Law Report: Adoption was not for foreign child's welfare: Re K (a minor) - Court of Appeal (Lord Justice Neill, Lord Justice Balcombe and Lord Justice Hobhouse): 22 April 1994

When an application is made by a British citizen to adopt a foreign child the judge should not take into account any benefits accruing to the child from the acquisition of British nationality, such as the guidance and affection of relatives living in Britain.

The Court of Appeal allowed an appeal by the Secretary of State for the Home Department and discharged an adoption order made by Mr Justice Connell.

K was born in Sierra Leone in 1975. K's mother asked her sister, the applicant, who is a British citizen to look after K if she should die. After K's mother's death in 1988 the applicant adopted K in Sierra Leone in 1991. K was granted temporary admission to the United Kingdom in 1991 and has lived with the applicant since.

The applicant, with the support of the Official Solicitor as K's guardian ad litem, applied to adopt K. The application was heard when K was only eight days short of her eighteenth birthday, when she would no longer be eligible for adoption. Mr Justice Connell made the adoption order which conferred on K British nationality.

Neil Garnham (Treasury Solicitor) for the Home Secretary; Lincoln Crawford (McHale & Co) for the applicant and K; Jeremy Posnansky QC (Official Solicitor) as amicus curiae.

LORD JUSTICE BALCOMBE said that Parliament had not intended, by the general words in section 1(6) of the British Nationality Act 1981, to deny the Home Secretary any effective right of appeal against an adoption order made in proceedings to which he was a party.

If the Home Secretary succeeded, that would affect K's status as a British citizen, although the Home Secretary was prepared to grant her indefinite leave to remain here.

Once K attained her majority, the Official Solicitor ceased to have any locus standi, and Mr Posnansky who had appeared for the Official Solicitor below was invited to assist as amicus curiae.

The judge adopted the correct two-stage approach: to consider first the motive for the application and only if satisfied the true motive was not to achieve British nationality and the consequent right of abode for K rather than to serve her general welfare, to proceed to the second stage which was to carry out a balancing exercise between public policy and K's welfare.

The sole question on the appeal was whether he correctly carried out the second stage balancing exercise.

Both on principle and on authority, in carrying out the balancing exercise in the stage two process the court should not take into account those benefits which flowed from the acquisition of British nationality. The judge did take into account those benefits. Even her security in the applicant's family and her ability to enjoy the guidance and affection of the applicant depended on her physical presence in this country which in turn would derive from her acquisition of nationality.

If those benefits to K deriving from nationality were left out of account, the benefits accruing to her from her adoption were minimal as compared to the consideration of public policy in relation to the effect of the adoption order on nationality and the right of abode.

Lord Justice Hobhouse concurred and Lord Justice Neill agreed.