G, Re

By application dated 27 May 2014, brought under the inherent jurisdiction, AG and RG (“Mr. and Mrs. G” or “the Applicants”) seek declarations that adoption orders made in their favour in Brazil in October 2013 in respect of D (“D”) (d.o.b. 16.4.2004), and E (“E”) (d.o.b. 1.8.2006) be recognised under the law of England and Wales.

The benefits for this family, and the children in particular, of having the children’s status formalised in this way may hardly require elaboration. However, it is argued on behalf of the Applicants that in this particular case the declarations will have particular significance in that:-

In determining the issues in this case, I have had cause to consider carefully the processes involved in making the relevant application; these are not altogether straightforward. I set out in the paragraphs which follow my discussion on the following points which have arisen for consideration:

For the purposes of determining the application, I read statements from each of the Applicants (Mr. and Mrs. G), copies of the relevant original adoption papers (translated), a letter from the Applicants’ Brazilian lawyer, and a recent e-mail from Cafcass Legal. The Applicants have been ably represented by Ms Kathryn Cronin.

D and E were born in Brazil; their birth parents are Mr. S and Ms. T. They have a full brother, F. The children’s birth father is Mrs. G’s younger brother; D is therefore the Applicants’ niece, and E and F, their nephews.

The Applicants were married in 2001. Mr. G is a banker, Mrs G has been caring for one or more of the children for the last six years.

It is apparent from the evidence filed that D and E had an unsatisfactory start to life in their care of their birth parents; their emotional and physical needs were not met, they were neglected, were often hungry, undernourished and were under-stimulated. On one occasion E was hospitalized due to malnutrition and pneumonia. These deficits in parenting were possibly attributable (at least in part) to the fact that the children’s mother was said to suffer depression, and the parental relationship was occasionally abusive. None of the pregnancies were planned; the birth parents have now separated. By the time of F’s birth, Mr. S (who was at that stage in prison) and Ms. T recognised that they were failing as parents, and the wider paternal family took steps to arrange for Mr. and Mrs. G to take care of F from birth. Mrs. G, then resident with her husband in Manila, flew to Brazil to be present at F’s birth. F was placed immediately in the Applicants’ care, where he has been for all of his life. Mrs. G remained living in Brazil with F until the domestic adoption process was completed

After F’s birth, the care of D and E did not improve; early in 2009, D and E joined F in the care of the Applicants with the agreement of the birth parents, and all three children have lived with Mr. and Mrs. G since that time.

Over the last few years, the G family – Mr. and Mrs. G and the three children – have lived in different parts of the world, following various postings arising from Mr. G’s employment. Between May 2008 and December 2010 they were based in Manila, and it was while living there that they adopted F (see §7 above).

They have spent three extended periods of time living in England, each time staying here on visitors’ visas. They first came here in late 2010 for an extended stay, but Mrs G and the children could only remain (on visitors’ visas) for six months. In the summer of 2011, they all returned to Brazil. In early 2012, the family returned and enjoyed another six months in England, again returning to Brazil during the summer (without Mr. G this time, who by then was working full-time here) when their visas expired. In late 2012, Mrs. G and the three children came back to England to repeat the pattern; once here, they applied for discretionary leave to remain. This application was refused, and the Home Office ordered the removal of Mrs. G and the children from the UK in March 2013.

By that time (October 2012), Mr. and Mrs. G had commenced adoption proceedings in Brazil in relation to D and E. That process came to an end with the making of adoption orders in October 2013.

Presently, Mrs G and the children are resident in Brazil where they have been since March 2013; Mr G is living in England, where he has been for the majority of the time since December 2010. The enforced separation of the parties (partly caused by immigration difficulties, and partly by Mr. G’s need to work full-time here) has not been at all easy. The family understandably yearn for the opportunity to live together.

In May 2008, Mr. and Mrs. G commenced the adoption assessment process in order to obtain qualifying status to adopt the forthcoming child expected by Ms T. At that time, and as indicated above, they were living in Manila, on a posting with Mr. G’s work. They submitted to the usual home study checks undertaken through the Inter-Country Adoption Board. They were approved as suitable adopters by the Philippine Competent Authority in November 2008 and the Brazilian court adoption order was made on 28 November 2010, well over two years since F had been placed with the Applicants. The judgment supporting the adoption records that “there is an excess of documents advocating in favour of the request…” and “they have the express consent of the parents”

F’s adoption order was finally made on 12 April 2011 and the adoption was certified by the Brazilian competent authority as complying with the requirements under Article 23 of the 1993 Hague Adoption Convention on 18 August 2011. On 31 August 2011, F was issued with a new birth certificate.

Pursuant to section 66(1)(c) of the Adoption and Children Act 2002, F’s adoption order is regarded as a ‘Convention Adoption’. Such an adoption is of full legal effect as provided for in section 67 of the ACA 2002.

Having returned to Brazil in June 2012 after a six-month stay in England, Mr. and Mrs. G commenced proceedings for the adoption of D and E in October of that year (see §11 above). Given the uncertainty surrounding Mr. G’s postings, they were advised to apply for domestic adoption orders within this application. Mr. and Mrs. G were thoroughly assessed once again and approved as prospective adopters by the relevant social services department in Brazil; as before, the assessment processes conformed to the 1993 Hague Adoption Convention and UK adoption practice. Their care of the children, their health, financial circumstances and characters were all examined and evaluated. A home study report was prepared for the Court and completed in June 2013.

In October 2013, a court hearing was convened and the birth parents attended. The judge ascertained that the birth parents gave full and informed consent to the adoption, and, having read the reports and other material, declared that adoption was in the children’s best interests. The judge noted that the social work evidence recorded that the applicants have given the children “all their love and affection, as if they were their own biological children, and offer them a beneficial family environment …a solid family base”. The Brazilian adoption order was made on 17 October 2013. Like an English adoption order, this order permanently extinguished the parental rights and responsibilities of the birth parents and in the following month, the children’s original birth certificates were cancelled and reissued to show D and E as the children of the Applicants. The final versions of the re-issued birth certificates for D and E were finally produced in April 2014.

At the time of D’s and E’s adoptions (17 October 2013) Brazil was not listed as a designated country whose ‘overseas adoptions’ were recognized under English law (at that time the Designation of Overseas Adoptions Order 1973 (SI19/1973) was in force). However, just over two months later (3 January 2014) Brazil was added to the revised list of countries whose ‘overseas’ adoptions would be recognised in English law: see The Adoption (Recognition of Overseas Adoptions) Order 2013, which revoked and replaced the Adoption (Designation of Overseas Adoptions) Order 1973 and revoked the Adoption (Designation of Overseas Adoptions) (Variation) Order 1993. Therefore if the adoption order in relation to D and E had been made some ten weeks later, the children would have been entitled to automatic recognition in England and Wales.

Section 66 Adoption and Children Act 2002 sets out the types of foreign adoption orders which will be recognised in English law; some are recognised automatically, such as a ‘convention’ adoption order (i.e. under the 1993 Hague Adoption Convention) or an ‘overseas’ adoption order. Others require specific proceedings to achieve recognition at common law; this is one of those cases which require court-determined recognition.

In re Valentine’s Settlement [1965] 1 Ch 831 is the recognised font of the jurisprudence, since which time the courts have considered and refined the test for recognition of a foreign adoption at common law. In Re Valentine’s Settlement Lord Denning MR said this:

“But when is the status of adoption duly constituted? Clearly it is so when it is constituted in another country in similar circumstances as we claim for ourselves. Our courts should recognise a jurisdiction which mutatis mutandis they claim for themselves: see Travers v Holley. We claim jurisdiction to make an adoption order when the adopting parents are domiciled in this country and the child is resident here. So also, out of the comity of nations, we should recognise an adoption order made by another country when the adopting parents are domiciled there and the child is resident there.”

The subsequent jurisprudence has refined the test at common law to three essential questions:

Although Peter Jackson J added a further requirement (namely that the adoption is in the best interests of the child: see A County Council v M and Others (No 4) (Foreign Adoption: Refusal of Recognition) [2013] Fam Law 933) this additional element does not appear to be supported by other authority: see Re T and M (above) and  Re R (Recognition of Indian Adoption) [2013] 1 FLR 1487 (where welfare would only be considered when, after recognition, the court goes on to consider making an adoption order).

Notable of the other cases to which my attention has been drawn is Z v Z (Recognition of Brazilian Adoption Order) [2013] EWHC 747. The case has some factual similarities with this one, quite apart from the Brazilian connection. In that case, Theis J described the Brazilian adoption process as having been “undertaken with the same careful, thorough and best interests assessment as in a UK adoption” (§13); she further reflected that the adoption order there would irrevocably transfer parental rights to the applicants.

On the evidence filed in this case, I respond to the questions posed in §21 above as follows:

Having regard to all the matters set out above, particularly in §24, I am satisfied that the adoption orders made in Brazil should be properly recognised according to the law of England and Wales. If it were necessary to go on to consider whether such recognition were in D and E’s best interests (see A County Council v M and Others (No 4) (Foreign Adoption: Refusal of Recognition) at §22 above), I can confirm that it would manifestly be so.

I turn now to the second issue, namely whether and if so how, that recognition should be recorded as a declaration.

I had considered whether I could proceed to the second issue continuing to deploy the wide powers vested in me under the inherent jurisdiction to make the declarations sought by Mr. and Mrs. G. It is widely acknowledged that “no limit has ever been set to” the inherent jurisdiction (see Lord Denning in Re X (A minor)(Wardship jurisdiction) [1975] Fam 47), and from time to time the jurisdiction is deployed to address a lacuna in process or substance of family law (see by way of illustration Re C (Adoption Notice) [1999] Fam 240, and Re J (Freeing for Adoption) [2000] 2 FLR 58). There is, however, an accessible and established statutory regime available to facilitate the relief sought in this case, and in the circumstances in my judgment it should be used.

The procedure for obtaining a declaration of status derives from section 57 Family Law Act 1986 (Declarations as to adoptions effected overseas):

“(1)

Any person whose status as an adopted child of any person depends on whether he has been adopted by that person by either –

(a)

a  Convention adoption, or an overseas adoption, within the meaning of the Adoption and Children Act 2002, or

(b)

an adoption recognised by the law of England and Wales and effected under the law of any country outside the British Islands,

may apply to the High Court or the family court for one (or for one or, in the alternative, the other) of the declarations mentioned in subsection (2) below.

(2)

The said declarations are –

(a)

a declaration that the applicant is for the purposes of section 39 of the Adoption Act 1976 or section 67 of the Adoption and Children Act 2002 the adopted child of that person;

(b)

a declaration that the applicant is not for the purposes of that section the adopted child of that person.

(3)

A court shall have jurisdiction to entertain an application under subsection (1) above if, and only if, the applicant –

(a)

is domiciled in England and Wales on the date of the application, or

(b)

has been habitually resident in England and Wales throughout the period of one year ending with that date.”

The effect of any declaration made under this section is far-reaching: section 58 of the Family Law Act 1986 (General Provisions as to the making and effect of Declarations) provides that any declarations made under the 1986 Act shall be binding on all persons, including HM The Queen (section 58(2)).

The specific terms of section 57(1)(b) underline the discrete two stage nature of the process of (1) recognition and then (2) declaration. Before an application can be made for a declaration, the applicant must be able to demonstrate that the adoption is “recognised by the law of England and Wales”. Once that recognition is achieved, then the application under section 57 follows.

It is apparent from the language of this section (“Any person whose status as an adopted child of any person depends on whether he has been adopted by that person … may apply…”) and indeed from Rule 8.20 of the FPR 2010 (which identifies that the Respondents to the application are the people who the applicant claims are the adoptive parents or who it is said are not the adoptive parents) that the applicants for this application should be the children themselves.

In this case, and having found (§25 above) that the English Court recognises their adoption by Mr. and Mrs. G, and that the children are therefore to be treated as the children of the applicants, D and E have standing to make an application pursuant to section 57 FLA 1986. They also have the required domicile status, having acquired this from their adoptive father (Domicile and Matrimonial Proceedings Act 1973, section 4).

There is a presumption (section 58(1)) that the declaration shall be made unless it is contrary to public policy. For reasons set out in §24(iii) above, I am satisfied that there are no public policy bars to the making of the declaration sought.

The two-stage process gives rise to procedural complications, at least on the facts of this case. The application for an order under the inherent jurisdiction was brought (properly) by Mr. and Mrs. G; this was the application which was considered at the hearing on 26 June 2014, and has (as is apparent from my decision in §25 above) now been disposed of. Following discussions with counsel, an anticipatory application under section 57 was issued following that hearing (3 July 2014) with the children as Applicants. They needed a litigation friend (rule 16.5) and Mr. G was identified as their litigation friend.

Having reviewed further the provisions of rule 16.9 of the FPR 2010 I am of the view that Mr. G should not be their litigation friend, as he is a respondent to the application with personal involvement in its outcome. Following a subsequent e-mail exchange with counsel, I am advised that Mr. G’s twin sister, Mrs. H (i.e. the children’s aunt), who knows them well (and is in fact a former solicitor) agrees to be their litigation friend; I have seen an e-mail from her to that effect (which, for the avoidance of doubt, suffices for the purposes of rule 16.12(2)). In the circumstances and subject to her giving the appropriate undertaking in costs (rule 16.9(2)) I will direct (per rule 16.12(1)) that Mr. G be replaced by Mrs. H as litigation friend for the children.

There is a requirement in the FPR 2010 where proceedings are to be issued for a declaration under Part III of the Family Law Act 1986 for the Applicant to send a copy of the application and all accompanying documents to the Attorney General at least one month before the application is made (see rule 8.21(1) of the Family Procedure Rules 2010). The Attorney General may then decide whether to intervene in the proceedings and inspect any document filed at court (rule 8.21(2)).

Once proceedings have been issued, section 59 of the 1986 Act (within Part III of the 1986 Act) further and separately provides that:

“(1)

On an application to a court for a declaration under this Part the court may at any stage of the proceedings, of its own motion or on the application of any party to the proceedings, direct that all necessary papers in the matter be sent to the Attorney-General.

(2)

The Attorney-General, whether or not he is sent papers in relation to an application to a court for a declaration under this Part, may –

(a)

intervene in the proceedings on that application in such manner as he thinks necessary or expedient, and

(b)

argue before the court any question in relation to the application which the court considers it necessary to have fully argued.

(3)

Where any costs are incurred by the Attorney-General in connection with any application to a court for a declaration under this Part, the court may make such order as it considers just as to the payment of those costs by parties to the proceedings.” (emphasis by underlining added).

The mandatory obligation under the FPR 2010 and the discretionary regime under the 1986 Act do not appear to fit well together.

I recognise, and would like to emphasise, that there is good reason for the Attorney General to be supplied with the application and supporting papers in an application of this kind, notably (though not exclusively):

In the instant case, the Applicants did not send the proposed application to the Attorney General a month before making it, or indeed at all. This point was raised at the outset of the hearing on 26 June, and having reviewed the 2010 Rules with counsel, and with a little reservation, I decided that the application could proceed notwithstanding this failure. I had particular regard to a combination of the following points:

On the particular facts of this case, it seemed to me that it was indeed ‘just’ and ‘proportionate’ that I should proceed to hear the case particularly given that:

Furthermore, in fact, in the authorities to which Ms Cronin has drawn my attention, there is only passing reference to the requirement of notice having been given to the Attorney General in one (A County Council v M and Others (No 4) (Foreign Adoption: Refusal of Recognition) [2013] Fam Law 933). It may simply be that this formality did not warrant mention in the other judgments to which I have been referred; however Ms Cronin candidly informed me, having appeared in at least two of the recent cases (namely Re K [2012] EWHC 2956, and Z v Z [2013] EWHC 747 (Fam)), that she believed that in those cases there had been no compliance with the requirements of rule 8.21 of the FPR 2010.

I should add that I regard the circumstances in which it would be appropriate to waive compliance with rule 8.21 as rare. I do not propose to set out any wider guidance here about when such situations will arise (particularly in the absence of any submissions or other contribution from the Attorney-General in this case); suffice it to record that, in my view, each case will turn on its own unique facts.

In the instant case, I propose to deal with this oversight by effectively making a declaration nisi. That is to say that the recently issued application (as amended to reflect the replacement of the litigation friend) together with this judgment should be sent forthwith to the Attorney General. If by 29 August 2014 he has not indicated that he wishes to intervene in the proceedings, I shall, at a hearing on 2 September 2014 make the order final.

Bodey J., at an earlier directions hearing, directed that Cafcass Legal be invited to consider whether it wished to be joined into the proceedings. Having considered the Position Statement and the Orders, Cafcass Legal took the view that it could not assist. It indicated that although it had appeared in Z v Z [2013] EWHC 747, a case on broadly similar facts, in that case (unlike here) there was an additional argument over the children’s habitual residence. I am grateful to Cafcass Legal for considering the papers and am satisfied with this response.

An immediate issue arises as to whether my finding or proposed declaration affects the immigration status of the children.

The finding made and proposed declaration do not of themselves have the consequence that the children will qualify for entry clearance as adopted children. However, the finding / declaration will I believe assist D and E legitimately to enter this country and remain here; the requirement for recognition of the adoption by the UK is one of the criteria which must be satisfied for the children to qualify for entry to the UK.

In reaching this conclusion, I have considered with care the relevant provisions of the Immigration Rules, notably Paragraphs 309A to 316F which make provision for the grant of entry clearance and leave to remain for adopted, adoptive and ‘de facto adopted’ children. It is paragraph 314 which is of particular significance here, which addresses the “Requirements for limited leave to enter the United Kingdom with a view to settlement as the adopted child of a parent or parents given leave to enter the UK with a view to settlement in the United Kingdom”. If the children enter the United Kingdom they will (under the Rules) be granted status equivalent to that granted to Mrs G (the children would only qualify to be granted immediate settlement if both parents were settled in the UK - i.e if they are British citizens or here with indefinite leave to remain / permanent residence; this is not so here).

Although Mrs. G did at one time have indefinite leave to remain, this was forfeited when she subsequently spent a period of more than two years abroad. She will therefore have to re-qualify for entry as a spouse and is, I understand, likely to be given five years limited leave to enter, following which she can qualify for settlement. As Mrs G will have limited (and not indefinite) leave to enter, the children will, I believe, be granted renewable terms of limited leave in line with her status and should also qualify for settlement when Mrs G acquires settlement after five years residence here as a spouse.

Considering the immediate issue, it seems to me, on the evidence which I have seen, that the children satisfy the multiple requirements set out in paragraph 314 of the Immigration Rules. While not rehearsing the catalogue of requirements here, it is appropriate to highlight that Mr. and Mrs. G will need to demonstrate that the children were:

“adopted in accordance with a decision taken by the competent administrative authority or court in [their] country of origin or the country in which [they are] resident, being a country whose adoption orders are recognised by the United Kingdom” (paragraph 314(v)(a)) (emphasis added);

And that the children were adopted:

“due to the inability of the original parent(s) or current carer(s) to care for [them] and there has been a genuine transfer of parental responsibility to the adoptive parents” (paragraph 314(viii));

And that the children have:

“lost or broken [their] ties with [their] family of origin…” (paragraph 314(ix));

And that the children were:

“adopted, but the adoption is not one of convenience arranged to facilitate [their] admission to the United Kingdom” (paragraph 314(ix)).

As to paragraph 314(ix) above (“lost or broken … ties”), I am uncertain whether D, E or F retain any relationship with their birth parents (particularly their birth father, now their legal uncle). However I note that in VB v Entry Clearance Officer- Ghana [2002] UKIAT 1323, Mr. Justice Collins held in respect of kinship adoptions (see §14-15):

“Modern thinking does not believe that it is necessarily in the best interests of an adopted child to lose all contact with his or her parents or families of origin. …. We are satisfied that 'ties with his family of origin' … is intended to ensure that the adoption is not as it were temporary and that, once the child has obtained the entry to the United Kingdom which the adoption will achieve, the family of origin takes back responsibility. There must be a loss or break of the ties of responsibility. Those of affection may remain.”

On the evidence I have seen, I am wholly satisfied that the adoption of D and E is not intended to be temporary. Indeed, far from offending against the mischief which the rules are designed to address, the orders were obtained in my judgment in good faith.

Recognition of the adoptions in this case will not affect citizenship status of these children. The children will not automatically acquire British Citizenship under the British Nationality Act 1981, which provides (per section 1(5) and (5A)):

“Where—

(a)

any court in the United Kingdom … makes an order authorising the adoption of a minor who is not a British citizen; ….

that minor shall, if the requirements of subsection (5A) are met, be a British citizen as from the date on which the order is made …” (Section 1(5))

“Those requirements are that on the date on which the order is …—

(a)

the adopter or, in the case of a joint adoption, one of the adopters is a British citizen …” (Section 1(5A))

The fact that I ‘recognise’ the validity of the Brazilian adoption, and declare that it is so recognised under the law of England and Wales does not effect a change in the children’s nationality (see also Re D [2008] EWHC 403 (Fam)).

However section 3(1) of the British Nationality Act 1981 goes on to provide:

“(1)

If while a person is a minor an application is made for his registration as a British citizen, the Secretary of State may, if he thinks fit, cause him to be registered as such a citizen.”

Thus the recognition and declaration made in this case may also assist to facilitate an application for citizenship registration if this were to be made by / for the children.

For the reasons set out and discussed above, the orders I propose to make are as follows:

That is my Judgment.