T & Anor v OCC & Anor

Recognition of a foreign adoption under the common law requires consideration of three matters: whether the order was lawfully obtained; whether the foreign concept of adoption substantially conforms to the English concept; and whether recognition would conflict with public policy. A couple for the purposes of the Adoption and Children Act 2002 may live in separate homes. The court must assess whether there is an unambiguous intention to create and maintain family life and a factual matrix consistent with that intention. The question is one of fact and degree. Where the statutory and procedural requirements are satisfied, an adoption order must be made if the child’s welfare requires it.

Two women applied jointly to adopt an 11-year-old child. One applicant had adopted the child in Nicaragua, where adoption by a same-sex couple was unavailable, and the other had adopted a different child. The applicants had lived together as a family, but later maintained separate homes because of difficulties affecting the other child. The issues were whether the Nicaraguan adoption should be recognised, whether the applicants constituted a couple under the Adoption and Children Act 2002, and whether the statutory welfare and procedural requirements for adoption were met.

1. The Nicaraguan adoption was governed by the Adoption Act 1976 because it pre-dated the Adoption and Children Act 2002. Nicaragua was neither a Hague Convention country nor designated under the Adoption (Designation of Overseas Adoption) Order 1973. Recognition therefore depended on the common law.
2. The common-law inquiry required consideration of whether the foreign order was lawfully obtained, whether the foreign concept of adoption substantially conformed to the English concept, and whether any public policy consideration militated against recognition. The evidence established that the Nicaraguan order was validly made and produced complete substitution of the adoptive parent for the biological parents. No public policy objection arose. The court accordingly recognised the order and declared that M was the child’s mother and only legal parent.
3. Under sections 50 and 144(4)(b) of the Adoption and Children Act 2002, living in separate homes did not prevent two people from being a couple. The required elements were an unambiguous intention to create and maintain family life and a factual matrix consistent with that intention. The applicants’ committed and exclusive relationship, daily contact, shared care and continuing family life satisfied that test.
4. The court was satisfied that the relevant requirements under section 42 had been met. Applying section 1, including the lifelong perspective and the matters in section 1(4), the child’s wishes, her longstanding relationship with both applicants, her family relationships and the material trust benefit supported the order.
5. An adoption order was therefore made in favour of M and T. The cost of obtaining the transcript was divided equally between the applicants and the guardian.

First-instance decision. No earlier appellate decision is stated in the judgment.