D, Re

Recognition of a foreign adoption at common law requires consideration of whether the order was lawfully obtained, whether the foreign legal relationship substantially conforms to an English adoption, and whether public policy militates against recognition. The domicile requirement in Re Valentine’s Settlement was not decided. The court must consider the substance and effect of the foreign order, including the rights, duties and permanence of the relationship created. Public policy is ordinarily an exceptional basis for refusal. Where refusal would unjustifiably interfere with established family life under Article 8, recognition may be required, particularly where the children’s best interests and permanent de facto family ties support it.

The applicants sought recognition in England and Wales of Indian legal guardianship orders concerning two children, made in 2007 and 2010. The orders had been obtained under the Guardians and Wards Act 1890 because the applicants were non-Hindus and could not use the adoption process available under the Hindu Adoptions and Maintenance Act 1956. The children had lived with the applicants for virtually all their lives.

Recognition under the Adoption (Recognition of Overseas Adoptions) Order 2013 was unavailable, and section 83 of the Adoption and Children Act 2002 excluded the relevant Indian adoptions from recognition. The court therefore considered recognition under section 57 of the Family Law Act 1986 and the common law, addressing lawful constitution, substantial conformity with English adoption, public policy and Article 8 family life.

The court granted declarations recognising both Indian legal guardianship orders as having the essential characteristics of English adoption orders, and declared the children to be the applicants’ adopted children for the purposes of section 57 of the Family Law Act 1986 and the Adoption and Children Act 2002.

1. The court treated the modern common-law inquiry as the three questions identified in Re G (Children): whether the foreign order was wholly lawfully obtained; whether the foreign concept substantially conformed with English adoption; and whether public policy militated against recognition. The domicile issue from Re Valentine’s Settlement was not decided, and the court considered that the law had moved on.
2. The orders were lawfully obtained under the Guardians and Wards Act 1890. Their substance was equivalent to adoption. They vested the applicants with the relevant parental rights, duties, obligations, privileges and powers, while the biological parents’ rights had been surrendered or relinquished. The children were treated as members of the applicants’ family with a permanent legal relationship.
3. The absence of a deed of adoption for one child did not prevent recognition. The court assessed the legal effect and circumstances of the guardianship order and found the process materially analogous to the process used for the other child.
4. Public policy provided no reason to refuse recognition. Such refusal should occur only in rare circumstances. There was no evidence of exploitation of inter-country adoption or misleading conduct.
5. Independently, refusal would breach the applicants’ and children’s Article 8 rights. Family life existed; the orders were lawful and permanent in effect; the children had lived with the applicants for virtually all their lives; recognition served their best interests; and refusing recognition would disregard the permanent legal status created in India.

The declarations were made without hesitation. A transcript was ordered at public expense.