[2025] UKUT 00352 (IAC)

India is a signatory to the 1993 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption which was developed to respond to the serious and complex human and legal problems in intercountry adoption. The Appellant accepts the adoption here does not arise from a ‘Convention adoption order’ as defined in section 144 ACA.

The focus of the Appellant’s claim was that her adoption was an overseas adoption, effected under the law of a country or territory listed in the Schedule to the Adoption Order 2013, and therefore recognised as a full adoption in England and Wales. Put simply, the Appellant’s case is that once it is established that there is a valid overseas adoption, the Appellant’s status as the adopted child of the Sponsors is conferred by operation of Indian law. The overall purpose of the Immigration Rules (which is to enable the child to enter the UK as an adopted child) is satisfied.

There is no exact correlation between the requirements that are to be met in the law of adoption and the requirements to be met under the Immigration Rules. The central theme that runs through the international instruments and the domestic legislation concerning the adoption of children is that the best interests of the child must be the determining factor in any decision. The courts or other bodies concerned with the law of adoption perform different functions to that of the Respondent. In  R v Secretary of State for the Home Department ex p T [1995] 1 FLR 293, Hoffman LJ ruled that a judge in proceedings concerning children must be guided solely by the interests of the child and that it would make no sense for his decision to prevent the Secretary of State from exercising a power based on altogether different considerations. In his judgment in A (A Child: Female Genital Mutilation: Asylum) [2021] All E.R 396, the President of the Family Division, Sir Andrew McFarlane referred to the authorities concerning the relationship between family law and immigration law and ruled that:

“49.

As Lord Scarman, Hoffmann LJ and Sir James Munby separately make clear, the Secretary of State and the family courts are each operating a different and entirely distinct jurisdiction that has separately been entrusted to them by Parliament. Whilst, as Mr McKendrick submitted, the two jurisdictions may be complementary, they are wholly separate with no potential for any structural crossover. Notwithstanding the probable engagement of Art. 3 , there is simply no jurisdictional space in the structure that has been created by Parliament in which the family court can reach across and directly interfere in the exercise by the Secretary of State's exclusive powers with respect to the control of immigration and asylum.”

In contrast to other orders which may be made by a Court, for example under the Children Act 1989 or under the inherent jurisdiction of the High Court, we acknowledge that the ‘adoption’ of a child is a feature of the child’s identity that alters the fundamental status of the child. Adoption involves the transfer of the rights and duties of birth parents to the adopters and is likely to have an emotional impact upon a child as well as a significant impact upon living arrangements and the child’s day to day care. Adoption is generally reserved to cases where the welfare of the child requires intervention and creates a parent/child relationship with the adoptive parent(s).

The proper operation of immigration controls is also a matter of considerable importance to the Respondent. The Immigration Rules relate to the exercise by the Secretary of State of powers lawfully conferred upon her in the context of immigration or asylum. There are regulated immigration routes into the UK for children who have been adopted abroad.

The relevant provisions in the Immigration Rules contain distinctive criteria. Para. 310(vi)(a) imposes a requirement that the Appellant was adopted in accordance with a decision taken by the competent administrative authority or court … being a country whose adoption orders are recognised by the United Kingdom” (our emphasis). In many cases an overseas adoption will be effected by a decision taken by a competent administrative authority or court. There will be evidence of the adoption in the form envisaged in Article 3 of the Adoption Order 2013.

We note that there is no limitation in para. 310(vi)(a) defining the competent administrative authority or court, provided the decision is made by a competent administrative authority or court in a country whose adoption orders are recognised by the UK. The interpretation of para. 310(vi)(a) contended for by Mr Wood would require the Rule to be read so that we disregard the words requiring a ‘decision taken by the competent administrative authority’ so long as there was a valid adoption in accordance with the law of a country listed in the Adoption Order 2013. If that is what Parliament had intended, it was not stated. The interpretation contended for by Mr Wood requires us to defy the language of the Rule. We consider that the natural meaning of the language used in para. 310(vi)(a) requires the adoption to be effected by a decision taken by a competent administrative authority or Court, not merely some process or procedure, albeit lawful, by which the adoption takes place. Contrary to what is said by Mr Wood, the child must be “adopted in accordance with the decision…”, and so it is the point in time at which the adoption takes place that is important. In the appeal before us the adoption occurred before the confirmatory decision.

We have considered the decision of Upper Tribunal Judge Warr in Buama (inter-country adoption – competent court) [2012] UKUT 00146 (IAC) but it does not assist the Appellant. We accept that para. 310(vi) of the Immigration Rules does not appear to contemplate the Respondent questioning the order of a competent court which is valid on its face. On the facts of that case the adoptive parents were concerned about the arrangements for the care of the child following the death of her mother. They contacted Ghanaian social services to seek advice and subsequently instructed a Ghanaian Counsel and adoption arrangements were made. Following a visit by Ghanaian social services there was a Court hearing and an adoption order was granted. Adopting the words of para. 310(vi)(a), the Appellant was “adopted in accordance with a decision taken by the competent administrative authority or court in [her] country of origin”.

Mr Wood submits the conclusion reached by the Judge in this appeal contradicts what was said by the Upper Tribunal in SK (“Adoption” not recognised in UK) India [2006] UKAIT 00068. It was submitted that the Judge imposed a requirement that the adoption was “further to” a decision taken by the competent administrative authority or court. The facts in SK bear resemblance to the facts here. The child in SK was, as here, an Indian national who was adopted by her aunt and uncle who had been unable to conceive. A decision was taken that SK would be adopted by her uncle and aunt who she had always known as her ‘mother and father’. The arrangement was formalised in India in what was described as a “legal process, followed by a religious ceremony”. In setting out the facts, the Tribunal said:

“8.

As we have said, there was a legal process and a religious ceremony. There is evidence before us that the legal process amounts to a valid adoption under the relevant Indian statute, the Hindu Adoption and Maintenance Act 1956 (which, despite its title, applies also to those of the Sikh religion). We are content to assume that, so far as Indian law is concerned, the Appellant is the child of the sponsors.”

The Upper Tribunal referred to the relevant Immigration Rules concerning adopted children and at paragraph [14] said:

“The problem in either case is that, although the evidence is that the legal process in India did amount to a decision taken by the competent administrative authority there, India is not a country whose adoption orders are recognised by the United Kingdom. The relevant legislation is the Adoption (Designation of Overseas Adoptions) Order 1973 (SI 1973 No. 19), as variously amended…”

The law has moved on since that case. India is now listed in the Adoption Order 2013 and the adoption of a child such as the Appellant is specified as an overseas adoption effected under the law of India. The evidence of the ‘legal process’ in India that led the Tribunal to say that it amounted to a decision taken by the competent administrative authority in India is not set out in SK. Mr Wood submits the question of recognition in the UK of adoptions in India under HAMA, in the context of applications for leave to enter or remain in the UK for immigration purposes, is a matter of general importance, and so it is necessary for us to say a little more about the evidence in that regard.

In the appeal before us, there was evidence before the Judge that the Appellant was adopted in accordance with the legal process set out in HAMA. An expert, Mr Uttam Datta, an Advocate enrolled with the Bar Council of Delhi who practices in the Supreme Court of India and the High Court of Delhi and whose expertise was not challenged, set out the conditions for a valid adoption:

“a.

Person’s capacity to give in adoption and capacity to adopt (Section 6).

b.

A Hindu major male of sound mind has the capacity to take on a daughter in adoption with the consent of his living wife (Section 7).

c.

A major Hindu female of a sound mind has the capacity to take a daughter in adoption with the consent of her living husband (Section 8).

d.

Only the father, mother or guardian of a child has the capacity to give the child in adoption (Section 9).

e)

The child sought to be adopted must be a Hindu, below 15 years of age, unmarried and has not been already adopted (Section 10 f).

f.

Child to be adopted must actually be given and taken in adoption with the intent to transfer the child from the family of its birth. The performance of religious or customary ceremony among Hindus called “datta homam” is not essential to the validity of an adoption (Section 11 vi).”

Mr Datta advised that:

“The Indian courts have laid down that the most essential part of the process of adoption is the giving and taking of the child with an intent to transfer the child from the family of its birth, as a pre-condition of a valid condition. The performance of the customary ceremony of “datta homam” has been recognized by the Indian courts as evidence of giving and taking of the child with an intent to transfer from the family of its birth, to fulfil the conditions stipulated in Section 11….”

Mr Datta referred to several judicial rulings of the Supreme Court in India and of the High Court in several provinces. It is sufficient to note that the focus of the Courts is the requirements for ‘consent’ when ‘taking’ or ‘giving’ the child, and the ‘actual giving and receiving’ of the child in adoption, albeit a ‘ceremony’ is not essential provided there is other evidence of the ‘giving’ and ‘taking’ to fulfil the requirement.

Mr Datta advised that if the parties had executed a registered document of adoption, S.16 of HAMA created a legal presumption that the adoption had been carried out. He referred to two decisions of the Supreme Court in India (Jai Singh v Shakuntala (2002) 3 SCC 634) and Mst. Deu and Ors v Laxmi Narayan and Ors, 1996 Supreme Court (1998) 8 SCC 701) in which the Court considered S.16 and referred to the statutory presumption where a ‘registered document pertaining to adoption’ or a ‘document registered’ was produced before any court purporting to record an adoption. Here, the ‘Deed of Adoption’ was registered on 16 March 2015, andMr Datta confirmed that there was no requirement prescribed in HAMA for the adoption to be ‘validated’ through a court order, but here the parties obtained a declaratory decree dated 4 December 2015 from a competent court confirming there to be a valid adoption under HAMA.

What is clear from the expert evidence before the Judge is that there are some general conditions laid down for there to be a valid adoption under HAMA that is effective in India. There was nothing in the evidence before the Judge that any of the conditions involved any oversight or a decision by a competent administrative authority or court in India. The expert evidence was that there is no requirement set out in HAMA that a decision was to be taken by a Court and we discern no evidence in the expert report of any similar requirement in HAMA for the decision to be taken by a competent administrative authority. At its highest, there was a statutory presumption that where a document, such as a ‘Deed of Adoption’ was produced before any Court purporting to record an adoption, should there be an issue as to whether an adoption was valid according to the law in India, that would generally prevail.

Returning to the decision of the Upper Tribunal in SK, it follows from our analysis of adoptions under HAMA that unlike an adoption order made by a Court in India or one that follows a decision of a competent administrative authority, evidence of a valid adoption under HAMA will not be sufficient to meet the specific requirement in para. 310(vi)(a) of the Immigration Rules that [the Appellant] was adopted “in accordance with a decision taken by the competent administrative authority or court … being a country whose adoption orders are recognised by the United Kingdom”. We do not consider that the decision of the Upper Tribunal in SK is authority for the proposition that an adoption under HAMA amounts to a decision taken by a Court or competent administrative authority.

We consider that Mr Wood was correct to accept that the wider risks to children associated with abuse, contravention or circumvention of the immigration laws of the UK and the potential for trafficking, provide a rationale for the additional requirement in the Immigration Rules that the child has to be adopted in accordance with a decision taken by the competent administrative authority or court. This is a safeguard of a decision informed by the sort of considerations that might be relevant when a Hague Convention adoption is being considered, particularly as between countries that are signatories. The safeguard may prevent, particularly in the context of familial adoptions, the risk of arrangements being entered into without any proper scrutiny or oversight and any objective regard to the welfare or interests of the child divorced from the wishes of the family.

We pause to note that Appendix Adoption as now in force still requires that an overseas adoption must have been in accordance with a decision taken by the competent Central Authority, as set out in AD 16.4, or a Court in the child’s country of origin, or the country in which the child is resident. (AD 16.2). If that requirement is not met, the adoption may be recognised by order of the High Court in the UK (AD 16.5). Presumably, here, that would take the form of an application to the Family Division for recognition of the ‘Indian adoption’, with all the scrutiny that would require.

The Judge recorded at para. [31] of her decision that the Respondent did not challenge the validity of the order made by the Civil Judge of the Senior Division, Imphal West, in India. At para. [35], the Judge referred to the ‘legal Opinion’ provided by Mr Datta. The Judge noted that Mr Datta concluded that the adoption of the Appellant conformed to the legal requirements of and fulfilled all the conditions for a valid adoption under the HAMA. At paragraph [43] of her decision the Judge found that:

“…I accept the adoption is valid in India. I find that the evidence available supports that the adoption was a customary or family adoption which took place on 9 March 2015 and was thereafter recognised by a court as a legally valid adoption in India as conforming to HAMA. There is no court ‘adoption order’ or order granting an adoption in this case unlike in Buama. The adoption was not conducted or effected by legal authorities in India. In this context, the CARA documents present somewhat of an anomaly in referring to prospective adoptive parents but post-dating both the 9 March 2015 customary adoption and the court order and as such were clearly not part of any consideration by a court as to, for example, suitability for adoption or the best interests of the Appellant. The court order dated 4 December 2015 is an order recognising the validity under Indian law of the existing adoption effected by a customary ceremony on 9 March 2015.”

The Judge ruled that para. 310(vi)(a) of the Rules was not satisfied because, as she put it, “... the adoption was not “conducted or effected by legal authorities in India”. The Appellant was not adopted in accordance with a decision taken by the competent administrative authority or court.

On the proper interpretation of the Rules, the conclusion we have reached following our consideration of the evidence regarding this legal local adoption under HAMA is that there was no error of law in the Judge’s decision. Thus, the first ground of appeal was not made out.