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Nigel Cholerton reported in QQ v CC & Ors [2022] EWHC 2910 (Fam)

Facts

This was an application by QQ for an adoption order in respect of his stepdaughter ‘Esmarelda’ who was 18 years and 6 months at the time of the hearing. The application was made before her 18th birthday.

This adoption application was supported by Esmarelda’s mother, by Esmarelda herself, by the children’s guardian and by the relevant Local Authority, who were represented by Nigel Cholerton of No.18 Chambers.

Esmarelda’s parents were nationals of a European country where Esmarelda was born. Her parents divorced in May 2008 and from then on Esmarelda’s contact with her father was minimal and sporadic. Esmarelda’s mother met QQ in January 2013, they married in June 2015. Esmarelda lived with her mother and her step-father QQ in this jurisdiction since April 2016.

Issues

As Esmarelda was a citizen of a European country, this added a layer of complexity to the case. The court had to consider whether to notify that country of the adoption application, under Article 37 of the Vienna Convention on Consular Relations 1963 (“the Convention”) and also look to the relevant case law.[1]

Morgan J at p33 considered various facts and matters, such as the discretionary element; that an adoption order will not have an automatic effect on Esmarelda’s nationality; that these were not care proceedings; and that according to the expert evidence, any order would not have the effect of deprivation of the father’s rights in the country and Esmarelda’s status there was likely to be unaffected. Morgan J therefore decided there was no need to notify the Consulate.

Turning to the adoption order application, Morgan J emphasised the need to carefully scrutinise this application and noted Esmarelda’s father’s strong opposition, despite choosing not to participate. The father was given the opportunity and means to join the hearing, but he did not attend and only provided a statement.

The court heard evidence from the Applicant stepfather, the mother, the social worker, the Children’s Guardian and read a letter from Esmarelda who was described by the social worker as extremely intelligent. Morgan J made a particular reference to the genuine emotion of the step-father’s evidence and tangible connection between him and Esmarelda. 

Morgan J considered the objections made by the father but satisfied herself that it was Esmarelda’s choice to be adopted and the application was not made for any ulterior reason. The court found that the father had made no effort to visit Esmarelda in England; she last saw her father in February 2020; the father did not contact her between April 2021 and March 2022; and the father has not played an active role in Esmarelda’s care or upbringing.

Held

An adoption order could be made even though Esmarelda was 18, provided that she was adopted before their 19th birthday (s.49 ACA 2002). The court considered dispensing with parental consent of her father for the making of the order and the importance of evaluating the needs of the child’s welfare. In this case, the emotional and legal life-long connection of Esmarelda to her stepfather outweighed the lack of clarity of her legal position abroad. Therefore, the father’s consent was dispensed with, and an adoption order was made.

This case provides complex and unusual circumstances of an adoption order for an 18-year-old and where the child has links to another country. The judgment offers an accessible read and carefully considers the various body of case law alongside the specific and unique facts of the case

 

[1] Re E (Brussels II Revised: Vienna Convention: Reporting Restrictions [2014] 2 FLR 151; Re CB (A Child) (No2) (Adoption Proceedings: Vienna Convention) [2016] 1 FLR 1286; Re JL and AO [2016] EWHC 440; A LA v M and O [2021] EWHC 908; Re K (A Child) (Private Law Proceedings: Consular Involvement) [2017] 4 WLR 150; Prospective Adopters v The Mother and Anothre [2021] EWHC 91 (Fam)