In W v SSHD [2017] EWHC 1733 (Fam) (07 July 2017) a married couple resident in the UK on a Tier 2 visa attempted to bring their 2-year-old adoptive son, V, to join them from Nigeria.

The application they made for him to enter as a Points Based System dependent was rejected after the Secretary of State refused to recognise the currency of the Nigerian adoption document.

As the couple were unable to satisfy any of the available statutory routes to demonstrate the adoption in the UK, the only option available was to apply for recognition of the adoption at common law. Such an order would have the same effect as an English adoption order, which would enable the child to enter under paragraph 319H of the Immigration Rules (family members of Points Based System migrants) because the parents would then meet the definition of “parent” at paragraph 6 of the Immigration Rules. See paragraphs 5 to 12 of the judgment on the legal background and consequences.

And so Mrs. Justice Pauffley heard argument in the Family Division of the High Court on whether the Nigerian adoption in this case could be recognised under the common law.

The Secretary of State, although not formally opposed to the recognition and listed as an intervenor, wished only for a ‘rigorous examination of the issues’ [3].

Foreign adoptions under the common law

The law on this question was settled over 50 years ago in a case called Valentine’s Settlement, Re [1965] Ch 831. The criteria to be met for foreign adoptions to be recognised by English courts set out in that case were confirmed recently in Re N (A Child) [2016] EWHC 3085 to be as follows:

i) The adoptive parents must have been domiciled in the foreign country at the time of the foreign adoption;

ii) The child must have been legally adopted in accordance with the requirements of the foreign law;

iii) The foreign adoption must in substance have the same essential characteristics as an English adoption. … Did the concept of adoption in the foreign jurisdiction substantially conform with the English concept of adoption?;

iv) There must be no reason in public policy for refusing recognition.

‘Domicile in the foreign country’

As set out in the definition provided by Valentine’s Settlement, a foreign adoption will only be recognised where the adoptive parents were ‘domiciled’ in the foreign country at the time of the foreign adoption.

In this case, at the date of the Nigerian adoption order, the adoptive parents were based in the UK on a Tier 2 visa and a Tier 2 dependent’s visa, respectively. The question was therefore whether, for the purposes of this limb, they still had ‘domicile’ in Nigeria.

Domicile has two meanings: one legal, one not.

The legal meaning is that ‘a person has his/her domicile in the place where they have their permanent home and lasting attachments’ [15]. The non-legal meaning is closer to habitation: where someone is living at a given time. Further learning on this question is available in the judgment of Mark v. Mark [2006] 1AC 98, a case so interesting they named it twice.

Unfortunately, in the evidence they had produced in support of the original entry clearance application, a local official was quoted using the word ‘domiciled’ to describe the couple’s residence in the UK in the course of confirming that the Nigerian authorities had no issue with the child being taken abroad.

While only at the hearing to keep the court honest, and taking no formal position on the application, the Secretary of State coincidentally contested every issue. She argued in this case that the word ‘domiciled’ was being used in a legal sense which would prevent the adoption order from recognition in English jurisdiction.

The court disagreed, relying on expert evidence to hold that ‘domicile’ as it is understood in English law had no place in Nigerian adoption procedures, and that the phrase must have been used in the informal, non-legal sense.

As an aside, it is amusing to see the Secretary of State argue that two temporary (PBS) migrants in the UK for a few years had transferred their legal ‘domicile’ to the United Kingdom, and with it their ‘permanent home and lasting attachments’. This is at the same time as arguing that others who have lived all of their lives in the UK are not ‘socially and culturally integrated’ (see Akinyemi v SSHD [2017] EWCA Civ 236).

‘Legally adopted in accordance with foreign law’

The second major issue in the case was whether the Nigerian adoption had taken place in accordance with Nigerian law.

Although the impartial Secretary of State said she was only present at the hearing to ensure a just and fair outcome was reached, she suggested that the judge in the family court go behind (what everyone agreed was) a validly made adoption order to assess whether the adoptive parents had (i) been truthful during the Nigerian adoption application process, and (ii) had satisfied the requirements of the local law regarding adoption.

Apparently agreeing that this was a reasonable point to take, Pauffley J heard from the adoptive mother who she found to be a ‘palpably honest and reliable woman’ [35], and came to the conclusion that the discrepancies in the evidence could not undermine the validity of the adoption order, or the fact that it was legally made. This position was buttressed by the expert evidence of a Nigerian lawyer regarding the validity of the adoption order.

‘…same essential characteristics as an English adoption’

The essential characteristics of an English adoption were found in Re Valentine’s Settlement to be as follows:

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

In the end, and based on the findings in respect of the previous two criteria, there was agreement between all parties on this limb.

‘…public policy [reasons] for refusing recognition’

While conceding that ‘public policy’ reasons should only be invoked to refuse recognition in the rarest of circumstances, and notwithstanding the apparently persuasive testimony of the applicant witness, the Secretary of State maintained her position that the Nigerian court may have been misled in granting the adoption order.

Mrs. Justice Pauffley, however, was having none of it, and rejected this stance in strong terms. There was absolutely no public policy reason to refuse to recognise the adoption order and, ‘indeed, it would be an affront to public policy’ if it were not recognised [52].

Article 8 in the alternative

The judgment was bullet proofed by a ‘free-wheeling’ analysis of the couple’s right to family and private life.

The court held that, if it were wrong in its conclusion that the adoption order was validly made according to Nigerian law, it would nonetheless have recognised the order as valid in England. Failure to do so, the court found, would have amounted to a breach of the family’s rights under Article 8 ECHR. The reasons for so finding are worth quoting in full:

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.

And this must be right.

The passage also provides a useful reminder that video messaging is not sufficient to maintain a family relationship between parents and children, and a powerful restatement of the importance of Article 8 ECHR.