DE & Anor v TE & Ors

Recognition at common law of a foreign adoption requires satisfaction of four criteria: the adopters’ domicile in the foreign country when the adoption was made; legal validity under foreign law; essential characteristics substantially equivalent to an English adoption; and no public-policy reason for refusal.

Domicile is a question of fact. A domicile of origin may persist despite lengthy residence abroad where strong connections and an intention to return remain. The foreign court need not require the adopters’ continuous physical care if, under the foreign law, they directed the child’s care. Public policy has a strictly limited role and ordinarily does not justify refusing recognition merely because foreign adoption requirements differ from English requirements.

DE and JE applied for recognition at common law of an adoption order made in Nigeria concerning twin girls, TE and TT. The order was made by the Family Court of Edo State on 5 December 2023. The children had lived in Nigeria with relatives, while the applicants, who lived in England but retained substantial Nigerian connections, directed and funded their care.

The application was supported by the Children’s Guardian. The Secretary of State for the Home Department intervened but took no active position. The central issues were whether the adoption complied with Nigerian law, had the essential characteristics of an English adoption, whether the applicants were domiciled in Nigeria when the order was made, and whether public policy required refusal.

1. Application granted. The Nigerian adoption order was recognised at common law.
2. The governing framework was the four-part test identified in Re N (A Child) [2016] EWHC 3085 (Fam): foreign domicile of the adopters at the relevant time; lawful adoption under foreign law; substantially equivalent essential characteristics; and no public-policy reason for refusal.
3. The adoption complied with the relevant requirements of the Child Rights Law 2007 of Edo State. The applicants met the statutory age requirements, the father’s consent was valid, the children were resident in Edo State, and the applicants had given the required notice. The requirement that the children had been in the applicants’ care for three consecutive months could be met because the applicants had directed their care, including decisions concerning residence, education and medical treatment, although day-to-day care was provided by a relative.
4. The Nigerian and English adoption orders had the same essential characteristics. The Nigerian order extinguished the birth parents’ rights and treated the children as the applicants’ children for all purposes.
5. The domicile requirement was satisfied. Domicile was a question of fact. The applicants had retained their Nigerian domiciles of origin through regular visits, close family and cultural connections, Nigerian passports, ownership of a home in Nigeria, and a settled intention to return there on retirement and be buried there.
6. Public policy did not justify refusal. The criterion has a strictly limited function and was not engaged on the facts.
7. The immigration consequences were matters for the Secretary of State. The Secretary agreed not to initiate removal pending the children’s application to regularise their UK status, on the basis that the applicants would apply promptly.