T and Another v Occ and Another

Hearing date: 19th April 2010

Approved Judgment

This judgment is being handed down in open court on 13 ^th 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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

My attention has been drawn to the case of RE VALENTINE'S SETTLEMENT [1965] 1 Ch. 831 and the judgment of Lord Denning...