[2025] EWHC 687 (Fam)

Even though the application is not actively opposed by any party it is still necessary for the court to carefully scrutinise the evidence and consider whether the four criteria in Re Valentine’s Settlement for recognition at common law set out in Re N (ibid) are met, namely:

Three of the above criteria can be dealt with relatively shortly.

First, whether the children have been legally adopted in accordance with the requirements of the foreign law. Mr Badejo’s written evidence, which I accept, comprehensively sets out the relevant requirements for an adoption order to be made. He confirms that Edo State has its own Child Rights Law 2007 and the adoption application in this case was made in accordance with that Law. He notes the application complies with section 123, and the consent given by JI complies with section 125. DE and JE are over 25 years, as required by section 126. Mr Badejo sets out the requirements that need to be met under section 128 and considers they are met as the children were resident in Edo State at the relevant time, he recognised the applicants reside in London but notes ‘the evidence is they have a permanent home in Edo state’, the Nigerian court was aware the applicants lived in England and this does not, in his opinion, preclude them from being regarded as resident in the family home in Edo State. There is no issue that both applicants are Nigerian citizens. The requirement in s128 that the child has been in the care of the applicants for at least three consecutive months immediately preceding the date on which the adoption order was made can, in Mr Badejo’s opinion, be satisfied ‘where it is shown that the applicants directed the care of the children during the period when the children were not in their actual physical care’. In his report Mr Badejo sought clarification about this as providing financial upkeep is not the same thing as directing the care of the twins. In the first statement DE states that following JI giving his consent to the adoption in May 2021 he and JE ‘assumed full custody of the children’, setting out that the children were sent to live with JE’s sister in Benin City. In his oral evidence DE gave details of the decisions the applicants made jointly regarding the children including where they lived, their schooling, medical treatment as well as financially supporting them. This evidence, which I accept, is borne out by what TE and TT have said about the role the applicants have played in their lives. The final requirement under section 128 is for at least 12 months notice to the Ministry, which the letter dated 28 November 2021 satisfies.

Second, Mr Badejo’s evidence is that the essential characteristics of English and Nigerian adoption orders are, in substance, the same. He confirms that as in this jurisdiction an adoption order in Nigeria ‘has the effect of severing all links between the child and its birth family. The adopted child is treated for all purposes as the birth child of the adopter’.

Third, the public policy criterion is not relevant in this case.

The final requirement of the need for the applicants to be domiciled in Nigeria at the time when the adoption order is made requires more detailed consideration. The cases have established it is a question of fact in each case, and the court needs to take into account considerations such as the domicile of origin has been described as ‘tenacious’ and it is possible to acquire a domicile of choice in another jurisdiction by a combination of residence and an intention of permanent or indefinite residence.

In the written evidence, which I accept, DE describes the strong connections he and JE retain with Nigeria despite the fact that it is recognised they have lived in another jurisdiction for a number of years. Those connections include annual visits to Nigeria, their stated plan to return to live in Nigeria when DE retires which is supported by the purchase of the property in Benin in 2013 and the plans to be buried there. Both applicants have retained Nigerian passports and are well integrated within the Nigerian community here and DE’s academic and professional interests are focussed on Nigeria’s social political issues. DE states they have demonstrated ‘commitment to our native land, our consistent planning (through investment in properties) towards our future in Nigeria and deep attachment to family roots’.

Having considered the evidence I am satisfied that DE and JE have retained their domicile of origin despite having lived abroad for a number of years. They have each retained their domicile of origin through maintaining their strong connection with Nigeria through their regular visits, retaining close and real connections with their wider family based in Nigeria and their culture. The applicants’ intention to return to live and be buried there is supported by retaining those strong connections, their regular visits and maintaining a home there. I am satisfied that at the time the adoption order was made in December 2023 both of the applicants were domiciled in Nigeria.

For the reasons set out above the criteria for recognition at common law of the adoption orders made in Nigeria for TE and TT are met and I grant the application for recognition of the Nigerian adoption in this case at common law.

The immigration consequences of my decision are a matter entirely for the SSHD however Mr Edwards on behalf of the SSHD was able to confirm the following at this hearing in the event that the court granted the application:

The applicants confirmed that is their intention.