N (A Child), Re

A foreign adoption is recognised at common law where the adopters were domiciled in the foreign country, the adoption was lawful there, its essential characteristics substantially conform to English adoption, and public policy does not require refusal. The child’s best interests and similarity of process are not separate conditions. They are relevant only within the narrow public policy exception.

When deciding whether to make an English adoption order, the child’s welfare throughout life is paramount. Benefits arising from British citizenship are relevant welfare considerations. General immigration-control concerns carry very little weight where adoption genuinely creates or secures the parental relationship.

An Indian-born woman sought recognition of her customary Indian adoption of her niece and an adoption order under the Adoption and Children Act 2002. The child had been informally placed with her in infancy. A customary ceremony and registered deed formalised the adoption in India in 2011. Unchallenged expert evidence established that the adoption was valid and final under Indian law.

The Secretary of State opposed both applications. She disputed the adopter’s Indian domicile and argued that recognition or domestic adoption would circumvent immigration and intercountry-adoption controls. The court had to determine the common-law requirements for recognition, the adopter’s domicile in 2011, the relevance of welfare and procedural safeguards, and whether a domestic adoption order should be made shortly before the child turned 18.

1. Both applications were granted. English law recognised the Indian adoption, and an adoption order was made under the Adoption and Children Act 2002.

2. The Court of Appeal’s decision in In re Valentine’s Settlement remained binding. Recognition at common law depended only on four conditions: the adopters’ domicile in the foreign country; a lawful adoption under foreign law; substantial conformity between the foreign and English concepts of adoption; and the absence of a public policy reason for refusing recognition.

3. Neither the child’s best interests nor substantial similarity between the foreign and English procedures was a separate condition of recognition. Both could be relevant within public policy, but that exception was narrow. Recognition of status should be refused only on the rarest occasions, particularly where the adoption served an egregious immoral or mercenary purpose.

4. A domicile of choice required residence and a genuine intention to make a permanent or indefinite home. The court had to consider the person’s whole life retrospectively. Despite long residence and settlement in England, the applicant’s enduring personal, familial and practical connections with India, especially her relationship with the child there, established that she remained domiciled in India in October 2011.

5. The unchallenged expert evidence established that the adoption was lawful and final in India and had the essential characteristics of an English adoption. Any procedural differences fell far short of engaging public policy. The alleged circumvention of immigration rules also provided no public policy bar.

6. Article 8 may, in an appropriate case, prevent disproportionate application of the domicile rule where established family life and a foreign legal status would otherwise go unrecognised. That issue was unnecessary to decide because the domicile condition was satisfied. The availability of a domestic adoption order would in any event have weakened the alternative Article 8 claim.

7. Under section 1(2) of the Adoption and Children Act 2002, the child’s welfare throughout life was paramount. The security of the established parent-child relationship and the practical benefits of British citizenship made adoption manifestly beneficial. Immigration control could not operate as an indirect veto.

8. Section 83 of the Adoption and Children Act 2002 did not apply. The child had not been brought to the United Kingdom for adoption, and the Indian adoption had occurred more than 12 months before her arrival.

This was a first-instance determination of applications for recognition and adoption. Before the family proceedings, an Entry Clearance Officer had refused settlement under paragraph 310 of the Immigration Rules. The First-tier Tribunal dismissed the resulting immigration appeal. Those decisions involved a different statutory regime and did not determine either application before the Family Division.