Following on from Donald Galbraith’s informative video about Adoption, Sally Wilkes has a closer look at the recent case law concerning Adoption and European Law.
There has recently been a sharp rise in care proceedings relating to children who are nationals of other European countries.
A number of European countries have been expressing increasing concerns about the way that adoption without agreement of the parents is dealt with in England and Wales when the matter concerns nationals of other countries. This has been acutely highlighted in relation to mother’s who have been trafficked to the UK and whose children are then placed for adoption without their consent.
The concerns expressed by the countries surround a lack of communication and transparency on the part of England and Wales. The foreign authorities feel they should be kept informed and consulted with when a child who is a national of their country, but is habitually resident in England and Wales, is being adopted without the consent of the parents, or indeed involved in any care proceedings.
In a recent case, concerning a 6 year old Latvian national, the Latvian Parliament took the unusual step of making a formal complaint to the House of Commons, stating that Latvian children are being forcibly adopted by British families. The Latvian authorities complained that the UK authorities had not given consideration with the possibility of involving their Latvian counter-parts and had not fulfilled their obligations under EU Legislation. The Latvian authorities were invited to give evidence at the hearing of the Mother’s appeal.
The President of the Family Division, Sir James Munby gave judgment on the Mother’s appeal on 6 August 2015 - CB (A Child)  EWCA Civ 888. He dismissed the appeal but expressed that he was acutely aware of the concerns [para 80] and re-iterated helpful “lessons” for public law proceedings involving European nationals. He stated that [para 84]:
“We must do everything in our power to ensure that our processes are not subject to justifiable criticisms. This means ensuring that:
i) local authorities and the courts must be appropriately pro-active in bringing to the attention of the relevant consular authorities at the earliest possible opportunity the fact that care proceedings involving foreign nationals are on foot or in contemplation;
ii) the court must, whether or not any of the parties have raised the point, consider at the outset of the proceedings whether the case is one for a transfer in accordance with Article 15 of BIIA:…
iii) if there is no transfer in accordance with Article 15, the court, if the local authority's plan is for adoption, must rigorously apply the principle that adoption is 'the last resort' and only permissible 'if nothing else will do' and in doing so must make sure that its process is appropriately rigorous: …
iv) in particular, the court must adopt, and ensure that guardians adopt, an appropriately rigorous approach to the consideration of the 'welfare checklist' in section 1(4) of the 2002 Act, in particular to those parts of the checklist which focus attention, explicitly or implicitly, on the child's national, cultural, linguistic, ethnic and religious background and which, in the context of such factors, demand consideration of the likely effect on the child throughout her life of having ceased to be a member of her original family.”
It is hoped the re-iteration of these lessons by Sir James Munby will assist family practitioners to more carefully consider their obligations in and approach towards care and placement proceedings concerning European nationals.
Sally Wilkes, Trainee Solicitor
Posted on Wednesday, 16th September 2015