The interpretation of the laws that apply when a child is to be adopted by prospective adopters who live in a foreign country remains unclear, following two recent rulings.

In the first case, the parents of a girl agreed that adoption was the desired solution but the mother did not want the child to be adopted outside the UK. The proposed parents were the father’s sister and her husband, who lived in the USA. They resided in the UK temporarily, in order to satisfy the requirements of the Adoption and Children Act 2002 (ACA), which dictates the determination of parental responsibility prior to adoption abroad.

The father of the child was happy for the adoption to go ahead but the mother was not. She claimed that during the ten week period the prospective adopters were caring for the child, only the sister had been present the entire time and so the statutory requirements had not been satisfied. The judge rejected this argument, saying the husband had been there for a substantial enough period of time.

The child’s mother also claimed that pursuant to Regulation 10 of the Adoptions With a Foreign Element Regulations 2005, the couple had not satisfied the requirement to obtain confirmation in writing, from the relevant foreign authority, that the child is or will be authorised to enter and reside in that country. The issue arose because the United States Embassy in London was not prepared to grant the child a visa until the adopters could produce the order showing that they had exclusive parental responsibility. They were unable to obtain such an order until such time as they could demonstrate to the English courts that they would be able to reside with the child in the USA.

The judge concluded that it did not need to be a governmental body that said that the child would be able to reside in the USA. The equivalent of an English adoption agency would suffice. He gave the prospective adopters 28 days to ascertain from the American Adoption Agency whether it was likely that the child would be authorised to enter and reside permanently in the USA.

In the second case, a child was also to be adopted by a family member who lived in the USA. The issue arising here was that for some part of the requisite period of determination of parental responsibility, the child had been staying with the prospective adopters in America. This would seem to have been in contravention of statutory requirements as it is an offence to remove a child from England or Wales, for the purposes of adoption, without a court order. Haringey London Borough Council was seeking to obtain such an order to legitimise the removal of the child from the UK, making the foreign residence period ‘count’ for the court proceedings.

The judge saw no reason why ‘home’ for the purposes of the ACA had to be in England or Wales. He was not, however, prepared to grant an order going against the intentions expressed by Parliament. He therefore gave leave to appeal to the Court of Appeal for it to rule on this point of law.

The ruling of the Court of Appeal in the second case will affect the ease with which adoptions such as these can go ahead. As the law stands at the moment, it is difficult for those who live abroad to adopt a UK based child as they are required to leave their country, home and work in order to satisfy the requirement for a lengthy period of residence in the UK prior to adoption.