A (a Child) (Recognition of Nigerian Adoption: common law test), Re

Recognition of a foreign adoption at common law requires the adoptive parent to have been domiciled in the foreign country, the adoption to have been legally effective under that country’s law, the adoption to have the essential characteristics of an English adoption, and there to be no public-policy reason for refusal.

The second requirement ordinarily concerns the outcome of the foreign proceedings, rather than a detailed review of the evidence and procedure before the foreign court. The question is whether the order changed the child’s legal status and made the applicant the child’s parent under foreign law. Impropriety or fraud is ordinarily addressed under the public-policy requirement.

The applicant sought recognition in England and Wales of an adoption order made in Ogun State, Nigeria, so that the child could be treated as part of the applicant’s family for immigration purposes. Nigeria was not a Hague Convention country and Nigerian adoptions were not within the statutory category of recognised overseas adoptions.

The applicant relied on the common-law jurisdiction to recognise foreign adoptions. The principal issue was whether the Nigerian order had been legally made for the purposes of the second common-law criterion, including concerns about residence and alleged abandonment. The court also considered domicile, essential characteristics and public policy.

1. Declaration granted. The Nigerian adoption order was legally effective in Nigeria and the child was to be recognised as the applicant’s child under the common law of England and Wales.
2. The court adopted the four criteria summarised in In re N: the adoptive parents must have been domiciled in the foreign country; the child must have been legally adopted under the foreign law; the adoption must have the essential characteristics of an English adoption; and there must be no public-policy reason to refuse recognition.
3. The domicile criterion was satisfied. The applicant had Nigerian domicile of origin and had not shown the permanent intention required to acquire a domicile elsewhere. She was domiciled in Nigeria when the order was made.
4. The essential-characteristics criterion was satisfied because the Nigerian order created a legal parent-child relationship and had an effect similar to an English adoption.
5. The second criterion focuses primarily on whether the foreign order was legally effective to change the child’s status and make the applicant the child’s parent under Nigerian law. It does not ordinarily require the High Court to reconstruct the evidence before the foreign court, decide what evidence it accepted, or determine whether the foreign court ought to have made the order. Such an approach would be inconsistent with comity and would improperly scrutinise the foreign court’s decision-making process.
6. The Nigerian order was effective. The concerns about residence and abandonment did not prevent recognition. It was open to the Nigerian court to find that the applicant was resident in Ogun State and that the child had been abandoned by both parents. Any concern that the order had been improperly or fraudulently obtained would fall under the public-policy criterion, not ordinarily under the legal-effect criterion.
7. There was no evidence of a public-policy reason to refuse recognition. The statutory restrictions concerning Nigerian adoptions did not directly apply to this application, although they justified particular attention to the reliability of the foreign process.
8. Obiter, if the common-law criteria had not been satisfied, refusal to recognise the adoption on these facts would have interfered with the applicant’s rights under article 8 ECHR and would have been unjustified.

First-instance decision. No prior or appellate decision is stated in the judgment.