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27th Jan 2025 | Cases
Andrew Leong, instructed by Truemans Solicitors, appeared on behalf of the child in A v B & Anor (Intercountry Adoption: Kafala: Noncompliance s.83 ACA 2002) [2024] EWHC 3198 (Fam); an application for an adoption order in an English court following the grant of a Kafala order by a Moroccan court.
X was a Moroccan child, born in Morocco and abandoned shortly after his birth in Morocco by his birth parents. The applicant, a UK national, seeking to adopt a child from Morocco, approached the Intercountry Adoption Centre (‘IAC’), which approved the applicant as a prospective adopter and completed the matching process for the applicant to adopt X from Morocco. This was despite the UK Department of Education no longer issuing Certificates of Eligibility for UK nationals seeking to adopt Moroccan children under English law.
Nonetheless, the applicant applied to the Moroccan courts for a kafala order in respect of X, which was granted, and the Moroccan courts subsequently granted permission for the applicant to remove X from Morocco as his kafala guardian. X was granted permission to enter the UK on the basis of the kafala order and the recognition provisions of Art.23 of the 1996 Hague Convention.
Shortly after returning to the UK with X, the applicant applied to the courts in England to adopt X. The issues which arose during the court proceedings were: 1) whether X had been brought into the UK for the purposes of adoption; 2) if so, had the requirements of s.83 of the Adoption and Children Act 2002 and the associated regulations under the Adoptions with a Foreign Element Regulations 2005 been complied with; 3) if there had been non-compliance with the 2002 Act and 2005 Regulations, could an adoption order still be made; and 4) if the court did have the power to make an adoption order despite non-compliance, how should the court exercise this power, given the public policy and welfare considerations in the case?
The court heard submissions from the parties, including from the Secretary of State for Education, who intervened on behalf of HM Government, and determined that X had been brought into the UK for the purposes of adoption and that there had been non-compliance with s.83 and the 2005 Regulations. The court decided that, despite this non-compliance, the statutory regime still allowed for an adoption order to be made and the court agreed with the guardian’s submissions that X’s welfare demanded that the order was made, despite the non-compliance.
The judgment provides a useful summary of the operation of a Moroccan kafala and a clear statement of where this sits within the context of adoption and the domestic laws of England and Wales.