Court of Appeal responds to criticism from Europe over ‘forced adoptions’

Articles | Tue 6th Oct, 2015

Re CB (A Child) [2015] EWCA Civ 888

This case concerned a little girl, CB, who was born in April 2008. CB and her mother, LB, are both Latvian citizens although CB was born in England and has been habitually resident here since. Following an incident in March 2010 when CB was found in appalling conditions at home, she was placed in foster care and proceedings were issued. In July 2012 District Judge McPhee made care and placement orders. The DJ found that CB had been subjected to significant physical and emotional neglect and had suffered significant harm whilst in the care of LB.

Following an unsuccessful appeal by LB, CB was placed with prospective adopters in May 2013. Her last contact with LB was in March 2013. In July 2014 the prospective adopters issued their application to adopt CB. The mother made three applications in response: 1) to transfer proceedings to Latvia under Article 15 of Council Regulation (EC) No. 2201/2001 (commonly known as Brussels Revised or “BIIR”), 2) for leave to oppose the making of an adoption order under section 47(5) of the Adoption and Children Act 2002 (“the 2002 Act”) and 3) for direct contact with CB.

The Mother’s applications came before Moylan J in December 2014: Re B, London Borough of Merton v LB [2014] EWHC 4532 (Fam). He found that the Article 15 application had to fail because BIIR does not apply to adoption proceedings. The wording in Article 1(3)(b) is very clear on that:  “3. This Regulation shall not apply to:… b) decisions on adoption, measures preparatory to adoption or the annulment or revocation of adoption”. In respect of the application for leave to oppose, he found that the application failed at the first hurdle, i.e. there had been no change of circumstances since the conclusion of the care proceedings. He added that if he was wrong on that, he refused the application on welfare grounds. Contact was also refused on the basis that to reintroduce contact would have a significant and disruptive effect on CB and be likely to undermine the adoptive placement.  

The mother then appealed on four grounds:

1. Change of circumstances: the mother’s case was that the main change was the involvement of the Republic of Latvia who were by that point joined as an intervener. The mother’s appeal was supported by the Latvian authorities, who proposed that CB should be returned to Latvia so that her needs could be assessed and her future determined by the appropriate Latvian authorities.
2. An error of law: in particular the judge’s failure to properly examine the relationship between her applications under Article 15 BIIR and section 47(5) of the 2002 Act (the argument being that an application under 47(5) was freestanding, was not part of the adoption proceedings and was therefore not exempt from Article 15) and his conclusion that Article 15 did not apply;
3. Absence of up-dating information: the mother contended that the failure to commission a fresh assessment was a breach of her Article 6 and Article 8 rights; and
4. As most countries in Europe do not have a policy of ‘forced adoption’, England is so far out of step by allowing non-consensual adoption that it needs to bring itself into line. There were also criticisms of the way the local authority had conducted the proceedings and their failure to inform the Latvian authorities pursuant to the Vienna Convention on Consular Relations 1963.

Permission to appeal was granted, not on the basis of prospects of success but under the ‘some other compelling reason’ provision and in all likelihood only because of the intervention of the Latvian authorities. Indeed it was around this time that the Saeima of the Republic of Latvia wrote directly to the Speaker of the House of Commons about this case, criticising ‘forced adoption’ and the alleged failure of the UK to ensure other EU countries were being informed of such decisions. That letter gained press coverage in legal blogs and in the national press (see here for example).

The Court of Appeal (judgment given by Sir James Munby President of the Family Division) agreed entirely with the reasoning and decision of Moylan J and accordingly dismissed the mother’s appeal on all grounds. They confirmed that an application under 47(5) of the 2002 Act is “a measure preparatory to adoption” within the meaning of Article 1(3)(b) and so Article 15 is not applicable.

When considering the mother’s arguments on ‘change of circumstances’, the President found that actually there had been very little change in mother’s position since the conclusion of the proceedings. The mere fact that the Latvian authorities were prepared to intervene and carry out assessments in Latvia did not amount to a change of circumstances in itself. Also, the mother had been given an opportunity to provide the court with any information she wanted it to consider when making her application for leave and so there was no basis for her complaint about lack of up-dating information.

In response to the general criticism of ‘forced adoption’, the President made two important points:

1. “The fact that the law in this country permits adoption in circumstances where it would not be permitted in many European countries is neither here nor there” (quoting himself in Re R (A Child) [2014] EWCA Civ); and
2. “Whatever the concerns that are expressed elsewhere in Europe, there can be no suggestion that…the domestic law of England and Wales is incompatible with the United Kingdom’s international obligations or, specifically, with its obligations under the European Convention for the Protection of Human Rights and Fundamental Freedoms”.

The key part of this judgment for all those working in this area of law, is the reminder from the President as to what constitutes good practice in cases concerning foreign nationals and the re-iteration of the principles set out in Re E (A Child) (Care Proceedings: European Dimension) Practice Note [2014] EWHC 6 (Fam). In particular:

• The relevant authorities in England and Wales must be understanding of the concerns of our EU neighbours and do everything in their power to ensure that the processes in place are not subject to justifiable criticism;
• “There must be transparency and openness as between the English family courts and the consular and other authorities of the relevant foreign state”;
• The Court should accede to any request for an accredited consular official to observe the proceedings and obtain transcripts, orders and other relevant documents;
• Whenever a foreign national is represented by a Guardian it must be brought to the attention of the relevant consular officials.

Sarah Hunwick