ELO v CLO (recognition of a Nigerian adoption order)

Recognition of a foreign adoption requires satisfaction of four criteria: the adopters’ domicile in the foreign country when the order was made; legal adoption under the foreign law; essential characteristics equivalent to an English adoption; and absence of a public-policy reason to refuse recognition. Domicile depends on the whole life history and the strength and durability of the relevant connections. A domicile of origin continues unless a change is proved by clear evidence of an intention to reside permanently or indefinitely elsewhere. The foreign court’s compliance with its own law may be assessed from the available official and expert evidence. Differences from English adoption requirements do not, without more, justify refusing recognition.

ELO and CLO applied for recognition of an adoption order made by the Magistrates Court of Anambra State, Nigeria, concerning V, a five-year-old child living in Nigeria with the applicants’ relatives. Recognition would enable the applicants to be treated as V’s parents for immigration purposes, although it would not itself secure entry clearance under paragraph 310 of the Immigration Rules HC 395.

The Secretary of State for the Home Department intervened and challenged the applicants’ domicile in Nigeria and the validity of the adoption under Nigerian law. The central issues were whether the applicants had retained their Nigerian domiciles and whether the adoption had been made in accordance with the requirements of Anambra law.

1. Recognition criteria. The court applied the four criteria derived from In re Valentines Settlement [1965] Ch 831 and explained in N (A Child), Re [2017] 2 FLR 297 (Fam): foreign domicile at the date of adoption; legal adoption under the foreign law; the same essential characteristics as an English adoption; and no public-policy reason for refusal.
2. Domicile. The applicants’ domicile of origin in Nigeria had not been displaced. The court considered their long residence, British citizenship, limited visits to Nigeria and their intention to bring V to the United Kingdom. Those matters were outweighed by their continuing Nigerian citizenship, family, cultural, social and religious ties, family home, financial support for relatives, Nigerian customs and stated intention to retire and be buried in Nigeria. Applying the principles in Mark v Mark [2006] 1 AC 98, Barlow Clowes International Ltd (In Liquidation) & Ors v Henwood [2008] EWCA Civ 577 and Aguilan & Anor v Cyganik [2006] EWCA Civ 129, the Secretary of State had not proved a change of domicile.
3. Compliance with Nigerian law. The applicants did not strictly satisfy every residence and care requirement in section 134 of the Anambra Child Rights Law. However, the evidence showed that the Nigerian ministry and court knew the applicants lived in the United Kingdom and that V was cared for by the applicants’ relative with ministerial approval and under their direction. The official evidence, supported by expert evidence, justified the inference that the requirements had been waived or given a liberal interpretation in V’s best interests. The court followed the approach in Re W [2017] EWHC 1733 concerning care by the wider family.
4. The adoption was therefore made in accordance with Nigerian law. It had the essential characteristics of an English adoption, and no public-policy objection arose. The Nigerian adoption order was recognised.

This was a first-instance application for recognition of a Nigerian adoption order. The application was initially directed by Peter Jackson J and the Secretary of State for the Home Department was subsequently permitted to intervene.