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Foreign Adoptions: how and in what circumstances should they be afforded recognition?

Michael Jones of Deans Court Chambers examines recent important decisions concerning the recognition of adoption orders made abroad.

Michael Jones, barrister, Deans Court Chambers


Michael Jones, barrister, Deans Court Chambers 

The concept of adoption in English law has distinct differences from that within some other jurisdictions and in the twenty first century, the use of adoption in England and Wales, namely within the context of child protection, has been the cause of much controversy internationally; see N (Children) (Adoption: Jurisdiction) [2015] EWCA Civ 1112. There are however, many distinct similarities between the concept of adoption in England and Wales and in other common law jurisdictions, namely the severance of legal ties to the birth parents and the effective transmission of those rights to the adoptive parents, who accordingly become the child's legal parents. In an age where family law is acquiring an increasingly complex international dimension, adoption is perhaps more topical today than it has ever been. Setting aside the controversies associated with the use of adoption in this country, the manner in which the English courts will view and afford recognition to adoption orders made abroad, is one which has been revisited in a number of recent cases heard within the Family Division. Now international travel and immigration have been normalised in many respects, it is not hard to see how legal issues arise over international surrogacy arrangements and adoption orders made in distant lands, particularly in relation to the immigration status of subject children; anticipating such problems, it is for this reason that Parliament provided for the restriction upon bringing children into the United Kingdom for the purposes of adoption, with section 83 of the Adoption and Children Act 2002 making such action a criminal offence.

The President of the Family Division has given recent consideration to the issue of recognition of an adoption order made abroad, in the case of N (A Child) [2016] EWHC 3085 (Fam), whilst MacDonald J has also grappled with the issue in QS v GR & Anor [2016] EWHC 2470 (Fam). The judgment in the latter case is extensive, detailed and authoritative in recounting the legal history relating to the recognition of foreign adoption orders and providing the reader with a summary of the principles set down by the various judgments dating from the second part of the twentieth century onwards.

It is notable that both of these decisions are recent and that the issue of foreign adoption orders appears to be arising on a more frequent basis within the family court arena; it is for exactly this reason that the judgment in N (A Child), in particular, merits careful reading. The case involved a child who had been made subject to an Indian adoption order, with the applications before the court being for a declaration effecting the recognition of that order, under the inherent jurisdiction (curiously the application was not for recognition pursuant to s57 of the Family Law Act 1986, as had been the case in QS v GR), and for the making of an adoption order in English law, pursuant to the 2002 Act. For the sake of brevity, this article will not repeat the lengthy background facts in the case, with its principal objective being to provide an overview of the legal principles surrounding recognition of foreign adoption orders and the clarity afforded to this area by the President in Re N.

In brief summary, the subject child, N, was the subject of an adoption order made in India, which expert evidence had confirmed to be 'valid and final' within that jurisdiction. The adoption had taken place within the applicant's family, with the birth mother (the applicant's sister) and her husband being completely supportive of the said adoption. The applicant, a naturalised British citizen, then moved to the UK with N, resulting in immigration proceedings following the refusal of entry clearance for N on the basis of settlement; given the obvious implications of the making of an English adoption order upon N's immigration status (recognition of the Indian adoption would not in itself, confer citizenship upon N), the Secretary of State for the Home Department was joined as a respondent within the proceedings in the Family Division. Leave was granted to the applicant to make an application for an adoption order pursuant to s 42(6) of the 2002 Act; factually, the court was satisfied that N had been informally adopted by the applicant and her husband in 2009, with the adoption being formalised in India in 2011. Having undertaken a thorough analysis of the issues and legal principles involved, the President granted recognition of the Indian adoption order. In coming to that conclusion, the first issue that fell for consideration was that of the requirements that must be met in order for recognition to be granted.

Recognition of foreign adoption orders: the requirements
Case law has established a set of requirements that must be met in order for recognition to be given to a foreign adoption order. However, these requirements have been added to on a number of occasions over the years, with the judgment in Re N affording clarification to exactly what these requirements are and the extent to which they should have been or indeed can be altered. The first requirement has been and remains that of domicile.

Given the volume of case law relating to habitual residence, the concept central to jurisdiction relating to various international instruments, it is perhaps easy for us to fail to devote an adequate amount of time to the study of the concept of domicile, which remains central to the underlying principles of so many areas of English law and indeed, many other common law jurisdictions. Domicile can perhaps best be described as the status or attribution of being a permanent and lawful resident in a certain legal jurisdiction. If a person leaves that jurisdiction and travels abroad, then he or she can maintain their place of domicile in their state of origin, provided that they maintain sufficient links with that jurisdiction and do not display an intention to permanently relocate away from it. In many common law jurisdictions, domicile has proved to be the determining factor in any conflict of laws. A helpful summary of the concept provided by Baroness Hale of Richmond in Mark v Mark [2005] UKHL 42 (at para 38), is cited by the President within his judgment:

"As the Hong Kong Law Reform Commission explain, in their recent Consultation Paper on Rules for Determining Domicile, "a person's domicile connects him with a system of law for the purposes of determining a range of matters principally related to status or property." Thus, for example, it governs capacity to marry or to make a will relating to moveable property; it is one of the factors governing the formal validity of a will; the domicile of the deceased also governs succession to moveable property and is the sole basis for jurisdiction under the Inheritance (Provision for Family and Dependants) Act 1975; legitimacy, to the extent that it is still a relevant concept, is governed by the law of the father's domicile; domicile is one of the bases of jurisdiction, not only in matrimonial causes but also in declarations of status or parentage under the Family Law Act 1986; it is the sole basis of jurisdiction to make an ordinary adoption order under the Adoption Act 1976, s 14, or a parental order under the Human Fertilisation and Embryology Act 1990, s 30. This is not an exhaustive list but it shows the particular importance of domicile as a connecting factor in family law."

The object of the rules determining domicile is to discover the system of law with which the individual concerned is most closely connected for the range of legal purposes. A person must always have a domicile but can only have one domicile at a time. Having defined domicile as clearly as is possible, the central issue for a court to consider is likely to be what an individual's place of domicile actually is.

Re Valentine's Settlement
The relevance of domicile to affording recognition to foreign adoption orders, arises from a judgment of the Court of Appeal dating back to 1965. Re Valentine's Settlement [1965] Ch 831 is a case which is referred to in numerous recent authorities, including N (Children) (Adoption: Jurisdiction) and in QS v GR & Anor where MacDonald J spends a considerable amount of time analysing the core legal principles arising out of the judgment. The case related to trusts; the deceased had resided in Rhodesia for a number of years, where he had adopted several children. He had one biological child. The issue in the case was whether the deceased had been domiciled in South Africa at the time he adopted the children, thus allowing the English court to afford recognition to the same. Within the judgment, Lord Denning neatly summarised the legal reasoning underpinning the necessity for domicile in the country in which an adoption order has been granted:

"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 ... But it is an essential feature of this principle that the parents should be domiciled in the country at the time: for no provision of the law of a foreign country will be regarded in the English courts as effective to create the status of a parent in a person not domiciled in that country at the time ... I ought to say, however, that in order for adoption to be recognised everywhere, it seems to me that, in addition to the adopting parents being domiciled in the country where the order is made, the child should be ordinarily resident there: for it is the courts of ordinary residence which have the pre-eminent jurisdiction over the child: see In re P (GE) (An Infant) [1965] Ch 568, 585 ... The child is under their protection and it would seem only right that those courts should be the courts to decide whether the child should be adopted or not." 

Interestingly, Salmon LJ dissented, providing what could be viewed in today's world as being a very persuasive basis for doing so:

"It has been suggested that according to the theory of our law no foreign adoption should be recognised unless, at the time it was made, both adopted child and adoptive parent were domiciled within the jurisdiction of the foreign country and that this appeal should be decided accordingly. Our law, however, develops in accordance with the changing needs of man. These have always been ascertained by experience rather than by the rigid application of abstract theory. Experience has shown that there are sound sociological reasons for recognising an adoption in circumstances such as these. Adoption – providing that there are proper safeguards – is greatly for the benefit of the adopted child and of the adoptive parents, and also, I think, of civilised society, since this is founded on the family relationship. It seems to me that we should be slow to refuse recognition to an adoption order made by a foreign court which applies the same safeguards as we do and which undoubtedly had jurisdiction over the adopted child and its natural parents."

On a reading of the full text of the judgment in Re Valentine's Settlement, a number of points, which can perhaps be described as 'criteria', arise which must seemingly be established in the event that an English Court is to recognise a foreign adoption order:

1) The adoptive parents must have been domiciled in the foreign country at the time the foreign adoption order was granted;

2) There must be proof of the relevant foreign law, demonstrating that the child has been legally adopted in accordance with the requirements of the foreign law;

3) The foreign adoption must in substance have the same essential characteristics as an English adoption; and

4) There must be no reason in public policy for refusing recognition.

These are effectively the four individual criteria that must be established in order for the English court to afford a foreign adoption order with recognition. Domicile is dealt with above, and remains crucial to the issue of recognition, whilst the issues relating to proof of the relevant foreign law and demonstrating compliance with the procedural requirements in that jurisdiction will often be established via the use of expert evidence. The third criterion is clear; the concept of adoption in the relevant state must equate to the essential characteristics of the English concept, in other words, it must severe legal ties with the birth parents whilst at the same time vesting all legal rights in the adoptive parent; the adoptive parent will become the child's legal parent whilst all rights and responsibilities of the birth parents will be terminated. The fourth criterion is not perhaps as clear-cut.

Recognition and public policy
There are very clear issues relating to recognition that can impact upon public policy, namely in the area of immigration, hence why the Secretary of State has acted as a respondent in a number of reported cases involving the recognition of foreign adoption orders. In addressing the pubic policy issue in Re N, the President, quoted directly from the commentators, Dicey and Morris (The Conflict of Laws, 2012 edn, para 20-133):

"If the foreign adoption was designed to promote some immoral or mercenary object, like prostitution or financial gain to the adopter, it is improbable that it would be recognised in England. But, apart from exceptional cases like these, it is submitted that the court should be slow to refuse recognition to a foreign adoption on the grounds of public policy merely because the requirements for adoption in the foreign law differ from those of the English law. Here again the distinction between recognizing the status and giving effect to its results is of vital importance. Public policy may sometimes require that a particular result of a foreign adoption should not be given effect to in England; but public policy should only on the rarest occasions be invoked in order to deny recognition to the status itself."

It therefore appears clear that the public policy criterion exists in order to prevent immoral or mercenary objectives, for example child trafficking. It is telling that the circumstances which would constitute a public policy reason for refusing recognition would have to be 'exceptional' in the views of the commentators. Public policy within this particular area of law therefore falls to be considered in the narrow manner described; a premise which the English courts do not appear to take issue with. Indeed, the public policy argument can be seen to work both ways, as is clear in QS v GR & Anor, where MacDonald J concluded that it would be contrary to public policy not to afford recognition to the adoption order in that case, despite the fact that the parents were not domiciled in the state in which the order was made:

"There is a plain public interest in the maintenance of all the safeguards which the developed law of adoption in this jurisdiction has devised in respect of foreign adoptions… this is not a case where the relevant safeguards fall to be considered in the context of, for example, an adoption arising from the buying and selling of children irrespective of their actual welfare needs (to use the example cited by Hedley J in Re T and M (Adoption)) or an adoption to promote some immoral or mercenary object, like prostitution (to use the example cited in Dicey, Morris & Collins on the Conflict of Laws (Sweet & Maxwell, 15 Edn, 2007) at 20-133). Rather, this is a case in which the safeguard comprised of the status conditions fall to be considered in respect of a foreign adoption achieved in good faith and which complies with the requirements for recognition in all other respects, the recognition of which adoption is manifestly in the child's best interests…..Whilst it is important for the reasons I have given to maintain all the rules which the developed law of adoption in this jurisdiction has devised to safeguard the welfare of children who are subject of foreign adoptions, it would be contrary to public policy in my judgment to apply those rules in a way that results in the breach of the fundamental rights of the parties to the proceedings in a given case, as I am satisfied it would in this case for the reasons that I have already given. In all the circumstances, I am satisfied that it would not be contrary to public policy to recognise the T's Nepalese adoption at common law."  (paras 105-107)

Domicile v habitual residence
Having considered a number of other reported decisions over recent years, in particular the decision of Hedley J in Re R (a Child) [2012] EWHC 2956 (Fam), the President noted that the domicile criterion appears to have been relaxed and that it is has become sufficient for the adoptive parents to have been habitually resident in the foreign country at the time of the adoption; this view is perhaps unsurprising given the emergence of habitual residence an authoritative factor concerning issues relating to jurisdiction and recognition in the years following on from Re Valentine's Settlement. However, one of the points of most interest in the Re N judgment is that the President takes issue with the reasoning deployed in support of habitual residence, rather than domicile, being satisfactory in order to provide a basis for recognition:

"Dealing first with the suggested relaxation of the 'domicile' requirement (a point which does not in fact arise in the present case, because there is no suggestion that the applicant was habitually resident in India in 2011), I confess to finding it difficult to reconcile Hedley J's analysis with fundamental and long-established principles. Authority at the very highest level establishes that domicile is the defining principle in determining which personal system of law applies: see Udney v Udney (1869) LR 1 Sc & Div 441 and Mark v Mark [2005] UKHL 42. Domicile is long-established as the defining principle in relation to a person's status: see In re Goodman's Trusts (1881) 17 ChD 266, followed and applied in the present context in In re Valentine's Settlement, Valentine and others v Valentine and others [1965] Ch 831. The effect of Hedley J's analysis is to carve an exception out of this general principle in one context – recognition of a foreign adoption – because of changes in our domestic law of adoption. Why should that be so? Given that in Re Valentine's Settlement the court was following the general approach articulated in Re Goodman's Trusts, I doubt that the language used by Lord Denning MR upon which Hedley J relied can bear the weight of the argument."?

And so it appears very clear that the domicile criterion cannot be conflated or substituted with the concept of habitual residence.

Additional criteria established by the case law
Re Valentine's Settlement remains good law and any substantive alterations to the criteria set out within that judgment, must surely have to come from the Court of Appeal. A further two additions to the criteria notably emerge throughout more recent case law: 

Re N also addresses both of these additions, again stressing the importance of following the Court of Appeal authority. In relation to best interests, it is correctly pointed out that whilst family practitioners grapple with welfare issues on a daily basis, particularly in relation to issues surrounding adoption, s 1 of the 2002 Act does not in any way relate to cases in which a court is being asked to afford recognition to a foreign adoption order:

"section 1 of the 2002 Act, like all its predecessors, has nothing to do with the question of whether a foreign adoption should be recognised, whether by a court or by anyone else. It is elementary that section 1(1)(a) of the Children Act 1989, which provides that "Where a court determines any question with respect to ... the upbringing of a child ... the child's welfare shall be the court's paramount consideration", does not apply to a judicial decision in an immigration case, even though that decision impacts directly on the child's "upbringing". In much the same way, it seems to me that, read in context, including the context provided, for example, by the other provisions of section 1, the language of section 1(1) of the 2002 Act – "whenever a court ... is coming to a decision relating to the adoption of a child" – is looking to the situation where the court is considering whether or not to make an adoption order and simply does not apply to a case where all the court is doing is deciding whether or not to recognise an adoption which has already taken place abroad." (para 127)

The family courts must be careful to remember that in relation to the principle of recognition, this may also have to be applied in completely different contexts, such as that of immigration. The best interests principle enshrined within the legislation, should accordingly be separated from issues relating to recognition and must be set to one side.

Finally in relation to the assertion that the adoption process in the other country must be 'substantially the same as would have applied in England at that time', the President said this:

"I turn to the proposition that, if a foreign adoption is to be recognised, the adoption process in the foreign country must have been, to use Peter Jackson J's words, 'substantially the same as would have applied in England at the time.' Reverting to the hypothetical succession case, how is this inquiry to proceed? If Peter Jackson J is correct in his assertion that what we are concerned with is the process 'at the time', and, as I have already said, law and logic would suggest that on this point he is correct, the same question arises in this context as in relation to best interests: what is the point of exploring in 2016 the question of whether the foreign process in 1949 was substantially the same as the process in this country in 1949, and how, being sensible, could such an inquiry be pursued? It is the kind of inquiry which, being realistic, would tax the abilities of family lawyers, familiar, no doubt, with the process and practice of adoption in accordance with the 2002 Act but wholly unfamiliar with adoption process and practice in the utterly different world of 1949; I hope I do no disrespect to anyone if I suggest that the exercise would be even more taxing if it had to be conducted in the Chancery Division." ?

Re N can therefore be seen to bring clarity to the issue of recognition, in that there should be no importing of additional criteria and no relaxation of other existing parts of the criteria set down by the Court of Appeal. The issues of best interests and process in relation to the relevant foreign jurisdiction can be considered as aspects of pubic policy and do not constitute separate 'requirements' that must be met.

The human rights element
One important point in relation to Re Valentine's Settlement is that it pre-dates the Human Rights Act. The Article 8 rights of both the relevant child and the applicants (adopters) are very clearly engaged in such cases, something which cannot be ignored by the courts. Indeed, in many cases Article 8 rights will have existed for what will perhaps be a substantial period of time, prior to the actual adoption order having been made in the foreign court. The Article 8 issue in relation to recognition of foreign adoptions was first considered within this jurisdiction by Peter Jackson J in A County Council v M and others (No 4) (Foreign Adoption: Refusal of Recognition), where Jackson J was not persuaded that the decision of the ECHR in Wagner and JMWL v Luxembourg could be read so broadly as effectively to sweep away all procedural rules in favour of a more liberal approach to recognition that would allow each case to be decided on a case-by-case basis. More recently, MacDonald J approached the Article 8 issue in a slightly different manner, concluding in the particular circumstances present in QS v GR & Anor, that despite the applicants not having been domiciled in the foreign state at the relevant time, the adoption order in question should be afforded recognition due to the fact that refusal to do so would constitute a wrongful interference with the Article 8 rights of the child and the applicants:

"I am satisfied that in determining an application for the recognition of a foreign adoption at common law and an application for a declaration pursuant to the Family Law Act 1986 s 57 the court must ensure that it acts in a manner that is compatible with the Art 8 right of the mother, the father and T to respect for family life. Further, within this context, and after much anxious deliberation, I am satisfied that the strict application of the rule as to status conditions in Re Valentine's Settlement to the very particular circumstances of this case, with a concomitant refusal to recognise the adoption lawfully constituted in Nepal in terms which substantially conform with the English concept of adoption by reason of the failure to comply with status conditions as to domicile or habitual residence applicable in this country, would result in an interference in the Art 8 right to respect for family life of the mother, father and T that cannot be said to be either necessary or proportionate."  (para 100)

However, it must be noted that MacDonald J was clear that in coming to this conclusion he was explicitly not stating that the rule in Re Valentine's Settlement is in any way incompatible with Article 8 of the ECHR per se, rather, his decision was simply that the application of that common law rule in the very particular circumstances of this case would breach the Article 8 rights of the parents and the child concerned. The President endorsed the comments of MacDonald J and expressed a degree of difficulty with elements of the reasoning deployed by Jackson J. Article 8 issues, it would appear, must be approached with careful consideration on a case-by-case basis. This is a conclusion one can reach in light of the fact that in the particular circumstances of the QS case, recognition was afforded due to the implications of failing to do so upon the respective Article 8 rights engaged, whereas in Re N, the President concluded that if the applicant had not been domiciled in India at the relevant time (as he had found she had been), then she would not have been able to obtain recognition by relying on an argument relating to a potential violation of her Article 8 rights due to the fact that in the circumstances of that case, the applicant would not have been denied a remedy in the event recognition was refused; she could have obtained an English adoption order under the 2002 Act, thus ensuring that neither her, nor the child's, Article 8 rights were violated. The individual circumstances of each case will always be relevant in relation to Article 8 issues. Perhaps the question that the court must ask itself is:

In refusing recognition of a foreign adoption order, would the applicant be denied a remedy in relation to any prospective breach of the applicant's Article 8 rights?

Adoption under the 2002 Act
In cases where the applicant is a British citizen, recognition of a foreign adoption order can offer advantages to a child in relation to the relevant immigration rules; what recognition does not do, however, as referred to above, is confer British citizenship upon a child. If a child is adopted under the 2002 Act, British citizenship is automatically conferred upon the child as a legal child of a parent who holds British citizenship, thus creating an obvious conflict with the immigration provisions in cases where a British national is adopting a child from abroad. The obvious concern of the Secretary of State in such cases is often that prospective adopters are employing the 2002 Act in order to circumvent the immigration rules. The applicant in Re N had, in addition to the application for a declaration of recognition, also applied for an adoption order under the 2002 Act. As was the case in relation to recognition, she succeeded and an adoption order under the 2002 Act was granted. This article is primarily focused on the issue of recognition of foreign adoptions; in relation to adoption in this jurisdiction, in very basic terms, an application for an order under the 2002 Act necessitates a very detailed consideration of welfare, as opposed to an application for recognition of a foreign adoption order. Section 1 applies and the child's welfare throughout his or her life is paramount. Applying this reasoning, the President had little difficulty in coming to the conclusion that the child's welfare throughout her life necessitated the making of an adoption order under the 2002 Act. Any arguments based upon section 83 of the 2002 Act and the 2005 Regulations were ineffective as s83 applies only to cases where either a child is brought into this country "for the purpose of adoption" (section 83(1)(a)) or where there has been "an external adoption effected within the period of twelve months" before the child arrives (section 83(1)(b)), whilst the Regulations apply only where section 83 of the 2002 Act is engaged. In the circumstances present in Re N, section 83 did not apply; the child was not brought into the country "for the purpose of adoption." Aside from s83, it must be remembered that the family courts and the Secretary of State perform completely separate functions, with the family court being concerned only with the welfare of the child; where however, applications are made to the family court with an impermissible objective equating to an abuse of process, they will be struck out (see S v S [2008] EWHC 2288 (Fam)).

Lessons learned
It is clear from a very basic reading of the authorities, that applications for recognition of foreign adoption orders must be viewed in a completely different manner from applications for English adoption orders; the application is for recognition, not for the making of a further order in English law. The President's consideration of the Court of Appeal authority relating to recognition is enlightening; whilst our jurisdiction is one of common law, with the judiciary having the ability to develop and refine existing legal concepts, it is important to remember that this ability is limited. Judges must be cautious when approaching precedents set by higher courts, as can be seen by the President's views in relation to whether judges of the Family Division can properly add to or develop a set of criteria clearly set down by the Court of Appeal. Tempting as it is to introduce concepts such as habitual residence, which are so central to our application of jurisdictional rules in the modern day, one has to consider and abide by the existing precedents set by the Court of Appeal and Supreme Court. It may however be possible, in light of the consideration of wider issues pertaining to Article 8 ECHR by both the President and MacDonald J, to introduce a further element of to the criteria to be considered in relation to applications for declarations of recognition, namely whether by refusing recognition of a foreign adoption order, the applicant would be denied a remedy in relation to any prospective breach of the applicant's Article 8 rights. These cases, whilst previously few and far between, have become more common in recent times and in the increasingly international arena of all areas of civil law, one has to consider whether the dissenting judgment of Salmon J in Re Valentine's Settlement would perhaps have reflected the majority judgment had that case been decided today:

"It seems to me that we should be slow to refuse recognition to an adoption order made by a foreign court which applies the same safeguards as we do and which undoubtedly had jurisdiction over the adopted child and its natural parents."

And so despite the absence of the domicile requirement, Salmon LJ would have recognised the validity of the South African adoption orders. The approach that would be taken by the Court of Appeal in deciding the facts of that case today, provokes interesting debate.