Z & Z, Re

For jurisdiction to recognise an overseas adoption, an applicant may establish habitual residence in England and Wales despite substantial physical absence. The court must assess the facts in the round, including the permanence and focus of the family home, the reasons for absence, continuing connections, intention, and the absence of forum-shopping or bad faith. Physical presence remains relevant, but involuntary absence does not necessarily end habitual residence.

Recognition of an overseas adoption requires consideration of whether the order was lawfully obtained, whether the foreign adoption substantially conforms to the English concept and applicable status conditions, and whether public policy weighs against recognition.

Mrs Z applied under the inherent jurisdiction for recognition of Brazilian adoption orders concerning A and B, whom she had adopted in Brazil on 25 March 2008. The application was founded on section 57 of the Family Law Act 1986. Recognition was necessary because the Brazilian adoption was not covered by the Adoption Designation of Overseas Adoptions Order 1973.

The central jurisdictional issue was whether Mrs Z had been habitually resident in England and Wales throughout the year preceding her application, although she had spent most of that period in Brazil with the children. A consequential application by Mr Z for an adoption order depended on recognition of Mrs Z’s adoption.

1. The court had jurisdiction under section 57(3) of the Family Law Act 1986. Habitual residence is fact-sensitive and must be assessed case by case. Physical presence is an important ingredient, but the court must consider the wider circumstances.

2. Mrs Z had spent less than 25 per cent of the relevant year physically in England and Wales. Nevertheless, her absence from the jurisdiction was effectively involuntary because the children could not lawfully settle here until their status was resolved. The family home in England remained the principal and chosen home, Mr Z continued to live and work here, and it remained the focus of the family’s life.

3. The continuing daily contact by telephone, internet and Skype supported the connection with England. Mrs Z returned as soon as the children could lawfully do so, made the application promptly, and there was no evidence of forum-shopping or bad faith. Those matters, considered together, established habitual residence throughout the relevant year.

4. The court adopted the three considerations summarised by Hedley J in Re R [2012] EWHC 2956 and Re T & M [2010] EWHC 964: whether the foreign order was lawfully obtained; whether the foreign concept of adoption substantially conformed to the English concept and required status conditions; and whether public policy militated against recognition.

5. The Brazilian adoptions were validly and lawfully obtained. They were full adoptions, irrevocably transferring parental rights and responsibilities, and gave paramount consideration to the children’s welfare. Mrs Z satisfied the relevant domicile and habitual-residence status conditions. No public policy objection arose.

6. A declaration recognising both Brazilian adoption orders was made. The children thereby became capable of falling within section 66(e) of the Adoption and Children Act 2002, enabling consideration of Mr Z’s consequential adoption application.