Inherent Jurisdiction: Article 8 and Adoption

W v The Secretary of State for the Home Department [2017] EWHC 1733 (Fam) (07 July 2017)

Nigerians are automatically associated with corruption and deception. The magnitude of the problem is such that even honest citizens of Nigeria – who in fact make up the vast majority of the population – are seen as fraudsters. These proceedings involved themes linked to domicile, intercountry adoption, entry clearance, the recognition of foreign judgments and conflict of laws. The intersection of such fields of law is immersed in complexity and confusion lurks behind every nook and cranny. Yet in this case a Nigerian couple applied for recognition of a Nigerian adoption order pursuant to the inherent jurisdiction and Pauffley J granted their application. Mr and Mrs W are married Nigerian citizens from “[X] state”. Mr W is a Tier 2 visa holder. Mrs W is residing in the UK as his spouse. They intend to return to Nigeria in 2019 after Mr W completes his current placement and acquires a significant medical qualification. The couple’s two-year old adopted son V, who lives abroad with maternal relatives, had been refused admission to the UK as the child under paragraph 319H (b) and paragraph 319H (l) of the Immigration Rules. The court gave effect to the presidential guidance imparted by Sir James Munby in N (A Child), Re [2016] EWHC 3085.

The effect of Pauffley J’s judgment recognising V’s Nigerian adoption order was to treat them as his “parents” in immigration law with the consequence that V became their dependent child under the points-based system arrangements operated for family members. The parents could not seek a declaration, under section 57 of the Family Law Act 1986, that V is their adopted child because of their inability to satisfy the criteria that he was domiciled in the UK at the time of the application or habitually resident for one year preceding the application. Moreover, they were also ineligible from seeking a domestic adoption because of their inability to satisfy the requirements of section 83 of the Adoption and Children Act 2002 and regulation 4(2) of the Adoptions with a Foreign Element Regulations 2005. Prospective adopters must be ILR holders. The regulations prescribe that they must obtain a certificate specifying that if an adoption order is made “the child will be authorised to enter and reside permanently in the UK”.

Since, Nigeria has not ratified the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption 1993, it is not presently given coverage by the “overseas adoption” list in the Adoption (Recognition of Overseas Adoptions) Order 2013. The only avenue open to the parents was to apply for recognition of the Nigerian adoption order at common law under the inherent jurisdiction. In recognition of foreign adoptions at common law, the 2002 Act defines “adoption” as including “an adoption recognised by the law of England and Wales, and effected under the law of any other country”.

Mrs Justice Pauffley

Granting the application, the court applied the principles in N (A Child) which are that (i) the adoptive parents must have been domiciled in the foreign country at the time of the foreign adoption (ii) the child must have been legally adopted in accordance with the requirements of the foreign law (iii) the foreign adoption must in substance have the same essential characteristics as an English adoption and (iv) there must be no reason in public policy for refusing recognition.

(i) Domicile

Domicile is where a person has their significant connections, permanent home and lasting attachments. It connects a person with a particular system or rule of law determining personal or family status or property rights. The court recalled Baroness Hale’s observation in Mark v Mark [2005] UKHL 42 that domicile is a common law concept which has “particular importance … as a connecting factor in family law”. Lady Hale explained that unlike habitual residence, which may vary in its statutory meaning, domicile is a fixed concept with the result that:

37. … A person must always have a domicile but can only have one domicile at a time. Hence it must be given the same meaning in whatever context it arises.

The home office disagreed that the parents retained their Nigerian domicile of origin and were domiciled in Nigeria when V’s adoption order was made. This resulted because of a To whom it may concern letter written by a Mrs M – a probation officer/social worker in the Ministry of Women Affairs and Social Development – which stated that Nigeria’s authorities did not object to the parents taking V “to any country where they are domiciled … in this case the United Kingdom”. The parents said that Mrs M was not a lawyer and had not used “domicile” in any legal sense and it should be taken to mean “living” in the UK.

Pauffley J did not interpret the letter to mean that the ministry, or the court, considered the parents as being legally domiciled in England when V’s adoption order was made. At best, Mrs M used “domiciled” and “domicile” to mean nothing more than that they were living in the UK. In other words, she conveyed the dictionary definition of domicile and meant a place where a person lives or a place of residence or habitation.

Expert evidence on Nigerian law provided by Mr Badejo clarified that legal domicile has no relevance in Nigerian adoption proceedings and the eligibility criteria turn on the parents’ ages and whether they completed 5 years’ residence in [X] State and held Nigerian nationality. Since they satisfied these conditions, they could not be regarded as having an English legal domicile.

Pauffley J judged that the information at hand was “unequivocally persuasive that they have not abandoned their domicile of origin”. They had not relinquished their shared domicile of origin and Mr W’s training in the UK aimed to enhance his practice in Nigeria. As civil servants, they intended resumption of their past work in a Specialist Teaching Hospital from which they had a leave of absence. They rented their property in Nigeria and maintained their share portfolio. All of their family, social, cultural and employment ties and attachments in Nigeria remained intact and V’s maternal family actively cared for him.

According to Dicey, Morris and Collins, The Conflict of Laws (15th Edition), evidence of animus manendi or the intention of remaining:

must be a fixed intention to reside in the relevant country not for a limited period or a particular purpose, but must be general and indefinite in its future contemplation, and directed exclusively towards one country.

No ambiguity existed about the fact that the parents’ future is in Nigeria and that they are temporarily resident in the UK for a particular purpose.

(ii) Legal Adoption: Foreign Law

The expert explained that under Nigerian Law an adoption order severs all legal links between the child and his biological family. An adoption order can be set aside in cases of fraud or where the order is a nullity due to a fundamental defect affecting the jurisdiction of the court. The order of a competent court in Nigeria remains valid unless and until it is set aside which can only be done after considering all the circumstances and having regard to section 128 of the Child Rights Law of [X] state. (The child’s best interests will be the primary judicial consideration.) Neither parent had V’s care for a period of at least 3 consecutive months preceding the date of the order as specified by section 128 but the Nigerian court knew that they were temporarily abroad and it ordered that post adoption supervision could take place in Nigeria or abroad.

Overall, the Nigerian court was aware of the fact that the applicants were living abroad but that V was in their care. Pauffley J was certain that the judge who made the adoption order had full knowledge of the parents’ personal circumstances. Her Ladyship was satisfied that, regardless of any discrepancies or irregularities in the parents’ evidence, would have made the order in any event irrespective of non-compliance with the requirements of section 128. Pauffley J accepted the parents’ submission that the expression “in the care of” had “flexible application” and was capable of being construed widely. On proper analysis, the condition could be interpreted to mean that adopters “should arrange all indirect and direct care of the child”. She held that V was adopted in accordance with the requirements of foreign law.

(iii) English Adoption: Same Essential Characteristics

In light of Re Valentine’s Settlement, Re [1965] Ch 831 the destruction of the legal relationship existing between the child and its natural parents is an essential characteristic of English adoptions as is the creation of the legal relationship of parent and child between the child and his adopting parents, making him their legitimate child. Read with section 128, the language of V’s adoption order was expressly clear that his adoptive parents have full parental rights, duties and obligations of natural parents and that the rights of his unknown biological parents are extinguished. Therefore, V’s adoption had the same essential characteristics as an English adoption.

(iv) Refusing Recognition: Public Policy

Even though the home office accepted that public policy should only be invoked in very rare circumstances to deny recognition of a foreign adoption order, it nevertheless expressed concerns that the parents may have misled the Nigerian court in the sworn evidence lodged in support of their case. However, as Pauffley J explained:

52. In my judgment, there is no public policy reason, none at all, for refusing recognition. Indeed, it would be an affront to public policy to refuse to recognise V’s adoption order.

The Court held that the parents did not intend to “deceive or to mislead” the Nigerian authorities “in any way” and that Mrs W was “was transparent and entirely honest” with Mrs M (the probation officer). Any faults belonged to their lawyers in Nigeria who they were “entitled to trust” for their expertise.

(v) Common Law Recognition

In the event she was wrong about her decision on the Nigerian adoption order, Pauffley J alternatively recognised V’s adoption at common law because to not do so would amount to breaching V and the parents’ rights under article 8 of the ECHR. In making a declaration under the Family Law Act 1986, the court rejected the proposition that the parents would encounter a “very high hurdle” in arguing that their article 8 rights were engaged. Following MacDonald J’s approach in S v S (No 3) (Foreign Adoption Order: Recognition) [2016] EWHC 2479 (Fam), where the court recognised a Nepalese adoption at common law, Pauffley J recalled:

54. … that while it was important to maintain all the rules which the developed English law of adoption had devised to safeguard the welfare of children who were the subject of foreign adoptions, it would be contrary to public policy to apply those rules in a way which resulted in the breach of the fundamental rights of the parties.

Pauffley J was unmoved by the submission that MacDonald J was in different territory because he found no difficulty in upholding the validity of the Nepalese adoption. Instead, she found value in the point disclosed by the Court of Appeal’s decision in Singh v ECO (New Delhi) [2004] EWCA 1075 – concerning an informal religious adoption – which makes it unmistakably clear that article 8 rights may be engaged within the framework of the Human Rights Act 1998 even where there is no legally recognised relationship between the parents and the child. In the circumstances, denying V and Mr and Mrs W constituted “an unwarranted interference” with their right to a family life.

Comment

It is clear that in the present case, Pauffley J had V and his parent’s best interests at heart and helped them overcome their immigration dilemma. However, a couple of years ago, she caused outrage by suggesting that violence perpetrated against misbehaving children should be viewed in its “cultural context”. She also controversially remarked that in newly arrived migrant families “children are slapped and hit for misbehaviour in a way which at first excites the interest of child protection professionals.”

About mkp

Advocate High Courts of Pakistan
This entry was posted in Adoption, Article 8, Children, Dependants, ECHR, Entry Clearance, Families, Immigration Rules, Inherent Jurisdiction, PBS and tagged , , , , , . Bookmark the permalink.

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