Z v Y (a child, by their Guardian Ms Lynn Magson)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Theis DBE,Mrs Justice Theis |
| Judgment Date | 20 May 2020 |
| Neutral Citation | [2020] EWHC 1829 (Fam) |
| Docket Number | Case No: FD19P00365 |
| Date | 20 May 2020 |
| Court | Family Division |
[2020] EWHC 1829 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Theis
Case No: FD19P00365
and
Mr Andrew Powell (instructed by Brethertons) for the Applicant(s)
Mr Christopher Osborne (instructed by Cafcass Legal) for the Respondent
Ms Claire van Overdijk (instructed by SSHD) for the Intervenor
Hearing dates: 14 th February 2020 and 30 th April 2020
Judgment: 20 th May 2020
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.
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published. The anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
Introduction
This is an application for recognition of an adoption order made in Iran. The application is made by the adoptive parent. The respondent is the child, through their Children's Guardian and the Secretary of State for the Home Department (SSHD) is an intervenor.
The application is opposed by the SSHD as she submits the Iranian adoption order does not have the same essential characteristics as an adoption order made in this jurisdiction. The Children's Guardian is neutral.
The respondent child has thrived in the placement since being adopted. Before dealing with the detail I would like to echo the part of the submissions on behalf of the Children's Guardian that paid tribute to the enormous progress the child has made in the placement. The evidence demonstrates the great benefits to the child's physical and psychological welfare from the stability of the placement.
The court is extremely grateful for the detailed written skeleton arguments, supplemented by focussed and persuasive advocacy from all the advocates.
Legal framework
The Adoption and Children Act 2002 (ACA) s 66(1) provides the definition of ‘adoption’ to include ‘an adoption recognised by the law of England and Wales, and effected under the law of any other country’. The ACA does not prescribe the circumstances in which such adoptions would be recognised but includes, in the absence of any other mechanism, recognition at common law.
If recognised here the foreign adoption is treated by s 67 ACA as of equivalent effect to an English adoption order.
Iran has not ratified the Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoptions and it is not included in the ‘overseas adoption’ list in The Adoption (Recognition of Overseas Adoptions) Order 2013/1801. A declaration under s 57 Family Law Act 1986 is not possible, as the child was not domiciled in the UK at the time of the application or habitually resident for one year, as required by s 57 (3).
The route to recognition at common law is founded on the criteria set out in Re Valentine's Settlement which have recently been considered by the former President, Sir James Munby P, in Re N (a child) [2016] EWHC 3085 (Fam) when he referred to those criteria as being ‘ good law and binding’.
Those criteria can be summarised as follows:
(1) The adoptive parent(s) must have been domiciled in the foreign country at the time of the foreign adoption.
(2) The child must have been legally adopted in accordance with the requirements of the foreign law.
(3) The foreign adoption had to have the same essential characteristics as an English adoption, and
(4) There must be no reason in public policy for refusing recognition.
Taking each of the criteria in turn. In relation to (1), the relevant legal principles regarding domicile are well established. An individual has a domicile of origin from birth which will remain their domicile unless and until they abandon that and acquire a domicile of choice in another jurisdiction. Scarman J (as he then was) in Re Fuld [1967] E All ER 318 emphasised that there must be clear evidence that an individual's domicile of choice has been displaced.
In Barlow Clowes International Ltd (In Liquidation) & Ors v Henwood [2008] EWCA Civ 577, the Court summarised a number of the principles of the law on domicile described in Dicey, Morris and Collins on The Conflict of Laws as follows at paragraph 8:
“The following principles of law, which are derived from Dicey, Morris and Collins on The Conflict of Laws (2006) are not in issue:
(i) “A person is, in general, domiciled in the country in which he is considered by English law to have his permanent home. A person may sometimes be domiciled in a country although he does not have his permanent home in it (Dicey, pages 122 to126).
(ii) No person can be without a domicile (Dicey, page 126).
(iii) No person can at the same time for the same purpose have more than one domicile (Dicey, pages 126 to128).
(iv) An existing domicile is presumed to continue until it is proved that a new domicile has been acquired (Dicey, pages 128 to 129).
(v) Every person receives at birth a domicile of origin (Dicey, pages 130 to 133).
(vi) Every independent person can acquire a domicile of choice by the combination of residence and an intention of permanent or indefinite residence, but not otherwise (Dicey, pages 133 to 138).
(vii) Any circumstance that is evidence of a person's residence, or of his intention to reside permanently or indefinitely in a country, must be considered in determining whether he has acquired a domicile of choice (Dicey, pages 138 to 143).
(viii) In determining whether a person intends to reside permanently or indefinitely, the court may have regard to the motive for which residence was taken up, the fact that residence was not freely chosen, and the fact that residence was precarious (Dicey, pages 144 to 151).
(ix) A person abandons a domicile of choice in a country by ceasing to reside there and by ceasing to intend to reside there permanently, or indefinitely, and not otherwise (Dicey, pages 151 to 153).
(x) When a domicile of choice is abandoned, a new domicile of choice may be acquired, but, if it is not acquired, the domicile of origin revives (Dicey, pages 151 to 153).”
The issue of domicile is a question of fact in each case.
As to (2), whether the requirements of foreign law have been met, the court is required to consider whether the adoption order was obtained wholly lawfully in the foreign jurisdiction. Is there proof that the child had been legally adopted in accordance with the requirements of the foreign law? This is essentially a question of evidence, usually requiring expert evidence in relation to the foreign jurisdiction.
Turning to (3) Munby P in Re N endorsed the views of Hedley J in In re T and M (Adoption) [2011] 1 FLR 1487 at paragraph 13:
‘The first question is clear enough and has to be determined on the individual facts of each case. The second question relates to the concept of adoption for the word itself can bear many shades of meaning from the idea of complete substitution of adopted family for natural family at one end of the spectrum through to an idea much more closely akin to our concept of Special Guardianship. Clearly the English court should not be recognising (and thus giving effect to) a foreign adoption unless what was conferred by that order is substantially the same as would be conferred by an English order. The third question relates to matters that would be repugnant to our jurisdiction as, for example, if what in reality was involved was the buying and selling of children irrespective of their actual welfare needs.’
Further Munby P at [92] confirmed that the correct approach in comparing the two systems “is confined to concept and not process, substance rather than safeguards.” This point is further elaborated later in the judgment at [129] in the context of the former President's discussion of the role of best interests of the child in the recognition process:
‘In my judgment, and with all respect to those who take a different view, there is no justification for importing these two additional criteria—best interests and similarity in process—into the principles laid down by the Court of Appeal in re Valentine's Settlement. I am not suggesting that they are irrelevant, but each, in my judgment, is properly to be considered, and considered only, as an aspect of public policy, not as a separate requirement.’
Finally, in relation to (4) and the question of public policy it was made clear in Re N that this is limited to the exceptional cases as outlined at paragraph [129].
In his submissions Mr Powell outlines what he says are some modification of the criteria, including:
(1) Recognition of the foreign adoption must be in the child's best interests (per Jackson J (as he then was) in A County Council v M (No 4) (Foreign Adoption: Refusal of Recognition) [2014] 1 FLR 881 para [61] and MacDonald J in QS v RS [2016] EWHC 2470 (Fam) para [77])
(2) The adoption process in the foreign country must have been ‘substantially’ the same as would have applied in England at the time ( A County Council v M (ibid) para [61] and QS v RS (ibid) para [77])
The SSHD submits any attempts to relax or import additions to any of the Re Valentine Settlement criteria were rejected by Munby P in Re N, in particular
(1) Any relaxation of the domicile...
To continue reading
Request your trial