Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
THE HON. MR. JUSTICE HEDLEY
Between :
Mrs KK | 1st Applicant |
- and - | |
Mr LK | 2nd Applicant |
Miss Kathryn Cronin (instructed by Goodman Ray solicitors) for the 1st and 2nd Applicants
Hearing dates: 15th February 2012
2nd October 2012
Judgment
THE HON. MR. JUSTICE HEDLEY
This judgment is being handed down in private on 24th October 2012. It consists of 6 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.
The Hon. Mr. Justice Hedley :
This case concerns a child R (born [on a date in] 2007) aged 4 who was adopted by the applicants in India. The question in this case is whether his adoption will be recognised in this jurisdiction. Since 1st October 2003 India has implemented the Convention on Protection of Children and Co-operation in Respect of Inter Country Adoptions (‘Hague 1993’) having ratified the same on 6th June 2003. That means that adoptions in India may be Convention Adoptions and so in effect automatically recognised here.
However, the current practice of the Central Authority in India is to exclude private placement from the scope of Convention Adoptions. In fact these placements are by no means unknown and cover kinship placements; indeed it is so in this case. Accordingly the Hague 1993 route is not available. It follows that there will be others (perhaps many) who find themselves in the same position as these applicants.
KK and KL are a married couple and have been so since their marriage in India on 19th March 1995. Their abiding sadness is that their union is childless. Within the extended family network in India there is a child R whose parents were unable to provide for him and who wished for R’s adoption by these applicants.
The applicants live in this country. The wife was born here and is a British citizen; the husband was born in India but since 11th July 1997 he has had indefinite leave to remain in the United Kingdom. The applicants’ plan was to adopt R in India and then to return with him to continue living in this country. The applicants seek from this court recognition of the Indian adoption as that (and apparently that alone) will permit the lawful entry of R into this country.
On 4th October 2009 R was formally placed with the applicants as an adopted child at a Hindu religious ceremony in India. That was confirmed by the signing of a Deed of Adoption on the 7th October 2009 with the approval of the local court. That had the effect in Indian law of being a valid adoption. However, the applicants’ legal advisors in this country took the view (rightly, as will appear) that the Courts of this country were unlikely to recognise that adoption not least because it lacked the inquiries and protective measures that should accompany adoption.
Accordingly the applicants applied in the Indian courts for recognition of that adoption under Indian statutory authority. In their case they applied under the Hindu Adoption and Maintenance Act 1956. In order to apply all parties must be Hindu (or one of the other prescribed religions, none of which is relevant to this case). The parties must not have adopted another son and the child concerned must be habitually resident in India. Only the husband can apply to adopt though the wife (with her consent) may be named in the adoption order. There are no domicile or residence requirements in respect of the applicant. The procedure has protective safeguards and involves a Home Circumstances report which here is plainly more than satisfactory.
The approach of the Indian court was meticulous. It involved an investigation (including the hearing of oral evidence) as though this were an application afresh for an adoption order. On 4th August 2012 the order for recognition was granted and the order was supported by a written judgment.
Proceedings were begun in this country during the currency of the recognition proceedings in India. On 28th February 2012 I issued a ‘provisional judgment’ for the reasons and purposes contained in it which really came down to a question as to whether this application would inevitably fail in this jurisdiction. I held that, depending on a favourable outcome to the recognition proceedings in India, the case for recognition here was reasonably arguable.
On 2nd October 2012 at the conclusion of the final hearing I held that the Indian adoption order would be recognised in this jurisdiction but reserved my reasons to be delivered in writing. This I now do.
As I have already indicated, cases of this sort may not be unusual and they are pressing because of the immigration issues involved. KL has spent much of the last three years in India caring for R whose admission to this country, so I understand, depends on our recognition of the Indian adoption.
On making Directions in this case, it was ordered that notice of these proceedings should be given both to the UK border Agency and to CAFCASS; it was further directed that each should be served with a copy of my provisional judgment. Each has replied that it does not wish to intervene in these proceedings and that is of course accepted by the Court.
The criteria for recognition on non-convention cases (and this is one such) are accurately summarised in the head note to Re T & M (Adoption)[2011] 1 FLR 1487 as follows –
Was the adoption order obtained wholly lawfully in the foreign jurisdiction?
If, so, did the concept of adoption in that jurisdiction substantially conform to the English concept? And
If so, was there any public policy consideration that should mitigate against recognition?
I agree with Ms Cronin that this summary should be amplified in relation to (ii) by adding: were the status conditions required by our domestic adoption law replicated or fulfilled in the foreign jurisdiction?
In this case the religious adoption of 2009 would probably fail under (ii) and would almost certainly fail under (iii) given the absence of enquiries and procedural safeguards. If, however, an order is made in the Indian court there seem no grounds for concern under (i) and (iii) but it will be necessary for the court to be satisfied under (ii) by evidence from a properly qualified Indian lawyer.
The outstanding issue relates to the jurisdictional requirements for recognition and it is to that that the court must now turn and in particular to the case in Re Valentine’s Settlement [1965] 1 Ch 831. In that case the Court of Appeal (by a majority) refused to recognise a South African adoption on the basis that the adoptive father was at the time of the adoption domiciled in Southern Rhodesia. Lord Denning MR (at p.842 B-G) made it clear that questions of status were dependent on domicile. In the present case it is contended that the prospective adoptive father is domiciled in India but conceded that the mother is not. It follows that unless Valentine can be distinguished then, notwithstanding the powerful dissenting judgment of Salmon LJ, this court (as a trial court) will be bound by it.
What is submitted on behalf of the applicants is not that Valentine was wrongly decided or was not on the face of it applicable to this case but that certain changes in the law have subsequently occurred which would result in a court reaching a different conclusion as a result of applying the same principles. There are two material changes. First, the concept of a married woman’s dependent domicile was abolished by Section 1 of the Domicile and Matrimonial Proceedings Act 1973. Accordingly it is now possible (and indeed not unusual) for married partners to have (as here) different domiciles whereas when Valentine was decided the wife would have had a dependent Southern Rhodesian domicile. The second change relates to the qualifying conditions for an adoption.
Section 2 of the Adoption of Children Act 1926 (the governing statue in Valentine) provided the qualifying conditions for adoption and, pertinently to this case, Section 2(5) is in these terms: “An adoption order shall not be made in favour of any applicant who is not resident and domiciled in England and Wales or in respect of any infant who is not a British subject and so resident”. Since then there have been the Adoption Acts of 1950 and 1976 and the current governing statute is the Adoption and Children Act 2002, Section 49 of which deals with qualifying conditions. That requires one of two conditions to be met. Either: “(2) …. At least one of the couple …. is domiciled in a part of the British Islands …. .” or “(3) …. Both of the couple …. Have been habitually resident in a part of the British islands …. .” It is likely on the evidence that both applicants continue to be habitually resident in the UK – though due to her temporary residence in India KL may also be habitually resident in India, given that this is not a Brussels (II) Revised case. It is suggested that the husband’s domicile is Indian.
In my judgment the ‘ratio’ of Valentine is that we will recognise an order affecting status where (and only where) the conditions exist which would permit a domestic court to make such an order. In this case that would seem to be that the husband is domiciled in India or both parents are habitually resident there, and of course that the child is (as all accept) habitually resident there.
The issue of domicile is not entirely straight forward. It is clear that the father’s domicile of origin is in India. It is clear that he has been habitually resident in England and Wales since at least 1997. The question therefore is whether he has acquired a domicile of choice here or retains his domicile of origin. I have read the husband’s statement dated 19th January 2012; he contends that he has not lost his domicile of origin and relies on the matters set out in paragraphs 1 – 6 of that statement as well as his desire to have his ashes returned to his village area and scattered. I have no reason to doubt the accuracy of those assertions. The issue is whether or not he has acquired a domicile of choice here.
The principles upon which domicile is based are well settled and set out by the Court of Appeal in Barlow Clowes International -v- Henwood [2008] EWCA Civ 577. A striking example of the application of those rules (and potentially highly relevant to this case) can be found in the case of Agulian - v - Cyganik [2006] EWCA Civ 129 where Mummery LJ said –
Although he lived in London for about 43 years and built up a very substantial business here, Andreas continued to live the life of a Greek Cypriot, talking Greek, watching Cypriot television. He had kept very much in touch with Cyprus during his time in London (paragraph 40). Despite his British passport and his residence in London he would have regarded himself very much as Cypriot rather than British (paragraph 38). He kept a Cypriot identity card, which was, and was seen by him as being, significant for the purposes of exercising in Cyprus rights as a citizen of Cyprus. His circle of friends and acquaintances in London were part of the Greek Cypriot community and of the Polish community. He was, the deputy judge held in paragraph 22, “proud and loyal to this birthplace and the people associated with it.” He had “a strong feeling that family, particularly blood ties were important and that, as head of the family, the decision-making would be vested in him.” He had “a strong emotional attachment to the land of his birth, both to the island of Cyprus as a whole and in particular to the area of his birth” (paragraph 37). He retained “a very strong sense of Greek Cypriot identity.”( Paragraph 38)
I am in the event satisfied that the father has retained his domicile of origin in India.
It seems to me that there are two further issues that require consideration. The first arises from the expert’s report in the case which shows that any accrued property rights from the birth family at the time of the adoption survive the adoption; likewise rights in the adoptive family that have accrued by the date of the adoption are not affected by that adoption. Does that fatally remove this adoption from the English concept? I have concluded, upon a consideration of Chapter 4 of the Adoption & Children Act 2002, that it does not do so. Miss Cronin invited my attention to Section 75 dealing with pensions which clearly illustrates the view that I have formed.
Secondly, I was asked to consider the question of habitual residence. Given my conclusion on domicile, such a finding is now unnecessary. However, I am willing to articulate the issue and express a very provisional view. The husband (domiciled in India) and the wife (domiciled in the UK) have lived together throughout the relevant period. They have earned their living in England but have spent much time in India. Were the concept of habitual residence in more that one place valid, then they would have an argument on the evidence to support such a finding. Such a concept is alien in the European jurisprudence under Brussels (II) Revised but whether it is alien to Hague concepts under Article 3 of Hague Convention 1980, I am not sure. Authoritative decision must await the case whose outcome depends on this point.
It follows that the requirement of Valentine are met in this case and that the court has jurisdiction to recognise this Indian adoption. In my judgment the adoption order made in 2009 and recognised by the Indian Court on 4th August 2012 should be recognised in this jurisdiction.
My reasons are briefly as follows. I am satisfied that this father is domiciled in India. I am satisfied that the Indian adoption (after full enquiry and recognition in 2012) is sufficiently similar to the concept of adoption in this jurisdiction. I am satisfied that there are no public policy objections; indeed I am satisfied that the welfare of this child will be promoted by the recognition.
It is likely to be the case that for so long as kinship placement cases are not dealt with in India as convention adoptions, the procedure followed (and approved) here is likely to apply to other such cases. At all events, it was for the reasons set out in this judgment that I made the order for recognition on 2nd October 2012.