PD v MD

JurisdictionEngland & Wales
JudgeMR. JUSTICE RYDER,Mr. Justice Ryder
Judgment Date03 March 2008
Neutral Citation[2008] EWHC 403 (Fam)
Docket NumberCase No: FD07P02266
CourtFamily Division
Date03 March 2008
Between
P D (male)
Plaintiffs
and
M D (female)

[2008] EWHC 403 (Fam)

Before

Mr. Justice Ryder

Case No: FD07P02266

IN THE HIGH COURT OF JUSTICE FAMILY DIVISION

IN THE MATTER OF THE SUPREME COURT ACT 1981

AND UNDER THE INHERENT JURISDICTION

Royal Courts of Justice

Strand, London, WC2A 2LL

Ms. Maggie Jones (instructed by Goodman Ray) for the Plaintiffs

Hearing dates: 3 rd March 2008

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 RYDER

This judgment is being handed down in private on 3 rd March 2008 It consists of 12 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.

Mr. Justice Ryder

Application

1

The Applicants, Mr and Mrs D, are the adoptive parents of Nilomi and Tarun D under Indian law, Adoption Orders having been made in respect of Nilomi on 17.10.05 and in respect of Tarun on 27.4.07 by the Mumbai City Civil Court in India pursuant to The Hindu Adoption and Maintenance Act 1956. The orders are domestic Adoption Orders and are not recognised by the law of England and Wales. Mr and Mrs D seek a declaration under the Common Law for the recognition of these Adoption Orders, in order that the adoptions fall within the definition of “adoption” within section 66(1)(e) and Chapter 4 of the Adoption and Children Act 2002.

2

Mr and Mrs D are Indian citizens and are domiciled in India. Nilomi and Tarun are their only children. They have business interests and homes in India, USA and the UK and travel between the three countries. They have plans to expand their UK company, of which they are the sole directors, into Europe using the UK as the base for this. They both have indefinite leave to enter and remain in the UK and the USA. They are planning to live in the UK and to educate both children here. Nilomi is already registered in school. They therefore need their status as the children's legal parents to be recognised in the UK. Having regard to the factual circumstances of this application I have not found it necessary to join the children as respondents or ask for their representation.

Background

3

Mr and Mrs D were married on 28.7.92. They decided that they wanted to have children in about 1997, but were unable to conceive a child even after going through several medical procedures in India and in Europe. In early 2005 Mr and Mrs D approached the family placement team in the Royal Borough of Kingston upon Thames to enquire about adoption in the UK. They were told that they were unable to make an application as they were not domiciled in the UK nor had they been habitually resident in the UK for the requisite period of time. Hence in the second quarter of 2005 they applied to the Family Service Centre Mumbai for consideration as adoptive parents. The Family Service Centre is a recognised placement agency approved by India's Central Adoption Resource Agency. Both Nilomi and Tarun were destitute children and had been placed with the Family Service Centre by their birth parents who were unable to care for them. They were placed at four and six days old respectively. They are not related in any way to Mr & Mrs D.

4

The home study report dated 22.8.05 which was prepared by the Family Service Centre for Nilomi's adoption assessed Mr & Mrs D to be a “loving and compatible couple” and suitable adoptive parents. An adoption order was made on by the Mumbai City Civil Court on 17.10.05. In accordance with the provisions of The Hindu Adoption and Maintenance Act it was Mr D who made the adoption applications for both children, as married women cannot apply to adopt under this Act. There is a certificate dated 17.10.05 which states that it shall be accepted as proof of Nilomi's date of birth for all purposes and that Mr D is the adoptive father and Mrs D is the adoptive mother. Mrs D was required to and did consent to the process and she is recognised as an adoptive parent under the process. A further home study report was prepared prior to Tarun's adoption. The adoption order in relation to Tarun was made on 27.4.07, and the certificate in relation to his date of birth and Mr and Mrs D being the adoptive parents is dated 8.5.07. The Municipal Corporation of Greater Mumbai has now also issued normal birth certificates for Nilomi and Tarun.

5

Both adoptions required a home study report by a qualified social worker, medical, financial and character references and proof of abandonment or parental consent to the adoptions. The adoption process is rigorous and directed to a “best interest” outcome for the children. There is a requirement that adoptions are monitored after the order has been made. The post adoption report in respect of Nilomi dated 13.4.07 is very positive indeed and the Family Service Centre notes that but for the adoptions, these children would have remained living in an institution. The procedures followed during the adoptions was similar to those followed in UK domestic adoptions. In addition, in domestic adoptions in India under The Hindu Adoption and Maintenance Act three follow up reports are required during the first year after the order has been made.

6

I take note of the fact that the procedure adopted provides for children who are destitute and abandoned. In such circumstances once the children have been abandoned and not re-claimed by birth parents, the procedure allows for the birth parents' consent to be dispensed with or presumed.

7

Until 2001 Mr & Mrs D lived in India and the US, and traveled frequently between the two countries in order to manage their companies. They both have residency cards enabling them to live and work in the US. On 27.9.01 Mrs D was granted a five year work permit allowing her to work for the company in the UK, their UK partner having decided to pursue other opportunities. In November 2005 Nilomi was given entry clearance to come to the UK as the dependent child of a work permit holder. In March 2006 Mrs D applied for and was granted indefinite leave to remain in the UK for herself and Nilomi, and Mr D was granted indefinite leave to enter as Mrs D's spouse on 25.10.06.

8

Following Tarun's adoption Mr & Mrs D applied for indefinite leave to enter and remain in the UK for him. This was refused, as were two applications for short term visitor's visas for him. The reasons given for refusal included that Tarun's adoption was not recognised in the UK, that they had entered with Nilomi in breach of the adoption regulations and that they had not disclosed Nilomi's adoptive status. An appeal against this decision and the subsequent confirmation of the decision is pending. During this period Mrs D has remained with the children, whilst Mr D has travelled to the UK, Europe and the USA as and when absolutely necessary for business purposes.

9

Mr and Mrs D have filed a lengthy affidavit in support of their application and have exhibited the documentation in respect of both adoptions including the home study reports. Although these are not Hague Convention adoptions the procedures followed by the authorities and the court are similar to the procedures in Hague Convention adoptions and in UK domestic adoptions. Mr and Mrs D have also exhibited a report prepared by Professor Werner Menski, Professor of South Asian Laws in respect of Hindu adoptions in India for the purposes of the immigration appeal. As well as discussing the law and emphasizing that Indian law has developed procedures to ensure the safety and protection of adopted children, he gives his opinion that these adoptions are legally valid adoptions under Indian law, and points to the adoptions having taken place through a reputed and nationally recognised adoption agency in Mumbai. Professor Menski is of the view that Indian adoptions under The Hindu Adoption and Maintenance Act 1956 should be recognised in the UK.

The Law

10

The adoptions of Nilomi and Tarun are adoptions under Indian domestic law. They are not “intercountry adoptions”, as that (in UK terms) is the term used for the adoption of a child resident abroad by adopters habitually resident in the UK. As a result of the proliferation of such adoptions the Hague Convention on Protection of Children and Co-operation in respect of Inter-Country Adoption was concluded at The Hague in May 1993. In broad terms, the Convention, which applies in both the UK and India, aims to provide safeguards to ensure that intercountry adoptions take place in the best interests of the child.

11

Section 66(1)(c) of the Adoption and Children Act 2002 (“the Act”) defines “adoption” as including a “Convention adoption”, which means that Convention adoptions are recognised automatically by operation of law and there does not need to be a repeat adoption domestically. Section 66(1)(d) defines “adoption” as including an “overseas adoption”, and section 87 allows arrangements to be put in place in England and Wales for the recognition of “overseas...

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