High Court of Justice (England and Wales), Family Division

High Court of Justice (England and Wales), Family Division

United Kingdom - England and Wales

10 December 2024

Re X (Intercountry Adoption: Kafala: Non-compliance s.83 ACA 2002)

[2024] EWHC 3198 (Fam)

First instance

Article 23

Not provided

Adoption and Children Act 2002, Adoptions with a Foreign Element Regulations 2005, Family Procedure Rules 2010

Not provided

The applicant, a British national, obtained a Moroccan kafala order in respect of a Moroccan child who had been declared abandoned by the Moroccan courts. The child was subsequently brought to the United Kingdom and the applicant applied for an adoption order. The case raised questions concerning the interaction between Moroccan kafala, English adoption law, and international child protection instruments. The court held that the child had been brought to the United Kingdom for the purpose of adoption and that section 83 of the Adoption and Children Act 2002 and the Adoptions with a Foreign Element Regulations 2005 therefore applied. Although the applicant had not complied with all statutory requirements, the court held that non-compliance did not automatically preclude the making of an adoption order. In light of the child's welfare and the exceptional circumstances of the case, the adoption order was granted. In its analysis, the court confirmed that a Moroccan kafala order is recognised in the United Kingdom under Article 23 of the 1996 Hague Child Protection Convention.

The court granted an adoption order in favour of the applicant notwithstanding non-compliance with the requirements of section 83 of the Adoption and Children Act 2002 and the Adoptions with a Foreign Element Regulations 2005. The court held that the child had been brought to the United Kingdom for the purpose of adoption and that the statutory safeguards had therefore been engaged and breached. However, the breach did not constitute an absolute bar to adoption. Applying the paramountcy principle, the court concluded that the child's welfare throughout his life required the making of an adoption order. The court further recognised the Moroccan kafala order pursuant to Article 23 of the 1996 Hague Child Protection Convention.