[2025] UKUT 00352 (IAC)

We do not accept the judge had in mind a ‘notional comparator’. Her reference to a person with addiction issues and a diagnosis of ADHD “not per se being unable to care for a child” was nothing more than an observation when she was addressing the evidence before her of the Sponsors that the birth parents were ‘struggling’ to manage. It is perhaps important to note that ‘struggling’ to care or manage is quite different to an ‘inability’. Being ‘unable’ to do something means, as Pill LJ said in S (A Child) “lacking the skill, means or opportunity to do something”. We add that the word ‘inability’ used in the rules, adopting the plain ordinary language of the word means ‘not being able to do something’. It is clear in our judgment that the Judge carefully considered the evidence before her regarding the circumstances surrounding the adoption of the Appellant in India, including the financial support provided by the Appellant’s grandparents for payment of the boarding school fees relating to the Appellant’s elder sister and the impact that the health of AM had upon his ability to work. The Judge noted, at [50], that notwithstanding the adoption in March 2015, the Appellant did not move to live with the Sponsors until September 2015, and even then, that was with support provided by the Appellant’s grandparents. The evidence was, as the Judge said:

“The Appellant remained in the care of her birth parents for a period of six months after birth and a further six months after the point of adoption.”

The Judge reached a clear conclusion, at para. [53] regarding the paucity of evidence beyond the assertions of the Sponsors that at the time of the adoption in March 2015, either or both of the Birth Parents had demonstrated an inability to care for the Appellant or that the adoption itself was due to any such inability. In our judgment, on the evidence before her, it was plainly open to the Judge to conclude, as she did at para. [54]:

“I have considered all the evidence available and I have concluded that the evidence available does not demonstrate to the necessary standard of balance of probabilities that the adoption was due to the inability of the birth parents to care for the Appellant.”

We cannot detect in any of the reasons given by the Judge any indication that she did not apply the correct test or imposed too high a threshold as Mr Wood submits.