R (a Child), Re

Recognition of a non-convention foreign adoption requires consideration of three questions: whether the order was lawfully obtained, whether the foreign concept of adoption substantially conforms to the domestic concept, including applicable status conditions, and whether public policy weighs against recognition.

The jurisdictional test in Re Valentine's Settlement requires the conditions for a domestic adoption order to exist. Those conditions must be assessed under current domestic law, including the modern rules on domicile and habitual residence. A foreign adoption may remain sufficiently similar to the domestic concept despite differences in the treatment of accrued family or property rights.

The applicants, a married couple living in England, adopted a child in India through a kinship placement. The adoption was valid under Indian law but was not treated as a Hague Convention adoption because private placements were excluded from the relevant Indian practice.

The applicants subsequently obtained recognition of the adoption from an Indian court after a detailed investigation. They sought recognition in England because the child's lawful entry into and residence in the United Kingdom depended on it. The central issues were whether the Indian order satisfied the English criteria for recognition of a non-convention adoption and whether the jurisdictional requirements identified in Re Valentine's Settlement remained applicable under current law.

1. The court recognised the Indian adoption order. The adoption had been validly made in India and subsequently confirmed by an Indian court after full inquiry. There were no public policy objections, and recognition promoted the child's welfare.

2. For a non-convention adoption, the court must ask: whether the order was obtained wholly lawfully in the foreign jurisdiction; whether the foreign concept of adoption substantially conforms to the English concept, including whether domestic status conditions have been replicated or fulfilled; and whether any public policy consideration militates against recognition. The religious adoption made in 2009 would probably have failed the second and third requirements, but the later Indian court order satisfied them on the evidence ([12], [22]).

3. The ratio of Re Valentine's Settlement is that an order affecting status will be recognised only where the conditions exist which would permit a domestic court to make such an order. The modern provisions of the Adoption and Children Act 2002, rather than the legislation considered in that earlier case, supplied the relevant conditions ([13]-[16]).

4. The father had retained his domicile of origin in India. His long residence in England and Wales, employment and immigration status did not establish that he had acquired a domicile of choice here, having regard to his continuing connections and intentions. The principles stated in Barlow Clowes International v Henwood and illustrated in Agulian v Cyganik supported that conclusion ([17]-[18]).

5. The fact that accrued property rights in the birth family survived the adoption, and that accrued rights in the adoptive family were unaffected, did not make the adoption insufficiently similar to the English concept. The court reached that conclusion on consideration of Chapter 4 of the Adoption and Children Act 2002, including section 75 ([19]).

6. The court expressed a provisional view that habitual residence in more than one place might be arguable on the facts, but left the wider issue unresolved. The question whether that concept is compatible with Hague Convention principles required determination in a case where it affected the outcome ([20]).

The adoption order made in 2009 and recognised by the Indian court on 4 August 2012 was recognised in this jurisdiction ([21]-[23]).

This was a first-instance decision. The court had issued a provisional judgment on 28 February 2012 and, after the Indian recognition order, made the recognition order on 2 October 2012. Written reasons were delivered on 24 October 2012.