W v The Secretary of State for the Home Department

On Monday 26 June 2017, at the end of a long day of (mostly) legal argument, I announced that I would be acceding to the application for recognition of a Nigerian adoption order. I also indicated I would provide a written judgment as soon as time permitted and that the appeal period would run from the time the order, consequent upon the judgment, was made.

I should make clear at the outset that I am indebted to both Ms Cronin and Ms van Overdijk for two quite exceptional Skeleton Arguments. Their thorough analyses of the legal framework (statutory, regulatory and case law) are unparalleled in terms of content and discussion. Their arguments, concisely put, were extraordinarily well articulated both in writing and orally.

The position taken on behalf of the SSHD was neither supportive nor directly resistant to the application. Ms van Overdijk merely invited me to take account of her submissions when determining the application. During the course of argument, I confirmed with her that the SSHD was seeking a rigorous examination of the various issues rather than inviting me to accede to or refuse the application.

Mr and Mrs W are married Nigerian citizens from (X) state. They are lawfully resident in the UK in a temporary capacity. Mr W has a Tier 2 visa which entitles Mrs W to be here as his spouse. It is their shared intention to return to Nigeria in 2019 when Mr W expects to have attained a significant medical qualification having completed his current placement.

The impact of an order recognising the Nigerian adoption order of their two year old son – V – is that they will be treated as his “parents” in immigration law (see paragraph 6 of The Immigration Rules HC 395); and V will be their dependent child under the family points-based system visa arrangements (HC 395 paragraph 319H). The current position is that V has been refused entry to the UK as the child of a points based migrant under paragraph 319H (b) and paragraph 319H (l). “The applicant must be the child of a parent who has … valid entry clearance, leave to enter or remain … as (i) a relevant points based system migrant …; and (l) All arrangements for the child’s care and accommodation in the UK must comply with relevant UK legislation and requirements.

V lives abroad with maternal relatives, he has almost daily contact using social media with Mr and Mrs W but the strain upon them (Mrs W in particular) of being separated from their long awaited and much loved son was all too evident when Mrs W gave evidence.

The applicants could not apply for a declaration that V is their adopted child pursuant to s.57 of the Family Law Act 1986 because they could not satisfy the criteria – namely that he was domiciled in this country at the time of the application or habitually resident for one year preceding the application. Nor were they eligible to seek a domestic adoption because they could not satisfy the requirements of s.83 of the Adoption and Children Act 2002 (the 2002 Act) and regulation 4(2) of the Adoptions with a Foreign Element Regulations 2005.

The regulations require prospective adopters to obtain a certificate from the Secretary of State for Education which, amongst other matters, certifies that if an adoption order is made “the child will be authorised to enter and reside permanently in the UK” – see r.4(2)(a)(ii). Ms van Overdijk indicates that the Secretary of State cannot and will not issue such a certificate of eligibility for a foreign adoptive child whose parents are temporary residents. Moreover, the applicants have been informed by the local adoption agency that they are ineligible to be assessed as prospective adopters for V because they do not have indefinite leave to remain. This advice accords with Department for Education and Home Office guidance and practice relating to prospective intercountry adoptions.

Accordingly, the only route available to the applicants is to apply for recognition of the Nigerian adoption order at common law. The definition of “adoption” in the 2002 Act includes “an adoption recognised by the law of England and Wales, and effected under the law of any other country,” a clear reference to the recognition at common law of foreign adoptions – see D v D (Foreign Adoption) [2008]1 FLR 1475.

Foreign adoptions (listed as Chapter 4 adoptions) are treated by s.67 of the 2002 Act as of equivalent effect to an English adoption order. The reference in s. 66(1)(e) to foreign adoptions ‘recognised by the law of England and Wales’ does not prescribe the circumstances in which such adoption would be recognised but in its terms plainly relates to the recognition of foreign adoptions at common law.

Nigerian adoptions given legal effect prior to 3 January 2014 were designated ‘overseas adoptions’ and thus were automatically recognised as Chapter 4 adoptions. As Nigeria has not ratified the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, it is no longer included in the ‘overseas adoption’ list in The Adoption (Recognition of Overseas Adoptions) Order 2013/1801. Nigerian adoptions effected after 3 January 2014, can be recognised as Chapter 4 adoptions only via the inherent common law jurisdiction process.

This is, therefore, an application under the inherent jurisdiction for recognition of the Nigerian order; and it would be sufficient for immigration purposes that this court should recognise the foreign adoption.

In N (A Child), Re the President provided a detailed analysis of the law governing recognition of foreign adoptions. He confirmed that the four criteria set out in Valentine’s Settlement, Re [1965] Ch 831 are the only criteria to be applied in such cases. He specifically rejected as without justification “importing … two additional criteria – best interests and similarity in process – into the principles laid down by the Court of Appeal in Valentine’s Settlement, Re.”

Those criteria are as follows -

I turn then first to consider domicile and the relevant legal principles.A person has his/her domicile in the place where they have their permanent home and lasting attachments. The object of determining domicile is to connect the person with a particular system or rule of law determining personal or family status or property rights.

Ms Cronin and Ms van Overdijk agree that the guiding principles are contained within the judgment of Baroness Hale in Mark v. Mark [2006] 1AC 98. The concept of domicile has “particular importance … as a connecting factor in family law.” “A person must always have a domicile but can only have one domicile at a time. Hence it must be given the same meaning in whatever context it arises” [see paragraph 37]. In addition, “The object of the rules determining domicile is to discover the system of law with which the propositus is most closely connected for the range of purposes mentioned earlier. … the concept of domicile is not that of a benefit to the propositus. Rather it is a neutral rule of law for determining that system of personal law with which the individual has the appropriate connection, so that it shall govern his personal status and questions relating to him and his affairs” [see paragraph 44].

At the time of her 30 March 2017 Skeleton Argument, Ms van Overdijk indicated that the SSHD was unable to agree the Applicants had retained their Nigerian domicile of origin and were thus domiciled in Nigeria at the time the adoption order was made. That position would appear to have resulted from the content of a letter by Mrs M (Assistant Chief State Counsel / Probation Officer) in a letter dated 14 January 2016 addressed ‘To whom it may concern.’ The letter states that “It is informative that the supervision order stated in the enrolment of the order is to be carried out by the Social Welfare Agency in the country where the Applicants and the juvenile are domiciled, in this case the United Kingdom … We therefore do not have any objection to the Applicants taking the child to any country where they are domiciled.”

Mrs M’s professional address according to her letter is the Ministry of Women Affairs and Social Development. The Applicants contend that Mrs M is a probation officer / social worker and not a lawyer; and they maintain she was “not using the term (domicile) in any legal sense and should be taken to be using this word in its ordinary meaning ‘living’ in the UK.”

Ms van Overdijk reiterates the SSHD’s earlier concerns in relation to the issue of domicile and submits the Applicants within their third statement have not addressed these concerns in full. However, if I were to be satisfied there is sufficient evidence that the Nigerian authorities have not treated the Applicants as being domiciled in England and Wales when the adoption order was made, then the SSHD accepts that the Applicants’ witness statements adequately evidence the basis upon which they claim to have retained links with Nigeria and have not abandoned their domicile of origin.

I agree with Ms Cronin that the 14 January 2016 letter cannot be taken to mean that the Ministry, or the Court, treated the Applicants as being legally domiciled in England and Wales at the time the adoption order was made. The overwhelming likelihood is that Mrs M (who would appear to have written her letter solely for the purposes of assisting the Applicants in taking V abroad) was using the words ‘domiciled’ and ‘domicile’ to convey nothing more than that the Applicants were living in the UK. The terms have a common as well as a legal usage. Dictionary definitions include – “a place where a person lives, a place of residence or habitation.”

Moreover, the expert on Aspects of Nigerian Law, Mr Badejo, advises that the question of the Applicant’s legal domicile had no relevance in the Nigerian adoption proceedings which begs the question as to Mrs M’s reason for raising it within her letter. The eligibility criteria dwelt upon their ages, whether they completed 5 year residence in [X] State and whether they were citizens of Nigeria. The Applicants had no difficulty in satisfying those conditions.

I do not consider, notwithstanding the content of the January letter, that the Nigerian Ministry or the court should be seen as having treated the Applicants as having an English legal domicile.

Leaving on one side the attitudes of the Nigerian authorities to the domicile question, I would observe that the information supplied by the Applicants is unequivocally persuasive in establishing that they have not abandoned their domicile of origin; and it is for me to determine the issue since it arises in connection with an application for recognition of a foreign adoption order.

The evidence clearly demonstrates that the Applicants have their permanent home in Nigeria and have not relinquished their shared domicile of origin. Mr W completed his medical training in Nigeria. His work and study placement in the UK is solely directed to enhancing his Nigerian practice.

Dicey [Dicey, Morris and Collins, The Conflict of Laws (15^th Edition)] notes of the evidence of animus manendi that “it must be a fixed intention to reside in the relevant country not for a limited period or a particular purpose, but must be general and indefinite in its future contemplation, and directed exclusively towards one country.” The Applicants are unambiguous in stating that their residence in the UK is for a limited period and a particular purpose and that their future is in Nigeria.

Ms Cronin points to a number of other evidential matters which in combination satisfy me that the Applicants were at the time of the adoption order (and continue to be) domiciled in Nigeria. The Applicants have preserved their status as civil servants and are entitled to resume their former employment at a Specialist Teaching Hospital. They have retained their home during their absence. They have requested an extension of their leave of absence to 2019 – their planned return date.

They have retained and continue to operate their Nigerian bank account, they continue to invest in their Nigerian share portfolio and they have rented their Nigerian residential investment property. Moreover, the Applicants have close family, social, cultural and employment ties and attachments in Nigeria. The maternal family have been actively involved in V’s care and have supported the Applicants in their adoption.

The SSHD accepts that the Applicants have answered a number of the discrepancies drawn to their attention by Ms van Overdijk’s earlier Skeleton Argument. However, she had contended – in advance of Mrs W’s oral evidence – that there is no or no adequate explanation for two particular inconsistencies relevant not only to the issue of whether the Applicants met the legal criteria to adopt V but also to their credibility. The suggestion was made that, whether intentionally or unintentionally, they had misled the Nigerian court as to the time spent with V prior to the adoption as well as to their presence and residence in Nigeria during the period leading up to the adoption hearing.

The first of the two suggested discrepancies is this – (a) Mrs W’s sworn affidavit in support of the motion to adopt states that V was released to her and her husband on 4 May 2015 and that he “has been living with us since the release and we have grown fond of him.” Within her Skeleton Argument, Ms van Overdijk submitted that this “is wholly contradicted by the Applicants’ evidence in this application which confirms that V was released to the custody of (Mrs W’s) sister with whom he lived prior to being adopted, and did not live with the Applicants in Nigeria.” The second discrepancy is said to be that – (b) the Temporary Release Form states that V was released into the custody of Mrs W on 4 May 2015 despite the Applicants’ assertion in these proceedings that he was released into the custody of Mrs W’s sister and had no contact with either of the Applicants until July 2015.

When the evidence of Mrs W had been heard, Ms van Overdijk modified her position suggesting that if the information contained within the undated post adoption Social Inquiry Report of Mrs M had been before the court at the time the adoption order was made, then the issue of whether or not the court had been misled was resolved. I infer, rightly or wrongly, that Ms van Overdijk had been influenced as well by the quality of Mrs W’s evidence.

Ms van Overdijk’s overarching submission in relation to whether the adoption order was validly made in accordance with the requirements of the law is that it would not be sufficient to simply conclude that an order, valid on the surface, was obtained wholly lawfully in the foreign jurisdiction. In other words, I should properly inquire into and make an assessment of the law as well as the facts so as to satisfy myself that this condition for recognition is satisfied.

To that end, the report of Mr Badejo has been of considerable assistance. He concludes as follows –

In support of her contention that the court should find the adoption order valid and in accordance with the requirements of Nigerian law, Ms Cronin submits that the Applicants accept and regret the inconsistencies and inaccuracy in some of the adoption documentation before the Court, in particular the misleading sentence that V ‘has been living with us’ since May 2015. She submits that notwithstanding this misleading comment the Ministry and the Court were fully aware of their UK residence and of the time which Mrs W spent looking after and bonding with V in Nigeria.

Ms Cronin cites a number or matters which enable me to properly infer that, in fact, there was no intention to mislead or deny the true situation, as follows –

Those evidential matters were very considerably buttressed by the oral evidence of Mrs W who was, in my assessment, a palpably honest and reliable woman. She described how she and her husband had employed and relied upon the advice given to them by Mr E, a lawyer in Nigeria, who had reassured them that he “dealt with a lot of international adoptions.” He had advised them that the period of 3 months in which the child had to be cared for prior to the adoption “did not have to be consecutive, it could be broken.” Mr E had also said that Mr W did not have to be “there” in Nigeria. “One can represent the other” was what Mrs W had understood.

Within their statement evidence, Mr and Mrs W had explained that their understanding, from their lawyer, that they had to arrange and make all decisions for V’s care in the months preceding the adoption but, with the consent of the probation service, he could be living with Mrs W’s sister and that Mrs W could visit and care for him.

Mrs W gave critically important evidence about the hearing of the adoption application and the questions asked of her by the judge. Mrs W told the judge about the couple’s future plans and how she was looking forward to taking V to England so that Mr W could meet his son. The judge, said Mrs W, was “very pleased” to see her with V and to observe how well he was being cared for. As for the hearing itself, Mrs W said that Mr E, the lawyer, Mrs M, the probation officer, and the judge had a discussion together before she and V joined them. When she had been called in, the judge had said she was “very satisfied with everything.” She had known that Mrs W and her husband were living in the UK. Mrs W said the judge had been “very happy” when she had seen V with her, there had been no judgment, the judge had simply said she was “happy.” Later, in cross examination, Mrs W added that the judge had “known everything about (her).” She had known Mrs W was not living there in Nigeria and had come for “bonding.” Significantly, Mrs W added this, “She (the judge) was after the best interests of the child. That is why she was so satisfied and gave me the order.”

Mrs W was asked about the Affidavit in Support of the Motion to Adopt. She said that the lawyer, Mr E, had drafted it and she had signed in his office. Two addresses appear – one in England where Mr and Mrs W were living; the other in Nigeria is where Mrs W was staying with her sister. Paragraph 8 is in these terms – “That the child has been living with us since the release (from the orphanage) and we have grown fond of him.” Paragraph 9 continues, “That throughout this period the juvenile has lived with us, no known person(s) came forward to identify or claim ownership.” Asked about the phrase “with us” Mrs W explained that “the child has been living with my family – we are all one extended family. My siblings are my family. That is how it is in Nigeria.”

The evidence unequivocally supports a finding that the Applicants made all of the central decisions as to how and by whom V was looked after day by day. It was obviously of critical importance to the judge’s assessment of his welfare needs (her primary consideration) that she saw for herself how well-attached he was to Mrs W at the time of the hearing. It is also relevant that Mrs W undertook his direct, albeit not consecutive care, for 2½ months prior to the adoption hearing and that Mrs M strongly supported the adoption.

I agree with Ms Cronin when she suggests that the phrase ‘in the care of’ is capable of a wide construction. There is nothing to suggest that the requirement was to be literal in the sense that at all times during the 3 month period, the child had to be physically looked after by the Applicants. It could be interpreted, as Ms Cronin suggests, as a requirement that the adopters should arrange, supervise, provide and undertake all indirect and some direct care of the child. The words are capable of flexible application, having regard to family circumstances and the primary best interests of the child.

Even although Mr Badejo has clarified that there is “no … concept of aggregating the 3 month period … and no provision in the law to delegate the care of the child to anyone other than the applicants or one of them” I decline to find that that V’s adoption was anything other than legal and in accordance with Nigerian law. In answer to Ms van Overdijk’s fundamental question as to whether the adoption order was validly made, the answer to my mind is in the affirmative.

After all, if there had been a sufficient basis to found an argument that this was not a legal or valid adoption, because of some breach in the requirements, I would have expected Mr Badejo to say so. He does not. His advice is that “the order made by the competent court in Nigeria remains a valid order unless and until it is set aside.” Moreover, when considering such an application, “the child’s best interests (would be) the primary consideration for the court.”

Whilst I accept that in general terms the English court should not seek to expand upon the expert’s opinion on foreign law (where otherwise it is silent) Mr Badejo’s advice strongly supports the contention that V’s welfare interests predominated, in accordance with section 1 of the Child Rights Law of [X] State; and the inference must be that the residence requirements were capable of liberal interpretation both as to precise timescales and delegation of the care of the child.

Moreover, having heard the evidence of Mrs W I am in no doubt but that the judge who made the adoption order was fully aware of the Applicants’ personal circumstances. She knew the facts as to who had been looking after V throughout his life, the way in which he had been able to ‘bond’ with Mrs W in the time she had been looking after him in Nigeria and, applying a ‘best interests’ test, the judge made the order. On the basis of what happened in this particular instance, of the materials supplied to the Nigerian court by Mrs W in particular (and notwithstanding the discrepancies or irregularities in the written evidence) I am satisfied that the judge would have made the order in any event and regardless of the failure to comply strictly with the requirements of s. 128 of the Child Rights Law.

Accordingly, it is my finding that V was adopted in accordance with the requirements of foreign law.

The next matter for analysis is whether the foreign adoption has the same essential characteristics as an English adoption. Ms van Overdijk, on the basis of Mr Badejo’s opinion, accepts that a Nigerian adoption order, if validly made, represents a complete substitution of adopted family for natural family as would be the case with an adoption order conferred by an English court.

The majority judgment in Re Valentine’s Settlement took as an essential characteristic of English adoptions the destruction of the legal relationship existing between the child and its natural parents; and the creation of the legal relationship of parent and child between the child and his adopting parents, making him their legitimate child.

The terms of V’s adoption order taken together with s. 138 of [X] State’s Child Rights Law make clear that the Applicants have assumed the ‘full parental rights, duties and obligations of natural parents’ in respect of V and the birth rights of his unknown parents are extinguished. The expert, Mr Badejo confirms that under [X] State law the adopted child is treated for all purposes as the birth child of the adopters.

Nothing more needs to be said about the third criterion.

The SSHD acknowledges that only in the rarest circumstances should public policy be invoked in order to deny recognition of a foreign adoption order. Within her Skeleton Argument, Ms van Overdijk suggested there remain concerns (unassuaged by the Applicants’ further evidence) that the Nigerian court may have been misled by them in the sworn evidence filed in support of the Motion to adopt. If that is correct, then argues Ms van Overdijk, it would be sufficient to engage the public policy threshold for refusing recognition; and she suggested that I may wish to hear oral evidence if I were to be sufficiently concerned.

As I have already made abundantly clear, I do not accept that in their dealings with the Nigerian court, Mr and particularly Mrs W sought to deceive or to mislead in any way. They were entitled to put their trust in a lawyer who held himself out as an expert in achieving international adoptions. It must be assumed that he knew the requirements of the law; and unquestionably he was responsible for drafting Mrs W’s Affidavit. In all of her dealings with Mrs M, the probation officer, Mrs W was transparent and entirely honest. Mrs M knew exactly when and for how long Mrs W had been in Nigeria and looking after V prior to the adoption hearing. The important factors for her (and for the judge) were the altogether pleasing ‘bond’ that had developed between Mrs W and V and his future best interests.

In my judgment, there is no public policy reason, none at all, for refusing recognition. Indeed, it would be an affront to public policy to refuse to recognise V’s adoption order.

The last matter for determination is as to whether – in the event I am wrong in recognising the Nigerian adoption order as validly made in accordance with [X] State law – I should nonetheless recognise at common law and make a declaration accordingly under the Family Law Act 1986.

The potential for such a determination arises as the result of MacDonald J’s decision in S v. S (No 3) (Foreign Adoption Order: Recognition) [2017] 2 WLR 887. For present purposes, it is unnecessary to go beyond the structure of his decision summarised within the headnote which makes clear – that in determining an application for the recognition of a foreign adoption at common law and a 1986 Family Law Act application, the court had to act in a manner compatible with the right of the parents and 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 and habitual residence to the very particular circumstances of that case, with a concomitant refusal to recognise the adoption lawfully constituted in Nepal … 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 …; that where family life existed between the parents and child for the purposes of Article 8 the court could not reasonably refuse to recognise their actual situation; that recognition of the adoption in that 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 parents …; 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 that case, it would not be contrary to public policy to recognise the Nepalese adoption at common law; and that although neither parent had been domiciled or habitually resident in Nepal at the time they adopted the child, the court would recognise the adoption order at common law and make a declaration under the Family Law Act 1986.

If I had encountered difficulty in recognising the Nigerian adoption order because of a defect in the requirements of Nigerian law, Ms Cronin suggests the S v.Sapproach would constitute an alternative route leading to permissible recognition.

Ms van Overdijk sought to argue that if the foreign order had not been validly made (because one of the criteria was not established), then the Applicants would encounter a “very high hurdle” in suggesting that Article 8 rights were engaged; and that there are / might be conceptual difficulties in suggesting there is a legally recognised parent – child relationship between the Applicants and V such that Article 8 rights are engaged. Ms van Overdijk emphasised that in S v. S the judge did not encounter a similar difficulty to that which might have existed in this instance because he was satisfied the Nepalese adoption order had been validly made.

In response to that argument, Ms Cronin reminds me of the decision of the Court of Appeal in Singh v. Entry Clearance Officer New Delhi[2005] QB 608 which definitively establishes that Article 8 rights may be engaged within the framework of the Human Rights Act 1998 even where there is no legally recognised relationship between the claimants and the child. In that case, an informal religious adoption was not recognised, had no effect in English law and yet the court held there was family life engaging Article 8 between the adoptive parents and their child.

It seems to me there can be no question but that Mr and Mrs W and V are properly entitled to be viewed as a family; and that their Article 8 rights are most definitely engaged. The reality of the relationships between parents and child is what matters rather than the legality or otherwise of the adoption order. Ever since V was placed in the home of Mrs W’s sister when only two days old, Mr and Mrs W have viewed him as their prospective son. When the adoption proceedings were concluded, they viewed him as their son and a full member of their family. Mrs W has made a significant attachment to V not just during the time she was looking after him as his mother in Nigeria but also during the almost daily video messaging between them. Mr and Mrs W yearn to be able to arrange for V to join them in this country. Until now, as the result of the decision of the SSHD, they have been prevented from living as a family. Without an order recognising the Nigerian adoption they would not be able to spend the next two years here in the UK together as a family. Their Article 8 rights would be infringed in a way that was neither necessary nor proportionate.

The adoption order is, of course, status changing as it affects V and Mr and Mrs W. He and they have rights to family life; and to deny them recognition of the adoption order would constitute an unwarranted interference with those rights.

Accordingly, in the event that I am wrong as to whether the Nigerian adoption order complied with the requirements of foreign law, I would have no hesitation in arriving at a similar conclusion to that of MacDonald J in S v.S. My alternative formulation is to recognise V’s adoption at common law because to do otherwise would be to breach his and his parents’ Article 8 rights to respect for their family life.

That is my judgment.