FD25F00014 - [2025] EWHC 2483 (Fam)

In the light of this positive parenting assessment, both the local authority and the guardian support the Court making a child arrangements order providing for YV to live with, and be cared for, by the paternal grandmother, and an order under section 13 of the Children Act 1989 permitting the paternal grandmother to remove YV from the jurisdiction.

Although neither parent participated in the final hearing, I am aware of their positions. The mother is clear that she does not want YV to come to Kazakhstan; she wants YV to be adopted and grow up in England because she considers that it would allow YV to have a better life than growing up in Kazakhstan. The social worker makes clear that although the mother is “firm and tenacious [she] is in no way heartless”. She wept though her interview with the social worker and commented on how difficult she has found it to hold her position to do what she thinks is best for her child. The father’s position has been more equivocal and shifting and I recognise that he finds himself caught between the wish of his partner for their child to have a life in the UK and the wish of his mother to care for YV herself.

In terms of the Court’s jurisdiction, the local authority is not able itself to apply for an order under section 8 of the Children Act 1989 (see section 9(2)). A number of ways to surmount this jurisdictional hurdle were suggested to me by counsel, but the simplest, and the one that I have decided to adopt, is for me to make the relevant orders of my own motion pursuant to section 10(1)(b) of the Children Act 1989.

I canvassed with counsel whether, in making my decision in relation these matters, the appropriate welfare checklist for me to apply was that found under section 1 of the Children Act 1989, or whether this was a case to which the checklist found at section 1 of the Adoption and Children Act 2002 applied. The former applies whenever the court is considering whether to “make, vary or discharge a section 8 order”, whilst the latter is applicable “whenever a court … is coming to a decision relating to the adoption of a child”. Section 1(7) of the 2002 Act provides some additional guidance on this latter test. It provides:

“In this section, ‘coming to a decision relating to the adoption of a child’, in relation to a court, includes—

(a)

coming to a decision in any proceedings where the orders that might be made by the court include an adoption order (or the revocation of such an order), a placement order (or the revocation of such an order) or an order under section 26 (or the revocation or variation of such an order),

(b)

coming to a decision about granting leave in respect of any action (other than the initiation of proceedings in any court) which may be taken by an adoption agency or individual under this Act”

but does not include coming to a decision about granting leave in any other circumstances.”

Both counsel took the view that the relevant test applicable here is that found under section 1 of the Children Act 1989 and I agree. I am currently seized of proceedings under the inherent jurisdiction in which I am considering making a child arrangements order under section 8 of the Children Act 1989 of my own motion. As such the Children Act checklist is, on its face, engaged here. By contrast no proceedings in relation to YV are as yet on foot under the 2002 Act. Although the practical consequence of the orders that I am making is that YV will be cared for by the grandmother in Kazakhstan and will therefore not be adopted in England and Wales, I do not consider the decision that I am making to be “a decision relating to the adoption of a child” for the purposes of section 1(1) of the 2002 Act. In reaching this conclusion I have had regard to subsection 1(7)(a) of the 2002 Act and note that the proceedings currently before me do not fall within the scope of that section. In any event, even if I am wrong as to the applicable test, for the reasons that I explain below, I consider that on the facts of this case they lead to the same outcome.

Turning then to the checklist, YV is obviously too young to have any ascertainable wishes and feeling. So far as their physical, emotional and educational needs are concerned, it seems to me that it is essential that they grow up in a loving and supportive home and I am entirely satisfied from the parenting assessment that the grandmother is capable of providing this environment. I have no doubt that if YV were to remain in the UK and made the subject of an adoption order they would also be provided with a loving and stable upbringing, but by placing YV in the grandmother’s care, they will also grow up within their own culture as a Kazakh child and be in a position to develop and maintain relationships with their birth family, in particular their paternal family.

In terms of the likely effect on YV of any change in their circumstances, I recognise that a move from the current carers to the grandmother’s care will be a significant change for YV. I note that YV is recorded as having been quite unsettled during the first few weeks with their current carers after being separated from their initial foster carers, and I accept that the transition to a new carer, new country and new language will be challenging. The social worker has suggested that a carefully thought through transition plan could help to ameliorate the distress that YV is likely to experience on being separated from their current carers. As I describe below the local authority have proposed such a plan which is accepted by the guardian and which I approve.

As to YV’s age, sex, background and other characteristics, in my judgment the key point is that YV is a Kazakh child of Kazakh heritage. The proposal that they should live with and be cared for by their grandmother means that they will grow up surrounded by Kazakh heritage and culture in a way that could not be replicated if YV were to be adopted in England. YV will also be growing up in a Muslim household, but despite concerns expressed by the parents that a strict adherence to Muslim teaching could limit YV’s life chances, the social worker notes that YV’s aunt (the grandmother’s own daughter) studied law at university and is now a successful lawyer.

I note, and have taken into account, the uncertainties identified by the social worker in her report that might arise if there was a change in the grandmother’s circumstances at some stage in the future. Whilst I do not discount these, I consider that the grandmother is currently in good health, is wholly committed to taking on YV’s care and has two adult children to whom she is close and who are already providing her with practical and financial support.

Overall, I do not consider that YV is at risk of suffering harm, either in the grandmother’s care in Kazakhstan or were they to remain in this jurisdiction.

Taking all of these factors into account, and weighing the evidence and the views of the local authority and children’s guardian, I am satisfied that YV’s welfare requires me to make a lives with order in favour of the grandmother and to give permission for YV to leave this jurisdiction and to move permanently to Kazakhstan.

As I have already mentioned, I would have reached the same conclusion having regard to the checklist found at section 1(4) of the Adoption of Children Act 2002. A number of the factors on which I have placed significant weight are common to the two checklists. However, the checklist under the 2002 Act also requires me to take into account the likely effect on YV (throughout their life) of having ceased to be a member of the original family and become an adopted person and also:

“the relationship which the child has with relatives, with any person who is a prospective adopter with whom the child is placed, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including—

(i)

the likelihood of any such relationship continuing and the value to the child of its doing so,

(ii)

the ability and willingness of any of the child’s relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child’s needs,

(iii)

the wishes and feelings of any of the child’s relatives, or of any such person, regarding the child.”

Taking these additional factors into account, whilst I recognise the bond that YV has undoubtedly forged with their current carers, the fact that there is a member of their close family willing to commit herself to their care throughout their childhood and bring them up within that family and within their Kazakh heritage means that, in my view, it is in YV’s best interests that I should make orders which will enable this to take place