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T & M v OCC & C [2010] EWHC 964

Adoption case considering whether a lesbian couple living separately were a couple within the meaning of the Adoption and Children Act 2002 and whether the adoption was justified by s.1 of the Act.

Adoption case: considering (i) the recognition of an adoption order in Nicaragua, (ii) whether the same sex couple who were, unusually living separately were to be regarded as a couple within the meaning of the Adoption and Children Act 2002, and (iii) whether the adoption was justified by the criteria of s. 1 of the 2002 Act.

The parties concerned are a lesbian couple, T was born in the USA and M was born in Nicaragua. They moved from the USA to Nicaragua in 1996. The law of Nicaragua did not allow for adoption by a same sex couple and so T formally adopted a child, J, and M formally adopted a child, C. All four lived together as a family. The family moved to England in 2001 and all parties now have UK nationality.

Child J's experience before placement left her with an attachment disorder manifesting itself in a difficult relationship between herself and M. In 2004, T and M decided to live in separate homes abeit within easy walking distance. Child J continues to live with T, and child C divides her time between mothers T and M. M and T see each other daily and the family often have time together at weekends, and take holidays together. M and T decided on this application so that they could enjoy equal status in respect of child C as they had always intended and as was anyway the reality. The application before Hedley J was formulated on the basis of being an application by a couple, M being the mother of C and consenting to that application, no other consents being required.

The first issue was whether M should be treated as the mother of child C by reason of the adoption order made in Nicaragua. At the heart of this question was whether or not the court should recognise the adoption order. The Nicaraguan order was made before the coming into force of the Adoption and Children Act 2002 (the 2002 Act) so the question of recognition was required to be dealt with under the Adoption Act 1976 (the 1976 Act), specifically s 38 which specifies "(d) which is an overseas adoption; or (e) which is an adoption recognised by the law of England and Wales and effected under the law of another country". Nicaragua is not a signatory of the 1993 Hague Convention on Protection and Co-operation with respect to Intercountry Adoption nor is it a country named in the Schedule to the Adoption (Designation of Overseas Adoption) Order 1973. The only route to recognition was therefore under the Common Law of England and Wales. D v D (Foreign Adoption) [2008] 1 FLR 1475 was authority for key questions: was the adoption order obtained wholly lawfully in the foreign jurisdiction; if it was, did the concept of adoption in that jurisdiction substantially conform to the English concept; if so, is there any public policy consideration that should mitigate against recognition. Ms Michele L Jackson, Attorney in the State of Indiana, USA was commissioned to give expert opinion and advice. Her opinion answered in the positive questions 1 and 2. Hedley J held there were no public policy considerations to mitigate against recognition. The Nicaraguan adoption order was recognised and therefore M held to be the mother of C.

The second issue was whether M and T were a couple within the meaning of s.50 of the 2002 Act. S 144(4) (b) includes in the definition of couple "two people (whether of different sexes or the same sex) living as partners in an enduring family relationship". Hedley J specified that what was required was firstly, an unambiguous intention to create and maintain a family life and secondly, a factual matrix consistent with that intention. The court held that the background to the case and the shared care arrangement was entirely consistent with the concept of a family of 4 and thus within the ambit of s 144(b).

Thirdly, Hedley J concluded C's welfare required the adoption justifying the criteria of s.1 of the 2002 Act  

Summary by Alfred Procter, barrister, 1 Garden Court

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Neutral Citation Number: [2010] EWHC 964 (Fam)

Case No: FD09A00380
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 13/05/2010

Before :
MR JUSTICE HEDLEY
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Between :

T 1st Applicant

- and - 

M 2nd Applicant

- and - 

O. C. C. 1st Respondent

- and - 

C (a child) 2nd Respondent


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Ms. Fiona Hay (instructed by Turpin & Miller Solicitors) for the Applicants
Mr. Alex Forbes (instructed by Darbys Solicitors) for the 2nd Respondent

Hearing date: 19th April 2010
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Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

.............................

MR JUSTICE HEDLEY
This judgment is being handed down in open court on 13th May 2010. It consists of six pages and has been signed and dated by the judge.  The judge hereby gives leave for it to be reported.

The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.

1. This is an application by two women M and T to adopt a girl C who is 11 years old. The case raises three issues requiring determination by the court: first, whether M is to be regarded as the mother of C by reason of an adoption order made in Nicaragua; secondly whether M and T are to be regarded as a couple within the meaning of Section 50 of the Adoption and Children Act 2002 (the 2002 Act); and thirdly whether adoption is justified by the criteria of Section 1 of the 2002 Act.

2. I am giving his judgment in an anonymised form in open court. It is the case that nothing may be reported which might reasonably lead to the identification of the child or the parties to the case.

3. T was born in the United States of America whilst M was born in Nicaragua. They entered into a relationship in 1991 which has endured unbroken to date. From 1991 to 1996 they lived in the USA but moved in 1996 to Managua, Nicaragua. T took up employment there with an international development agency. It was their joint aspiration to parent children and, whilst living in Managua, they decided to explore the route of adoption. At this point two further people enter into the story.

4. J was a young girl who had been abandoned by her family and had been cared for in an orphanage for most of her life. C was the child of a member of M's extended family who wished to place C for adoption within the family. M and T decided that they would adopt both children and bring them up together in a family unit. All the necessary formalities were undertaken in Nicaragua and the adoptions were approved.

5. The law of Nicaragua did not allow for adoption by a same sex couple. In the end the arrangement was that T would adopt J and M would adopt C and that arrangement was confirmed by the orders of the competent court in Nicaragua. The children were placed and all four lived together as a family. Although C was adopted in 2001, she had been living with M since 1999 when she was then some five weeks old.

6. In 2001 the family decided to move to England and T was able to take a new job with the same agency. The details of that move are immaterial to this case other than to say that it was entirely lawful. Once here, M changed C's surname by deed poll to a hyphenated combination of the surnames of M and T. Moreover all parties now have UK nationality.

7. Unhappily M and T had not been prepared for the fact that J's experience before placement had left her with an attachment disorder. That manifested itself in particular in a very difficult relationship between J and M. M and T sought appropriate professional help for the issue but it is the fact that the relationship between J and M was such that T and M feared for the stability of the family. In 2004 T and M decided to live in separate homes albeit within easy walking distance. J continued to live with T whilst C divided her time between T and M. That arrangement has persisted to the present time. Although C spends longer with M than with T each week, the arrangement can and should be described as shared care.

8. M and T see each other pretty well on a daily basis, the family often have time together at weekends and in particular they take holidays together. The tension between J and M has eased and C seems unaffected by that relationship enjoying, as she does, excellent relations with T and J as well as with M. In fact C had not appreciated that she was in a different legal relationship as between M and T nor that J was not legally her sister. Thus it is that M and T decided on this application so that they could enjoy an equal status in respect of C as they had always intended and as was anyway the reality.

9. The application is formulated on the basis of being an application by a couple, M being the mother of C and consenting to that application, no other consents being required. The first issue therefore to be considered is whether indeed M should be treated as the mother of C.

10. At the heart of that issue is the question as to whether or not this court should recognise the adoption order in Nicaragua; if so, then M will indeed be the mother (and only legal parent) of C whereas, if not, the legal mother will be the biological mother who (as it happens) has since left Nicaragua. Despite the enquiries of the Nicaraguan authorities, the identity of the birth father has never been established.

11. As the Nicaraguan order was made before the coming into force of the 2002 Act, the effect of Section 66 (2) and (3) of that Act is to require the question of recognition to be dealt with under the Adoption Act 1976 (the 1976 Act). Thus one goes to Section 38 of the 1976 Act and the relevant parts are

"(d) which is an overseas adoption; or (e) which is an adoption recognised by the law of England and Wales and effected under the law of another country."

As Nicaragua is not a signatory of the 1993 Hague Convention on Protection and Co-operation with respect to Intercountry Adoption nor is it a country named in the Schedule to the Adoption (Designation of Overseas Adoption) Order 1973 (SI 1973/19), the only route to recognition is recognition under the Common Law of England and Wales.

12. My attention has been drawn to the case of RE VALENTINE'S SETTLEMENT [1965] 1 Ch. 831 and the judgment of Lord Denning M.R. On p. 842 B he says this

"But when is the status of adoption duly constituted? Clearly it is so when it is constituted in another country in similar circumstances as we claim for ourselves. Our courts should recognise a jurisdiction which mutatis mutandis they claim for themselves see Travers v. Holley. We claim jurisdiction to make an adoption order when the adopting parents are domiciled in this country and the child is resident here. So also, out of the comity of nations, we should recognise an adoption order made by another country when the adopting parents are domiciled there and the child is resident there."

And further on at p. 842 F he adds this

"If you find that a legitimate relationship of parent and child has been validly created by the law of the parents' domicile at the time the relationship is created, then the status so created should be universally recognised throughout the civilised world, provided always that there is nothing contrary to public policy in so recognising it."

A more recent example may be found in the judgment of Ryder J in D -v- D (FOREIGN ADOPTION) [2008] 1FLR1475. The key questions seem to be: first, was the adoption order obtained wholly lawfully in the foreign jurisdiction; secondly, if it was, did the concept of adoption in that jurisdiction substantially conform to the English concept; and thirdly, if so, is there any public policy consideration that should mitigate against recognition?

13. The first question is clear enough and has to be determined on the individual facts of each case. The second question relates to the concept of adoption for the word itself can bear many shades of meaning from the idea of complete substitution of adopted family for natural family at one end of the spectrum through to an idea much more closely akin to our concept of Special Guardianship. Clearly the English court should not be recognising (and thus giving effect to) a foreign adoption unless what was conferred by that order is substantially the same as would be conferred by an English order. The third question relates to matters that would be repugnant to our jurisdiction as, for example, if what in reality was involved was the buying and selling of children irrespective of their actual welfare needs.

14. To that end an expert report was commissioned in this case from Ms. Michele L. Jackson, a qualified (and Spanish speaking) Attorney in the State of Indiana, U.S.A. I have considered her CV and report and I am satisfied that she is well qualified to give the opinion and advice sought in this case. The effect of her opinion is twofold. First, she satisfies me that this adoption was obtained fully in compliance with the laws and procedure of Nicaragua; the order was and remains valid in that jurisdiction. Secondly, she satisfies me that the Nicaraguan concept of adoption is broadly in accord with that of England and Wales; in particular the effect of the order in Nicaragua is to achieve the complete substitution of M as the legal parent for the biological parents who retain no remaining rights.

15. In my judgment there is no public policy consideration in this case, that should mitigate against recognition. Accordingly I propose to recognise the validity and effect of the Nicaraguan adoption order made in respect of C in favour of M. I therefore declare that under the law of England and Wales that M is the mother (and only legal parent) of C.

16. That then leads the court to the second issue namely whether M and T are in fact a couple within the meaning of Section 50 of the 2002 Act. Section 144 (4) of the 2002 Act provides:

"(4) In this Act, a couple means-

(a) a married couple, or

(aa) two people who are civil partners of each other, or

(b) two people (whether of different sexes or the same sex) living as partners in an enduring family  relationship."

Clearly the crucial words are "living as partners in an enduring family relationship." These words are no doubt chosen so as not to require the residence of both in the same property. That is not surprising as historically many a parent has had to work abroad whilst the family remained at home without in anyway imperilling an enduring family relationship. Nor is that unusual today with people having to move jobs often at short notice. What is required is: first, an unambiguous intention to create and maintain family life, and secondly, a factual matrix consistent with that intention. That is clearly a question of fact and degree in each case.

17. Here the parties live in a committed and exclusive relationship recognised by our family law and spend significant time as a unit of four. The background to the case and the shared care arrangement is entirely consistent with the concept of a family of four. In my judgment, the parties in this case bring themselves within the ambit of Section 144 (b) and thus Section 50 of the 2002 Act. They are thus entitled to make a joint application to adopt C.

18. A further matter which needs to be considered arises from Section 42. It is not immediately clear to me whether Section 42 (2) or (3) applies to this case. If Section 42 (2) applies, no difficulty arises. If Section 42 (3) applies, no difficulty arises over time provided C has had her home with the applicants "at all times" during the relevant period. It is true that in RE CSC(an infant) [1960] 1 WLR 304, a fairly strict approach is taken (but this again is a question of fact). I am satisfied on careful consideration that all formal and procedural requirements in this case have been met. Thus the order may be made if the welfare of C so requires.

19. I have read with care the Annex A report from the local authority and the report from the Guardian. I have considered with care the terms of Section 1 of the 2002 Act. I have had regard to the lifelong perspective required in Section 1 (2) and the detailed matters in Section 1 (4). It is unnecessary to go through each in turn though some specific observations should be made. There is no doubt that C wants very much the order to be made; she wishes T to have the same status in her life as does M and she wishes legally to be J's sister. She has of course, lived with T as well as M since she was 5 weeks old. Because this was a placement in the extended family, she remains in touch with relatives. They all support the making of the order. It should be added that the making of the order will make C a beneficiary under certain trusts that exist in T's family and that benefit is likely to be materially significant.

20. When one draws all these matters together, I am satisfied that the welfare of C requires the making of an adoption order in favour of T and M. I have found that M is the mother of C and consents to this application. I have satisfied myself that all the procedural requirements have been met. In these circumstances the law requires that the order sought should be made and that I now do. In my judgment a transcript of this judgment should be obtained at the joint and equal expense of the applicants on the one hand and the guardian on the other.