W v The Secretary of State for the Home Department

Recognition of a foreign adoption at common law is governed by four criteria: the adopters’ domicile in the foreign country, compliance with foreign law, substantial conformity with the essential characteristics of an English adoption, and the absence of a public-policy reason for refusal. The court must assess the substance of the arrangements and may construe care requirements flexibly, having regard to family circumstances and the child’s best interests. Public policy should be invoked to refuse recognition only in rare circumstances. Where recognition under the ordinary criteria would fail, the court may consider whether refusal would disproportionately interfere with the family’s rights under Article 8 of the Convention.

Mr and Mrs W, Nigerian citizens temporarily resident in the United Kingdom, sought recognition of a Nigerian adoption order concerning their two-year-old son, V. Recognition was required to support V’s immigration and residence in the United Kingdom.

The applicants could not obtain a domestic adoption order or a declaration under section 57 of the Family Law Act 1986. The Secretary of State for the Home Department neither supported nor opposed the application, but invited rigorous examination of the legal and factual issues. The central questions were whether the Nigerian adoption satisfied the common-law criteria for recognition and, alternatively, whether refusal would unjustifiably interfere with the family’s Article 8 rights.

1. Recognition granted. The Nigerian adoption order was recognised at common law.
2. The governing criteria were those identified in N (A Child), Re [2016] EWHC 3085, derived from Re Valentine’s Settlement [1965] Ch 831: domicile of the adopters in the foreign country at the time of adoption; a lawful adoption under foreign law; substantial conformity with the essential characteristics of an English adoption; and no public-policy reason for refusing recognition.
3. The applicants had retained their Nigerian domicile of origin. Their temporary United Kingdom residence was for a limited purpose, while their permanent home, employment, financial interests and enduring personal ties remained in Nigeria. The principles stated in Mark v Mark [2006] 1 AC 98 were applied.
4. The adoption was valid under Nigerian law. Although the applicants had not physically cared for V throughout three consecutive months, the requirement that the child be in their care was capable of flexible construction. The applicants had made the central decisions about V’s care, had undertaken substantial direct care, and had formed a bond with him. The Nigerian order remained valid unless set aside, and the evidence did not establish deception or an invalid adoption.
5. The Nigerian adoption had the essential characteristics of an English adoption. It substituted the adoptive family for the birth family, extinguished the birth parents’ legal rights and conferred full parental rights, duties and obligations on the applicants.
6. There was no public-policy reason to refuse recognition. Refusal in the circumstances would itself offend public policy because it would prevent the family from living together despite the genuine relationship between the applicants and V.
7. Alternatively, following the approach in S v S (No 3) (Foreign Adoption Order: Recognition) [2017] 2 WLR 887, refusal would have been a disproportionate interference with the applicants’ and V’s Article 8 rights. Singh v Entry Clearance Officer New Delhi [2005] QB 608 established that family life may exist for Article 8 purposes even without a legally recognised parent-child relationship.

Not stated in the judgment.