Judges must focus on child welfare

Posted: 20th October 2015

RCJIn a decision which is bound to cause consternation within the Home Office and may well prompt a change in the law, the Court of Appeal has emphasised that family judges must focus on the welfare of children and that it is not their role to aid in the enforcement of immigration controls.

The case concerned a teenager – MW – who had overstayed his visitor’s visa and made his home in Britain with his first cousin, a British citizen, and her family. The cousin applied to adopt him in the belief that, if he became her son, he would automatically become a British citizen himself.

The High Court refused to make an adoption order after finding that MW had been brought to Britain by his father, not on a short family visit as his visa stated, but for the purposes of adoption. The cousin’s application was being used as a device in order to regularise MW’s immigration status.

The cousin’s challenge to that decision was dismissed – but only on the narrow basis that MW was over 18, and was thus no longer a child, when his case got to court. In those circumstances, he would not have automatically obtained citizenship even had an adoption order been granted. The Court of Appeal agreed that, on the face of it, MW's continued presence in the UK was a flagrant breach of immigration controls.

However, in ruling on the broader issues raised by the case, the Court noted that family judges are required by the Adoption and Children Act 2002 to concentrate on the welfare of children, not just during their minority but throughout their lives. There was no doubt that, in many cases, the practical benefits of achieving British citizenship would promote the lifetime welfare of the child concerned.

Immigration laws had little significance in family proceedings concerning children and it would not be appropriate for a judge to refuse to make an adoption order as some sort of indirect means of reinforcing immigration controls. The Court acknowledged that its ruling would be a source of concern to the Home Office, but noted that only Parliament could change the relevant law.