[2025] UKUT 00352 (IAC)

The Judge referred to the evidence before the Tribunal that the Appellant’s Birth Parents were described to be ‘struggling’ to manage and that neither parent was working with the father said to have addiction issues and ADHD. There was also evidence before the Judge regarding the support provided by the grandparents towards the care and education of the Appellant’s elder sister. The Judge referred to the evidence regarding the health of the Appellant’s birth father, the treatment he received and his death on 5 January 2017. At para. [48] the Judge found that:

“…A person with addiction issues and a diagnosis of ADHD is not per se unable to care for a child and other than the Sponsors’ assertions which refer to ‘struggling’ there is no evidence demonstrating that at the relevant time namely the time of the adoption that the birth father was not able to care for the Appellant. I concluded that the evidence of treatment in 2012 does not provide a basis for a finding or conclusion that the birth father was unable to care for the Appellant at or around the time of the birth.”

The Judge noted that the Appellant’s birth mother ‘currently works in a primary school’ and that she lives with the Appellant’s grandparents who also provide her with financial support and pay the Appellant’s sister’s boarding school fees. The Judge noted the requirement in the Rule was that the adoption was due to the inability of the Birth Parents to care for the Appellant. She noted that the Appellant had continued to live with her birth parents until September 2015 and that for two to three months thereafter, her grandparents lived with the Sponsors and assisted with her care. The Judge found that the documents relied upon did not refer to the reason for the adoption as being related to the inability of the Birth Parents to care for the Appellant. She referred to the information set out in the ‘Home study report’ and CARA documents which referred to a ‘mutual agreement’ for relinquishing the care of the Appellant. The Judge referred to the care provided by the Appellant’s Birth Parents not only after her birth, but also after the adoption in March 2015 and concluded, at para. [54], that the evidence did not demonstrate, to the necessary standard, that the adoption was due to the inability of the Birth Parents to care for the Appellant.

Mr Wood submits the Judge misapplied the test of ‘inability’ in the context of the particular facts and circumstances by reading a ‘high threshold’ into the concept of ‘inability’. He submits the Judge placed undue weight on the consent of the Appellant’s Birth Parents to the adoption. Mr Wood submits the general reference to a person with addiction issues and a diagnosis of ADHD not being unable per se to care for a child suggests the Judge had in mind a ‘notional comparator’ rather than the application of the plain ordinary meaning of the word ‘inability’. He submitted that the care of a child is multifaceted and the undue focus upon the consent of the parents within what was a ‘familial adoption’ impacted upon the Judge’s analysis of whether the Appellant was adopted due to the inability of her Birth Parents to care for her. Mr Wood submits the Judge was required to look at the care that would be available to the Appellant ‘going forward’ when considering whether the adoption was due to the inability of her Birth Parents to care for her.