The interrelationship between adoption in England and Wales, and Scotland

The interrelationship between adoption in England and Wales, and Scotland

In Re E (Scottish Adopters: English Adoption Proceedings) [2019] EWFC 9, Cobb J was concerned (at a case management hearing) with a preliminary question for determination – namely whether an adoption application in respect of a child placed for adoption in Scotland with Scottish adopters can be determined in England. The application for adoption was made under section 50 of the Adoption and Children Act 2002 (ACA 2002).

In reaching his conclusion that, in the circumstances of this case, the Scottish adopters would have the option of pursuing their application in either Scotland or England, particular points of note are:

  • ACA 2002 gives the Family Court in England and Wales jurisdiction to make an adoption order in favour of applicants who satisfy one or other of the criteria set out in ACA 2002, s 49 as to domicile in the ‘British Islands’, which means ‘the United Kingdom, the Channel Islands and the Isle of Man’ (Interpretation Act 1978, Sch 1, para 1)
  • the Adoption and Children (Scotland) Act 2007 (AC(S)A 2007) would give the Court in Scotland jurisdiction to make an adoption order in favour of applicants who satisfy one or other of the AC(S)A 2007, s 29 criteria (in similar terms)

That position is supported by the decision in Re N (Children: Adoption: Jurisdiction) [2015] EWCA Civ 1112, [2016] 1 FLR 621, where Munby P (as he then was) said (at para [77]):

‘…if the sole basis of the court's jurisdiction is by reference to the domicile or habitual residence of the adoptive parent(s), it must follow that it has jurisdiction to make an adoption order in relation to a child irrespective of the child's nationality, domicile or habitual residence, and likewise has jurisdiction to dispense with the consent of the natural parent(s) irrespective of their nationality, domicile or habitual residence.’

The position was also summarised by Black LJ in Re N (Children: Adoption: Jurisdiction) (at para [177]) as follows:

‘…an application can only be made by a prospective adopter who fulfils one of the conditions as to domicile/habitual residence in the British Islands.’

It should be noted that the Court of Appeal decision in Re N (Children: Adoption: Jurisdiction) [2015] EWCA Civ 1112, [2016] 1 FLR 621 was subsequently reversed by the Supreme Court in Re N (Adoption: Jurisdiction) [2016] UKSC 15, [2016] 1 FLR 1082, but not on that point. 

Cobb J concluded by summarising the position as follows (at para [16]):

  • the adopters’ application in that case was lawfully and procedurally well made in the English Family Court and he was satisfied on the evidence that at least one of the adopters was domiciled, and in any event, both were and had been habitually resident for more than a year, in a part of the British Islands (ACA 2002, ss 49(2)-(3)) 
  • the court would rely on the placement order made nearly two years ago (ACA 2002, s 21) 
  • If the adoption order was made in England and Wales, it would have the same effect in Scotland as it has in England and Wales (AC(S)A 2007, s 77(2)) 
  • the adopters could have applied in Scotland, relying on the English placement order (AC(S)A 2007, s 31(9)(b)(ii)), and
  • any Scottish adoption order would have had effect in England (ACA 2002, s 105(2))

Cobb J also annexed a useful table to his judgment comparing the statutory provisions of the ACA 2002 and AC(S)A 2007, relevant to the issue before him, from which it can be seen that the provisions effectively mirror each other.

The judgment can be accessed here.

Geraldine Morris is a solicitor and head of LexisPSL Family.

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About the author:

Geraldine is Head of LexisPSL Family. She was admitted as a solicitor in 1992 and was in practice for 15 years, most recently as a partner and head of the family team at Hart Brown, a large Surrey firm.

Geraldine writes for Butterworths Family Law Service and is a past editor of the Resolution Review. She has been published in the New Law Journal, the Law Society Gazette and the District Judges’ Bulletin as well as in the national press including the Times and the Telegraph.

When in practice she was a member of the Law Society Family and Children Panels, and an accredited Resolution Specialist with a focus on advanced financial provision and pensions. A past Resolution regional secretary and press officer, Geraldine also contributed chapters to the Resolution publications, International Aspects of Family Law (3rd Edition 2009) and The Modern Family (2012).