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Judge dismisses attempt to replace children’s guardian

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December 4, 2023

An adoptive mother’s attempt to dismiss the legal guardian appointed to her case was “misconceived”, a Judge has ruled.

In QS v RS, a toddler, referred to as ‘T’, was found abandoned in a temple in Nepal, north of India. Approximately 14 months old at the time, she was taken to an orphanage in the capital Kathmandu and then later adopted by a British couple living in Dubai.

The couple’s relationship subsequently broke down and the mother was deported back to the UK, leaving T with her father. Back in England she applied for T to be made a ward of court. Despite the fact the youngster still lived in Dubai, the High Court granted her application and ruled that T should live with her.

However, the Courts in Dubai sided with the father, ruling that the child should in fact stay with him, although the authorities in the Middle Eastern nation did not actually recognise him as the girl’s legal father, only as her guardian.

Further complications arose in a subsequent High Court hearing. Mr Justice MacDonald concluded that their adoption of T had not actually been legally valid under English law because it had taken place a year before Nepal ratified an international treaty known as the Hague Convention on Protection of Children and Co-operation with respect to Intercountry Adoption.

Nevertheless, “extraordinary circumstances” meant that T should still be regarded as a British citizen and the High Court should still exercise its ‘inherent  jurisdiction’ in the case.

A further High Court hearing on T’s future is scheduled to begin next month, with the principal matters to be determined whether or not the adoption should be recognised under English law despite its technical lack of validity; whether she should live with the mother or father; and how much contact the other parent should have.

Meanwhile, the mother fell out with T’s court-appointed legal guardian and applied for him to be replaced. Following the departure of the previous guardian, the Judge had ordered a position statement from Cafcass setting out the position of the new guardian.

The statement was written on his behalf by a member of the Cafcass legal department. The mother’s legal team, however, claimed that the resulting document had expressed a “definitive view” on the case before the guardian had seen or heard all the relevant evidence. In addition, it was filed prior “the 1st occasion of direct contact since 2013 with her mother”.

Her counsel argued that, in spite of not having had access to all the facts and evidence:

“…The children’s guardian takes the view from talking to T and interpreting her wishes and feelings …that her family life is firmly rooted in Dubai and up until now this appears to have worked for her, even in the absence of [the mother] for three years.”

In addition:

“The children’s guardian takes the view that T has suffered enough change and suggests a formula of arrangements that add, expand and compliment the advantages that accrue to her living with [the father] in Dubai.”

But, sitting in the Family Division of the High Court, Mr Justice MacDonald remained unpersuaded. Allegations of bias were only meaningful if the accused individual had a judicial or quasi-judicial role, he declared This did not apply to the legal guardian in family disputes involving children, who fulfil an advisory role only.

Read the full ruling 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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