SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 60148/00 by Pavittar SINGH and Others against the United Kingdom

The European Court of Human Rights (Second Section) , sitting on 3 September 2002 as a Chamber composed of

Mr J.-P. Costa , President , Sir Nicolas Bratza , Mr L. Loucaides , Mr C. Bîrsan , Mr K. Jungwiert , Mr V. Butkevych , Mrs W. Thomassen , judges , Mrs S. Dollé , Section Registrar ,

Having regard to the above application lodged on 24 May 2000,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The first applicant , Pavittar Singh, a British Citizen born in India in 1955 , and the second applicant, Paramjit Kaur , an Indian national born in 1955, are both living in the United Kingdom. The third applicant, Pawandeep Singh, an Indian national born on 9 October 1996, is currently living in India. They are represented before the Court by Ms Conlan of Tyndallwoods Solicitors, a lawyer practising in the United Kingdom.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The first and second applicants (‘the applicants’) were married in the United Kingdom and have one daughter, now aged 22. The first applicant has operated a business as a clothing manufacturer in the United Kingdom since 1981. They are of Sikh ethnic origin and religion.

They had been unsuccessful in having further children and started to undergo fertility treatment in 1985. They received advice from the Medical Director of the fertility clinic on 30 October 1996, that the treatment had failed and should not be continued. A few days earlier, on 9 October 1996, the third applicant (‘the child’) was born to the first applicant’s cousin and his wife in India (‘the natural parents’). Following discussions within the family, the natural parents agreed to give the child up for adoption by the applicants. On 27 December 1996, the applicants flew out to India and met the child. A religious ceremony of adoption took place on 27 December 1996. The formal adoption under the Indian Hindu Adoption and Maintenance Act took place on 8 January 1997.

On 19 January 1997, the second applicant returned to the United Kingdom and on 2 February 1997, the first applicant returned. The child remained in India with his natural parents.

On 3 January 1997, the applicants applied for entry clearance for the child to join them in the United Kingdom. The natural parents and the applicants were interviewed by the Entry Clearance Officer in New Delhi on 11 March 1997. The natural parents admitted that they would be able to continue to care for the child and that, when the applicants were not staying, the child was cared for in their household. Entry clearance was refused on 11 March 1997 on the ground that the application did not comply with the relevant rules in the following respects: (a) that the adoption was not in accordance with a decision taken by a competent administrative authority or court in the country of origin nor the country in which [the applicants] were resident; (b) that the decision was not taken by a competent administrative authority or court in a country whose adoptive orders are recognised by the United Kingdom; (c) that the adoption was not due to the inability of the child’s natural parents to care for  him; and (d) that there had been no genuine transfer of parental responsibility to the applicants.

This decision was appealed before the Adjudicator. In his decision of 13 March 1998, the legality of the Indian Deed of Adoption was accepted, but the appeal on the remaining grounds was dismissed. The Adjudicator found however that the applicants could not bring themselves within the meaning of “parents” in paragraph 6 of HC 395 as the child had not been adopted in a country whose adoption orders were recognised by the United Kingdom. Though such recognition was not required under the broader provisions of paragraph 310, the applicants could not satisfy sub-paragraph (viii) which required the adoption to have taken place due to the inability of the natural parents to take care of him. He rejected the argument that paragraph 310 was ultra vires as it subverted the purpose of the Adoption Act 1976 as it did not pose an absolute bar to adoptions if the applicable criteria could be met. As the child continued to live with his natural family in India, where they were able to support him and there was nothing to suggest that he had been rejected by them, no serious or compelling family or other considerations made exclusion undesirable.

There was a further appeal to the Immigration Appeal Tribunal which was dismissed on 16 March 1999. It found that the Adjudicator had not misdirected himself as to the issues to be determined and considered that paragraph 310 could not be regarded as ultra vires .

Leave to appeal to the Court of Appeal was sought and refused on 19 July 1999. A notice of appeal was lodged with the Court of Appeal, including the ground of infringement of Article 8 of the Convention.

Full reasons were given for the refusal of leave by the Court of Appeal, in open court, on 2 December 1999. The Court of Appeal found that the Adjudicator had exercised the proper balancing act, as between the advantages to the child of admittance into the UK, and the living circumstances of the child in India, in reaching his decision that the circumstances of the case did not amount to ‘compelling family or other considerations’ sufficient to come within paragraph 297( i )(f) of rule HC 395. It did not find the delegated legislation to be ultra vires on the grounds of the stringent test of unreasonableness set out in Kruse v Johnson ([1889] 2 QB 91). Finally the court considered Article 8 of the Convention and, following the reasoning of Abdulaziz , Cabales and Balkandali ( judgment of 28 May 1985, Series A no. 94), found that the legislation was not incompatible with that provision. Article 14 was not raised by counsel on behalf of the applicants.

A further application for entry of the child was made on 19 October 2000. It was refused on 15 February 2001 under rules 310 and 297( i ) for similar reasons to the first.

On 23 October 2001, an Adjudicator heard an appeal against the refusal. In her decision of 14 November 2001, she rejected the appeal under rules 310 and 297 but granted the appeal on the basis that the refusal to allow the applicant to join his adoptive parents in the United Kingdom was a breach of Articles 8 and 14 of the Convention. She stated inter alia :

“I consider that the exclusion of the [child] from the UK is an infringement of Article 8 because I find considerable obstacles to the adoptive parents relocating to live with the [child] as a family there. The legitimate aim of regulating immigration control has, in my judgment , a disproportionate effect on the rights of this family – they are all but prevented from living together as a family ...

On the face of it, without any explanation to the contrary from the Secretary of State, it seems to me that nationals of India (and indeed those other countries excluded from the designated list) are treated differently, prejudiced and indeed discriminated against because of their national origin. On the present evidence, I can see no other explanation or justification for the exclusion of India from the designated list, I find on present evidence a breach of Article 14.”

On the facts, the Adjudicator found that there had been a genuine transfer of parental control to the applicants, notwithstanding the family in India took day to day responsibility of the child when not in school as the applicants supported the child financially and made all the major decisions about his care and future.

The Secretary of State obtained leave to appeal out of time to the Immigration Appeal Tribunal, alleging an error in law on the conclusions concerning Articles 8 and 14 of the Convention.

The child has since been enrolled in an English speaking boarding school by the applicants.

The applicants have made the following visits to see the child: December 1996-February 1997 (both), March 1997 (two weeks – both), October 1997 (10 days – both), February 1998 (10 days – the first applicant), October 1998 (10 days – the first applicant), December 1998 (2 weeks – second applicant and their daughter), April 1999 (two weeks – the first applicant), September 1999 (10 days – the second applicant), February 2000 (the whole family), October 2001 (the first applicant), February 2001 (five weeks – both applicants), October 2001 (two weeks – both applicants), December 2001-January 2002 (two weeks – the first applicant).

B. Relevant domestic law and practice

Recognised Foreign Adoptions

The majority of overseas adoptions are governed by the rule HC 395, laid down by the Home Secretary in accordance with section 3(4) of the Immigration Act 1971.

Paragraph 6 provided at the relevant time:

“In these rules...

‘a parent’ includes ...

(d) an adoptive parent but only where a child was adopted in accordance with a decision taken by the competent administrative authority or court in a country whose adoption orders are recognised by the United Kingdom (except where an application for leave to enter or remain is made under paragraphs 310-316); ...”

The Adoption (Designation of Overseas Adoptions) Order 1973 sets out 61 countries whose adoption orders are recognised by the United Kingdom. This list does not include India.

Paragraph 297 set out the conditions under which leave to enter the United Kingdom as the child of a parent, parents or relative settled in the United Kingdom could be granted, including:

“(f) one parent or a relative is present and settled in the United Kingdom... and there are serious and compelling family or other considerations which make the exclusion of the child undesirable and suitable arrangements have been made for the child’s care.”

Paragraph 310 provides concerning adopted children:

“ Requirements for indefinite leave to enter the United Kingdom as the adopted child of a parent or parents present and settled or being admitted for settlement in the United Kingdom

310. The requirements to be met in the case of a child seeking indefinite leave to enter the United Kingdom as the adopted child of a parent or parents ... in the United Kingdom are that he:

( i ) is seeking leave to enter to accompany or join an adoptive parent or parents in one of the following circumstances;

(a) both parents are present and settled in the United Kingdom ...

(ii) is under the age of 18; and

(iii) is not leading an independent life, is unmarried and has not formed an independent family unit; and

(iv) can, and will, be maintained and accommodated adequately without recourse to public funds in accommodation which the adoptive parent or parents own or occupy exclusively; and

(v) was adopted in accordance with a decision taken by the competent administrative authority or court in his country of origin or the country in which he is resident; and ...

(viii) was adopted due to the inability of the original parent(s) or current carer(s) to care for him and there has been a genuine transfer of parental responsibility to the adoptive parents; and

(ix) has lost or broken his ties with his family of origin; and

(x) was adopted, but the adoption is not one of convenience arranged to facilitate his admission...”

United Kingdom Adoptions

Recognition of foreign adoptions is possible at common law where one of the parent applicants has been domiciled in the country which made the order (see In re Valentine’s Settlement [1965] Ch 831, Children Law and Practice by Hershman and McFarlane ). Adoptions under the common law are given statutory recognition through section 38(1)e of the Adoption Act 1976.

If a child gains entry into the United Kingdom and an adoption is sought within the jurisdiction of the United Kingdom, the application is governed by section 6 of the Adoption Act 1976 which states:

“In reaching any decision relating to the adoption of a child, a court or adoption agency shall have regard to all the circumstances, first consideration being given to the need to safeguard and promote the welfare of the child throughout his childhood, and shall, so far as practicable, ascertain the wishes and feelings of the child regarding the decision and give due consideration to them having regard to his age and understanding.”

In Re J (a minor) (adoption: non- patrial ) [1998] FCR 125, the Court of Appeal considered the question of an adoption involving an infertile couple of Pakistani origin, where the child had been brought into the UK under false representations that he was coming for a holiday. The court held that where the application arose from a genuine motivation to found a family, rather than simply to achieve a legal status, deception should not detract from a simple application of section 6. The court went on to consider the effect of Pakistan’s absence from the list of countries whose adoption orders are recognised and stated:

“... so long as the policy remains as currently expressed it seems to me that the Secretary of State is to some extent inhibited in criticising those who conclude that the front door is locked and who explore an alternative entry through a rear door.”

C. Relevant international law and practice

The UN Declaration on Social and Legal Principles relating to the Protection and Welfare of Children with special reference to Foster Placement and Adoption Nationally and Internationally (3 December 1986) provides:

Article 3

“The first priority for a child is to be cared for by his or her own parents.”

Article 4

“When care by the child’s own parents is unavailable or inappropriate, care by relatives of the child’s parents, by another substitute – foster or adoptive – family or, if necessary, by an appropriate institution should be considered.”

Article 13

“The primary aim of adoption is to provide the child who cannot be cared for by his or her own parents with a permanent family.”

Article 17

“If a child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the country of origin, intercountry adoption may be considered as an alternative means of providing the child with a family.”

Article 20

“In intercountry adoption, placements should, as a rule, be made through competent authorities or agencies with application of safeguards and standards equivalent to those existing in respect of national adoption. In no case should the placement result in improper financial gain for those involved in it.”

Article 22

“No intercountry adoption should be considered before it has been established that the child is legally free for adoption ... It must also be established that the child will be able to migrate and to join the prospective adoptive parents and may obtain their nationality.”

The UN Convention on the Rights of the Child 1989 provides:

Article 7

“The child ... shall have ... as far as possible the right to know and be cared for by his or her parents.”

Article 21

“State Parties that recognise and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall: ...

(b) Recognise that inter-country adoption may be considered as an alternative means of a child’s care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child’s country of origin;

(c) Ensure that the child concerned by inter-country adoption enjoys safeguards and standards equivalent to those existing in the case of national adoption...”

The Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption 1993 aims to put into place a system of co-operation between countries to prevent the abduction of, and sale of, children and ensure that intercountry adoption only takes place where it is in the best interests of the child and the adopters have been through the proper assessment and approval procedures.

The Preamble states inter alia :

“Recalling that each State should take, as a matter of priority, appropriate measures to enable the child to remain in the care of his or her family,

Recognising that intercountry adoption may offer the advantage of a permanent family to a child for whom a suitable family cannot be found in his or her State of origin.”

Under the heading “Requirements of Intercountry Adoptions”, it is stipulated in Article 4:

“An adoption within the scope of the Convention shall take place only if the competent authorities of the State of origin -

a) have established that the child is adoptable ;

b) have determined, after possibilities for placement of the child within the State of origin have been given due consideration, that an intercountry adoption is in the child’s best interests; ... ”

Article 5

“An adoption within the scope of the Convention shall take place only if the competent authorities of the receiving State – ...

c) have determined that the child is or will be authorised to enter and reside permanently in that State.”

The United Kingdom signed the Hague Convention on 12 January 1993 and intends to ratify it in 2002. In preparation for ratification, it has enacted the Adoption ( Intercountry Aspects) Act 1999, which inter alia empowers the Secretary of State to make secondary legislation to give effect to the Convention. It also makes it an offence to bring a child into the country for adoption without the adopters following approved procedure.

On 26 January 2000, the Parliamentary Assembly of the Council of Europe adopted its Recommendation 1443(2000) International Adoption: respecting children’s rights . It affirms:

“... all children have rights, as set out in the United Nations Convention on the Rights of the Child, and, in particular, the right to know and be brought up by their parents in so far as this is possible. The purpose of international adoption must be to provide children with a mother and a father in a way that respects their rights, not to enable foreign parents to satisfy their wish for a child at any price; there can be no right to a child.

The Assembly therefore fiercely opposes the current transformation of international adoption into nothing short of a market regulated by the capitalist laws of supply and demand, and characterised by a one-way flow of children from poor states or states in transition to developed countries. It roundly condemns all crimes committed in order to facilitate adoption, as well as the commercial tendencies and practices that include the use of psychological or financial pressure on vulnerable families, the arranging of adoptions directly with families, the conceiving of children for adoption, the falsification of paternity documents and adoption via the Internet.”

It called on the Committee of Ministers inter alia to:

“... give a clear indication of its political will to ensure that children’s rights are respected, by immediately inviting the member states to:

( i ) ratify the Hague Convention on Adoption if they have not already done so, and undertake to observe its principles and rules even when dealing with countries that have not themselves ratified it ...”

In its Opinion International adoption: respecting children’s rights , 21 December 1999, the Social, Health and Family Affairs Committee of the Parliamentary Assembly observed:

“When prospective adoptive parents decide to act unilaterally, the opportunities for taking protective measures are drastically reduced. The fraudulent practice of demanding advance payment for children who do not exist or are unsuitable for adoption is widespread. In many cases, private adoptions have taken place because of the strict procedures involved in international adoptions. It is very important that these parents should be made aware of the fact that these measures are aimed at protecting the interests and rights of the child, and are not arbitrary obstacles to adoption. They should also remember that ... adoption is not to be seen as solution to a childless couple’s overwhelming desire to have a child, but rather as a means of finding parents for abandoned children or orphans.”

In 1996, the European Parliament adopted a Resolution on improving the law and cooperation between the Member States on the adoption of minors ( Doc . A4-0392/1996, 12 December 1996). It stated inter alia :

“A. whereas the essential objective that adoption must pursue is the benefit of the child being adopted and the protection of that child’s rights ...

C. whereas a child has the right to be brought up by its original parents wherever possible ...

E. whereas in all the Member States of the Union the birth rate is falling sharply and there is a high number of applications for adoption, only a small percentage of which can be satisfied, which explains the increase in the number of intercountry adoptions, ...

F. whereas there is now a risk that, as a legal institution, adoption – particularly intercountry adoption – will become debased; whereas its real purpose as a means of providing a home for abandoned children without regard for national borders should be re-asserted and more thorough control procedures should be introduced ...

G. whereas intercountry adoption should only be resorted to in cases where it is impossible – even if appropriate economic and social assistance is provided – for the child to remain in its family of origin or, at the very least, a foster family living in the same country.”

The European Parliament accordingly called on the Member States to ratify the 1993 Hague Convention, impose appropriate procedures and affirm the principle that adoption is a means of protecting the rights of children rather than those of adults.

COMPLAINTS

The applicants complain that the refusal to permit the entry of the third applicant violates their right to respect for family and private life under Article 8 of the Convention and their right to found a family under Article 12 of the Convention. They also invoke Article 14 of the Convention, in conjunction with Articles 8 and 12, alleging that they have been discriminated against in attempting to exercise their right to respect for their family life and their right to found a family.

The applicants also complain under Article 13 that they have been denied an effective remedy due to the highly restricted grounds on which the immigration rules can be challenged in judicial review and due to the delay in the procedures (a period of 2 years and 9 months) in the case of the adoption of the baby.

THE LAW

The applicants complain about the refusal to allow the entry of the third applicant to join their family in the United Kingdom, invoking Articles 8, 12, 13 and 14 of the Convention.

Article 8 of the Convention provides insofar as relevant:

“1. Everyone has the right to respect for his private and family life, ...

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Article 12 of the Convention provides:

“Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.”

Article 13 of the Convention provides:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

Article 14 of the Convention provides:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The submissions of the parties

The Government

The Government submitted that, under Article 8 taken alone or in conjunction with Article 14, the applicants had failed to establish that there was in the circumstances any form of “family life”. The applicants were not the natural parents of the child, they had never lived together with the child for any meaningful period of time and there was little to no demonstration of commitment having regard to the limited amount of visits to India and the lack of sufficient explanation for this. The first and second applicant were no more to the third applicant than a visiting uncle and aunt, with no significant bond or parental type relationship. They disputed that an adoption order issued in India could create family ties per se and argued that the applicants were seeking to use Article 8 to provide them with a right to adopt, which did not exist under the Convention. They submitted that where there was no genuine transfer of parental responsibility and a child’s natural parents were able to take care of him, no issue arose under Article 8 concerning the refusal of immigration authorities to permit entry to join putative adopters (see application no. 7229/75, X. and Y. v. the United Kingdom, Commission decision of 15 December 1977, DR 12, p. 32). This was in keeping with the developments in international law in relation to adoptions where recognition of relationships based upon adoption was considered as appropriate only where the child could not be cared for by its natural parents and where the necessary procedures safeguarding the rights of the child had been complied with. India had been excluded from the list of countries whose adoptions were recognised because it was not a member of the earlier Hague Conference concerning adoption and Indian courts did not apply the same criteria as English courts in relation to the making of adoption orders. There were known bad practices in existence for example with Indian adoption agencies requesting and receiving large donations.

To the extent that Article 8 was engaged at all, the Government noted that there was nothing to stop the applicants going to live in India with the child and that the applicants had embarked on the adoption without going through the necessary procedures which might have ensured the adopted child could join them. The refusal of entry therefore struck a fair balance between the applicants’ interests and the general interest in controlling immigration and intercountry adoptions. Even therefore if Article 14 came into play, there was no difference in treatment, as the applicants were not in a comparable position to those whose foreign adoptions might be recognised under domestic law.  In any event, the restrictions imposed in this case were wholly consistent with obligations under international law to protect children’s rights and were wholly proportionate to the aim pursued.

As regarded Article 12 alone or in conjunction with Article 14, they submitted that this did not guarantee a right to adopt or otherwise integrate a child who is not the natural child of the couple concerned. United Kingdom law in principle provided for the recognition of foreign adoptions, including de facto adoptions. The fact that it did not recognise the foreign adoption the applicants underwent without going through any of the prescribed procedures did not mean that they had been denied the right to found a family. The rights under Article 12 were not engaged. Even if they were, the case-law on this provision emphasised that the content of the right was subject to “national laws” and Contracting States had a wide margin of appreciation so long as they did not prohibit or exclude the right altogether.

As regarded Article 13 of the Convention, the Government pointed out that the applicants enjoyed a full merits appeal to the Adjudicator, the Immigration Appeal Tribunal and the Court of Appeal. The test of “reasonableness” applied by the courts in assessing whether the Immigration Rules were ultra vires was also compatible with the requirements of Article 13. The courts considered all the human rights arguments and concluded that they had not been made out. The applicants in the circumstances had access to an effective remedy.

The applicants

The applicants maintained that there had been a genuine transfer of parental authority, as found by the Adjudicator in her recent decision. They took all important decisions, in particular concerning the child’s schooling and supported him financially. They disputed any lack of commitment was shown by the number of visits, pointing to the fact that they had a daughter in the United Kingdom who had recently had a child and a small business to run which supported the wider family. Relocation to India was not a realistic option. They were fully integrated in the United Kingdom with all the family, social and economic ties that this entailed. There was accordingly “family life” within the meaning of Article 8 and this had been unjustifiably interfered with by the decisions taken in this case.

Furthermore, they disputed that there were any other means provided by domestic law which would enable the adoption to be recognised e.g. recognition at common law only applying where the parents (or at least one of them) had been resident abroad. It was the gross discrepancy in the conditions of entry between adopted children from designated and non-designated countries that was at the heart of their complaint. It was also inaccurate to claim that the applicants had failed to go through the appropriate procedures as there was no requirement in the Immigration Rules for prior assessment. Any failure in procedure was the fault rather of the inaccessible, ad hoc , discretionary and unenforceable nature of the domestic system. While the Government asserted the principle that a child had the right to be brought up by its natural parents, domestic adoption law did not proceed on that basis and such a proposition had been specifically rejected by the courts. Nor was it apparent that the countries on the designated list enforced such a principle and it was not suggested that adoption from these countries was inconsistent with international instruments. While it was accepted that there was strong international and public interest consensus in protecting children from abusive commercial adoptions, this did not exclude adoptions rooted in ancient custom and cultural/religious practice. The applicants’ situation did not concern a commercially-based transaction but rather a humane response based on a long established customary practice rooted in religious faith and approved in secular law.

The applicants further disputed the reasons given for not including India on the list of designated countries. India did apply broadly compatible criteria to English law, in particular applying the welfare principle and the best interests of the child. It had also signed the UN Convention on the Rights of the Child. Practices in a number of the designated countries could also be said not to be in conformity with international instruments. Thus there was no objective and reasonable justification, under Articles 8, 12 or 14 for the difference in treatment in their case. There was clear discrimination as if the third applicant was British, or from a designated country, there would be no requirement to show that the original parents were unable to care for him. They submitted that the absence of any cogent explanation for excluding India from the list shows that the rules were designed to prevent this form of adoption giving rise to applications for entry from countries of significant migration to the United Kingdom.

As regarded Article 13, they submitted that they had no effective or practical means of obtaining recognition of the foreign adoption order in the absence of India on the designated list. In the absence of recognition, rules 310 and 287( i )f were the only other available routes and they imposed impossible criteria for the applicants to meet. To succeed they would have had to strike down the rules as ultra vires . This was decided on the basis of a test of reasonableness and so did not provide a full merits appeal on the facts of the case. Nor was any proper or direct consideration given to the Convention rights involved until after incorporation of the Convention into domestic law. Furthermore, the inordinate delay in the procedures concerning a child and its future has not met with an explanation.

The Court’s assessment

Having regard to the applicants’ complaints and the parties’ submissions, the Court finds that serious questions of fact and law arise, the determination of which should depend on an examination of the merits. The application cannot be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

S. Dollé J.-P. Costa Registrar President