A British woman (“T”) living and working in Egypt with her Egyptian husband (“K”) sought to “adopt” a young Egyptian girl (“Z”) who had been abandoned at birth by her unidentified parents and placed in an orphanage. T spoke no Arabic and accordingly trusted K to process the necessary paperwork for Z’s adoption and in late 2011, before Z’s first birthday, she moved to live with them in their home. By April 2013 T and K had been formally recognised and entrusted with the “full and permanent raising” of Z. T and K obtained permission from the Egyptian authorities to travel to the United Kingdom with Z from 1 July 2013 to 1 January 2014 and T obtained permission from the Home Office for Z to enter the UK as a visitor for the same period. Shortly after T’s arrival in the UK with Z on 1 July 2013 there was a coup d’état in Egypt and T later concluded that she did not wish to return to Egypt due to the general unrest present there and the rapid decline in tourism, on which her business had been based. T issued an adoption application on 25 November 2013, having obtained K’s written permission to her remaining in England and securing an English adoption order in respect of Z, whom he referred to as their “adopted daughter”. In the course of the litigation it transpired that adoption was a concept not recognised under Egyptian law and that any child placed with a family remained under the auspices and monitoring of the Egyptian Ministry of Social Affairs under an arrangement akin to long term foster-care. The relevant local Foster Care Committee in Egypt continued, under Egyptian law, to have authority to act as Z’s legal guardian and the exercise of such authority by T and K was only under the agreed delegation of those powers. Failure to return Z from her approved visit to the UK represented a breach of that agreement and of Egyptian law for which T and K could be prosecuted. An adoption order in the UK would not be recognised by Egypt and would constitute a serious breach of trust by the adopting parent. Some two years into the protracted proceedings the relevant Egyptian ministry, which opposed the adoption application and sought Z’s return under unspecified foster arrangements, was formally joined as a party. K, under the apparent threat of prosecution, and following the breakdown of his relationship with T, also now argued that Z should be returned to Egypt, with or without T. In circumstances where Z had been habitually resident in England for a number of years and was doing very well under the care of T, the only stable parental figure she had known, and with no argument as to jurisdiction, the court was required to consider whether it should make an adoption order in T’s favour.
On the adoption application—
Held, application granted. (1) By virtue of section 144 of the Adoption and Children Act 2002 the relevant Egyptian ministry did not fall within the proper definition of Z’s “guardian” and the court was not therefore required to dispense with the ministry’s consent to an adoption order being made as would otherwise have been necessary in accordance with section 52 of the 2002 Act (paras, 103–106).
(2) When considering a care order with a plan for adoption a “global, holistic evaluation” was required where each care option was evaluated to the degree of detail necessary to weigh its own internal positives and negatives before its comparison, side by side, with competing options. In the present case of some sophistication and complexity all relevant factors were part of the balancing exercise; it was the child’s welfare that was the paramount concern and no singular aspect of her life or particular factor took precedence over her welfare as a whole. When conducting the required holistic evaluation it was apparent that, as argued by the Egyptian authorities, Z would suffer a degree of long term harm were she to be prevented from returning to the country of her birth but that nebulous (and to a young child incomprehensible) risk that her background, ethnicity and cultural, religious and national heritage would be compromised was but one factor to be considered within the balancing exercise and required weighting against opposing factors such as the harm to her emotional and psychological welfare were she to be returned to Egypt and separated from T. Accordingly, in all the circumstances, where there were no safeguarding concerns (save the long term nebulous issues relied on by the Egyptian authorities) for Z within her current positive placement with T, where removal from T would have an extremely detrimental impact upon Z’s welfare, where return to Egypt carried with it the probable likelihood of female genital mutilation, and where alternative options put forward by K and the Egyptian authorities raised further important issues for Z’s welfare which had not been adequately addressed, it was in Z’s best interests to remain in England and become the adopted child of T (paras, 113–115, 128–132, 136, 139–147, 149, 152–153, 156).
In re B-S (Children) [2014] 1 WLR 563, CA applied.
Frances Heaton QC and Kate Burnell (instructed by Morecrofts Solicitors, Liverpool) for T.
K in person.
Karl Rowley QC (instructed by Susan Howarth & Co Solicitors, Northwich) for Z.
Clive Baker (instructed by Solicitor, Liverpool City Council) for the local authority.
Henry Setright QC and Michael Gration (instructed by Bindmans LLP) for the Egyptian authority.