[2025] UKUT 00352 (IAC)

Mr Wood referred to the judgment of the Court of Appeal in S (A Child) v Entry Clearance Officer, New Delhi [2005] EWCA Civ. 89 and submitted that the Court of Appeal referred to the natural and ordinary meaning of the word ‘inability’ as “lacking skills, means or opportunity”. He submitted the Judge had imposed a high threshold into the concept of inability, beyond the ordinary definition, which was not justified in the circumstances of this case. The lack of skills and means were demonstrated, Mr Wood submits, by the evidence concerning the finances of the family including dependence on the Appellant’s grandparents for the support of the Appellant’s elder sister and the health of the Appellant’s birth father.

In S (A Child), an application by the child to join her adoptive parents in the UK had been refused on the ground that S had not satisfied para. 310(ix) of the Immigration Rules because her natural parents had not had an "inability" to care for her, but had rather been unwilling to care for her. That decision was upheld on appeal. Pill LJ said:

“20.

As to the meaning of paragraph 310(ix) of HC 365, I agree with the reasoning and conclusions of the adjudicator and the Tribunal. The word “unable” is defined in the Concise Oxford Dictionary, tenth edition as meaning “lacking the skill, means or opportunity to do something”. The natural parents in this case lacked neither the skill, nor the means, nor the opportunity to care for the Appellant. They simply did not wish to do so. That was the choice they made.

21.

The Rule covers children whose natural parents are unable to care for them. That does not cover a situation in which natural parents are able to care for the child, if they choose to do so, but, as an exercise of choice, do not want to do so. The concepts of inability and unwillingness are quite distinct. The presumptive adopter may be faced with a situation in which the natural parents are able to care for the child, but are unwilling to do so. That is precisely the situation which arose in this case. I cannot read the first limb of 310(ix) in any other way, through having full regard to the duty of the Court under section 3 of the 1998 Act.” 

At para. [47] of her decision, the Judge summarised the evidence regarding the care of the Appellant and her sister, by her Birth Parents. The Judge noted, at para. [48], the subsequent death of AM in January 2017 and the medical evidence concerning his cannabis dependence and ADHD. At para. [51] the Judge noted that the contemporaneous adoption documents did not refer to the reason for the adoption as in any way being related to the inability of the Birth Parents to care for the Appellant. At para. [51] the Judge referred to what was said in the CARA document regarding AM’s occupation and the income of the Birth Parents.