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Legal Framework
Legal Framework
In his excellent written submissions Mr Marnham helpfully sets out the relevant cases.
In Re G (Recognition of a Nigerian Adoption) [2024] EWHC 2769 (Fam)
Gwynneth Knowles J provides a characteristically comprehensive summary of the relevant legal framework as follows:
Pursuant to section 66(1) of the Adoption and Children Act 2002 ("ACA 2002"), the meaning of adoption includes a "convention adoption" (s.66(1)(c)); an "overseas adoption" (s.66(1)(d)); or an "adoption recognised by the law of England and Wales and effected under the law of any other country" (s.66(1)(e)). Nigeria is not a member state of the 1993 Hague Convention for the Protection of Children and Co-operation with respect to Intercountry Adoption (Adoption (Intercountry Aspects) Act 1999, Schedule One). Nigerian adoption orders granted prior to 3 January 2014 were designated "overseas adoptions". However, Nigeria is no longer included in the "overseas adoption" list in the Adoption (Recognition of Overseas Adoptions) Order 2013/1801. Nigerian adoptions effected after 3 January 2014 can be recognised only pursuant to s.66(1)(e) of ACA 2002 if they are recognised at common law.
Section 9(6) of ACA grants the Secretary of State for Education the power to declare that special restrictions are to apply for the time being in relation to the bringing in of children to the United Kingdom for the purpose of adoption from a particular country. Special restrictions were imposed by the Secretary of State for Education in relation to adoptions from Nigeria by the Special Restrictions on Adoptions from Abroad (Nigeria) Order 2021 ("the 2021 Order"), which came into effect on 12 March 2021. The concerns about Nigerian adoptions were summarised in the Order as follows:
difficulties confirming the background and adoptability of children;
unreliable documentation;
concerns about corruption in the Nigerian adoption system;
evidence of organised child trafficking within Nigeria;
concerns about weaknesses in the checks completed by the Nigerian authorities in relation to adoption applications from prospective adopters who were habitually resident in the United Kingdom and therefore are likely to, in fact, be intended to be intercountry adoptions. Weaknesses are identified in pre-and post-adoption monitoring procedures.
The Order states that it was made in response to significant child safeguarding concerns due to issues affecting the intercountry Nigerian adoption system. This was based on evidence received through international partners including Central Adoption Authorities and diplomatic missions.
Under the Adoptions with a Foreign Element (Special Restrictions on Adoptions from Abroad) Regulations 2008, a request can be made to treat an individual case as an exception to a special restriction imposed under ACA 2002. In deciding whether a case is exceptional, the Minister will consider all the information provided which is relevant to the individual facts and circumstances of the case. Rule 6 of the 2008 Regulations lists a number of matters which must be taken into account when exceptional cases are being considered as follows:
The circumstances leading to the child becoming available for adoption, including whether any competent authority in the State of origin has made a decision in relation to the adoption or availability for adoption of the child;
the relationship that the child has with the prospective adopters, including how and when that relationship was formed;
The child's particular needs and the capacity of the prospective adopters to meet those needs;
and the reasons why the State of origin was placed on the restricted list.
In this context, the only route through which an adoption order made in Nigeria can be recognised in this jurisdiction is under common law. The common law test for recognition of a foreign adoption was considered by Sir James Munby, the then President of the Family Division, in Re N (A Child) [2016] EWHC 3085 (Fam). Re N provided a magisterial overview of relevant judgments on this topic and, having undertaken that exercise, the President confirmed four criteria for recognition as follows:
The adoptive parents must have been domiciled in the foreign country at the time of the foreign adoption.
The child must have been legally adopted in accordance with the requirements of the foreign law.
The foreign adoption must in substance have the same essential characteristics as an English adoption.
There must be no reason in public policy for refusing recognition.
The decision in Re N also rejected the proposition that the child's best interests were a factor that fell to be considered when deciding whether to recognise an adoption at common law. As far as the question of public policy was concerned, the President emphasised that the principle of public policy in this context had a strictly limited function and was properly confined to particularly egregious cases. In coming to that conclusion, the President relied on a passage from Dicey, Morris & Collins, The Conflict of Laws, ed 15, 2012, para 20-133, cited as follows [paragraph 129]:
"If the foreign adoption was designed to promote some immoral or mercenary object, like prostitution or financial gain to the adopter, it is improbable that it would be recognised in England. But, apart from exceptional cases like these, it is submitted that the court should be slow to refuse recognition to a foreign adoption on the grounds of public policy merely because the requirements for adoption in the foreign law differ from those of the English law. Here again the distinction between recognising the status and giving effect to its results is of vital importance. Public policy may sometimes require that a particular result of a foreign adoption should not be given effect to in England; but public policy should only on the rarest occasions be invoked in order to deny recognition to the status itself."
The decision in Re N also addressed the impact of Article 8 of the European Convention of Human Rights ("ECHR") and endorsed the approach taken by MacDonald J in QS v RS and T (No 3) [2016] EWHC 2470 (Fam). In that case, MacDonald J considered whether an application under the court's inherent jurisdiction for recognition of an adoption order made in Nepal could succeed notwithstanding a concern that the applicants could not be said to have been domiciled in Nepal at the time the adoption order was made. In paragraphs 100 and 104, MacDonald J held as follows:
"I am satisfied that in determining an application for the recognition of a foreign adoption at common law and an application for a declaration pursuant to the Family Law Act 1986 s. 57 the court must ensure that it acts in a manner that is compatible with the Art 8 right of the mother, the father and T to respect for family life. Further, within this context, and after much anxious deliberation, I am satisfied that the strict application of the rule as to status conditions in Re Valentines Settlement to the very particular circumstances of this case, with a concomitant refusal to recognise the adoption lawfully constituted in Nepal in terms which substantially conform with the English concept of adoption by reason of the failure to comply with status conditions as to domicile or habitual residence applicable in this country, would result in an interference in the Art 8 right to respect for family life of the mother, father and T that cannot be said to be either necessary or proportionate."
" My conclusion does not amount to a decision that the rule in Re Valentines Settlement is incompatible with Art 8 of the ECHR per se. Rather, it amounts simply to a decision that the application of that common law rule in the very particular circumstances of this case would breach the Art 8 rights of the parents and T … I make clear that my conclusions are grounded in an application of the cardinal principles incorporated into our domestic law by the Human Rights Act 1998 and the jurisprudence arising out of the ECHR."
In KN & Anor v RN and Ors [2023] EWHC 712 (Fam), MacDonald J restated the above considerations in a case involving the recognition of an adoption order granted in Nigeria. Paragraphs 65-67 set out in further detail his analysis of the existence of family life for the purpose of Article 8. In that case, MacDonald J was not satisfied that the circumstances of the adoption in Nigeria of one of the two children met the criteria in Re Valentines Settlement given the concerns about the evidence in respect of the birth mother's consent. However, he determined that the strict application of Re Valentines Settlement and a refusal to recognise the Nigerian adoption order would constitute an interference in the Article 8 right to respect for family life of the applicants and both children which was neither necessary nor proportionate.”
In Re C (A Child) (Recognition of Nigerian Adoption) [2025] EWHC 204, Harrison J, having adopted Gwynneth Knowles J’s summary above, added the
following on domicile:
“46. In Barlow Clowes International Ltd (In Liquidation) & Ors v Henwood [2008] EWCA Civ 577 at paragraph 8 Arden LJ summarised a number the principles relevant to the question of domicile. She said:
'The following principles of law, which are derived from Dicey, Morris and Collins on The Conflict of Laws (2006) are not in issue:
(i) A person is, in general, domiciled in the country in which he is considered by English law to have his permanent home. A person may sometimes be domiciled in a country although he does not have his permanent home in it (Dicey, pages 122 to 126).
(ii) No person can be without a domicile (Dicey, page 126).
(iii) No person can at the same time for the same purpose have more than one domicile (Dicey, pages 126 to 128).
(iv) An existing domicile is presumed to continue until it is proved that a new domicile has been acquired (Dicey, pages 128 to 129).
(v) Every person receives at birth a domicile of origin (Dicey, pages 130 to 133).
(vi) Every independent person can acquire a domicile of choice by the combination of residence and an intention of permanent or indefinite residence, but not otherwise (Dicey, pages 133 to 138).
(vii) Any circumstance that is evidence of a person's residence, or of his intention to reside permanently or indefinitely in a country, must be considered in determining whether he has acquired a domicile of choice (Dicey, pages 138 to 143).
(viii) In determining whether a person intends to reside permanently or indefinitely, the court may have regard to the motive for which residence was taken up, the fact that residence was not freely chosen, and the fact that residence was precarious (Dicey, pages 144 to 151).
(ix) A person abandons a domicile of choice in a country by ceasing to reside there and by ceasing to intend to reside there permanently, or indefinitely, and not otherwise (Dicey, pages 151 to 153).
(x) When a domicile of choice is abandoned, a new domicile of choice may be acquired, but, if it is not acquired, the domicile of origin revives (Dicey, pages 151 to 153).'
In Barlow Clowes, Arden LJ also noted that "the domicile of origin is tenacious" (paragraph 85), indicating that strong evidence was needed to show that an alternative domicile of choice had been acquired. It was further held that:
Given that a person can only have one domicile at any one time, he must have a singular and distinctive relationship with the country of supposed domicile of choice. That means it must be his ultimate home or the place where he would wish to spend his last days.
The fact that residence is precarious or illegal is a circumstance that is relevant to the question of intention (but the fact that presence is illegal does not prevent residence).
A person can acquire a domicile of choice without naturalisation. On the other hand, citizenship is not decisive.”