FX and MJX v CAFCASS Legal

The court may recognise a foreign adoption under the inherent jurisdiction where four requirements are satisfied: the adopters were domiciled in the foreign country when the adoption was made; the adoption was lawful under that country’s law; it has substantially the same essential characteristics as an English adoption; and no public-policy reason justifies refusal. The child’s welfare and similarity of process are relevant within the public-policy assessment. A statutory declaration of status under Family Law Act 1986, section 57, additionally depends on the applicant satisfying the statutory jurisdictional requirements, including domicile or habitual residence. A child’s domicile does not automatically change when a parent’s domicile changes, particularly where the parents have been living apart.

FX and MX applied for recognition under the inherent jurisdiction of adoption orders made in the Philippines in respect of AX and BX. The children separately applied, through their uncle as next friend, for declarations under section 57 of the Family Law Act 1986 concerning their status as the applicants’ adopted children.

The Philippine adoption was made in 2006, before adoptions in the Philippines became generally recognised under a later, non-retrospective order. The central issues were whether the foreign adoption should be recognised under section 66(1)(e) of the Adoption and Children Act 2002, and whether the children satisfied the domicile requirement for a declaration under section 57.

1. Recognition under the inherent jurisdiction. The court applied the four criteria identified in Re Valentine’s Settlement [1965] Ch 831 and affirmed in Re N (a child) [2016] EWHC 3085 (Fam); [2018] 2 WLR 449. The applicants were domiciled in the Philippines when they adopted the children. The adoption was lawful under Philippine law. Its effect substantially conformed to an English adoption because it made the children legitimate children of the applicants, severed the legal ties with the biological parents, and conferred reciprocal succession rights.
2. There was no public-policy reason to refuse recognition. The adoption was genuine, the applicants had brought up and supported the children as their own, and recognition was in the children’s best interests throughout their lives. Welfare and the similarity of process were relevant considerations within the public-policy limb. The court also accepted that recognition respected the established family life protected by Article 8 ECHR.
3. The declaration under the inherent jurisdiction was therefore granted pursuant to section 66(1)(e) of the Adoption and Children Act 2002.
4. Statutory declaration under section 57. The children had remained in the Philippines since birth. Their father’s return to the United Kingdom in 2011 did not automatically change their domicile. Since the parents were living apart, section 4 of the Domicile and Matrimonial Proceedings Act 1973 meant that the children’s domicile of dependency followed their mother’s domicile in the Philippines.
5. Although the children were over 16 and could acquire an independent domicile, the test discussed in Harrison v Harrison [1953] 1 WLR 865 was not satisfied because they had not been physically present in the United Kingdom. The section 57 application was dismissed, without preventing a later application if the children established a United Kingdom domicile.