A young girl, a British national habitually resident in England and Wales, was orphaned when her adoptive mother died and, in accordance with the mother’s wishes, the mother’s brother (“the applicant”) and her cousin (“W”) were appointed joint guardians with parental responsibility under section 5 of the Children Act 1989. The applicant was an American citizen habitually resident in the United States of America and ultimately wished to care for the child there. Some years later, and with W’s agreement, the applicant started the process for an adoption order under the 1993 Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption. No concerns were raised regarding his ability to care for the child but the issues arose: (a) whether, for the purposes of article 4 of the Convention, the applicant could provide valid consent to his own adoption application; and (b) whether by remaining a testamentary guardian he might risk not meeting the requirements under article 17 of the Convention that the child should not be “entrusted to prospective adoptive parents” until the requirements under article 17 were met. In an attempt to address those issues the applicant applied to the court pursuant to section 6(7) of the 1989 Act to revoke the testamentary guardianship order and, if the application was granted, for the child to be made a ward of court to ensure that there was an entity to make decisions about her pending the adoption order being made.
On the application to revoke the testamentary guardianship order—
Held, application refused. (1) “Entrustment” for the purposes of article 17 of the Convention had a broader meaning than giving or entrusting day to day care to potential adopters for the purpose of an assessment and applied to parental responsibility granted or acquired with a view to adoption, so that permitting a prospective adopter to care for a child would not offend against article 17 without a change in legal status. A “prospective adoptive parent” was a person who initiated the adoptive process in accordance with the Convention, namely an individual requesting an assessment pursuant to article 15. That could include someone who might, during the process initiated by them, have been considered ineligible or unsuitable to adopt. Therefore, in the present case, the granting of the historical testamentary guardianship order, at a time when the immediate need for the family was to provide a structure for the child’s care, did not offend against article 17 of the Convention as it was not made at a time when the applicant was a “prospective adoptive parent” (paras 25, 32, 33, 63, 64–67).
(2) The Convention left it to the domestic law of the state of origin to determine what, if any, consents were necessary. If this were a domestic adoption the consent of the applicant and W would still be required under section 47 of the Adoption and Children Act 2002 and, subject to the usual safeguards (such as ensuring consent was given freely and, where required, in writing), it would not be considered invalid by virtue of the fact one, or both of them, were making the adoption application. The Convention contained safeguards (such as those in article 4) and there was nothing therein that undermined the validity of the consents to adoption which had been given by the applicant and W. The suitability assessment of the applicant had been entirely positive and no information had come to the attention of the assessor which suggested any taint to the consent being given. In those circumstances, the applicant’s consent was valid under both domestic law and the Convention, and there also remained additional safeguards under the Convention. Accordingly, there was no basis for revoking the testamentary guardianship order under section 6(7) of the 1989 Act and both the applicant and W were to retain parental responsibility for the child until any adoption order was made (paras 53, 55, 56, 58, 60, 68).
Kathryn Cronin and Tom Wilson (instructed by Goodman Ray Solicitors) for the prospective adopter.
W did not appear and was not represented.