Mr and Mrs W v The Secretary of State for the Home Department and Another (Intervenor)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Pauffley |
| Judgment Date | 07 July 2017 |
| Neutral Citation | [2017] EWHC 1733 (Fam) |
| Docket Number | Case No: FD17P00113 |
| Court | Family Division |
| Date | 07 July 2017 |
[2017] EWHC 1733 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Pauffley
Case No: FD17P00113
Kathryn Cronin (instructed by Freemans) for the Applicants
Claire van Overdijk (instructed by Government Legal Department) for the Intervenor
Hearing date: 26 June 2017
Introduction
On Monday 26 June 2017, at the end of a long day of (mostly) legal argument, I announced that I would be acceding to the application for recognition of a Nigerian adoption order. I also indicated I would provide a written judgment as soon as time permitted and that the appeal period would run from the time the order, consequent upon the judgment, was made.
I should make clear at the outset that I am indebted to both Ms Cronin and Ms van Overdijk for two quite exceptional Skeleton Arguments. Their thorough analyses of the legal framework (statutory, regulatory and case law) are unparalleled in terms of content and discussion. Their arguments, concisely put, were extraordinarily well articulated both in writing and orally.
The position taken on behalf of the SSHD was neither supportive nor directly resistant to the application. Ms van Overdijk merely invited me to take account of her submissions when determining the application. During the course of argument, I confirmed with her that the SSHD was seeking a rigorous examination of the various issues rather than inviting me to accede to or refuse the application.
Background
Mr and Mrs W are married Nigerian citizens from (X) state. They are lawfully resident in the UK in a temporary capacity. Mr W has a Tier 2 visa which entitles Mrs W to be here as his spouse. It is their shared intention to return to Nigeria in 2019 when Mr W expects to have attained a significant medical qualification having completed his current placement.
The impact of an order recognising the Nigerian adoption order of their two year old son – V – is that they will be treated as his "parents" in immigration law (see paragraph 6 of The Immigration Rules HC 395); and V will be their dependent child under the family points-based system visa arrangements (HC 395 paragraph 319H). The current position is that V has been refused entry to the UK as the child of a points based migrant under paragraph 319H (b) and paragraph 319H (l). "The applicant must be the child of a parent who has … valid entry clearance, leave to enter or remain … as (i) a relevant points based system migrant …; and (l) All arrangements for the child's care and accommodation in the UK must comply with relevant UK legislation and requirements.
V lives abroad with maternal relatives, he has almost daily contact using social media with Mr and Mrs W but the strain upon them (Mrs W in particular) of being separated from their long awaited and much loved son was all too evident when Mrs W gave evidence.
The applicants could not apply for a declaration that V is their adopted child pursuant to s.57 of the Family Law Act 1986 because they could not satisfy the criteria – namely that he was domiciled in this country at the time of the application or habitually resident for one year preceding the application. Nor were they eligible to seek a domestic adoption because they could not satisfy the requirements of s.83 of the Adoption and Children Act 2002 (the 2002 Act) and regulation 4(2) of the Adoptions with a Foreign Element Regulations 2005.
The regulations require prospective adopters to obtain a certificate from the Secretary of State for Education which, amongst other matters, certifies that if an adoption order is made "the child will be authorised to enter and reside permanently in the UK" – see r.4(2)(a)(ii). Ms van Overdijk indicates that the Secretary of State cannot and will not issue such a certificate of eligibility for a foreign adoptive child whose parents are temporary residents. Moreover, the applicants have been informed by the local adoption agency that they are ineligible to be assessed as prospective adopters for V because they do not have indefinite leave to remain. This advice accords with Department for Education and Home Office guidance and practice relating to prospective intercountry adoptions.
Accordingly, the only route available to the applicants is to apply for recognition of the Nigerian adoption order at common law. The definition of "adoption" in the 2002 Act includes "an adoption recognised by the law of England and Wales, and effected under the law of any other country," a clear reference to the recognition at common law of foreign adoptions – see D v D (Foreign Adoption) [2008] 1 FLR 1475.
Foreign adoptions (listed as Chapter 4 adoptions) are treated by s.67 of the 2002 Act as of equivalent effect to an English adoption order. The reference in s. 66(1)(e) to foreign adoptions 'recognised by the law of England and Wales' does not prescribe the circumstances in which such adoption would be recognised but in its terms plainly relates to the recognition of foreign adoptions at common law.
Nigerian adoptions given legal effect prior to 3 January 2014 were designated 'overseas adoptions' and thus were automatically recognised as Chapter 4 adoptions. As Nigeria has not ratified the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, it is no longer included in the 'overseas adoption' list in The Adoption (Recognition of Overseas Adoptions) Order 2013/1801. Nigerian adoptions effected after 3 January 2014, can be recognised as Chapter 4 adoptions only via the inherent common law jurisdiction process.
This is, therefore, an application under the inherent jurisdiction for recognition of the Nigerian order; and it would be sufficient for immigration purposes that this court should recognise the foreign adoption.
The criteria – N (A Child), Re [2016] EWHC 3085
In N (A Child), Re the President provided a detailed analysis of the law governing recognition of foreign adoptions. He confirmed that the four criteria set out in Valentine's Settlement, Re [1965] Ch 831 are the only criteria to be applied in such cases. He specifically rejected as without justification "importing … two additional criteria – best interests and similarity in process – into the principles laid down by the Court of Appeal in Valentine's Settlement, Re."
Those criteria are as follows —
i) The adoptive parents must have been domiciled in the foreign country at the time of the foreign adoption;
ii) The child must have been legally adopted in accordance with the requirements of the foreign law;
iii) The foreign adoption must in substance have the same essential characteristics as an English adoption. … Did the concept of adoption in the foreign jurisdiction substantially conform with the English concept of adoption?;
iv) There must be no reason in public policy for refusing recognition.
Domicile in the foreign country at the time of the adoption
I turn then first to consider domicile and the relevant legal principles. A person has his/her domicile in the place where they have their permanent home and lasting attachments. The object of determining domicile is to connect the person with a particular system or rule of law determining personal or family status or property rights.
Ms Cronin and Ms van Overdijk agree that the guiding principles are contained within the judgment of Baroness Hale in Mark v. Mark [2006] 1AC 98. The concept of domicile has "particular importance … as a connecting factor in family law." "A person must always have a domicile but can only have one domicile at a time. Hence it must be given the same meaning in whatever context it arises" [see paragraph 37]. In addition, "The object of the rules determining domicile is to discover the system of law with which the propositus is most closely connected for the range of purposes mentioned earlier. … the concept of domicile is not that of a benefit to the propositus. Rather it is a neutral rule of law for determining that system of personal law with which the individual has the appropriate connection, so that it shall govern his personal status and questions relating to him and his affairs" [see paragraph 44].
At the time of her 30 March 2017 Skeleton Argument, Ms van Overdijk indicated that the SSHD was unable to agree the Applicants had retained their Nigerian domicile of origin and were thus domiciled in Nigeria at the time the adoption order was made. That position would appear to have resulted from the content of a letter by Mrs M (Assistant Chief State Counsel / Probation Officer) in a letter dated 14 January 2016 addressed ' To whom it may concern.' The letter states that " It is informative that the supervision order stated in the enrolment of the order is to be carried out by the Social Welfare Agency in the country where the Applicants and the juvenile are domiciled, in this case the United Kingdom … We therefore do not have any objection to the Applicants taking the child to any country where they are domiciled."
Mrs M's professional address according to her letter is the Ministry of Women Affairs and Social Development. The Applicants contend that Mrs M is a probation officer / social worker and not a lawyer; and they maintain she was " not using the term (domicile) in any legal sense and should be taken to be using this word in its ordinary meaning 'living' in the UK."
Ms van Overdijk reiterates the SSHD's earlier concerns in relation to the issue of domicile and submits the Applicants within their third statement have not addressed these concerns in full. However, if I were to be satisfied there is sufficient evidence that the Nigerian...
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