hand, the Secretary of State for his part is responsible for immigration control and is answerable to Parliament in that respect. With regard to this responsibility, Mr. Brown submits that it has two aspects: one, the formulation of policy as to the circumstances in which immigration rights and status can properly be conferred by adopters; and two, the responsibility of determining the facts relevant to the application of the policy.

Mr. Brown has, in support of this, referred me to a number of authorities and to the provisions of the Immigration Act 1971 and the rules made under it. Two of the authorities are decisions in adoption proceedings in the Chancery Division: In re A. (An Infant) [1963] 1 W.L.R. 231 and In re R. (Adoption) [1967] 1 W.L.R. 34. In the former case, Cross J. refused to make an adoption order in respect of a French boy aged 20. He found as a fact that the reason why the applicants in that case wished to adopt him and why he wished to be adopted by them was not that they should become his parents in the true sense of the word but that he should acquire British nationality. Cross J. pointed out that the benefit to the boy would flow from the fact that he was being adopted, not from the fact that he was being adopted by particular adopters, and he found that the adoption would be an "accommodation adoption" and he said it was not difficult to envisage cases in which such adoption would be open to objection on the ground of public policy. The basic objection that Cross J. felt to the application was that the applicants were not really in loco parentis to the boy.

In the latter case, In re R. [1967] 1 W.L.R. 34 the subject of the adoption application was a 20-year old refugee from a totalitarian country. Buckley J. found that the minor's parents in the country in question were indifferent to their son's intention to leave them and the country, and kept up no communication with him, and he further found that the applicant was now fully in loco parentis to the minor and that the benefit which adoption, if permitted, would confer upon the minor would not be confined to British nationality. It would give him the social and psychological benefits of truly belonging to a family, as a member of it, with the attendant legal status and rights. Buckley J. concluded, at p. 41:

"I have, of course, given very careful consideration to the public policy aspect of the matter mentioned by Cross J. in In re A. (An Infant) [1963] 1 W.L.R. 231. This aspect, I think, makes it incumbent on the court to be particularly circumspect in exercising the jurisdiction under the Act when the infant proposed to be adopted is of foreign nationality and, more particularly, when he or she is no longer a young child but is approaching his or her majority. It does not, in my judgment, have the result that the court cannot, or ought not to, exercise the jurisdiction in such a case on the ground that it may thereby usurp the functions of the Home Secretary in relation to naturalisation. I am told that in the present case R.'s circumstances have been carefully and fully investigated by the appropriate government department or departments and that no objection on grounds of security or otherwise have been found to R.'s acquiring British nationality, but no evidence of this has been filed. In these circumstances, I am prepared to make the order asked for, but subject to a certificate being obtained and signed by an appropriate official of the Home Office, or subject to other satisfactory evidence being produced to the court, to the effect that there are no considerations of security or otherwise which ought, in the view of the Home Secretary, or of some official in his department authorised to deal with such matters, to be brought to the attention of the court before the order is permitted to become effective. If no such certificate or evidence is forthcoming the case must be mentioned to me again in chambers, and it will be for the applicant or the applicant's advisers to obtain the necessary certificate or evidence. The order will be conditional upon such evidence being produced."

Both In re A. [1963] 1 W.L.R. 231 and In re R. [1967] 1 W.L.R. 34 were, of course, decided before the Immigration Act 1971 and are not therefore directly applicable. Mr. Brown then referred me to the relevant provisions of the Immigration Act 1971 and the rules made under it. Leave to enter the United Kingdom is for initial decision by the immigration officer.Extension of stay after limited leave to enter is for decision by the Secretary of State. Part II of the Immigration Act 1971 makes comprehensive provision for appeals, to an adjudicator and then to the Immigration Appeals Tribunal. These are appeals on fact as well as law and enable a review of the Secretary of State's discretion. By rule 29 of the Immigration Appeals (Procedure) Rules 1972 the appellate authority is empowered to receive evidence relevant to the appeal notwithstanding that it would be inadmissible in a court of law. In the Statement of Immigration Rules for Control of Entry: E.E.C. and other Non-Commonwealth Nationals (H.C. 81) by rule 38 it is provided that children are to be admitted for settlement under certain conditions relating to their parents, and it is provided that in that rule "parent" includes an adoptive parent but only where there has been a genuine transfer of parental responsibility on the ground of the original parent's inability to care for the child, and the adoption is not one of convenience arranged to facilitate the child's admission. (This is the same as the current rule, rule 48 of the Statement of Changes in Immigration Rules (H.C. 394).

Mr. Brown referred me to two other reported cases. The first was In re Mohamed Arif (An Infant) [1968] Ch. 643 where the issue of an originating summons in wardship proceedings was used in an attempt to obtain a fresh hearing and decision as to whether an applicant for admission under the Commonwealth Immigrants Act 1962 was indeed the son of the plaintiffs in the wardship proceedings. Lord Denning M.R. said, at p. 660:

"Meanwhile, it is said, he cannot be removed from the jurisdiction without the leave of the court because no ward can be removed from the jurisdiction without leave.In answer to this argument, two points are taken. First, it is said that once a child has been ordered to be removed, there is no jurisdiction to make him a ward of court. I do not think it necessary to determine that point. I can well see that there may be exceptional cases where such a jurisdiction may be desirable. Second, it is said that at any rate, even if there is jurisdiction it ought not to be exercised in cases like the present one. I think that this second submission is correct. It seems to me that in the Commonwealth Immigrants Act 1962, Parliament laid down a full and complete code to govern the entry or removal of immigrants from the Commonwealth and has entrusted the administration of it to the immigration officers. So much so that the courts ought not to interfere with their decisions save in the most exceptional circumstances."

He then referred to the case of a Pakistani boy and concludes on this aspect, at p. 661:

"So long as [the immigration officers] exercise it honestly and fairly, the courts cannot and should not interfere. They will not issue a writ of habeas corpus or certiorari so as to review the decisions of the immigration officers. Nor will they allow the wardship jurisdiction to be used for a like purpose."

But, Mr. Brown concedes, this decision relating to wardship proceedings as it does has no direct application because the legislation relevant to the present case expressly envisages that a United Kingdom adoption order can be made to defeat, as it were, the normal procedure of immigration control.

The second case, Reg. v. Secretary of State for the Home Department, Ex parte Zamir [1980] A.C. 930, was a case of illegal entry by deception, where the decision of the immigration officer and of the Secretary of State was sought to be challenged by an application for an order of judicial review -- involving a different consideration, of course, from the considerations in this case. It was held -- and I read from part of the headnote, at p. 931:

"the decision of the Secretary of State to remove the appellant, and the appellant's consequent detention, could only be attacked if it could be shown that there had been no grounds on which the Secretary of State, through his officers, could have acted, or that no reasonable person could have decided as he had done."

I was referred to this authority by Mr. Brown for the passage in Lord Wilberforce's speech where he said, at p. 949:

"The immigration officer, whether at the stage of entry or at that of removal, has to consider a complex of statutory rules and nonstatutory guidelines. He has to act upon documentary evidence and such other evidence as inquiries may provide. Often there will be documents whose genuineness is doubtful, statements which cannot be verified, misunderstandings as to what was said, practices and attitudes in a foreign state which have to be estimated. There is room for appreciation, even for discretion."

But again, this decision is not binding in relation to the issues in this case.

In the light of these statutory provisions and the authorities, Mr. Brown submits that while, under section 3 of the Children Act 1975, welfare is the first consideration, it is not the first and paramount consideration as it is in wardship and guardianship proceedings, and that this distinction is reflected in In re A. [1963] 1 W.L.R. 231 and In re R. [1967] 1 W.L.R. 34 and further, that In re A. and In re R. show that general policy considerations can outweigh benefit to the minor. In re A. and In re R. were decided before the enactment of section 3 of the Children Act 1975. In their time, welfare was not given by statute in adoption proceedings the same prominence as is given to it by section 3 of the Act of 1975. Section 7 of the Adoption Act 1958 was the then relevant section, and in that section welfare was placed second of the three matters in respect of which the court had to be satisfied before making an adoption order. The first was that the consents of those whose consent was necessary had been obtained; the second was that the order, if made, would be for the welfare of the infant; and the third was that the applicant had not received or any other person made or given or agreed to make or give the applicant any payment or reward in consideration of the adoption; and under subsection (2) it provides that in determining whether an adoption order, if made, will be for the welfare of the infant, the court shall have regard (amongst other things) to the health of the applicant.

In In Re A. (An Infant) [1963] 1 W.L.R. 231, 234 Cross J. referred to section 7 (1) of the Act of 1958 of which he said:

"Section 7 (1) prescribes certain matters of which the court must be satisfied before it makes an order. The first by paragraph (a) is that the necessary consents have been given. As I have said, no question arises on that hand in this case. The second matter under paragraph (b) is that the order, if made, will be for the welfare of the infant. The word 'welfare' might perhaps be thought to point rather to the physical or moral well-being of the infant than to such a benefit as he will secure here if the order is made. But in the light of In re D. (An Infant) [1959] 1 Q.B. 229 to which I shall be referring in a moment, I think that 'welfare' means simply 'benefit,' and, as I have said, I am satisfied that it will be for the benefit of this young man that I should make the order."

Then he refers to the third requisite.

Rule 38 of H.C. 81 is relevant, Mr. Brown submits, for it is clearly designed to limit the type of adoption order that will give the same standing to a child abroad as a natural child, and this rule seems to be reflected in the Secretary of State's revised decision in this case.This rule, he submits, should or can be used by the Secretary of State as a guide to the policy desired by Parliament, and should be applied by analogy a fortiori to a United Kingdom adoption case where an adoption order has not yet been made. So, Mr. Brown submits, only in the most exceptional cases should this court be prepared to sanction the adoption process in circumstances which do not accord with the basic requirement of rule 38, which is, he submits, that the natural parents should be unable to care for their child, and otherwise the policy in relation to conferment of patriality by adoption is a matter which should be left in the province of the Secretary of State.

The second aspect of the Secretary of State's responsibility, the determination of the facts relevant to the application of the policy, involves a submission that this court should not "re-hear" evidence already considered and pronounced upon in the immigration proceedings, which are proceedings conducted in accordance with a comprehensive code laid down in the Immigration Act 1971 and its rules -- and reliance is placed upon the passages in the judgments in In re Mohamed Arif [1968] Ch. 643 and Reg. v. Secretary of State for the Home Department, Ex parte Zamir [1980] A.C. 930 to which I have referred. Mr. Brown does not suggest that there is any form of estoppel, but he does submit and point out that it is undesirable that there should be a parallel system of adjudication, and also that it would in most cases be quite impracticable for the Secretary of State to enter into adoption proceedings and play a full role in them.

Submitting, therefore, that I should at least take into account the actual decision and the policy considerations which informed it and the findings of primary fact underlying the decision, though conceding that they should not be regarded as conclusive, Mr. Brown did not call any evidence on behalf of the Home Office, nor did he cross-examine the evidence of the applicants, and H., which I allowed to be given (at least as to part) de bene esse pending my final decision.

Before considering these submissions and their implications I must here interpose to refer to and consider a different but related submission which has been made by Mr. Mostyn on behalf of the applicants. This was that I should take quite the opposite view and pay no regard at all to the decision of the Secretary of State and the adjudicator on the ground that it was a decision in proceedings between different parties, on the principle res inter alios acta alteri nocere non debet and relies upon the well-known decision in Hollington v. Hewthorn & Co. Ltd. [1943] K.B. 587 as developed in Phipson on Evidence 12th ed. (1976), paras. 1379 to 1385.

Adoption proceedings are however sui generis and are in substance, if not in form, non-adversarial in conception.The minor is represented by his guardian ad litem, who is enjoined by the rules to make specific, detailed, inquiries and to file a confidential report. This report is rarely revealed, at least in its totality, to the applicants or others who may be making representations. The court relies upon the report of the guardian ad litem and on reports obtained by him. I have referred to the reports filed in the present case.Much of the evidence thereby presented to the court is hearsay. When welfare considerations apply, where the welfare of the minor is paramount as in guardianship or wardship cases, or a first consideration as in adoption proceedings, the very welfare of the minor dictates that regard must be had to every matter which bears upon a possible risk or benefit to the child: and see the decision of the House of Lords, In re K. (Infants) [1965] A.C. 201, which concerned wardship proceedings. I can see no reason for making a distinction between reports supplied pursuant to the adoption order and reports originating in any other way, and plainly a decision after investigation by the Secretary of State carrying out his duties under the Immigration Act 1971 must be able to be received by this court and given due weight and consideration. Further, by section 3 this court is enjoined to take into account "all the circumstances of the case."

To return to Mr. Brown's submissions: he urges therefore that for this court, save in most exceptional cases, to reopen matters otherwise finally decided in the immigration proceedings is plainly contrary to the spirit and policy of the Immigration Act 1971 as laid down by Parliament. The policy with regard to immigration, and especially national security, are indeed matters to do with the Minister and not directly with this court. He has further argued that it is at least established by, in particular, In re A. [1963] 1 W.L.R. 231 and In re R. [1967] 1 W.L.R. 34, that a minimum requirement for an adoption order is that the applicant should stand in loco parentis to the minor. I am not sure that it is right to infer from the judgments in In re A. and In re R. that being in loco parentis is a minimum requirement in general for an adoption order -- though it was a statutory prerequisite under the Adoption Act 1958 on which both cases were decided that the minor must have been in the care and possession (that is the equivalent of "actual custody" under the present law) of the applicants for a certain period. Cross J. in the earlier case made reference to "in loco parentis" in relation to that requirement and not in regard to the wider aspect. But if the applicants are indeed in loco parentis to the minor, that is of course a most material factor to be put in the scales in favour of adoption.

Plainly, in circumstances such as these, the adoption process is open to abuse -- not merely in the form of "accommodation adoptions" but also even where there is a genuine transfer of parental responsibility where it is effected primarily to obtain the crucial advantage of nationality or patriality, as Mr. Brown submitted. This court must be on its guard particularly where, as here, not only is the minor a foreign national but he is approaching his majority. These are substantial and cogent considerations which must be taken into account with due regard however to the requirements of section 3 of the Act of 1975. The immigration authorities and the Secretary of State are in no way enjoined to have regard themselves to the welfare as such of the applicant to enter, although as one knows great regard is paid in practice to considerations of humanity so far as is consistent with policy.

In In re D. (An Infant) (Adoption: Parent's Consent) [1977] A.C. 602, Lord Simon of Glaisdale, referring to section 3 of the Children Act 1975, said, at p. 638:

"In adoption proceedings the welfare of the child is not the paramount consideration (i.e. outweighing all others) as with custody or guardianship; but it is the first consideration (i.e. outweighing any other) --..."

Plainly, this court cannot and must not abdicate the responsibility which has been thus laid upon it. Equally, it must pay regard to the decisions and reasons of the Minister upon whom Parliament has laid the responsibility of controlling entry into this country. It must however do so without being restricted as to the evidence it hears or the information it relies on. While it should before pay such regard as it thinks proper in the light of these considerations to the decisions and reasons of the Secretary of State and the appellate authorities in the immigration proceedings, it is nevertheless at the end of the day not bound by those decisions or reasons. I first rule therefore that this court may hear and act upon evidence given by the applicants and H., including evidence which has already been considered in the immigration proceedings.

What then should the approach of this court be in applications of this nature? Clearly, it must pay great regard to the "immigration decision" and in particular considerations of public policy and, where relevant, national security. It must be on its guard against the possibility of abuse; but the mere fact that nationality or patriality would result is not conclusive. It must treat welfare as the first consideration, outweighing any one other factor but not all factors. If the court considers on the evidence and information before it that the true motive of the application is based upon the desire to achieve nationality and the right of abode rather than the general welfare of the minor then an adoption order should not be made. If on the other hand part of the motive -- or it may be at least as much -- is to achieve real emotional or psychological, social and legal benefit (section 19 apart) of adoption, then an adoption order may be proper, notwithstanding that this has the effect of overriding an immigration decision or even an immigration rule. In every case it is a matter of balancing welfare against public policy, and the wider the implications of the public policy aspect the less weight may be attached to the aspect of the welfare of the particular individual.

I seek now to apply these considerations to the circumstances of the present application. First, it is plain that there was deception practised by or on behalf of H. at least when the application was made for the extension of his stay. Reasons were given which were false, for at that stage an adoption was being considered. Secondly, having heard Dr. N. and his wife give evidence, I can say that they have satisfied me that they have a genuine wish for H.'s own sake to keep him as a member of their family, and I am sure, supported as this is by the Official Solicitor, that they are now in loco parentis to H. Thirdly, notwithstanding the decision and reasons in particular of the adjudicator in the immigration proceedings, I believe H. in his account of what happened to him in Pakistan. That is, that he has indeed been rejected by his family, confirmed as this is by the Official Solicitor's inquiries so far as they have been able to go. I have examined the reasons, particularly of the adjudicator, for finding this application to be in effect bogus. Broadly, they are that the grandparents' application to enter in 1976 had contained a serious misrepresentation of fact, namely, the omission of the names of certain relatives from their family tree; and also the omission of the name of the applicant who had been living with them until they left for England. Dr. N. told me, as he told the interviewing officer, that he had told his parents that there was no point in mentioning H. as there was no evidence to prove he was a member of their family, and there was in any event no intention then that he should come to England. If anything this may seem to confirm that something happened since the grandparents left to make H. wish to come to the United Kingdom. The adjudicator gave as another reason that Dr. N. himself had given false information to the Secretary of State concerning his wife when he had applied for British nationality. No evidence of this is referred to, nor are there any other details, and it is the fact that Dr. and Mrs. N. have since then been granted United Kingdom citizenship by naturalisation.

For my part, I considered Dr. N. to be truthful and genuine, although of course he was not subjected to cross-examination on behalf of the Secretary of State, and such questions as I asked him would not be as searching no doubt as such questioning would have been. I have little doubt on the evidence --

which is supported by the investigations on behalf of the Official Solicitor and not contradicted by direct evidence -- not only that H. is now and has been for 3 1/2 years a de facto member of the applicants' family, but also that he has indeed been rejected by his family in Pakistan. I also believe that if he were returned to Pakistan he would have no home to go to and no means of earning his living. The other relations who might have been thought willing to take him in have been considered and convincing reasons given which satisfy me that they are all for one reason or another unable to do so. He is of course going to be 18 next November. His welfare needs to be safeguarded and promoted in the words of section 3 "throughout his childhood." It would however be harsh, if not illogical after this lapse of time, to reject the application on the ground that so little of his childhood remains. In neither In re A. [1963] 1 W.L.R. 231 nor In re R. [1967] 1 W.L.R. 34 was this factor treated as decisive.

Immigration policy apart, I am satisfied that having regard to all the other circumstances, and having regard to H.'s welfare, an adoption order should be made. This means, inter alia, that having heard and seen Dr. N. and H. and considered all the material before me, I am satisfied that contrary to the findings on behalf of the Secretary of State, there has been a genuine transfer of parental responsibility and that it is not an adoption application of convenience. I do however find that there was at least deception in the application for leave to extend H.'s stay, and probably too in regard to the initial application to enter. The refusal of the Secretary of State was not based only upon the fact that deception as to the purpose of entry was practised, but the fact that deception was practised is clearly relevant to the policy decision as to whether or not to admit, even given that there are otherwise valid grounds for giving leave to enter. Deception ought to be seen not to be tolerated, and when leave to enter is a matter of discretion, deception of itself may be a proper ground for refusal to exercise the discretion in favour of granting leave or granting an extension. But in an adoption application, it must be put in the scales and weighed against the welfare considerations which have first consideration. In the present case, in the particular circumstances, in my judgment welfare considerations must prevail, and an adoption order made.

In conclusion, I wish to stress that this application illustrates the importance where a foreign national is concerned of notice being given to the Secretary of State pursuant to rule 18 (j) of the Adoption (High Court) Rules 1976 and rule 4 (3) of the Adoption (County Court) Rules 1976 so that in every such case -- as was indeed done in this case -- the Secretary of State is given the opportunity of intervening if he wishes, especially so as to ensure that considerations of national security are not overlooked. This is what Buckley J. made provision for at the conclusion of his judgment in In re R. [1967] 1 W.L.R. 34.Perhaps consideration should be given to making an amendment to the rules to cover this aspect specifically.

For these reasons, I grant the adoption order and I further order that in accordance with section 21 (1) of the Adoption Act 1958 H.'s name be entered in the Adopted Children Register together with his date and country of birth as set out in the Official Solicitor's report.

DISPOSITION:

Order accordingly.

SOLICITORS:

Peter Conway & Co., Wealdstone; Official Solicitor; Treasury Solicitor.

Copyright notice: Crown Copyright

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