Counsel at No5 Barristers’ Chambers have appeared at the Court of Justice of the European Union in an intercountry adoption appeal.

The child, ‘SM’, was adopted under the Algerian ‘Kefalah’ system by her French national legal guardians, who live in the UK as EEA nationals. The issue was whether SM could join her legal guardians here in the UK.

Mr Ramby De Mello and Abid Mahmood, both of No5 Barristers’ Chambers, appeared for the appellant SM, instructed by David Tang and Co Solicitors.

Manjit Gill QC, also of No5, instructed by the Coram Children’s Legal Centre, appeared as an intervenor.

Various other counsel and solicitors from England, Wales and Scotland were also involved in the case.

The child had argued that she met the requirements of Regulation 12 of the Immigration (European Economic Area) Regulations 2006.

The Upper Tribunal had, in part, allowed SM’s appeal. However, the Court of Appeal had reversed the Upper Tribunal’s decision.

The Supreme Court of the United Kingdom had referred the matter to the Court of Justice of the European Union for a preliminary ruling pursuant to Article 267 TFEU. 

The Supreme Court had concluded that it was not acte clair that a child in the instant situation was not to be regarded as a direct descendant of her guardians within art.2.2(c).

However, such an interpretation might create opportunities for exploitation, abuse and trafficking in children.

The following questions were referred to the Court of Justice of the European Union for a preliminary ruling:

(a) Is a child who is in the permanent legal guardianship of an EU citizen or citizens, under “kefalah” or some equivalent arrangement provided for in the law of his or her country of origin, a “direct descendant” within the meaning of article 2.2(c)?

(b) Can other provisions in the Directive, particularly art.27 and art.35, be interpreted so as to deny entry to such children if they are the victims of, or are at risk of, exploitation, abuse or trafficking?

(c) Is a Member State entitled to inquire, before recognising a child as a direct descendant under art.2.2(c), into whether the procedures for placing the child in the guardianship or custody of an EEA national were such as to give sufficient consideration to the child’s best interests?

The Court of Justice of the European Union heard detailed submissions from the appellant, but in view of the importance of the case, there were interventions from several other European countries by way of both oral and written submissions.

The Court said it was likely to give its reserved decision at the end of February 2019.

Manjit Gill QC, Ramby de Mello and Abid Mahmood are all members of No5 Barristers’ Chambers Immigration Group.