QS v RS & Anor

A foreign adoption may exceptionally be recognised at common law despite non-compliance with the domicile or habitual-residence condition in Re Valentine’s Settlement. The exception applies where refusing recognition would disproportionately interfere with established family life under article 8 of the European Convention on Human Rights. It does not invalidate the general domicile rule.

Recognition also requires a lawful foreign adoption substantially conforming to English adoption, consistency with public policy, and promotion of the child’s best interests. In determining living arrangements, a child’s wishes have no automatic precedence, but may carry substantial weight according to age, understanding, consistency and apparent independence. Longstanding residence creates no presumption, although preserving stability may be a significant welfare consideration.

T, a British child habitually resident in Dubai, was adopted in Nepal by two British citizens in 2008. The adoption was valid under Nepalese law but was neither a Convention adoption nor an overseas adoption automatically recognised in England. Neither adopter was domiciled or habitually resident in Nepal when the adoption occurred.

The court determined whether it could recognise the adoption at common law and declare T to be the parents’ adopted child under section 57 of the Family Law Act 1986. It also determined whether T should remain living with her father in Dubai or relocate to England to live with her mother.

Earlier proceedings had established that the English court could exercise its inherent jurisdiction and had dismissed an application to terminate the Children’s Guardian’s appointment: [2015] EWHC 4050 (Fam) and [2016] EWHC 1443 (Fam).

1. Declaration granted and living arrangements determined. The Nepalese adoption was recognised at common law. A declaration was made under section 57 of the Family Law Act 1986 that T was the parents’ adopted child for section 67 of the Adoption and Children Act 2002. A child arrangements order provided that T would live with her father in Dubai and have contact with her mother.

2. The foreign adoption was lawful and substantially conformed to the English concept of adoption. Nepalese law treated an adopted child as having the same rights as a natural child of the adopters, displaced claims against the birth parents’ property and generally made adoption irrevocable. The process included efforts to identify T’s birth family and assessment of the adopters.

3. The court remained bound by the domicile rule in Re Valentine’s Settlement [1965] Ch 831. Ordinarily, a foreign adoption cannot be recognised at common law unless the relevant English status conditions, now domicile or habitual residence, were satisfied. The present facts could not be distinguished from that authority in the conventional sense.

4. Nevertheless, refusing recognition in the particular circumstances would disproportionately interfere with the established family life of T and both parents under article 8. The court, as a public authority under section 6 of the Human Rights Act 1998, had to apply the common law compatibly with Convention rights. Non-recognition would disregard a lawful status and longstanding social reality, undermine T’s identity and certainty, and leave her without a permanent legal relationship or succession rights in the country of her nationality. No realistic domestic adoption or lesser order could reproduce the understood relationship with both parents.

5. This was a case-specific refusal to apply the domicile rule, not a finding that the rule itself was incompatible with article 8. Recognition was consistent with public policy because the adoption was undertaken in good faith, satisfied the remaining safeguards, was manifestly in T’s interests and avoided the harm which strict application would create.

6. Applying section 1 of the Children Act 1989, T’s welfare required preservation of her settled life in Dubai. Her clear and consistent wish to remain there deserved substantial weight, although it was not determinative. She was thriving physically, emotionally and educationally. Relocation would remove her from her father, school, peers, community and medical arrangements and would undermine the enhanced need for certainty arising from adoption and trans-racial placement. Regular contact could preserve and develop her relationship with her mother.

• High Court (Family Division): In QS v RS (No 1) [2015] EWHC 4050 (Fam) , the court held that it could exercise the inherent jurisdiction on the basis of T’s British nationality.
• High Court (Family Division): In QS v RS (No 2) (Application to Terminate Appointment of Guardian) [2016] EWHC 1443 (Fam) , the court dismissed the mother’s application to terminate the Children’s Guardian’s appointment.