username

password

Harcourt Chambers1 Garden CourtGarden CourtDNA Legalimage of 4 Paper Buildings logoHind CourtCoram Chamberssite by Zehuti

Home > Judgments > 2012 archive

Re J (A Child) [2012] EWHC 3353 (Fam)

Application for a declaration recognising the validity of a foreign adoption order. Application granted.

Application for a declaration recognising the validity of a foreign adoption order. The parties were born in India but subsequently resided in England. It had been agreed that they would adopt the father's nephew who was born in India in 2010. The birth and adoptive parents had taken part in a religious adoption ceremony in India which was subsequently registered by deed by the registrar in the local court, consented to and signed by all four relevant parties. The baby (AJ) subsequently travelled to England with both sets of parents, and the birth parents later returned to India leaving her in England with her adoptive uncle and aunt. AJ was made a ward of the court, and various assessments had been conducted, all of which had been very positive. Expert evidence was filed to confirm the validity of the adoption in India, and the UK Border Agency had raised no objection to the court proceedings. In the light of the totality of the investigations which had been conducted, the court found that AJ was thriving in the care of the adoptive parents, and it was in her best interests that the adoption order be recognised.

Summary by Jacqui Thomas, barrister, 37 Park square Chambers



______________________________



Neutral Citation Number: [2012] EWHC 3353 (Fam)
Case No: FD 11 P 01782

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL
Date: Thursday, 21st June 2012

Before:

MR. JUSTICE MOOR
- - - - - - - - - - - - - - - - - - - - -

RE "J"
- - - - - - - - - - - - - - - - - - - - -

Digital Transcription by Marten Walsh Cherer Ltd.,
1st Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP
Telephone: 020 7067 2900    Fax: 020 7831 6864    DX: 410 LDE
Email: info@martenwalshcherer.com
Website: www.martenwalshcherer.com
- - - - - - - - - - - - - - - - - - - - -

MR. DAFYDD GRIFFITHS (instructed by Messrs. Rollingsons Solicitors) for the Applicants
MR. MICHAEL HINCHCLIFFE
, Principal Lawyer with CAFCASS, for the Guardian ad Litem
- - - - - - - - - - - - - - - - - - - - -

JUDGMENT
MR. JUSTICE MOOR:

1. This is an application pursuant to the inherent jurisdiction that I grant a declaration recognising the validity of the foreign adoption order in this case. 

2. The facts can be set out very straightforwardly.   The applicants are SJ and DV.   They were both born in India but have been residing in this jurisdiction.  In the case of DV, this has been since 1994.  In the case of SJ, he was briefly here in 2005 and has resided here again since 2007.    They, unfortunately, had difficulties in conceiving.  SJ's brother, Mr SJ and his wife, Mrs DJ, already have a child, KJ who, I believe, is now aged six.   They live in India.   In or around 2010 Mrs DJ became pregnant again with the child with whom I am concerned, AJ.   Mr SJ and Mrs DJ decided that they were really not in a position to care for their new baby and an agreement was reached between the applicants in this case and Mr SJ and Mrs DJ that the applicants would take over the care of the yet to be born baby.   AJ was born on [a date in] 2010 in India and is therefore now approximately 18 months of age.

3. The applicants returned to India in early February of 2011 and on 5th February undertook a religious adoption ceremony known as a Datta Homan.   They participated fully in that ceremony as did Mr SJ and Mrs DJ.   Four days later, on 9th February 2011, this religious adoption ceremony was registered by deed by the Registrar in their local court.   It was consented to and signed by all four relevant parties.

4. In March 2011 AJ came to this jurisdiction with her birth parents on a visitor's visa.  The birth parents returned to India on 10th April 2011. Since March 2011 AJ has been cared for by the applicants at their home address.   On 15th August 2011 the applicants applied for a declaration as to the validity and recognition of the Indian adoption deed.   They accept that, assuming I grant that declaration, they will then have to apply for indefinite leave for AJ to remain in this country with them although my understanding is that all parties hope and expect that that will be achieved without difficulty.  On 20th August 2011 the birth parents acknowledged service and indicated that they had no intention to oppose the order sought.  

5. On 1st September 2011 Hogg J made J a ward of this court, appointed a High Court Guardian to represent her, joined her to the proceedings and directed various provisions for expert evidence and safeguarding assessments.   On 12th October 2011 the Local Authority filed their safeguarding assessment.   The assessment was very positive.  It indicated that the applicants were able to meet AJ's overall needs; that AJ was a healthy baby developing and meeting her milestones; that she was provided with appropriate stimulation; that the family was very caring and loving; and the baby was contented.   She noted that the couple need to be open and honest with AJ about her birth history when AJ is of a sufficient age to understand and comprehend properly but, in general, the safeguarding assessment was very positive and recommended that AJ remain permanently with the applicants.

6. On 10th November 2011 expert evidence was filed as to the validity of the adoption in India.  The said report confirmed the relevant Indian statute was the Hindu Adoptions and Maintenance Act 1956.   The report indicated that the provisions of that Act were in line with the practice in other countries; that there had been consent in this case; there had been a ceremony in a public place; the adoption had been properly registered in the District Court and that this adoption was valid and entitled to recognition in this court.

7. On 6th February 2011 the UK Border Agency indicated by letter that they had no intention of taking enforcement action for the removal of AJ from this jurisdiction for the duration of the court proceedings and that they had no wish to intervene in these proceedings.

8. On 14th June 2012 the CAFCASS officer, Mr. Bob McGavin reported.   He concluded that as a result of the evidence that had already been obtained, there was no need for him to investigate further and that the Adoption Deed was valid in Indian law.

9. On 19th June 2012 the parties filed a joint statement.   It deals with their domicile.   The father says that it has always been his intention to return to India; that he has retained bank accounts in India; that he is a partner in a business in India; and he is only here due to his marriage.   The mother says that she also regards herself as domiciled in India.  She says that she wishes her ashes to be scattered in India; that she too intends to retire there and that the two of them are going to build a home there.   They both say that they spend all their holiday vacations in India even though they could travel elsewhere and they both regard themselves as Indian domiciled.

10. I must deal very briefly with the law.   This is a non-Convention adoption but I can recognise it pursuant to the common law.   I must apply the adoption welfare test in section 1 of the Adoption and Children Act 2002 in which AJ's welfare throughout her life is paramount.   As a result of Valentine's Settlement [1965] 2 All ER 226 I am not entitled to recognise a foreign adoption order unless the adopting parents were domiciled in India at the relevant time.   Pursuant to the decision of Hedley J in Re: T and M [2011] 1 FLR 1487, when I have to consider the question of whether to recognise a foreign adoption under the common law, there are three questions which I must ask myself: (i) was the adoption order obtained wholly lawfully in the foreign jurisdiction; (ii) did the concept of adoption in that jurisdiction substantially conform to the English concept; and (iii) if so, was there any public policy consideration that should mitigate against recognition?

11. Dealing first with (i) I am quite satisfied the adoption order in this case was obtained wholly lawfully in the Indian jurisdiction.   I am satisfied that these applicants were domiciled in India at the time of the adoption order.   I am quite satisfied, as a result of the legal opinion of the expert report, that this is a valid adoption pursuant to the Hindu Adoptions and Maintenance Act 1956 and that it is therefore one which I can say was obtained wholly lawfully in the foreign jurisdiction.

12. (ii) Did the concept of adoption in that jurisdiction substantially conform to the English concept?   Again, I am quite satisfied as a result of the expert opinion that that is indeed the case.  The expert report says that the Act defines adoption as:

"… the process through which the adopted child is permanently separated from his biological parents and becomes the legitimate child of his adoptive parents with all the rights, privileges and responsibilities that are attached to the relationship."

13. I am quite satisfied that although this adoption does not conform exactly to the way in which we do it in this jurisdiction, this is an adoption under which, following the adoption, the child is deemed to be the child of the adopting parents for all purposes with effect from the date of the adoption order; that all other legal rights and remedies, such as inheritance, will now flow from the adopting family and the child does not have any rights vis-à-vis her birth family.  

14. I am quite satisfied that this was an adoption that I can safely say satisfies entirely the second test of Hedley J.   I accept that there was not the detailed welfare investigation in India that there would have been in this jurisdiction.   But I am satisfied, first, that that was because this was an inter-family adoption and there was, therefore, no need; and, second, I am entirely satisfied that if there had been such a welfare investigation it would have come to exactly the same conclusion as Social Services came to in this jurisdiction.  

15. (iii) Is there any public policy consideration that should militate against recognition?   I am quite satisfied that the only possible public policy consideration might be one raised by the UK Border Agency.   The UK Border Agency have made it quite clear that they have no intention of intervening in these proceedings and it therefore follows that there is no public policy consideration mitigating against recognition.

16. Finally, am I therefore satisfied, pursuant to section 1 of the Act, that my recognising this adoption will promote AJ's welfare throughout her life?   I am quite satisfied that it will and I am very pleased indeed to make the declaration sought.   It is quite clear to me that AJ is thriving in the care of loving parents who have her best interests at the very centre of the lives.  I am quite satisfied that it is in AJ's best interests for me to recognise this Adoption Order.

17. Mr. Hinchliffe makes one further point.   He submits that in these cases it is not necessary for CAFCASS to undertake the standard welfare enquiries because they are undertaken by the relevant Local Authority.  Given the requirement that the court utilises resources correctly, I am quite satisfied that CAFCASS's role in the future in such cases should be as advocate to the court rather than in any other investigative role.

18. It therefore follows that I make the declaration sought and I provide my congratulations to the applicants.