KN & Anor v RN & Ors.

Recognition of a foreign adoption at common law requires proof that the adopters were domiciled in the foreign country, the adoption was lawful under that country’s law, it substantially shared the essential characteristics of an English adoption, and no public-policy reason justified refusal. The public-policy exception is narrow and ordinarily concerns particularly egregious conduct. A failure to satisfy one criterion may nevertheless be overcome where refusal would cause an unnecessary and disproportionate interference with protected family life. Informed parental consent is a fundamental requirement. Courts must rigorously resolve discrepancies in evidence of consent, especially where wider safeguarding concerns arise. Recognition of status and jurisdiction to make a statutory declaration are separate questions: recognition may be granted even where the court lacks jurisdiction under Family Law Act 1986 s 57 because the child is not domiciled in England and Wales.

KN and BN applied to recognise at common law adoption orders made in Imo State, Nigeria, concerning RN and TN. RN and TN separately sought declarations under s 57 of the Family Law Act 1986 that they were, for the purposes of s 67 of the Adoption and Children Act 2002, the adopted children of KN and BN.

The Nigerian adoptions could not be recognised under the statutory overseas-adoption regime because Nigeria was subject to special restrictions. The principal issues were whether KN and BN were domiciled in Nigeria when the orders were made, whether the children had been lawfully adopted under Nigerian law, whether the adoptions had the essential characteristics of an English adoption, whether public policy required refusal, and whether the children were domiciled in England and Wales when the applications under s 57 were issued.

1. Recognition at common law. The court applied the four criteria in In re Valentine’s Settlement [1965] Ch 831, as confirmed and refined in Re N (A Child) [2016] EWHC 3085 (Fam): foreign domicile of the adopters, lawful adoption under foreign law, substantial conformity with the essential characteristics of an English adoption, and no public-policy reason for refusal. The children’s best interests were not an additional criterion.
2. KN and BN retained their Nigerian domicile of origin when the orders were made. The court was satisfied that RN’s adoption complied with Nigerian law. It was not satisfied that TN’s did so. The affidavit relied on for TN’s mother’s consent was apparently sworn seven days before TN’s birth. Later evidence asserting that the discrepancy had been resolved at the hearing was produced only after the issue arose, was not reflected in the adoption order, and was unsupported by the requested record of proceedings. Informed consent is a foundation of lawful adoption, and discrepancies in the consent evidence had to be resolved to the court’s satisfaction.
3. The Nigerian adoptions substantially conformed to the English concept of adoption. The concerns about documentation and the Nigerian adoption system did not establish the particularly egregious conduct required to invoke public policy as a ground for refusing recognition.
4. Although TN’s adoption failed the ordinary legality criterion, refusal to recognise it would disproportionately interfere with the Article 8 family life of TN, RN, KN and BN. Recognition was necessary to reflect the established family relationships and avoid incompatible and potentially unequal legal statuses, a limping adoption, unequal succession rights, and possible separation of the siblings. The court therefore recognised both Nigerian adoptions at common law.
5. Declarations under s 57. The court lacked jurisdiction to declare the children adopted children of KN and BN for the purposes of s 67 of the Adoption and Children Act 2002. The children could acquire only a dependent domicile, following KN. KN remained domiciled in Nigeria on 21 March 2022, so the children were not domiciled in England and Wales on the application date. The declarations were accordingly refused.

not stated in the judgment.