Family Law

Hetty Gleave
Partner at Hunters incorporating May, May & Merrimans

It is not uncommon for people wishing to adopt a child to look beyond the shores of the UK to a foreign jurisdiction.  The Adoption and Children Act 2002 sets out the English court's jurisdiction to make adoption orders in respect of children with both British and foreign citizenship, but although the procedure for adoptions within the UK is clear, what is the position in the overseas country? 

Following the fall of the Ceausescu regime in the 1990s hundreds of well-meaning couples travelled to Romania and scooped up malnourished children from Romanian 'orphanages' to bring them to the UK for a better life. However in some instances they discovered that the children were not in fact orphans, that proper procedures in Romania had not been followed and, crucially, consent from the child's family, who with diligent inquiry could have been traced, had not been obtained.  Some cases resulted in the English Courts having to make the heart-breaking decision of whether to send the children back to their country of origin and their biological families who were requesting their return.

The effect of an adoption order in this country is to sever all the child's legal links with its biological parents, including the right of the child to inherit, so that the adoptive parents step in the shoes of, and effectively become, the child's parents.  It is as if, in law, their biological parents no longer exist. In England and Wales Courts can still sever legal links between a parent and a child by granting an adoption order despite both parents' objection if the child's welfare requires it.

If the child is being adopted from overseas the law of this country makes it necessary, before you get to the point of consent, to show that the child cannot be cared for in a safe environment in their own country, that adoption would be in their best interests and that the adopter has been assessed by an adoption agency in the UK, as eligible and suitable to adopt from overseas.

The position when adopting a child from a Sharia country is slightly more complicated however as under Sharia law it is not possible for the biological parents of a child to ever be replaced by adoptive parents.  In order to look after a child, the would be adoptive parents would have to become the child's guardians or de facto foster carers, but can never usurp the legal rights of the parents.  This is known as a 'kafala' system and essentially enables the biological parents to request the return of their child to them in law, even if the child is happily settled with its new family.

Often would be adopters of children from Sharia countries may be asked to sign a proviso before the child is handed over confirming that they will do nothing to extinguish the rights of the biological parents.  In order to get permission for the child to enter the UK, they would have to inform the local authority (and the immigration entry clearance officer) that the child is being brought into the country by virtue of a private fostering arrangement, or as a 'kafala child'.  Once in this jurisdiction the guardians would then need to apply for a special guardianship order under the Children Act 1989 so that they could acquire parental responsibility for the child, which enables them to make all the day-to-day decisions in relation to the child's care and upbringing that a parent would make. This can be exercised to the exclusion of any other person other than another special guardian.  It does not, however, extinguish the legal relationship between the child and his or her birth parents.

Having brought the child into this country, guardians then seeking to adopt would need to satisfy the requirements of the Adoption and Children Act by showing that the child has lived with them for a period of not less than three consecutive years as a private placement. Once that milestone has been reached the courts would accept that the child is now habitually resident in this jurisdiction and this country's law would then apply. The effect of the kafala agreement not to adopt would be limited to the country in which the child was resident at that time of the agreement. The guardians would be free to apply for adoption in this jurisdiction and would be subject to the same process of assessment as any other prospective adopters of UK based children.

If you are considering adoption from a Sharia country then clear advice is needed in relation to both the application needed to bring the child into this country and the private law Children Act proceedings that should be commenced as soon as the child is resident here.  

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Further articles focusing on Sharia law and related topics will be published in January Family Law.