Family Law Update: The recognition of foreign adoptions

Monday 17 December 2018

Written by Kathryn Cronin of the Garden Court Chambers Family Team.

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  1. The ACA Section 66 (1) classes among the list of Chapter 4 adoptions given effect under the Act - adoptions ‘recognised by the law of England and Wales and effected under the law of any other country’.
  2. Dicey, Morris and Collins , The Conflict of Laws cites the ‘rule’ on common law adoption recognition, as: “An adoption made in any country outside Great Britain and valid by its law will be recognised in England at common law if at the time of the adoption the adopter was domiciled in that country”. [20R-117 at p1250]  This is the ratio of the case In re Valentine's Settlement on adoption recognition [1965] 1 Ch 831 at [130]  - a case Sir James Munby, as  President, confirmed to be ‘good law and binding’. N (A Child), Re [2016] EWHC 3085 (Fam)
  3. The Dicey text makes clear that the said Rule: “is not limited to adoption orders made by a court but extends to any form of adoption, e.g. by contract, deed, religious ceremony or special statute. English courts now recognise foreign divorces obtained extra-judicially, and the authors note ‘there seems no reason why they should not recognise foreign adoptions so effected’.
  4. The President in N (a child) noted that the “analysis of the reasoning in Re Valentine's Settlement indicates the existence of four, and only four, criteria:
  • The adoptive parents must have been domiciled in the foreign country at the time of the foreign adoption.
  • The child must have been legally adopted in accordance with the requirements of the foreign law.
  • The foreign adoption must in substance have the same essential characteristics as an English adoption. As MacDonald J put it (paragraphs 115, 117 above), ‘Did the concept of adoption in the foreign jurisdiction substantially conform with the English concept of adoption?’
  • There must be no reason in public policy for refusing recognition.
  1. The Family Law Act 1986 section 57 similarly references common law recognition of foreign adoptions. It provides for the Court to make a binding declaration in respect of – “any person whose status as an adopted child of any person depends on whether he has been adopted by that person by either – a Convention adoption, or an overseas adoption, within the meaning of the Adoption and Children Act 2002, or an adoption recognised by the law of England and Wales and effected under the law of any country outside the British Islands. The declaration sought is that the applicant adopted child/person is or is not the adopted child of that person. [section 57(1] The adoptee – the child and not the parent  is the applicant for such declaration.
  2. In Re G [2014] EWHC 2605 (Fam) Cobb J at [29-30] noted for those seeking both an order under the Court’s inherent jurisdiction recognising the foreign adoption and the section 57 declaration - that this is a two-stage process. Before an application can be made for a declaration, the applicant must be able to demonstrate that the adoption is "recognised by the law of England and Wales". Once that recognition is shown or achieved, then the application under section 57 can be made. Cobb J noted: “The effect of any declaration made under this section is far-reaching: section 58 of the Family Law Act 1986 (General Provisions as to the making and effect of Declarations) provides that any declarations made under the 1986 Act shall be binding on all persons, including HM The Queen.” (section 58(2)). The FLA 1986 therefore makes provision for the Attorney General to be informed of the proposed declaration application, to intervene or argue any question which the Court considers necessary to be fully argued concerning such declaration proceedings (section 59) and provides that ‘where the truth of the proposition to be declared is proved to the satisfaction of the court, the court shall make the declaration unless to do so would manifestly be contrary to public policy’. [Section 58(1)]
  3. These adoption recognition applications serve to establish the relationship of parent and child under English law. Additionally, such orders assist to satisfy an immigration rules requirement and British nationality policy objective for the settlement /citizenship registration of adopted children which requires that their adoptions are recognised in UK law. (see HC 395 Para 310)
  4. Following N, the Secretary of State has intervened in several cases to put to proof or challenge the recognition of foreign adoption orders. – see: W v The Secretary of State for the Home Department [2017] EWHC 1733 (Fam); ELO v CLO (recognition of a Nigerian adoption order) [2017] EWHC 3574 (Fam). In ELO the Secretary of State argued against recognition on the grounds that two of the four criteria in In re Valentines Settlement were not established, namely; that the applicants were not domiciled in Nigeria at the time of the adoption order and that the child V had not been legally adopted in accordance with the requirements of Nigerian law.
  5. The Court upheld the adopters claim to have retained their Nigerian domiciles, noting although they have lived here for extended periods and naturalised as  British citizens those and other factors were outweighed by the clear evidence of the strong links they have each retained to Nigeria, where they intend to retire. They retained a family home in Nigeria, have each actively retained close family, social and cultural ties and attachments to Nigeria and are an integral part of the Nigerian diaspora here.
  6. As to the submission that the applicants did not meet residence and care requirements under Nigerian children’s law, the Court noted that there was no suggestion the applicants sought to hide the fact that they were living in the UK at the relevant time, or that the child V was placed  in the care of the extended family when the applicants returned to the UK. In similar circumstances in Re W, Pauffley J accepted a wide construction of the phrase 'in the care of' as including, as here, a child placed in the care of the wider family under the direction and supervision of the applicants. The child’s welfare interests predominated under Nigerian law and the inference must be that the residence requirements were capable of liberal interpretation, both as to precise timescales and delegation of the care of the child. The Court was satisfied the adoption order was made in accordance with the requirements of Nigerian law.

Kathryn Cronin is a member of the Garden Court Chambers Family Team.

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