AJ (a child), Re

Recognition of a non-Convention foreign adoption under the common law requires consideration of three matters: whether the adoption was lawfully obtained abroad; whether the foreign concept of adoption substantially conforms to the English concept; and whether public policy militates against recognition. The adopting parents must also have been domiciled in the foreign jurisdiction when the order was made. If those requirements are met, the court must apply the welfare test in section 1 of the Adoption and Children Act 2002, treating the child’s welfare throughout life as paramount. Recognition may be granted where the evidence establishes a permanent legal relationship equivalent in substance to English adoption, even though the foreign procedure differs in detail.

The applicants, an Indian-born married couple domiciled in India but resident in England, sought recognition under the inherent jurisdiction of an Indian adoption deed concerning a child born in India. The child had been cared for by them in England since March 2011. The birth parents consented, expert evidence supported the validity and effect of the adoption under Indian law, and safeguarding evidence supported the child remaining permanently with the applicants.

The central issues were whether the applicants were domiciled in India when the adoption was made, whether the adoption was valid and substantially equivalent to an English adoption, whether public policy opposed recognition, and whether recognition promoted the child’s welfare throughout her life.

1. Recognition granted. The court made the declaration recognising the validity of the Indian adoption deed.
2. Applying Valentine’s Settlement [1965] 2 All ER 226, the court held that recognition could not be granted unless the adopting parents were domiciled in India at the relevant time. On the evidence, both applicants were domiciled there.
3. For a non-Convention foreign adoption, the court applied the three questions identified by Hedley J in Re: T and M [2011] 1 FLR 1487: whether the adoption was wholly lawful in the foreign jurisdiction; whether the foreign concept substantially conformed to the English concept; and whether public policy militated against recognition.
4. The adoption was valid under the Hindu Adoptions and Maintenance Act 1956. It permanently separated the child from her biological parents and made her the legitimate child of the applicants, with the legal rights and responsibilities of that relationship. The absence of a detailed foreign welfare investigation did not prevent recognition because the adoption was intra-family and the domestic safeguarding assessment reached the same conclusion.
5. No public policy objection arose. The UK Border Agency had expressly declined to intervene. Applying section 1 of the Adoption and Children Act 2002, recognition promoted the child’s welfare throughout her life and was in her best interests.
6. As a prospective case-management observation, CAFCASS should ordinarily act as advocate to the court in similar cases where the necessary welfare enquiries have already been undertaken by the local authority, rather than conduct a further investigative exercise.