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When a beneficial environment is not enough

The “unusual and difficult case” of Re S & T (Children): yes, it was certainly those things. The facts of Re S & T almost read like some tragic globe-spanning novel. It concerned the welfare of two children: S, who was born in 2010 in Pakistan and her sister T, who was born in this country in 2012. Their parents had married in Pakistan in 2009 and came to live in this country in 2012.

In December 2012 the father removed the children to Pakistan, without the mother’s consent. This triggered court proceedings, and the children were made wards of court. At some point (I think in March 2013, but the judgment isn’t entirely clear), the children were returned to this country, although the father remained in Pakistan until April 2014.

Tragedy struck when the mother died of cancer in September 2013. The children then spent their time with other family members in this country. However, they also have a maternal great aunt and great uncle, who live in Illinois in the USA. Since July 2014 the children have spent four lengthy holidays with them in Illinois (with the permission of the court) and, indeed, they are still with them.

In April 2014 the maternal great aunt and great uncle began proceedings seeking leave to remove the children from this country to live with them in Illinois. Initially they planned to seek an adoption order in this country, but they changed that plan and decided to seek an adoption order in Illinois, having first obtained a parental responsibility order under section 84 of the Adoption and Children Act 2002.

The application went before the President of the Family Division Sir James Munby, in the High Court. He dealt firstly with various technical issues relating to the requirements of section 84, whether the court could dispense with the father’s consent to an adoption (he opposed it) and whether, in the light of the time they had spent recently in the USA, the children were still habitually resident in this country. He found that the maternal great aunt and great uncle did not meet the requirement of having a “home” in England, that the court could dispense with the father’s consent and that the children were still habitually resident in this country.

However, the crux of the matter was really whether or not the court should dispense with the father’s consent. Obviously, it is a serious matter for a court to sever a child’s relationship with its father through adoption, and the ‘bar’ is therefore set very high: the applicants must demonstrate that “nothing else will do”. The President carefully weighed the evidence, in particular the previous behaviour of the father, and concerns about his parenting skills. He was not satisfied that “nothing else will do”, and accordingly the application failed. It was ordered that the children should return to this country on or before the 7th of August, whereupon they are to live with their father.

The President concluded his judgment with the following:

“I am very conscious that the consequence of this, in a sense, is that the father wins by default. The children go to him because the only alternative is ruled out because adoption is ruled out. But it is fundamentally important that children are not to be adopted merely because their parenting is less than perfect, indeed, perhaps, only barely adequate. To repeat what was said in Y v United Kingdom, para 134, “It is not enough to show that a child could be placed in a more beneficial environment for his upbringing.”

The full report of the case can be found here.

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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