G, Re

Recognition of a foreign adoption at common law involves three questions: whether it was lawfully obtained, whether the foreign concept of adoption substantially conforms to the English concept, and whether public policy militates against recognition. The child’s best interests are not an additional universal requirement at the recognition stage, although they may be relevant to a later adoption decision. Recognition and a declaration of adoption status are distinct stages. Once recognition is established, the child may apply under Family Law Act 1986, section 57. Compliance with the procedural requirement to notify the Attorney General may be dispensed with only exceptionally and on the particular facts.

Mr and Mrs G applied under the inherent jurisdiction for recognition in England and Wales of Brazilian adoption orders made in October 2013 concerning their niece and nephew, D and E. Brazil was not a designated country when the orders were made, although it was added to the relevant list shortly afterwards. The children had lived with the applicants for several years, and recognition was sought to place them on the same legal footing as their brother and to facilitate family reunification in the United Kingdom.

The court considered recognition at common law, the subsequent declaration of status under section 57 of the Family Law Act 1986, the children’s standing, the Attorney General’s role, and the procedural consequences of non-compliance with rule 8.21 of the Family Procedure Rules 2010.

1. Recognition at common law. The Brazilian adoption orders were lawfully obtained, were valid and substantially conformed to the English concept of adoption. They were full, final and irrevocable, terminated the birth parents’ parental rights and conferred parental status on the applicants. No public policy consideration militated against recognition. The orders were therefore recognised under the common law of England and Wales.
2. The common-law test required consideration of:
   1. whether the adoption was wholly lawful in the foreign jurisdiction;
   2. whether the foreign concept of adoption substantially conformed with the English concept; and
   3. whether any public policy consideration required refusal of recognition.
3. The best interests of the child were not an additional requirement for recognition. The court noted that welfare would be relevant if, after recognition, the court proceeded to consider making an adoption order. In any event, recognition was manifestly in D and E’s best interests.
4. Recognition and declaration. Recognition was a distinct first stage. A declaration under section 57 of the Family Law Act 1986 could follow only once the adoption was recognised by the law of England and Wales. The children, rather than the adoptive parents, were the proper applicants for the declaration and had standing because their adoption had been recognised and they had the required domicile status.
5. Attorney General. The requirement under rule 8.21 of the Family Procedure Rules 2010 to send the application and supporting documents to the Attorney General one month before the application could be dispensed with on these facts. The court relied on its case-management and procedural powers, proportionality, the absence of an apparent public policy issue, and the fact that section 59 of the Family Law Act 1986 contemplated intervention even where papers had not previously been sent. Such waiver would, however, be rare and fact-specific.
6. The application and judgment were to be sent to the Attorney General. The section 57 application was listed for mention, with a final declaration to be made if the Attorney General did not indicate an intention to intervene by 29 August 2014.
7. Recognition did not itself confer British citizenship or guarantee immigration status, although it could assist the children in satisfying the relevant Immigration Rules and in a later discretionary citizenship application.