KA v FA & Ors

Recognition at common law of a foreign adoption ordinarily requires satisfaction of the four conditions in In re Valentine’s Settlement: foreign domicile of the adopters, lawful adoption under foreign law, substantial equivalence between the foreign and English concepts of adoption, and absence of public-policy objection.

Article 8 may justify a narrow, fact-specific relaxation of those conditions where their strict application would disproportionately interfere with established family life. Immigration restrictions and safeguarding concerns inform the public-policy limb; they do not create a separate recognition test. In an exceptional case involving jointly adopting spouses with different domiciles, recognition may extend to both spouses where refusal would cause disproportionate emotional, legal and financial harm.

KA and FA jointly applied for common-law recognition of an adoption order made by the Family Court of Lagos, Nigeria, concerning B, aged 16. They had lived in England for many years but retained family and property connections in Nigeria. KA retained her Nigerian domicile of origin; FA had acquired an English domicile of choice.

The Nigerian adoption was lawful and substantively equivalent to an English adoption. The Secretary of State was neutral. The central issue was whether recognition could be granted notwithstanding FA’s lack of Nigerian domicile, having regard to Article 8 and the public-policy concerns surrounding adoptions from Nigeria.

1. Applicable test. The court followed the four conditions identified in In re Valentine’s Settlement: the adoptive parents must be domiciled in the foreign country at the time of adoption; the adoption must comply with foreign law; the foreign concept must have the same essential characteristics as an English adoption; and recognition must not be contrary to public policy.
2. Role of immigration restrictions. The restrictions applicable to adoptions from Nigeria, including concerns about documentation, corruption, adoptability and safeguarding, were relevant to the fourth, public-policy limb. They were not a separate test for the court to apply, and recognition did not determine whether B would obtain permission to enter or remain in the United Kingdom.
3. Article 8. Article 8 requires a narrow and fact-specific approach. It does not render the common-law test incompatible in general, but may require relaxation of the test where its strict application would disproportionately interfere with family life. The relevant circumstances included the existence of family life, the emotional and legal consequences of partial recognition, the justification for interference, and whether a viable alternative route existed.
4. Application. Requirements concerning Nigerian legality and substantive equivalence were satisfied. FA was domiciled in England, while KA retained Nigerian domicile. Recognition only in KA’s favour would leave FA without legal recognition as B’s father and would produce serious emotional, financial and succession consequences. A fresh domestic adoption was not a viable alternative given B’s age and FA’s age. In those narrow circumstances, strict application of the domicile requirement would disproportionately interfere with the applicants’ family life.
5. The Nigerian adoption was therefore recognised at common law in relation to both FA and KA. The court did not decide that the domicile rule must be relaxed in every case involving spouses with different domiciles.