The Supreme Court has published its judgment on an important case about international adoption in which CCLC intervened to emphasise the importance of considering the best interests of children. The case, SM (Algeria), was about a young Algerian, abandoned by her parents, who was adopted by way of a Kefalah adoption by a French couple. The French couple later tried to bring this child to the UK to live with them. The Home Office refused them permission on the grounds that she had not been adopted under a system formally recognised in the UK.
CCLC intervened, along with the AIRE Centre, and, following these interventions, the court granted the child permission to appeal on wider grounds. CCLC provided submissions on, firstly, whether the child has a right of appeal against the decision to refuse her entry and, secondly, whether the child can be classed as a ‘direct family member’ of her parents under the relevant EU law (which would entitle her to live with them in the UK).
The Supreme Court found that there was a right of appeal for the child and the court did have jurisdiction. The Supreme Court also found that, although a refusal could be justified on the basis of risk of exploitation/abuse or the wishes of the birth family not being respected, the fact that the adoption arrangements did not comply with stringent UK adoption requirements should not be the reason alone. The best interests of the child had to be a primary consideration. The Supreme Court, disagreeing with the Court of Appeal, had little doubt that even if the child was not a ‘direct family member’ of her parents, she should, at the very least, be regarded as an ‘extended family member’ thereby giving her some rights under EU law.
On the issue of whether the child should be considered a ‘direct family member’, the Supreme Court referred several questions to the Court of Justice of the European Union for consideration, including whether a child in permanent legal guardianship of a Union citizen (such as Kefalah) is a direct descendant of an EU national
The intervention was funded by the Strategic Legal Fund. CCLC were represented by Manjit Gill QC and Navtej Singh Ahluwalia of Garden Court Chambers. Navtej has sadly passed away since the judgment was made. We would like to pay tribute to his work and expertise in this case, as well as his lifelong work helping others realise their human rights.