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Woman may apply to adopt her cousin, court rules

The High Court has given a woman permission to apply to apply to adopt her 17 year-old cousin from Pakistan.

In Re MW, the court heard that the youth had adapted well to life with the woman’s family and got on well with her sons.

‘Mrs AS’ applied to adopt him under section 42 of the Adoption and Children Act 2002. This states that:

“…the child must have had his home with the applicant or, in the case of an application by a couple, with one or both of them for not less than three years (whether continuous or not) during the period of five years preceding the application.”

He had only been living with her for 16 months so this requirement had not been met.

However, section 42 also claims that provides for judicial discretion, stating:

“But [the requirement for three years does] not prevent an application being made if the court gives leave to make it.”

The women supplied a note from the teenager’s father giving his consent to the adoption, but his mother’s views were not cited.

At the Family Division Mr Justice Holman considered the basis for the women’s application, asking whether or not it had been made for the right reasons and had a realistic prospect of success. He concluded that emotional harm to the 17 year-old was unlikely. The prospective adopter had also given a credible account of how he had come to the UK to live with her so there was nothing to suggest a contrived attempt to obtain British citizenship or leave to remain in the UK.

In the circumstances, it would not be reasonable to insist on the full three year waiting period, the judge said, as he was already 17 and children cannot be adopted after the age of 18. Therefore her application had a “reasonable or realistic prospect of success.”

Mr Justice Holman said:

“The local authority must now carry out a full investigation into the circumstances in which M is living and the strength of relationships between him and Mrs AS and her wider family here.  The Secretary of State for the Home Department must be kept fully informed at every stage of these proceedings and must specifically be sent a copy of the local authority’s report when it is available.  Concurrently with that, there is a heavy duty upon Mrs AS to take active steps to locate each of the birth parents in Pakistan and to ensure that they are fully informed about, and supplied with all the documents relevant to, these proceedings and the proposed adoption application”

He added:

“I have made crystal clear to Mrs AS today, and spell it out very, very clearly indeed on the face of the order, that the decision today is a decision on leave only.  The question whether or not the court will actually make an adoption order is unclear and uncertain, and an adoption order may not be made.  In any event, it is unlikely that an adoption order will be made unless both birth parents have been clearly served with the application and their views ascertained.  Further, if the Secretary of State for the Home Department resists the making of an adoption order, her resistance will clearly be relevant to the court’s final decision whether or not to make an adoption order, although it would not of itself be decisive.”

The blog team at Stowe is a group of writers based across our family law offices who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. As well as pieces from our family law solicitors, guest contributors also regularly contribute to share their knowledge.

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