Chris Miller, led by Henry Setright QC (4 Paper Buildings) appeared in a landmark Court of Appeal case in which the Central Authority of a foreign state intervened; Re CB (A child) [2015] EWCA Civ 888.

The case provided definitive guidance on issues relating to the interface between ECHR Law, BIIa and domestic adoption jurisprudence. The mother and foreign state’s central authority sought transfer of the case to the jurisdiction of the foreign state pursuant to BIIa and, in default of transfer, permission for the mother to oppose the application for adoption. They also invited the Court to conclude that the domestic approach to adoption was incompatible with European practice and principle. All grounds of appeal were refused. The case has attracted a lot of media attention, including this article by Joshua Rozenberg for The Guardian.

Key aspects of the Judgment were:

  • A finding that English adoption law is compatible with European jurisprudence and rights protected under the ECHR.
  • A checklist was provided for best practice in public law cases where subject children are foreign nationals.
  • Guidance was given that the inevitable loss of cultural heritage by a foreign national child through adoption is not a reason to decline to make an adoption order when nothing else will do.
  • A finding that Article 15 of BIIa cannot (by virtue of article 1(3)(b) of BIIa) be used to transfer to another jurisdiction a part or whole of proceedings which concern moves preparatory to adoption.
  • Applications for permission to oppose an adoption application under s47(5) of the ACA 2002 are moves preparatory to adoption for the purposes of BIIa.
  • The ECHR does not automatically require that a parent be further assessed, within an application pursuant to s47(5) of ACA 2002.
  • Whilst a local authority must notify the embassy of a child who is a foreign national at the earliest opportunity, failure to do so does not necessarily invalidate earlier placement decisions.
  • The involvement of an embassy after a placement order due to late notification does not automatically constitute a change in circumstances for the purposes of s47(5) ACA 2002.
  • A theoretical ability by a foreign state to identify a cultural match for a child is not necessarily a change of circumstances for the purposes of s47(5) ACA 2002.