S v S
| Jurisdiction | England & Wales |
| Judgment Date | 2016 |
| Neutral Citation | [2016] EWHC 2470 (Fam) |
| Date | 2016 |
| Court | Family Division |
Children - Orders with respect to children - Recognition of foreign adoption order - Child lawfully adopted pursuant to Nepalese adoption order - Adoptive parents not habitually resident or domiciled in Nepal at time of adoption - Mother applying for recognition in England and Wales of Nepalese order - Common law rule that English court not entitled to recognise foreign adoption order unless adoptive parents domiciled or habitually resident in relevant country at time of adoption - Whether unnecessary or disproportionate interference with Convention right of parents and child to respect for family life - Whether foreign adoption order to be recognised -
The parents, who were British citizens domiciled in the United Kingdom, adopted a child in Nepal although neither was habitually resident or domiciled in Nepal at the time. The family moved to Dubai and the child was granted British citizenship. The marriage having broken down, the father and the child remained living in Dubai while the mother returned in due course to reside in the United Kingdom. The mother applied, inter alia, for the recognition of the Nepalese adoption order at common law and for a declaration under section 57 of the Family Law Act 1986F1 that the child was the adopted child of the parents. There was a common law rule that the English court was not entitled to recognise a foreign adoption order unless the adopting parents had been domiciled (or habitually resident) in the relevant country at the time of the adoption. The issue arose whether there were any circumstances in which that rule did not apply or might not be applied, so that a foreign adoption would be recognised in England notwithstanding that at the time of the adoption the adopters had not been domiciled or habitually resident in the country of adoption, and in particular whether a strict application of the rule would in the circumstances of the case result in a breach of the right of the parents and the child to respect for family life under article 8 of the Convention for the Protection of Human Rights and Fundamental FreedomsF2.
On the application—
Held, granting the application, that in determining an application for the recognition of a foreign adoption at common law and an application for a declaration pursuant to section 57 of the Family Law Act 1986 the court had to act in a manner that was compatible with the right of the parents and the child to respect for their family life under article 8 of the Convention; that the strict application of the common law status conditions as to domicile or habitual residence to the very particular circumstances of the present case, with a concomitant refusal to recognise the adoption lawfully constituted in Nepal in terms which substantially conformed to the English concept of adoption by reason of the failure to comply with those conditions would be an interference in the article 8 rights of the parents and child which would be neither necessary nor proportionate and, thus, would result in the court determining the application in a manner incompatible with the Convention right; that where family life existed between the parents and the child for the purposes of article 8 the court could not reasonably refuse to recognise their actual situation; that recognition of the adoption in the present case was manifestly in the child’s best interests and its refusal would leave her without a permanent legal relationship with those she considered to be her legal parents in the jurisdiction of her nationality notwithstanding the lawful adoption achieved in Nepal; that, while it was important to maintain all the rules which the developed English law of adoption had devised to safeguard the welfare of children who were the subject of foreign adoptions, it would be contrary to public policy to apply those rules in a way which resulted in the breach of the fundamental rights of the parties; that, in all the circumstances of the present case, it would not be contrary to public policy to recognise the Nepalese adoption at common law; and that, accordingly, although neither the mother nor the father had been domiciled or habitually resident in Nepal at the time they had adopted the child under the law of that jurisdiction, the court would recognise the child’s Nepalese adoption at common law and make a declaration accordingly under the Family Law Act 1986 (post, paras 76, 78–79, 83, 98–104, 107–108, 125).
The following cases are referred to in the judgment:
A (Intractable Contact Dispute: Human Rights Violations), In re
A v Secretary of State for the Home Department (No 2)
A County Council v M (No 4) (Foreign Adoption: Refusal of Recognition)
B (A Child) (Care Proceedings: Threshold Criteria), In re
B (A Child) (Residence: Biological Parent), In re
B (S) (An Infant), In re [
D v D (Foreign Adoption)
Derbyshire County Council v Times Newspapers Ltd [
Douglas v Hello! Ltd [
E-R (Child Arrangements Order), In re
G (Recognition of Brazilian Adoption), In re
Goodman’s Trusts, In re (
J (Recognition of Foreign Adoption Order), In re
N (Recognition of Foreign Adoption Order), In re [
Negrepontis-Giannisis v Greece CE:ECHR:2013:1205JUD005675908,
P-S (Children) (Family Proceedings: Evidence), In re
R (Recognition of Indian Adoption), In re
S v S
S v S (No 2)
T and M (Adoption), In re
Valentine’s Settlement, In re [
Venables v News Group Newspapers Ltd [
WM (Adoption: Non-Patrial), In re [
Wagner and JMWL v Luxembourg CE:ECHR:2007:0628JUD007624001,
Z v Z (Recognition of Brazilian Adoption)
The following additional cases were referred to in the skeleton arguments:
Campbell v MGN Ltd
N (Children) (Adoption: Jurisdiction), In re
Quinn v Leathem [
R v Simpson
Rolls-Royce plc v Unite the Union
S (A Child) (Identification: Restrictions on Publication), In re
W (A Minor) (Medical Treatment: Court’s Jurisdiction), In re [
Wales (HRH Prince of) v Associated Newspapers Ltd
Westminster City Council v C
APPLICATION
By an application dated July 2016 the applicant mother, QS, applied for (i) the recognition at common law of a Nepalese adoption order made in 2008 whereby she and the father, RS, had adopted the child, T, and a declaration under section 57 of the Family Law Act 1986 that the child was the adopted child of the parents for the purposes of section 67 of the Adoption and Children Act 2002, and (ii) an order that the child, who was in the custody of the father in Dubai pursuant to a court order granted in the United Arab Emirates in 2014 which did not recognise the mother and father as parents under the Nepalese adoption order, should reside with the mother in England.
The facts are stated in the judgment, post, paras 6–29.
Alistair G Perkins (instructed by
Andrew Bagchi QC (instructed by
Jeremy Ford (of
The court took time for consideration.
10 October 2016. MacDONALD J handed down the following judgment.
Introduction1 In this matter I am once again concerned with T, a young girl whose date of birth is uncertain but is now believed to be approximately 12 years old. T is a British citizen habitually resident in Dubai. I have delivered two previous judgments in this matter, namely S v S [2015] EWHC 4050 (Fam) and S v S (No 2) [2016] EWHC 1443 (Fam); [2016] Fam Law 1096.
2 T was adopted in Nepal in 2008 by QS (hereafter the mother) and RS (hereafter the father). Both the mother and the father are British citizens. The mother is habitually resident and domiciled in the United Kingdom. Whilst he resides...
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