Part V Family Law, 27 Legitimacy, Legitimation and Adoption
Uglješa Grušić, Christian Heinze, Louise Merrett, Alex Mills, Carmen Otero García-Castrillón, Zheng Sophia Tang, Katarina Trimmings, Lara WalkerEdited By: Paul Torremans, James J. Fawcett
- Choice of law clauses — Children — Legitimacy and adoption — Marriage
The three matters that require consideration in this chapter are legitimacy, legitimation and adoption.1 None of these topics falls within the scope of the Brussels II bis Regulation.2 Legitimacy ordinarily means the status acquired by a person who is born to parents who are married to one another at the time of the birth. Legitimation means that a person who has not been born to married parents acquires the status of a legitimate person as the result of some act, such as the subsequent marriage of his parents, that occurs after the date of his birth. Adoption, in English law, involves the extinction of the parental links between the child and the biological parents and the creation of similar links between the child and the adoptive parents.
Whether a person is legitimate or has been legitimated or adopted has, in the past, been of considerable importance in the field of succession. If the will of a domiciled Englishman contained a gift to the “children” of a specified person it had to be asked whether this included not only legitimate children but also those who were illegitimate, legitimated or adopted. English domestic law has moved from a position in which it was rare that a will or intestacy applied to other than legitimate children to the situation where, as a consequence of a process culminating in the Family Law Reform Act 1987, there has been a very substantial assimilation of the rights of children, irrespective of the circumstances of their birth.3 This legislation does not, however, abolish the distinction between legitimacy and illegitimacy, nor the concept of legitimation. Though they have become far less important,4 it will still References(p. 1194) be necessary to determine whether or not the parents of a child are married, or whether the child is legitimate, for the purposes, for example, of domicile, as well as in determining the rights of the father.5
The general effect of these developments has been to diminish, though not to eradicate,6 the need for rules of private international law to determine a person’s legitimacy or the validity of his legitimation. It might, for example, also be necessary for a child domiciled in England to have his legitimacy determined for the purposes of succession under a foreign law. On the other hand, there has if anything been an increase in the need to determine the validity in England of foreign adoptions, resulting from the increase in the number of foreign children adopted, sometimes abroad, by English parents.
We have examined already7 the powers and jurisdiction of the English courts to make declarations relating to legitimacy, legitimation and adoption. We have now to consider the choice of law rules relating to legitimacy, legitimation and adoption. It is also necessary, with regard to adoption, to discuss the further questions of the rules for the jurisdiction of the English courts to make adoption orders and for the recognition of foreign adoptions.
(a) Legitimacy to be governed by the law of the domicile
Before the passing of the Legitimacy Act 1959, the rule of domestic English law was that no child acquired the status of legitimacy unless he was born in lawful wedlock, ie, born of parents whose marriage was valid at the time of his birth. This exclusive test, however, was exceptional, for most countries, including Scotland,9 had long recognised the doctrine of the putative marriage, according to which a child even of a void marriage is also legitimate. A common, though not a universal, qualification of this doctrine is that the spouses should have bona fide believed in the validity of their marriage. A question of choice of law might therefore arise if a child were born out of lawful wedlock in the country where X and Y, his parents, were domiciled and where the doctrine of the putative marriage was recognised.
Several writers have expressed the view that in such circumstances the English test of birth in lawful wedlock becomes applicable. This is open to the insuperable objection that it fails to appreciate the true function of English law in such a case. If an English will bequeaths a legacy to the “legitimate children” of parents who were domiciled abroad at the time of their son’s birth and if his legitimacy is disputed, there are two separate questions to be resolved. The first is a question of construction—what did the testator intend by his use of the phrase “legitimate children”? This is a matter for English domestic law as the law governing succession. If the answer is that he referred to legitimate children, then the second question, whether the children are in fact legitimate, is a question not of construction, but of status References(p. 1195) determinable by the law of their domicile.10 The subject of inquiry is not whether the marriage of the legatee’s parents is valid, but whether he is legitimate in the eyes of the law of his domicile—the only law that is entitled to pass upon his status.11 English law is, indeed, relevant so far as concerns the construction of the will, but as Romer J said in one case: “The only relevant rule of construction is that a bequest in an English will to the children of A means to his legitimate children12 and that does not carry the matter very far, for the question remains who are his legitimate children, and that is not a question of construction at all, it is a question of law.”13
(b) Shaw v Gould
(i) The decision
This principle, that any person legitimate according to the law of his domicile, though not born in lawful wedlock, is legitimate for the purpose of succeeding to movables under an English will or intestacy has been repeatedly affirmed in a stream of cases from at least 1835 onwards;14 but, with few exceptions,15 these statements were made in cases concerned with legitimation. It is sometimes said, therefore, that they are of little value having regard to the decision of the House of Lords in Shaw v Gould,16 which raised a question of legitimacy. The facts of this case were as follows:
Funds were bequeathed by a testator domiciled in England in trust for Elizabeth Hickson for life and after her death in trust for her children. English land was also devised after her death to “her first and other sons lawfully begotten”. Elizabeth, at the age of sixteen, was induced by fraud, without the knowledge of her family, to marry a domiciled Englishman, named Buxton, at Manchester. Her friends, however, succeeded in taking her away just after the ceremony, and she never lived with her husband. Sixteen years later, Elizabeth, having become engaged to a domiciled Englishman named Shaw, devised a scheme for obtaining a divorce in Scotland from Buxton. Shaw acquired a domicile in Scotland, and Buxton was paid £250 to go to that country for forty days. The marriage was dissolved by the Court of Session. Elizabeth then married Shaw in Edinburgh and had by him two daughters and one son, all of whom were born in the lifetime of Buxton. At the time of the present action Buxton, Elizabeth and Shaw were dead. The questions before the English court were whether the daughters and son were entitled under the will of the testator to the funds as being the “children” of Elizabeth, and also whether the son was entitled to the land as being her “son lawfully begotten”. Evidence was given that by Scots law the divorce and second marriage were valid; also, that children born of a putative marriage, ie one regular in point of form but void owing to the prior existing marriage of one of the parties, were regarded as legitimate, provided that the parents were justifiably ignorant of the prior existing marriage.
It was the opinion of the Scottish advocates who gave evidence that justifiable ignorance existed if the parents believed in the validity of the divorce. The House of Lords unanimously References(p. 1196) held that the children were not entitled to take under the will.17 Their Lordships appear to have been impressed by the supposedly logical reason that since Buxton, and therefore Elizabeth, remained domiciled in England, the Scottish divorce was not recognised in England; therefore the union between Elizabeth and Shaw was not a valid marriage according to English law; and that therefore the children were not born to lawfully married parents (being the test of legitimacy according to English domestic law). Lord Colonsay, though impressed with the logic of the reasoning, was perplexed with doubts as to whether the status of legitimacy ought to be denied to the children. He felt that this denial was difficult to reconcile with general principles of jurisprudence or with the generally recognised rules of international law.18
It is difficult to resist the conclusion that the House of Lords lost its direction through its persistent concentration on one general principle to the exclusion of others. It certainly was a general principle that a divorce not recognised as valid by the law of the husband’s domicile is invalid in England. But another principle, affirmed many times by the judiciary, is that legitimacy is determined by the law of the father’s domicile at the time of the child’s birth. Both these principles demanded attention in Shaw v Gould. There is nothing inconsistent in them, and they are not mutually antagonistic. It was easy to argue in this manner:
The father cannot be granted the status of a husband, since the woman whom he purported to marry is, owing to the continuance of her earlier marriage, the wife of another man. Therefore the children of the father by this woman cannot be regarded as legitimate.
Nevertheless, the conclusion is a non sequitur. The issue was the status of the children, not of their parents. The fact that Mrs Buxton could not claim to be Mrs Shaw was not necessarily a bar to the legitimate status of the children. The legitimacy of a child happened at the time of the case to depend according to English domestic law on the validity of the marriage of which he was born; but this is not and was not the case in all legal systems. If the two questions are separable by the law of the child’s domicile of origin, they should be kept separate by an English court when dealing with a private international law case. The courts of other countries have found no difficulty in this. Thus in South Africa it was held that the children of a polygamous union, born when the father was domiciled in India, were to be regarded as legitimate in Natal, which was his domicile at death. For the purpose of fixing the rate of succession duty payable on the father’s death, the status of the mother as a “wife” was tested by the internal law of Natal; but the status of the children was referred to their domicile of origin.19 Innes CJ stated that:
It is essential to bear in mind the distinction between the points to be decided in each instance. With regard to the wife, the issue is the validity of the marriage to which she was a party; with regard to the children, the issue is their right to the status of legitimacy. The wife’s position cannot be considered apart from the marriage, but the position of the children may be.20
It is submitted that in any event Shaw v Gould ought to be regarded as an abnormal decision and one to be interpreted in the light of the exceptional circumstances involved. “My opinion References(p. 1197) in this case”, said Lord Chelmsford, “is founded entirely upon the peculiar circumstances attending it.”21 It was, indeed, distinguished by a number of special features among which may be mentioned the following:
The Scots divorce was granted in 1846, eleven years before judicial divorce was possible in England and at a time when the prevalent view, in accordance with the unanimous opinion of the judges in Lolley’s case,22 was that no foreign proceedings in the nature of a divorce could affect a marriage that had been contracted in England. In fact, in the court of first instance, Kindersley V-C said: “By the English law of marriage, an English marriage is absolutely indissoluble by the sentence of any court (of course I am speaking of the law as it stood at the time of the transactions in question which was long before the Act establishing the Divorce Court). . . . Any decree or judgment or sentence of any foreign court, purporting to dissolve such marriage, is treated as a mere nullity.”23 It must be observed, however, that this view did not appeal to the House of Lords. The conduct of the Shaws was calculated to arouse the suspicion of any court. In the greatest secrecy and with every precaution against discovery, they contrived a scheme to obtain a divorce in a court which, to their knowledge, had no jurisdiction in the eyes of English law.24
The children were legitimate by Scots law if either of the Shaws was justifiably ignorant that there was an impediment to their marriage, ie in their case, a prior invalid divorce. After a careful examination of the facts, Kindersley V-C found himself unable to agree that even Mrs Shaw was justifiably ignorant of the true position.
(c) Other authorities
It is significant that, in the much later case of Re Stirling,25 Swinfen Eady J was far from repudiating the suggestion that a child might be legitimate although the previous divorce of one of his parents was invalid. It was not necessary, however, to decide the point, for it was held that the doctrine of putative marriage, on which the argument for the child turned, did not obtain in Scotland unless at least one of the parties was ignorant of the impediment that invalidated the second marriage. The party had to be mistaken as to some fact;26 but here the ignorance alleged was that the mother of the child was unaware that her divorce from her first husband was invalid, and this was an error of law, not of fact.
Another authority that is sometimes said to support Shaw v Gould is Re Paine.27 The question there was whether the children of W were legitimate for the purpose of the effect of a disposition to W contained in an English will:
In 1875 W, when domiciled in England, was married in Germany to the widower of her deceased sister. At that date a marriage between such persons was prohibited. The husband was held to have been domiciled in Germany at the time of the ceremony. The parties cohabited in England until the husband’s death in 1919.
Bennett J adopted the dual domicile doctrine of capacity and held the three children of the union to be illegitimate, since they had sprung from a void marriage. But, as in Shaw v Gould, the possibility that the children might be legitimate according to the German law of their domicile of origin, despite the absence of lawful wedlock between their parents, was not canvassed.
References(p. 1198) However, despite all attempts to rationalise Shaw v Gould the fact remains that, until the decision of Romer J in Re Bischoffsheim,28 it seemed to provide an embarrassing obstacle to the prevalent judicial view that the legitimacy of a child is a matter for the law of his domicile of origin. This view, however, was translated into action in Bischoffsheim’s case where the facts were these:
In 1919 W was married in New York to H, the brother of her deceased husband. It may be taken that at that time both parties were domiciled in England. The marriage was void by English law, but valid by the law of New York. After they had acquired a domicile in New York a son was born to them. The question was whether the son was the legitimate child of his mother so as to entitle him to benefit under the will of a testator who had died domiciled in England.
Romer J found in favour of the son on the following principle:
Where succession to personal property depends upon the legitimacy of the claimant, the status of legitimacy conferred on him by his domicile of origin (ie the domicile of his parents at birth) will be recognised by our courts; and that, if that legitimacy be established, the validity of his parents’ marriage should not be entertained as a relevant subject for investigation.29
He distinguished Shaw v Gould by showing that, since in that case the House of Lords chose to concentrate their attention on the validity of the divorce, they were bound to find it invalid and consequently to fix the children’s domicile of origin in England. This left no room for a claim based on the ground that their legitimacy stood apart from the validity of the divorce and that, if so, their domicile of origin was in Scotland.30
It has been argued that this decision should be dismissed as being inconsistent with higher authority, an opinion that has been expressed on several occasions.31 To do so would have the startling result that in the same context legitimacy is subject to one rule, legitimation to another. Where a question has arisen of succession under an English testacy or intestacy, it has long been settled that, if a claimant has been legitimated by the law of the country where at the time of his birth (and of the subsequent marriage) his father was domiciled, English law “recognises and acts on the status thus declared by the law of the domicil”.32 There is no substantial difference between legitimacy and legitimation33 and no reason of logic or convenience why the law should relegate them to mutually exclusive categories. If from the date of the act of legitimation the child assumes the status that he would have possessed had he been born legitimate, it is incomprehensible that these two causes of the same result should be subject to divergent rules for the choice of law.
Fortunately, Sir Stephen Brown P in Motala v A-G34 clearly rejected any such divergence of approach:
H and W, domiciled at all material times in India, went to live in Northern Rhodesia (now Zambia) where in 1950 they went through a ceremony of marriage according to Sunni References(p. 1199) Moslem law. The marriage was invalid under the law of Northern Rhodesia and, in 1968, the parties went through another ceremony of marriage there, valid by that law. The first marriage, however, was regarded as valid by Indian law. The question arose of the legitimacy of some of the spouses’ children in the context of their claims to British citizenship.
An immediate question to be considered was whether the children had been legitimated by their parents’ subsequent marriage. This was referred to Indian law, being that of the domicile of the parents of the children at all material times, and Indian law did not recognise legitimation by subsequent marriage. That left the question of legitimacy which was answered by means of the same process. Legitimacy, being regarded as an issue of status, was referred to the law of the children’s domicile of origin, India, which law regarded the children as legitimate because Indian law regarded the parents’ first marriage as valid. Shaw v Gould was distinguished as being concerned with the validity of the Scottish decree, and the decision in Re Bischoffsheim was approved.
What is striking about this decision is that the children were regarded in England as legitimate, notwithstanding the fact that their parents’ marriage was, in the eyes of English private international law, invalid. Had the parents petitioned for a declaration as to the validity of their first marriage, it would have been refused on the ground that the marriage was invalid as to form according to the law of the place of celebration.35 This strengthens the view that a child’s legitimacy depends on the law of his domicile of origin.
(d) Effect of doctrine of putative marriage
It is submitted, then, even if there had been no statutory alteration of English domestic law in 1959 the courts would have endorsed the approach to the subject made in Bischoffsheim’s case and would have restricted the decision in Shaw v Gould to the exceptional circumstances of the case. This submission was considerably fortified once the doctrine of putative marriage was accepted in the Legitimacy Act 1959.36 Birth in lawful wedlock no longer represents the sole test of legitimacy according to English domestic law.
Section 1(1) of the Legitimacy Act 1976 provides as follows:37
The child of a void marriage, whenever born,38 shall . . . be treated as the legitimate child of his parents if at the time of the insemination resulting in the birth or, where there was no such insemination, the child’s conception (or at the time of the celebration of the marriage if later) both or either of the parties reasonably believed that the marriage was valid.39,40
This provision does not apply unless the father of the child was domiciled in England at the time of the birth or, if he died before the birth, was so domiciled immediately before his death.41 Where this condition is not satisfied, the legitimacy of a child born of a void References(p. 1200) marriage must be determined by the law of his domicile of origin. Where the father is domiciled in a foreign country where a similar doctrine is recognised, there would be even less justification than before for denying the legitimate status of a child born of a void marriage.42
In a provision that is susceptible of more than one interpretation,43 a void marriage for the purposes of the Act is defined as “a marriage, not being voidable only, in respect of which the High Court has or had jurisdiction to grant a decree of nullity, or would have or would have had such jurisdiction if the parties were domiciled in England and Wales”.44 Although the meaning of this provision is far from clear, its probable object is to exclude any union which in the eyes of English law has no claim to be a marriage at all, as for example one springing from concubinage.45
Romer J’s statement46 that the domicile of origin means the country in which the parents are domiciled at the birth of the child is not supported by indisputable authority. Some of the judges have preferred to refer to the domicile of the father,47 though others, probably having in mind the usual case where the father and mother possess a common domicile, with Romer J, have preferred to speak of “the domicile of the parents”, a view which, if adopted, would require the law of each domicile to be satisfied. It is, of course, true that to attribute to the child the domicile of his father where his parents have different domiciles is to beg the question of his legitimacy, for, since the domicile of a child is said to be that of his father if legitimate but of his mother if illegitimate,48 it would appear to be impossible to fix his domicile until the question of his legitimacy has been settled.
This vicious circle would disappear if it could be said that the legitimacy of a child was to be referred to the domicile of one of his parents, but that his domicile of origin depended on the validity of his parents’ marriage. Some nineteenth-century cases49 on the domicile of origin of a child are compatible with such a view. The present difficulty stems from Lord Westbury’s statement that “the law attributes to every individual as soon as he is born the domicil of his father, if the child be legitimate, and the domicil of his mother if illegitimate”.50 As in Shaw v Gould, the questions of the legitimacy of a child and of the validity of his parents’ marriage seemed to nineteenth-century judges inextricably to be the same. The later acceptance that a child might be legitimate notwithstanding the invalidity of his parents’ marriage51 must inevitably cast doubt on the acceptability of Lord Westbury’s views.52
References(p. 1201) If one must accept that Lord Westbury’s statement has stood the test of time too well and cannot now be confounded, the vicious circle must be broken; for logic must not be allowed to impede the best solution of the problem. It is not easy to determine whether the domicile of the father or of the mother should predominate.53 In an age of equality of treatment between the sexes, there is no particular reason or justification for preferring the application of the personal law of one parent over that of the other,54 and so a cumulative test seems appropriate, ie a child not born of a marriage valid by English conflict rules is legitimate only if he is legitimate by the law of the domicile of each parent at the date of his birth. Of course, the disadvantage of a cumulative test is that it requires that two legal systems be satisfied, arguably making it more difficult for a child to attain the status of legitimacy, but this is a problem caused by current rules for the ascription of a domicile of origin. The decisive date for fixing the domicile of origin is the birth of the child. A child, no doubt, is for various purposes deemed at birth to have been in existence from the time of conception,55 and if the parents change their domicile between the time of conception and of birth it is arguable that the law of the father’s domicile at the former time deserves consideration.56 However, despite the lack of authority in point, it is probable that the English courts would regard the domicile at the time of birth as decisive. A somewhat analogous question arises in the case of a posthumous child whose mother has changed her domicile since the death of the father. Is the law of the father’s domicile at the time of his death or the law of the mother’s domicile at the time of the child’s birth to determine the question of legitimacy? The latter is probably the correct solution because the domicile of origin of a posthumous child is that of his mother.57
The question whether a child is legitimate or not by the law of the domicile is to be determined by examining the incidents of his status under that law rather than the title used to describe it. Take, for example, the situation where the law of the domicile is that of a country such as New Zealand,58 where there is no distinction drawn between legitimate and illegitimate children. In such a case, the child would have all the incidents of the status of a legitimate child in England, though only described in New Zealand as a “child”,59 and should therefore be regarded in England as legitimate, even though not born to parents who are married. Indeed, the Supreme Court of Canada60 has concluded that a child born in Mexico to parents who are not married, who was described by Mexican law as illegitimate, was to be considered References(p. 1202) to have the status of a legitimate child in Canada. Under Mexican law she had all the capacities and obligations of such a child, though certain social limitations attached to her position in Mexico causing her to be described there as “illegitimate”.
The rule suggested above61 allocates a question of legitimacy to the law of the domicile of origin. Principle requires that this personal law should apply exclusively, since it is the only law competent to determine the status of the child. Nevertheless, if a case were to arise in which a child, though born to married parents, was for some reason not regarded as born legitimate, as for example because he was not conceived during the marriage, it is probably a safe assumption that an English court would be satisfied with the practically universal test of birth to parents married to one another.62 This break with principle might be justified by the paramount importance of communicating to the child the beneficial status of legitimacy if some rational ground for doing so exists.
In the various legal systems of the world two main methods are found by which a person, not born with the status of legitimacy, may be later legitimated. These are: subsequent marriage of the parents and recognition of the child by the father. Each of these methods requires separate consideration. Here again, however, it should be emphasised that our concern is to examine the law which should determine the status. It is, for example, for the law governing succession to decide whether a child who has been legitimated may or may not succeed by will or under an intestacy.
(a) Legitimation by subsequent marriage
It has been accepted that children born before marriage were made legitimate by the subsequent marriage of their parents. This rule became part of canon law around the twelfth century, and was later adopted by practically all the legal systems on the Continent and in South America. It has received statutory recognition in most of the common law world. Until the Legitimacy Act 1926, however, it formed no part of the law of England and Wales or of Ireland, though it obtained in Scotland, the Isle of Man and the Channel Islands.
(ii) Common law rule
The role of private international law is to choose the system of law which shall determine whether legitimation by this method is effective or not. The rule finally established at common law by Re Grove,64 after some hesitation,65 is that a foreign legitimation by subsequent marriage is not recognised in England unless the father is domiciled, both at the time of the References(p. 1203) child’s birth and also at the time of the subsequent marriage, in a country whose law allows this method of legitimation.66
A simple illustration of the working of the rule is afforded by the case of Re Goodman’s Trusts,67 where a domiciled Englishwoman had died intestate in respect of a large sum of money, and it was necessary to decide which of her brother’s children were entitled to share therein, as being her “next of kin” under the Statutes of Distribution. The relevant events in her brother’s life were chronologically as follows.
(a) While domiciled in England he had three children by Charlotte Smith, to whom he was not married.
(b) He acquired a Dutch domicile, and had a fourth child, Hannah, by Charlotte Smith.
(c) He married Charlotte Smith in Amsterdam.
(d) While still domiciled in the Netherlands he had a fifth child, Anne, by Charlotte Smith.
Legitimation by subsequent marriage was part of Dutch law. It was, therefore, held on the above facts that Hannah and Anne alone were legitimate for the purposes of the English intestacy. It was only in their cases that, at the two critical moments, birth and marriage, the law of the father’s domicile recognised this particular form of legitimation.
(iii) Under the Legitimacy Act 1976
The operation of the common law rules, though not abrogated, was immensely curtailed by the Legitimacy Act 192668 which made legitimation by subsequent marriage part of the law of England. The present law is to be found in section 2 of the Legitimacy Act 197669 which provides that, where the mother and father of an illegitimate person marry, the marriage shall, if the father is at the date of the marriage domiciled in England and Wales, render that person, if living, legitimate from the date of the marriage.70
With regard to persons who are not domiciled in England and Wales, section 3(1) of the Legitimacy Act 197671 provides as follows:
Where the mother and father of an illegitimate person marry one another and the father of the illegitimate person is not at the time of the marriage domiciled in England and Wales but is domiciled in a country by the law of which the illegitimate person became legitimated by virtue of such subsequent marriage, that person, if living, shall in England and Wales be recognised as having been so legitimated from the date of the marriage72 notwithstanding that, at the time of his birth, his father was domiciled in a country the law of which did not permit legitimation by subsequent marriage.73
References(p. 1204) This section discards the old rule that the law of the father’s domicile at the time of the child’s birth must be taken into account. The law of the father’s domicile at the time of the marriage is the sole decisive factor.74 It is this law that decides, for instance, whether something more than mere marriage, such as a formal acknowledgment, is necessary to effect legitimation.
(b) Legitimation by recognition
It has been assumed so far that the foreign legitimation is by subsequent marriage. However, in several states in Europe and in North and South America a father is allowed to legitimate his child by formally recognising it as his own. The first question that this raises in private international law is—which legal system will the English courts look to in order to determine the validity of this particular form of legitimation? Is it sufficient that it is valid by the law of the father’s domicile at the time of recognition, or, like legitimation by subsequent marriage before the Legitimacy Act 1926, must it also be valid by the law of the father’s domicile at the time of the child’s birth? The matter has been considered in only one case—Re Luck’s Settlement Trusts75—where the facts were as follows:
Under the will of George Luck, a British subject domiciled in England, funds were held in trust for all his children attaining twenty-one. Each child was to receive the income of his share for life, and after his death the capital was to be divided equally among his children at twenty-one. The marriage settlement of George limited further sums in the same manner, except that only those grandchildren born within twenty-one years of the death of the survivor of George and his wife were to take a share of the capital. The survivor died in 1896. Therefore, no grandchild was entitled under the settlement trusts unless he was alive and legitimate in 1917 at the latest. Charles was a son of George Luck. He married in 1893, but in 1906, while still married, he became the father of an illegitimate son, David, in California. At this time both he and David’s mother were domiciled in England. After the dissolution of his first marriage he married a second wife. In 1925 he signed a formal document with the assent of his second wife by which he acknowledged David to be his legitimate son and adopted him as such.76 At this time Charles was domiciled in California. It was assumed by the Court of Appeal that David’s mother was also domiciled there. By the law of California the acknowledgement in 1925 operated to legitimate David from his birth in 1906.
The question that arose on these facts was whether David was entitled to a share under the will and marriage settlement of his grandfather, George. At that time, to take under the latter he was required to be a legitimate grandchild alive as such in 1917.
The Court of Appeal held that David was entitled neither under the will nor under the settlement. The reasoning was that legitimation by subsequent marriage is disregarded at common law unless allowed by the law of the father’s domicile at the time both of the birth and the marriage; that the relevant judgments regard this rule, not as confined to the single case of a subsequent marriage but as applicable to all forms of legitimation; and that in any case both convenience and principle demand the application of a uniform rule to all forms. Therefore David was disqualified, since at the time of his birth his father was subject to English law, by which legitimation by recognition is not allowed.
References(p. 1205) The common law rule based on capacity at birth was never in fact extended to cases other than legitimation by subsequent marriage. Even in this connection, it was curtailed substantially by the Legitimacy Act 1926.77 Gratuitously to prolong its life and extend its operation is a retrograde step. In fact the decision has been most generally criticised on the ground that, though it is obviously convenient that one principle should govern all types of legitimation, it is a little eccentric to choose one whose operation has been greatly curtailed by statute.78
It is therefore to be hoped that, if the occasion arises, the House of Lords will prefer the dissenting judgment of Scott LJ, who argued in a convincing manner and at no little length that status, the outstanding characteristic of which is its “quality and universality”, once determined by the law of the domicile, must be judicially recognised all the world over. At a time when David and his father and mother were domiciled in California, his father made a certain declaration according to Californian law. The effect of this by that law was to clothe David with the status of a legitimate person. Therefore, “that status, established by the law of that foreign country, was under English law one which it was the duty of the English court to recognise, and prima facie to enforce in accordance with its nature and attributes as determined by the law of that country”.79 It is the law of the domicile at the time when the legitimation is effected that should alone be considered.
It might also be added that the Legitimacy Act 1976 in referring to the recognition of legitimation at common law talks of a “legitimation (whether or not by virtue of the subsequent marriage of his parents)”.80
Intercountry adoption is the responsibility of the United Kingdom Government Department for Education. It is recognised that there are many children in the United Kingdom and abroad who are in need of a permanent home and an adoptive family, and for whom intercountry adoption offers the best prospects of stable domestic life.81 Whilst the United Kingdom government does not actively promote intercountry adoption, it is willing to allow it where a child cannot be cared for in a suitable manner in his country of origin;82 the adoption would be in his best interests, with respect to the child’s fundamental rights as recognised by international law; and the prospective adopter has been assessed by a registered adoption agency as eligible83 and suitable to adopt a child from abroad.84
References(p. 1206) A variety of issues arises from consideration of the private international law rules relating to adoption. There are wide differences among the laws of different countries on a number of matters, such as who can adopt, or be adopted, and the effects of adoption on, for instance, succession rights. For example, the requirements of English law that an adoption order may not be made in relation to a person who has attained the age of nineteen years,85 or who is or has been married,86 are not found in all legal systems.
In examining the rules concerning adoption, it is important to consider the jurisdiction of the English courts to make adoption orders; the choice of law rules applied by English courts; and the rules for recognition of foreign adoptions. It is necessary also to distinguish the different types of intercountry adoption, according to the identity of the other country involved in the adoption process: (a) a Hague Convention country, being one which, like the United Kingdom, is a signatory to the 1993 Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption;87 (b) a country88 on the United Kingdom’s list of designated countries, as set out in the Adoption (Designation of Overseas Adoptions) Order 1973;89 or a country which is neither a Hague Convention country, nor one which features on the United Kingdom’s designated list.
(a) Adoption proceedings in England
Adoption, the process by which, under English law, a child is brought permanently into the family of the adopter and parental responsibility for the child is transferred to the adopter,90 was introduced into England by the Adoption of Children Act 1926, which was ultimately replaced by the consolidating legislation of the Adoption Act 1976.91 Unlike the case in some other countries, adoption can be effected only by the order of a court,92 after a judicial inquiry directed mainly to ensuring that such an order will be for the welfare of the child. The effect of an order is to take away from the child whatever legal benefits nature conferred upon him and to transfer all obligations towards him to the adoptive parents who, by nature, have no obligation towards him at all.93 There is a complete and fundamental change in the status of the child. He becomes a child in law of his adoptive parent(s) to the exclusion of his natural parents.
(a) Adoption and Children Act 2002
The 2002 Act modernised the legal framework for domestic and intercountry adoption.94 It largely replaces the Adoption Act 1976,95 and incorporates most96 of the provisions of the References(p. 1207) Adoption (Intercountry Aspects) Act 1999 (examined below), providing a statutory basis for the regulation of intercountry adoption, strengthening existing safeguards, introducing some new ones, and enabling the United Kingdom to ratify the 1993 Hague Convention on Protection of Children and Co-operation in respect of Inter-country Adoption. In introducing wide-ranging reform of the rules in England and Wales for domestic and intercountry adoption, it affects all adoptions in England, and all adoption applications from persons resident and settled in England who are seeking to adopt children living abroad. Part 1 of the Act sets out the framework of adoption law for England and Wales, including in Chapter 6 (sections 83 to 91) provision for inter-country adoption; Part 2 makes amendments to the Children Act 1989; and Part 3 makes miscellaneous provision on advertising and the Adoption and Children Act Register.
(b) Adoptions with a Foreign Element Regulations 200597
The Adoptions with a Foreign Element (AFE) Regulations, which are one of a series of statutory instruments implementing the provisions of the Adoption and Children Act 2002,98 set out safeguards and procedures for intercountry adoption. They apply to England and Wales with effect from 30 December 2005,99 and are intended to replace the Intercountry Adoption (Hague Convention) Regulations 2003100 and the Adoption (Bringing Children into the United Kingdom) Regulations 2003,101 both of which came into force only on 1 June 2003102 and which were intended to be repealed when the Adoption and Children Act 2002 was fully implemented.
The AFE Regulations underpin a number of policy objectives, ie: to establish safeguards to ensure intercountry adoption takes place in the best interests of the child and with respect for his/her fundamental rights as recognised in international law; to ensure prospective intercountry adopters have been assessed and approved in accordance with the appropriate procedures; and to enable the United Kingdom to continue to meet its duties under international law.103
The AFE Regulations set out procedures in relation to incoming adoptions (adoption of children from abroad by British residents) and outgoing adoptions (adoption of children in England and Wales by persons resident abroad), and for Convention adoptions and References(p. 1208) non-Convention adoptions, respectively. The jurisdiction of the English court to make an adoption order and the law to be applied by the court depend on two different sets of legislative rules, namely general rules (for non-Convention adoptions) and Convention rules (for Hague Convention adoptions).
(ii) General rules
An application for an adoption order, other than a Convention adoption order, may be made, in terms of the Adoption and Children Act 2002, by a couple,105 or by one person only, subject to satisfaction of one of two conditions.106 In the case of adoption by a couple, an order may be made where both have attained twenty-one years,107 or if one of the couple is the mother or father of the child and is at least eighteen years of age, and the other has attained twenty-one years.108 In the case of adoption by one person only, an order may be made if he has attained twenty-one years and is not married or a civil partner, or if he is the partner of a parent of the person to be adopted.109 The two conditions, only one of which must be satisfied, are that (i) at least one of the couple (in the case of a joint application), or the applicant (in the case of a sole applicant) is domiciled in a part of the British Islands;110 or (ii) both applicants (in the case of a joint application), or the applicant (in the case of a sole applicant) have/has been habitually resident in a part of the British Islands for a period of not less than one year ending with the date of the application.111 If only the domicile criterion is satisfied, the prospective adopters would not be eligible, in principle, to seek a Hague Convention adoption order,112 habitual residence on the part of the applicant(s) being a requirement of such adoptions.113 If, on the other hand, only the habitual residence criterion is satisfied, the applicant(s) can consider adopting a child from any country. It should be borne in mind, however, that even if the applicant is domiciled or habitually resident in England, the court will be unable to make an adoption order if the other conditions set out in the 2002 Act are not satisfied.114 Importantly, the jurisdictional provisions of the 2002 Act remain unchanged by the Brussels II bis Regulation or the 1996 Hague Convention as “decisions on adoption, measures preparatory to adoption, or the annulment or revocation of adoption” fall outside of the scope of the Regulation and the Convention.115 It has been held that an application for a placement order116 under section 21 of the 2002 Act is to be regarded as a “measure References(p. 1209) preparatory to adoption”.117 Section 21, in conjunction with section 22, implicitly govern the English court’s jurisdiction to grant a placement order.118
The domicile,119 habitual residence or nationality of the child to be considered for adoption is not relevant to the matter of allocation of jurisdiction. Indeed, nowhere in the Act is there any requirement relating to these connecting factors; although it ought to be noted that there is a residence-related requirement which in effect supplements the jurisdictional rules. The requirement is that the child must have his home with the applicant(s) at all times during a specified period immediately before the application. This period ranges from ten weeks to three years, depending on the circumstances of the case.120 The original requirement that the child should be of British nationality, contained in the Adoption and Children Act 1929, was expressly removed after the Second World War by the Adoption of Children Act 1949.121 The 1949 Act was largely repealed by Schedule 4 to the Adoption Act 1950, which made no reference to the child’s nationality at all. It remained the same in consecutive adoption acts, including the current Act of 2002. Against this background, it was rightly remarked by Black LJ, in Re N (Children) (Adoption: Jurisdiction),122 that “the absence of reference to the child’s nationality in the 2002 Act is no accident but rather the product of a deliberate decision not to restrict adoption to children who are British nationals”.123 The 2002 Act is also silent as to the domicile, habitual residence, nationality or presence of the child’s biological parents, whose consent can be dispensed with pursuant to the 2002 Act.124 It follows that the English court has jurisdiction to make an adoption order in respect of a foreign child, i.e. regardless of his/her domicile, habitual residence or nationality, and, similarly, has jurisdiction to dispense with the consent of the biological parent(s)125 regardless of their domicile, habitual residence, nationality or presence.126 It has been aptly remarked that the restriction of the jurisdictional requirement in the 2002 Act to the domicile/habitual residence of the adopter(s) was rather arbitrary as “there is no qualitative distinction between the extinction and creation of status: just as the adopting parents gain the status of parent, so do the natural parents revert to the status of non-parent”.127
References(p. 1210) (b) Choice of law
The absence of any requirement in the 2002 Act that the child should be domiciled in England raises a question of choice of law. If an applicant, domiciled or habitually resident in England, applies for an adoption order in respect of a child domiciled abroad, will the court have regard to the substantive requirements of the foreign law of the child’s domicile, which may differ widely from their English equivalents contained in the 2002 Act in such matters as the age of the respective parties and the required consents? Similarly, should the child be habitually resident abroad or (although domiciled/habitually resident in England) happen be a non-British national, to what extent will the court consider the law of the child’s habitual residence/nationality when deciding whether to make an adoption order and, if necessary, whether to dispense with parental consent? The terms of the English legislation are such that an adoption order made by the court would not be vitiated by a failure to take account of the foreign law. It has been suggested that, in England, the law of adoption is viewed as a set of requirements which regulate the procedure of an English court rather than a body of substantive rules, as adoption is seen as the result of an administrative act in judicial form rather than a private law transaction approved by the state. Procedure, as a matter of a basic principle, is governed by the law of the forum, meaning that an adoption in England cannot be governed by foreign law.128 In the absence of an express choice of law rule in the 2002 Act, the law of the forum must be assumed to apply. However, it is submitted that to refer exclusively to the law of the forum would be contrary to principle and often prejudicial to the well-being of the child. The admitted and basic feature of status as fixed by the law of the domicile is its universality.129 The status attributed to a child in his domicile of origin is entitled to universal respect. It is, therefore, undesirable for the English court to make an adoption order which claims to destroy that status and to substitute another that is fundamentally different. Moreover, such an order would scarcely be recognised in the domicile of origin,130 with the result that the child would be the child of X in England, but of Y in all other countries, a situation which seems strangely at odds with the statutory requirement that, in making any decision relating to the adoption of a child, the paramount consideration of the court or adoption agency must be the child’s welfare, throughout his life.131 Certainly, the possibility of taking account of foreign law, whether or not the law of the child’s domicile, is envisaged by the Family Procedure Rules 2010,132 rule 23.7 of which sets out the procedure that must be followed by a party who intends to put in evidence a finding on a question of foreign law by virtue of section 4(2) of the Civil Evidence Act 1972.
It might be extremely difficult to blend two opposing systems of adoption law, but nonetheless the fact remains that to impose a status on a child in conflict with that which he possesses in his domicile of origin, to create as it were a “limping child”, would be a doubtful blessing to bestow upon him.
An application was made by proposed adopters for the consent of the natural father to the adoption to be dispensed with. The natural father was domiciled in Spain and the child and the adoptive parents were resident in England where the adoptive parents were domiciled. It was assumed that the child was domiciled in Spain,135 and this raised the issue of whether Spanish law should be considered relevant to the application.
Goff J decided that the court had jurisdiction to make an adoption order “notwithstanding that by the law of the infant’s domicil the court there could not make an order or could only make one having different consequences”.136 Nevertheless, he admitted that the law of the domicile is not to be ignored, for “the true impact of the domiciliary law is purely as a factor—albeit an important one—to be taken into account in considering whether the proposed order will be for the welfare of the infant, a matter upon which the Statute expressly provides137 that the court must be satisfied before making an order”.138 Moreover, Goff J took the view that “welfare”, as used in the statute, “does not mean simple physical or moral well-being, but benefit in the widest sense which must include consideration of the effect the order, if made, will have on the infant’s status”.139 If the adoption will not be recognised by such law, though here there was evidence that Spain would recognise the English order, then the court will have to weigh the serious disadvantages of being a “limping child” against the benefits which may accrue from adoption. This balancing process will inevitably result in cases, albeit rare ones, where an English adoption order will be made in circumstances where it will not be recognised by the law of the child’s domicile.140
Recently, the reasoning and conclusion of Goff J in Re B (S) (An Infant) was approved by Munby P and Black LJJ in Re N (Children) (Adoption: Jurisdiction).141 As a starting point, Munby P agreed that adoption in England was to be governed by English law.142 He then continued, in line with Goff J’s argument, that although English law was the applicable law, “foreign law is an important factor to be taken into account in considering the welfare of the child”.143 This is, however, not “by virtue of the foreign law” but rather because the court is required to do so by English law as a part of the welfare considerations.144 The President then concurred with Goff J’s view that, before making an adoption order, the English court will need to consider whether the order will be recognised elsewhere, especially in the country of the child’s domicile, habitual residence or nationality.145
References(p. 1212) Although jurisdiction can be exercised without reference to the domicile of the biological parents, one might question146 whether an order which deprives them in England of the status of parent should be made without consideration, not only of their interests in relation to matters such as consent, but also of the effect of the adoption order under the law governing their status.147 Not only a child but also a parent can “limp”. The Supreme Court of Canada, in 1981, decided148 (though without detailed consideration of the choice of law issues) that the question whether a child was one who could be adopted should be referred not only to the domiciliary law of the applicants and of the child, but also, at least in contested cases, to that of the biological parents. One may, however, argue that there are obvious practical reasons that militate against the application of the domiciliary law of the biological parent(s) such as the necessity to determine the relevant domicile(s) and its laws; and to reconcile several, possibly opposing, systems of adoption law.149 These arguments apply to a varied extent also in relation to the law of the habitual residence and the law of the nationality of the biological parent(s). Equally, the same concerns may arise when considering the application of the law of the child’s domicile/habitual residence/nationality.150
More recently, the issue of the effect of the adoption order on the status of the biological parents according to their own personal law(s) was touched on by the Court Appeal in Re N (Children) (Adoption: Jurisdiction).151 Munby P set out the argument that had been “rumbling around” in the context of the debate on applicable law in adoption “for years”: “[ . . . ] the status of the child’s natural parent(s) and their parental rights cannot be extinguished by the English court dispensing with their consent and making an adoption order except in accordance with and as permitted by the law of the state of the parental domicile.”152 Although he did not provide an explicit answer to this problem, it appears that his reasoning in relation to the place of the law of the child’s domicile/habitual residence/nationality in English adoption proceedings as outlined above, is intended to apply also to the law with which the biological parents have a particular connection (ie the law of their domicile, (habitual) residence or nationality). The concurring judgment of Black LJ, which seeks to merely draw out from the President’s judgment the main points of his reasoning, confirms this presumption. In particular, her Ladyship’s summary goes as follows: “[. . .] English law is the applicable law in determining the adoption application, and that includes the provisions of section 52 of the 2002 Act as to dispensing with parental consent. What the English court cannot do, however, is to assume without more that its determination will bind other jurisdictions. They will make their own determination as to the status of the natural parents vis-à-vis the child and vis-à-vis the adopters and the natural parents and it is for that reason that, although foreign connections do not prevent the English court from having jurisdiction and power to grant an adoption order, they are potentially very material in its determination of how to exercise that power.”153 Nevertheless, this does not mean that an adoption order could not be made by the English court if there was evidence that the decision would not be recognised in a country References(p. 1213) with which the child has a particular link, either through his/her own domicile/nationality/habitual residence or those of his/her parents.154
The proposed approach that requires the English court to consider and actively seek to evade the negative consequences for the child of the lack of a universal recognition of the adoption order is highly pragmatic and, on the surface, appears to be eminently sensible. The challenge, however, it to reconcile in practice the opposing and strongly emotional interests that become obvious especially in cases of non-consensual adoption where such adoption orders are unavailable under the foreign law with which the child and/or the biological parents have a particular connection.155
(iii) Convention rules
In 1964, the Hague Conference on Private International Law produced a Convention on Adoption, which was signed in 1965.156 The Convention, which was ratified by the United Kingdom in 1978, related to jurisdiction, choice of law and recognition of foreign adoptions.157 On 15 April 2003, however, the United Kingdom denounced the 1965 Convention,158 with effect from 23 October 2003, in order that it could be replaced by the 1993 Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption, signed by the United Kingdom on 12 January 1994.159 With effect from 1 June 2003, in accordance with the Adoption (Intercountry Aspects) Act 1999, supplemented by the Intercountry Adoption (Hague Convention) Regulations 2003,160 and the Adoption and Children Act 2002, supplemented by the Adoptions with a Foreign Element Regulations 2005,161 the 1993 Convention came into force in the United Kingdom.
(b) 1993 Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption162
Preparation of the 1993 Convention involved more than sixty-five countries, including the United Kingdom, as well as non-government organisations and voluntary bodies having an interest in intercountry adoption. The purpose of the Convention is to establish safeguards to ensure that intercountry adoptions take place in the best interests of the child and with References(p. 1214) respect for his fundamental rights as recognised in international law; to establish a system of co-operation among Contracting States to ensure that those safeguards are respected, and thereby prevent abduction, the sale of, or traffic in children;163 and to secure the recognition in Contracting States of adoptions made in accordance with the Convention.164
The Convention applies where a child165 who is habitually resident166 in one Contracting State (the state of origin)167 has been, is being, or is to be moved to another Contracting State (the receiving state), either after his adoption in the state of origin by a person or persons habitually resident in the receiving state, or for the purposes of such an adoption in the receiving state or in the state of origin.168
There is no express mention of choice of law in the 1993 Hague Convention. Instead, the Convention sets out the reciprocal obligations resting, respectively, upon the authorities in the state of origin and in the receiving state. The successful operation of the Convention depends to a large extent on effective collaboration between the two states.
Article 4 determines the duties of the state of origin.169 It provides that a Convention adoption can proceed only if the competent authorities in the state of origin have (a) established that the child is adoptable; (b) determined, after possibilities for placement of the child within the state of origin have been given due consideration, that an intercountry adoption is in the child’s best interests; (c) ensured that the persons,170 institutions and authorities171 whose consent is necessary172 for adoption have given their informed173 consent, without coercion or financial incentive, and, in particular, that the consent of the child’s biological mother, where required, has been given only after the birth of the child; and (d) ensured, having regard to the age and maturity of the child, that he has been duly counselled and informed of the effects of the adoption, that consideration has been given to his wishes and opinions, and that his consent, where required, was duly informed and freely given, not induced by payment or compensation of any kind. Article 5 determines the duties of the References(p. 1215) receiving state,174 providing that a Convention adoption can proceed only if the competent authorities in that state have determined that the prospective adoptive parents are eligible and suited to adopt, and have been counselled as may be necessary, and that the child is or will be authorised to enter and reside permanently in the receiving state.
The effective operation of the Convention is dependent upon co-operation and coordination among the designated Central Authorities of Contracting States.175 The procedural requirements of intercountry adoption are detailed in Chapter IV (Articles 14 to 22). Article 14 states that persons habitually resident in a Contracting State, who wish to adopt a child habitually resident in another Contracting State, shall apply to the Central Authority in the state of their habitual residence.176 The Parra-Aranguren Report makes clear that since Article 14 does not expressly regulate the formal requirements to be fulfilled by the application, these shall be determined by the law of the habitual residence of the prospective adoptive parents, it being understood, however, that they must identify themselves, and give all the necessary information to facilitate the preparation of the report prescribed by Article 15.177 It follows from Article 14 that prospective adopters are not able to apply directly to the Central Authority or to any other public authority or accredited body of the state of origin of the child.
When the application is presented to the Central Authority of the receiving state (ie the state in which the prospective adopters are habitually resident), the Central Authority must ascertain whether the prospective adopters are eligible and suited to adopt, as is required by Article 5(a) of the Convention. Therefore, “it shall establish their compliance not only with all legal conditions prescribed by the applicable law, as determined by the receiving State, but also with the necessary socio-psychological requirements needed to guarantee the success of the adoption”.178 If the Central Authority of the receiving state is satisfied that the applicants are eligible and suited to adopt, it must prepare a report (an “Article 15 Report”), for transmission to the Central Authority of the state of origin,179 including information about the applicants’ identity, eligibility and suitability to adopt, background, family and medical history, social environment, reasons for adoption, ability to undertake an intercountry adoption, as well as the characteristics of the children for whom they would be qualified to care. The Parra-Aranguren Report explains that this is intended to be an additional safeguard to guarantee the success of the adoption. Preferences of the prospective adopters should be “expressed in general terms, eg age, religion and special needs (disability etc) of a child in accordance with their parenting skills and experiences, children professing a certain religion, and not make reference to a specific child in particular”.180
If the Central Authority of the state of origin is satisfied that the child is adoptable, it shall prepare a report (an “Article 16 Report”), including information about the child’s identity, adoptability, background, social environment, family history, medical history including that References(p. 1216) of his family, and any special needs.181 The Central Authority of the state of origin must give due consideration to the child’s upbringing and to his ethnic, religious and cultural background; ensure that relevant consents have been obtained,182 and determine, on the basis of the Article 15 and 16 Reports, whether the envisaged placement is in the best interests of the child. Once it has been determined that the child should be entrusted to the prospective adopters,183 the Central Authorities of both states shall take all necessary steps to obtain permission for the child to leave the state of origin and to enter and reside permanently in the receiving state.184
Article 28 makes clear that the Convention does not affect any law of the state of origin which requires that the adoption of a child habitually resident within that state take place in that state, or which prohibits the child’s placement in, or transfer to, the receiving state prior to adoption. It is not the aim of the Convention to unify the substantive laws of Contracting States with regard to adoption.
In keeping with the objectives of the Convention, it is expressly stated that no-one shall derive improper financial or other gain from an activity related to an intercountry adoption; only proper costs and expenses, including reasonable professional fees, may be charged or paid.185
(c) Adoptions with a Foreign Element Regulations 2005186
(i) Convention adoptions where the United Kingdom is the receiving state
Chapter 1 of Part 3 of the Adoptions with a Foreign Element (AFE) Regulations deals with the requirements, procedure, recognition and effect of adoptions where the United Kingdom is the receiving state in relation to a Convention adoption, ie where a couple or a person habitually resident in the British Islands wish(es) to adopt a child who is habitually resident in a Convention country outside the British Islands in accordance with the Convention.
A prospective adopter in these circumstances must apply to an adoption agency for a determination of eligibility and an assessment of his suitability to adopt a child, and must give the agency such information as it may require for the purpose of the assessment.187 An application will not be considered unless, at the date thereof (a) in the case of an application by a couple, they have both attained twenty-one years and have been habitually resident in the British Islands for a period of not less than one year ending with the date of application; and (b) in the case of an application by one person, he has attained twenty-one years and has been habitually resident in the British Islands for a period of not less than one year ending with the date of application.
An assessment will be carried out by the adoption agency in accordance with regulations 14 to 34.188 The assessment (or “home-study”), which involves detailed interviews with a social References(p. 1217) worker, as well as medical checks and police checks, will be considered by the agency’s adoption panel. A prospective adopter’s report must be prepared, including: the state of origin from which the prospective adopter wishes to adopt a child; confirmation that he is eligible to adopt a child under the law of that state; any additional information obtained as a consequence of the requirements of that state; and the agency’s assessment of the prospective adopter’s suitability to adopt a child who is habitually resident in that state.189 If the applicant is deemed suitable to adopt, the application will be forwarded to the Department for Education to be processed.190 At that stage, a Certificate of Eligibility to adopt normally will be issued on behalf of the Secretary of State. Following notarisation and legalisation of documents, the papers will be forwarded to the Central Authority of the state of origin.191
Regulations 21 and 22 set out the requirements in respect of a prospective adopter proposing to enter the United Kingdom with a child, and the relevant adoption agency.192 Regulations 24 to 27 lay down provisions following a child’s entry into the United Kingdom where no Convention adoption was made or applied for in the state of origin. Regulation 31 provides that an adoption order shall not be made as a Convention adoption order unless (a) in the case of (i) an application by a couple, both have been habitually resident in the British Islands for a period of not less than one year ending with the date of application; or (ii) on application by one person, he has been habitually resident in the British Islands for a period of not less than one year ending with the date of application; (b) on the date when the Central Authorities of the state of origin and the receiving state agreed that the adoption may proceed,193 the child was habitually resident in a Convention country outside the British Islands; and (c) in a case where one member of a couple (in the case of an application by a couple) or the applicant (in the case of an application by one person) is not a British citizen, the Home Office has confirmed that the child is authorised to enter and reside permanently in the United Kingdom.
(ii) Convention adoptions where the United Kingdom is the state of origin
Chapter 2 of Part 3 of the AFE Regulations deals with the requirements, procedure, recognition and effect of adoptions in England and Wales where the United Kingdom is the state of origin in respect of a Convention adoption, ie where a couple or a person habitually resident in a Convention country outside the British Islands wish(es) to adopt a child who is habitually resident in the British Islands.194
To a large extent, as is to be expected, the provisions of Chapter 2 of Part 3 are the mirror image of those in Chapter 1. Regulation 38 provides that the report which the relevant adoption agency is required to prepare in accordance with regulation 17 of the Adoption Agencies Regulations 2005195 must include a summary of the possibilities for placement of the child within the United Kingdom, and an assessment of whether an adoption by a person in a particular receiving state is in the child’s best interests. The relevant Central Authority in the receiving state, if satisfied that a prospective adopter who is habitually resident in that state is eligible and suited to adopt, will prepare an “Article 15 Report”196 comprising information about the prospective adopter’s identity, eligibility and suitability to adopt, background, family and medical history, social environment, reasons for adoption, References(p. 1218) ability to undertake an intercountry adoption, and the characteristics of the child for whom they would be qualified to care.197 The United Kingdom adoption agency, when considering whether a proposed placement for adoption should proceed, must take into account the Article 15 Report198 and any other information passed to it as a consequence of the AFE Regulations.199
Before a child will be placed for adoption with the prospective adopter, the Secretary of State may notify the Central Authority of the receiving state that it is prepared to agree that the adoption may proceed, subject to confirmation that, inter alia,200 the prospective adopter is aware of the need to make an application under section 84 of the 2002 Act.201 It has been held that the expression “entrusted to prospective adopters” within the meaning of Article 17 of the 1993 Hague Convention equated to the making of a parental responsibility order under s 84 of the 2002 Act.202
Regulation 50 provides that an adoption order shall not be made as a Convention adoption order unless (a) in the case of (i) an application by a couple, both have been habitually resident in a Convention country outside the British Islands for a period of not less than one year ending with the date of application; or (ii) on application by one person, he has been habitually resident in a Convention country outside the British Islands for a period of not less than one year ending with the date of application; (b) on the date when the Central Authorities of the state of origin and the receiving state agreed that the adoption may proceed,203 the child was habitually resident in any part of the British Islands; and (c) the competent authority has confirmed that the child is authorised to enter and remain permanently in the Convention country in which the applicant is habitually resident.
The meaning and application of regulation 50 was considered recently in Greenwich LBC v S:204
The case concerned the intercountry adoption of four siblings. The children had spent what was described as an “extended holiday” with the putative adopter, their maternal great-aunt, at her home in Canada. They had been in Canada, save for two breaks, for a period of one year, and a question arose as to whether they had lost their habitual residence in England. Sumner J concluded205 that whilst they had been in Canada for what might be described as an “appreciable time”, there was no settled intention at that time by the local authority for the children to live in Canada. It was held that the placement of children overseas by a local authority, in the absence of a final plan for them, ought not to run the risk that they would lose their habitual residence after one year or two, unless there is compelling evidence leading to that conclusion. In the instant case, in the absence of such evidence, the children’s habitual residence in England continued.
(b) Procedures for taking children into and out of the United Kingdom
(i) Procedures under the AFE Regulations 2005207
Perceived deficiencies in the Adoption Act 1976 were intended to be remedied by the Adoption and Children Act 2002, and the Adoption (Bringing Children into the United Kingdom) Regulations 2003,208 made in accordance with section 56A of the 1976 Act, as amended,209 which enhanced the sanctions introduced in the Adoption (Intercountry Aspects) Act 1999 in respect of individuals who bring children into the United Kingdom in connection with adoption, without following proper procedures. This has now been replaced by the procedures set out in the AFE Regulations.
(a) Bringing children into the United Kingdom
Chapter 1 of Part 2 of the AFE Regulations deals with bringing children into the United Kingdom, for cases where the United Kingdom is the receiving state. This should be read in conjunction with section 83210 of the 2002 Act, which imposes restrictions on British residents bringing or causing someone else to bring a child habitually resident outside the British Islands into the United Kingdom with the intention of adopting the child in the United Kingdom, unless the person complies with prescribed requirements and meets prescribed conditions.211 It also makes it a criminal offence for a British resident to bring or cause someone else to bring a child habitually resident outside the British Islands whom he has adopted within the last twelve months into the United Kingdom, unless the person complies with prescribed requirements and meets prescribed conditions.212 The restrictions in section 83 do not apply if the child is intended to be adopted under a Convention adoption order, as the provisions in the 1993 Hague Convention will apply in such cases.213
By virtue of regulation 3 of the AFE Regulations, a prospective adopter falling within the circumstances described in section 83 of the 2002 Act must apply to an adoption agency for an assessment of his suitability to adopt a child, and must give the agency such information as it may require for the purpose of the assessment. The conditions applicable in respect of a child brought into the United Kingdom are set out in detail in regulation 4 of the AFE Regulations.
References(p. 1220) (b) Taking children out of the United Kingdom
Chapter 2 of Part 2 of the AFE Regulations applies in a situation where a person or couple wish(es) to remove a child from the United Kingdom for the purposes of adoption under the law of a non-Convention country, for cases where the United Kingdom is the state of origin of the child. This should be read in conjunction with sections 84 and 85 of the 2002 Act.
Section 84 provides that the High Court may make an order for the transfer of parental responsibility for a child to prospective adopters who are not domiciled or habitually resident in England and Wales, but who intend to adopt the child outside the British Islands.214 Regulation 10 of the AFE Regulations, and regulation 48 in the case of a proposed Convention adoption, respectively set out the prescribed requirements which must be satisfied before an order will be made under section 84.215 An application for an order may not be made unless at all times during the preceding ten weeks the child’s home was with the applicant(s).216
Section 85 forbids the removal of a child who is a Commonwealth citizen or habitually resident in the United Kingdom to a place outside the British Islands for the purpose of adoption unless a section 84 order has been made conferring parental responsibility for the child on the prospective adopters.217 A person who removes a child in contravention of section 85 is guilty of an offence.218
(ii) Imposition of temporary suspensions
In June 2004, the then United Kingdom Minister for Children announced the Secretary of State’s decision to impose a temporary suspension of adoptions of Cambodian219 children by United Kingdom residents.220 The suspension was introduced in response to concerns raised and investigated by United Kingdom officials regarding the Cambodian adoption system, including, in particular, lack of proper consents being given by birth parents,221 and improper financial gain being made by individuals involved in the adoption process.222 The Minister announced that: “Only in exceptional circumstances will I consider that the temporary suspension should not apply in a particular case. Any decision relating to a particular case will of course take account of what is in the best interests of the child and all the facts of the particular case.”223 The suspension was reviewed between September 2007 and April 2008. The review work assessed what changes, if any, to adoption practice and legislation had been made in Cambodia in the three years since the temporary suspension was introduced. The review also took account of Cambodia’s accession to the 1993 Hague Convention in April 2007.224 However, evidence from the review demonstrated that adoption legislation, practice and References(p. 1221) procedure in Cambodia remained insufficient to ensure the proper protection of children and their families; and that lifting the suspension would expose Cambodian children and their families to an increased risk of improper practices that are contrary to the principles of the 1993 Hague Convention and the United Nations Convention on the Rights of the Child. It was therefore decided that the suspension would remain in place.225
Following the precedent set by the restriction on adoptions from Cambodia, in December 2007, an immediate suspension of adoptions of Guatemalan children by UK residents was announced in response to concerns about adoption practice in Guatemala.226
A question of the lawfulness of the Secretary of State’s conduct with regard to intercountry adoptions generally, and the Cambodian suspension, in particular, arose in R (On the Application of Thomson) v Minister of State for Children:227
The case concerned six couples (the third228 to fourteenth claimants) who applied for judicial review of the Secretary of State’s decision to impose the temporary suspension on intercountry adoptions from Cambodia, and her subsequent decisions in each of their cases not to allow them to proceed under the “exceptional circumstances” exception. The fifteenth claimant was the adopted daughter of one of the couples, whom they had adopted from Cambodia prior to imposition of the suspension.
Munby J noted that the regime prior to 1 June 2003 for adopting children from abroad had been problematic, and sometimes productive of serious concern.229 His Lordship outlined two notable problems: the lack of effective regulation of intercountry adoptions,230 and a growing sense that the best interests of children were not always served by such forms of adoption.231 The claimants did not dispute the serious nature of these concerns, but they challenged the manner in which the problems had been addressed and the decisions taken by the Secretary of State.
The claimants’ applications were refused. It was held that the Secretary of State’s exercise of discretion in imposing the suspension, and in denying the claimants’ adoption applications was consistent with the proper exercise of her powers in the context of the statutory scheme as a whole, and that her refusal to utilise the “exceptional circumstances” procedure met every common law requirement of “fairness” and was not incompatible with Article 6 of the European Convention on Human Rights (right to a fair trial), assuming that Article 6 applied.232 The judge considered there to be a pressing public interest that justified the introduction of the suspension without prior warning.
Given the nature and extent of the challenges to the exercise of powers by the Secretary of State in R (On the Application of Thomson) v Minister of State for Children, it is not surprising that the Children and Adoption Bill introduced in the House of Lords in June 2005233 included provisions dealing with the suspension of intercountry adoptions.
References(p. 1222) (iii) The Children and Adoption Act 2006234
Part 2 of the 2006 Act235 concerns adoptions with a foreign element. It makes express provision for the Secretary of State to suspend intercountry adoptions from a country if he has concerns about the practices there in connection with the adoption of children by British residents236 in specified cases.237 If the Secretary of State has reason to believe238 that, because of practices239 taking place in a foreign country (whether or not it is a Convention country)240 in connection with the adoption of children, it would be contrary to public policy to further the bringing of children into the United Kingdom, he may declare, in relation to that country, that special restrictions are to apply.241 The special restrictions are that the appropriate authority242 is not to take any step which otherwise might have been taken in connection with furthering the bringing of a child into the United Kingdom.243 The effect of the imposition of restrictions is that the Secretary of State no longer will process intercountry adoptions to or from a restricted country. There is scope, however, for the restrictions to be waived, exceptionally,244 in an individual case, if the prospective adopters can satisfy the Secretary of State that the steps in question should be taken, ie that the adoption should proceed.245 There is an obligation on the Secretary of State to keep the list of restricted countries under review.246 As of September 2016, there are four countries on the restricted country list: Cambodia, Guatemala, Nepal and Haiti.247
(c) Recognition of foreign adoptions
There may be a variety of circumstances in which a court in England is faced with the decision whether to recognise an adoption which has taken place abroad. The issue may arise incidentally in the course of other proceedings and the main examples in the reported cases References(p. 1223) concern property rights—eg whether a child adopted abroad can take under a will,248 in an intestacy249 or a settlement,250 or whether a parent can succeed on his adopted child’s intestacy.251 The recognition of a foreign adoption may also affect the powers of the English court to make an adoption order itself,252 social security issues,253 or rights of entry to the United Kingdom as an immigrant.254 Finally, it is possible that a child might simply wish to seek from the English courts a declaration as to his status, and thus ascertain whether his foreign adoption will be recognised in England.255
(i) Recognition of adoptions made elsewhere in the British Isles
Any adoption order made in Scotland,256 Northern Ireland,257 the Channel Islands, or the Isle of Man258 will be recognised and given effect to in England.259 Further, adoption records from Scotland, Northern Ireland, the Channel Islands or the Isle of Man, are receivable as evidence in England.260
(ii) Recognition of adoptions made in Hague Convention countries (“Convention adoptions”)
As explained above, with effect from 1 June 2003, the 1993 Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption came into force in the United Kingdom. Chapter V (Articles 23 to 27) of the Convention concerns the recognition and effects of the adoption. Recognition of an adoption includes recognition of (a) the legal parent-child relationship between the child and his adoptive parents; (b) the parental responsibility of the adoptive parents for the child; and (c) the termination of a pre-existing legal relationship between the child and his biological parents261 (if the adoption has this effect in the Contracting State where it was made).262 By Article 23, an adoption certified by the competent authority of the state of the adoption263 as having been made in accordance with the Convention shall be recognised by operation of law264 in the other Contracting States. This is one of the primary benefits of the instrument, thereby “superseding the existing practice that an adoption already granted in the State of origin is to be made anew in the receiving State only in order to produce such effects”.265 Recognition of a Convention adoption may be References(p. 1224) refused in a Contracting State only if the adoption is manifestly contrary to its public policy, taking into account the best interests of the child.266
The question as to the persons who could be prospective adoptive parents was discussed at length during negotiations, in particular whether the Convention should cover adoptions applied for by unmarried heterosexual couples, or by same sex persons, living as a couple or individually. The Parra-Aranguren Report states that:
Notwithstanding the fact that these cases were thoroughly examined, the problems they raise may be qualified as false problems, since the State of origin and the receiving State shall collaborate from the very beginning and they may refuse the agreement for the adoption to continue, for instance, because of the personal conditions of the prospective adoptive parents. Moreover, in case they agree to those specific kinds of adoption, the other Contracting States are entitled to refuse its recognition on public policy grounds, as permitted by Article 24.267
Interestingly, the Parra-Aranguren Report notes that:
The Convention does not specifically answer the question as to whether an adoption granted in a Contracting State and falling within its scope of application, but not in accordance with the Convention’s rules, could be recognized by another Contracting State whose internal laws permit such recognition. Undoubtedly, in such a case, the Contracting State granting the adoption is violating the Convention, because its provisions are mandatory and such conduct may give rise to the complaint permitted by Article 33,268 but the question of the recognition would be outside of the Convention and the answer should depend on the law applicable in the recognizing State, always taking into account the best interests of the child.269
Recognition in England of an adoption granted in a Contracting State which falls outside the scope of application of the Convention must be dealt with according to residual national rules.270
The adoption of a child271 effected in a country272 or territory outside the British Islands which is included in the United Kingdom’s list of designated countries, as set out in the Adoption (Recognition of Overseas Adoptions) Order 2013,273 and which is effected under the law in force in that place,274 is known as an overseas adoption.275 Overseas adoptions do not include Convention adoptions.276 The recognition of this wide range of foreign adoptions is not dependent, in any way, on reciprocity between England and the “overseas adoption” country.
Overseas adoption orders, being those of a description specified in the 2013 Order, are recognised automatically in England, and have the same incidents and effects as if they were References(p. 1225) made in England. Section 87 of the 2002 Act allows the Secretary of State to prescribe the requirements that must be met before a country will be included in the list of designated countries. Curiously, the only requirement for recognition appears to be that the adoption is effected under the law in force in the designated country; there is no scope for reviewing or challenging the jurisdiction of the country which effected the overseas adoption. There is no necessary link, such as is required in English law,277 between the country where the adoption is effected and the adoptive parents.
Evidence that an overseas order has been effected may be given by the production of a document purporting to be a certified copy of any entry made, in accordance with the law of the country concerned, in a public register of adoptions, or of an adoption certificate signed, or purporting to be signed, by an authorised person.278
Section 89 of the 2002 Act provides for the High Court to annul a Convention adoption or Convention adoption order on the ground that the adoption is contrary to public policy.279 In particular, an intercountry adoption which has come about in circumstances in which little or no regard has been paid to the best interests of the child must be viewed with great caution.280 Similarly, the High Court, on application, may provide for an overseas adoption or determination under section 91 of the 2002 Act to cease to be valid on the ground that it is contrary to public policy. An application for a section 89 order must be made within two years of the date on which the adoption (Convention or overseas) to which it relates was made.281 Regulation 34 of the AFE Regulations provides that where a Convention adoption order or a Convention adoption is annulled under section 89, and the Secretary of State receives a copy of the order from the court, it must forward a copy to the Central Authority of the state of origin. The effect of any annulment is that the adoption will cease to have effect in the United Kingdom. Section 89(4) makes clear that except as provided for by section 89, the validity of a Convention adoption or overseas adoption order, or determination under section 91, cannot be called in question in proceedings in any court in England.
The statutory recognition rules considered in relation to Convention adoptions and overseas adoptions are in addition to, and not in substitution for, the common law rules of recognition.282 If an “overseas adoption” is denied recognition under the statutory rules because, for example, it was made under customary law, it may still be possible for the adoption to be recognised or given effect under the common law rules for recognition. Furthermore, although the list of countries whose adoptions have been included under the definition of References(p. 1226) overseas adoptions is extensive, it is not world-wide. In the case of such other countries283 and “overseas adoptions” which, as has just been seen, fall outside the legislative rules, as well as those adoptions which have been effected in Convention countries but which fall outside the scope of application of the Convention, it is necessary to have resort to the common law recognition rules, to which we now turn.
The question of the extent to which, at common law, the English courts will recognise and give effect to an adoption order made abroad is of much less significance in the light of the statutory recognition provisions. It is still, however, of importance as evidenced also by the recent surge in the reported case-law on the topic.284 The leading case on this subject is Re Valentine’s Settlement.285 The facts were these:
A British subject, domiciled in what was then Southern Rhodesia, in 1946 made an English settlement of a fund on trust for her son, Alastair, for life and then to his children. Alastair had married only once and had one child, Simon, by the marriage. He and his wife had adopted two other children—Carol in 1939 and Timothy in 1944. These adoptions took place in South Africa where, at the date of their respective adoptions, Carol and Timothy were domiciled. Under the law of Southern Rhodesia an adoption order could not be made in respect of any child who was not resident and domiciled there: so no Southern Rhodesian adoption order was made. Alastair and his wife were themselves domiciled and resident in Southern Rhodesia at all material times, and Alastair died domiciled there in 1962 without having exercised a power of appointment under the settlement. The trustees issued a summons to determine whether the trust fund devolved on Simon or equally among Simon, Carol and Timothy.
The fundamental question was as to whether the two adopted children were “children” of Alastair within the meaning of the settlement. The Court of Appeal by a majority answered this question in the negative. The whole Court was clearly prepared to countenance the recognition of foreign adoptions in some circumstances.286 Lord Denning MR stated: “But when is the status of adoption duly constituted? Clearly it is so when it is constituted in another country in similar circumstances as we claim for ourselves. Our courts should recognise a jurisdiction which mutatis mutandis they claim for themselves: see Travers v Holley. We claim jurisdiction to make an adoption order when the adopting parents are domiciled in this country and the child is resident here. So also, out of the comity of nations, we should recognise an adoption order made by another country when the adopting parents are domiciled there and the child is resident there.”287 It was held, however, that the South African adoptions could not be recognised in the instant case because the adopting parents were not domiciled in South Africa.288
The test for recognition of a foreign adoption at common law set out in Re Valentine’s Settlement has recently been re-visited and refined by the High Court. In Re T and M (Adoption)289References(p. 1227) Hedley J set out the test for recognition as follows: First, was the adoption order obtained wholly lawfully in the foreign jurisdiction? Second, if it was, did the concept of adoption in that jurisdiction substantially conform to the English concept of adoption? Third, if so, is there any public policy consideration that should mitigate against recognition? Hedley J reaffirmed these criteria in Re R (Recognition of Indian Adoption)290 while stressing the second condition—ie whether the requirements of adoption law in the foreign jurisdiction were sufficiently similar to those in English adoption law, currently to be found in s 49(2) of the Adoption and Children Act 2002.291
In the latter case his Lordship also addressed the jurisdiction requirements for recognition as laid down in Re Valentine’s Settlement.292 He noted that the rationale in Re Valentine was that an adoption order would be recognised only if the conditions that existed in foreign jurisdiction were such that would permit an English court to make an adoption order. His Lordship highlighted the fact that since Re Valentine there had been material changes in English law. Firstly, the Domicile and Matrimonial Proceedings Act 1973293 has abolished the concept of spousal unity of domicile so it is now possible for married partners to have different domiciles. In contrast, when Re Valentine was decided the wife would have had a dependent Southern Rhodesian domicile. Secondly, English domestic law has been changed by the Adoption and Children Act 2002 which does not require both applicants to be domiciled in England; instead, pursuant to section 49(2) of the Act, it suffices if only one of the applicants is domiciled in a part of the British Islands. Alternatively, the qualifying conditions for adoption will be met if both applicants have been habitually resident in a part of the British Islands for a period of not less than one year ending with the date of the application.294 Equivalent conditions of domicile or twelve-month habitual residence must be met by the applicant in case of adoption by one person.295 Hedley J then rightly observed that Re Valentine had to be interpreted in the light of the aforementioned changes. On the facts of Re R (Recognition of Indian Adoption)296 this meant that the requirement of Re Valentine was met even though only the father had been domiciled in the foreign jurisdiction (India). It followed that the court had jurisdiction to recognise the Indian adoption.297 The second limb of s 49 of the 2002 Act (ie habitual residence as the connecting factor) was relied upon298 in Z v Z (Recognition of Brazilian Adoption Order).299 In the instant case, Theis J found that jurisdiction of the English court to recognise a Brazilian adoption order existed on the basis of the sole adopter mother’s habitual residence in Brazil during the twelve months preceding the adoption.300
References(p. 1228) The recent authorities show that, in line with the jurisdictional requirements contained in s 49 of the 2002 Act, it is no longer required that the child be resident in the country where the adoption was effected.301 The confirmation that the legal principles for recognition of foreign adoptions as laid down by the Court of Appeal in Re Valentine should follow the changes in the jurisdictional rules for adoption is plausible; nevertheless, two issues still warrant a brief comment. The first is whether it is right to concentrate exclusively on the domicile of the adopters and ignore the domicile of the child or of the natural parents. The view was expressed obiter by Lord Denning MR302 that it would not have been necessary to show in addition that the children were domiciled in South Africa at the time of the adoptions.303 There is no agreement on the question among foreign legal systems. In some, the personal law of the child governs; in others, the personal law of the adopters is preferred; but in many, the doctrine of cumulation prevails by which the personal law of all three parties must be satisfied.304 Whilst one may argue that the only law to pronounce on status is that of the domicile, the jurisdiction of the English court is based on the domicile or habitual residence of the prospective adopters—that of the child and the biological parents is ignored. It seems reasonable to recognise a foreign jurisdiction exercised in similar circumstances. There is no justification, by analogy with English jurisdictional rules, for looking especially to the domicile of the biological305 rather than the adoptive parents.306 If the domicile or habitual residence of the prospective adopters is accepted as the main jurisdictional criterion for recognition, then it is suggested that, on the analogy of the common law rule for divorce recognition in Armitage v A-G,307 an adoption should be recognised in England as conferring the status of child of the adopted person if recognised in the country (or countries) of the adopters’ domicile or habitual residence, even though actually effected elsewhere.308
Secondly, it is not clear whether the English courts will be prepared to recognise foreign adoptions in wider circumstances such as those where, mutatis mutandis, an English court could not have jurisdiction, but where there was a “real and substantial connection” with the foreign court.309
We have seen that the statutory rules relating to the recognition of overseas adoptions and Convention adoptions provide that such adoptions may be denied recognition on grounds of public policy.310 Public policy is similarly relevant to the recognition of foreign adoptions at common law.311 Adoption law in other countries may be very different from English law, as, References(p. 1229) for example, with the adoption of adults and married persons.312 Whilst great caution should be exercised in denying recognition on public policy grounds,313 the courts have power to do so both in relation to the incidents of the adoption, such as whether the child can succeed to the adoptive parents, and, in an extreme case, to the adoption’s effect on the status of the parties, ie as to whether the parent and child relationship has been created at all.314
If a child is adopted from a country which is neither a Hague Convention country, nor on the United Kingdom list of designated countries in the 2013 Order, and the English court refuses to recognise the foreign adoption at common law, an adoption order will require to be made in England, under the Adoption and Children Act 2002, following the child’s entry to the United Kingdom, ie there must be “re-adoption” in England, dependent upon the prospective adopter satisfying a registered adoption agency that he is eligible and suitable to adopt a child from abroad.
(d) Effect of foreign adoptions
Section 67 of the Adoption and Children Act 2002 provides that, with effect from the date of adoption,315 an adopted person is to be treated in law as if born as the child of the adopter. An adopted person is the legitimate child of the adopter and, if adopted by a couple, or one of a couple under section 51(2), is to be treated as the child of the relationship of the couple in question.316 The effect of the adoption is not determined by the law of the country of adoption.317 If, for example, a child, adopted in New York, claims to succeed to the movable property of an adoptive parent dying domiciled in England, the adoption will be recognised and the child will, under English law as the law governing succession, have the same rights as an English adopted child.318 This rule applies to succession, testate and intestate. It is important, however, to distinguish between the question of recognition and the determination of, for example, the succession rights of an adopted child once his status has been recognised. This latter issue should be determined by the appropriate law to govern matters of succession.319 This means that the provisions of the 2002 Act, giving a child whose foreign adoption is recognised in England the same succession rights as an English adopted child, are relevant only if English law governs the succession. If the law governing the succession is foreign, it will be for that law to decide whether, and if so what, succession rights are given to an adopted child, even though the adoption is recognised in England.
Section 88 of the 2002 Act provides that the operation of section 67 may be modified in relation to Hague Convention adoptions. Where the High Court is satisfied that the conditions in section 88(2) have been met,320 it may direct that section References(p. 1230) 67(3)321 does not apply or does not apply to any extent specified in the direction, ie that the order does not have the effect of “full adoption”.322 The reason for this provision323 stems from the fact that the United Kingdom recognises only “full adoption”, in terms of which all legal ties between the child and his biological parents are severed, whereas some countries have other forms of adoption, known as “simple adoption” or “limited adoption”, whereby not all ties between the child and his/her biological parents are severed. Article 26 of the 1993 Hague Convention provides for recognition of full and simple adoptions, and Article 27 allows a receiving state to convert a simple adoption into a full adoption if its law so permits, and provided the biological parents and relevant parties324 give their consent to a full adoption.
An adoption order made in a United Kingdom court (including, for this purpose, the Channel Islands and the Isle of Man) automatically confers British citizenship on the child if the adopter, or one of the adopters, is a British citizen on the date on which the adoption order is made.325
A final adoption order under the Hague Convention, wherever made, will confer British citizenship on the child if the adopter (or one of them in the event of a joint adoption) is a British citizen and if the adopter was habitually resident in the United Kingdom on the date on which the Convention adoption is effected.326 This ensures, in this respect at least, parity of treatment between Convention adoptions and adoption orders made in the United Kingdom. In Re B (A Minor) (Adoption Order: Nationality)327 the House of Lords held that, in determining an adoption application, the judge was entitled to have regard to all the circumstances of the case, including the views of the Home Office on immigration policy, but that:
In cases in which it appears to the judge that adoption would confer real benefits upon the child during its childhood, it is very unlikely that general considerations of “maintaining an effective and consistent immigration policy” could justify the refusal of an order. The two kinds of consideration are hardly commensurable so as to be capable of being weighed in the balance against each other.328
When a Convention order in consequence of which any person became a British citizen by virtue of section 1(5) of the British Nationality Act 1981 ceases to have effect, whether on References(p. 1231) annulment329 or otherwise, the cesser shall not affect the status of that person as a British citizen.330
Overseas adoptions do not result in the automatic granting of British citizenship to the adopted child. An application for British citizenship must be submitted in respect of the child, and registration as such is at the discretion of the Secretary of State.331
British citizens are not subject to control under United Kingdom immigration legislation, but they must be able to prove their status when seeking admission to the United Kingdom. Except where a child is a British citizen, or is a national of another European Economic Area country, he will require entry clearance under United Kingdom immigration rules before travelling to the United Kingdom.333 Where a prospective adopter is not a British citizen, he must have indefinite leave to remain in the United Kingdom to be able to sponsor an entry clearance application in respect of a child.
4 Eg, regarding citizenship, in respect of which see now the British Nationality Act 1981, ss 1 and 50(9), as substituted by the Nationality, Immigration and Asylum Act 2002, Pt 1, s 9(1); and SI 2015/1615, reg 3. In relation to the previous position, see, eg, R (On the Application of Montana) v Secretary of State for the Home Department  1 FLR 449; and Azad v Entry Clearance Officer (Dhaka)  Imm A R 318.
9 If by the law of the domicile of the innocent “spouse” he is legitimate: Smijth v Smijth (1918) 1 SLR 156. See Crawford (2005) 54 ICLQ 829, 851; and Crawford and Carruthers, para 14-01. See also Family Law (Scotland) Act 2006, ss 21 and 41.
14 Doe and Birtwhistle v Vardill (1835) 2 Cl & Fin 571 at 573, 574; Re Don’s Estate (1857) 4 Drew 194 at 197–8; Re Goodmans’ Trusts (1881) 17 Ch D 266 at 291, 296–7; Re Andros (1883) 24 Ch D 637 at 639; and Re Bischoffsheim  Ch 79 at 92.
20 Ibid, at 311–12. In the New York case of Re Hall (1901) 61 App D 266, a woman obtained a divorce in Dakota that was not regarded as valid in New York. She then married a man domiciled in Dakota and a child was born of the marriage. It was held that the child was legitimate for the purposes of taking under the will of a testator who died domiciled in New York.
24 For the details see ibid, at 260–2.
34  2 FLR 261; revsd on another point by the House of Lords  1 AC 281; and see R v Secretary of State for the Home Department, ex p Brassey  2 FLR 486 at 494; A-G for Victoria v Commonwealth of Australia (1961–1962) 107 CLR 529 at 596; Re Sit Woo-tung  2 HKLR 410.
37 First introduced by the Legitimacy Act 1959, s 2. Special provision is introduced in the Family Law Reform Act 1987, s 27 to deal with the status of a child born to a married couple by artificial insemination, with the semen of a man other than the husband. However, no choice of law rule is laid down, though the provisions are limited to the case of a child born in England. See J v C (Void Marriage: Status of Children)  EWCA Civ 551,  Fam 1.
41 S 1(2) of the 1976 Act, as amended by SI 560/2014, Sch 1, s 15. See Re Barony of Moynihan  1 FLR 113. S 1(2) has been extended to include children conceived by assisted reproduction and born to a same sex female couple who have either entered into a civil partnership or are married. See s 48(6) of the Human Fertilisation and Embryology Act 2008 Act.
45 It is clear, at least, that the validity of a marriage for the purposes of s 1 of the 1976 Act is to be measured by reference only to English law, and not, eg, the law of the place of celebration: Azad v Entry Clearance Officer (Dhaka)  Imm A R 318, per Jacob J, at p –.
52 The vicious circle also disappears under the view in the Restatement 2d, § 287 that a child’s legitimacy may be determined as to one parent only by reference, normally, to the domicile of that parent, so that a child may be legitimate with respect to one parent, but illegitimate with respect to the other.
53 Some cases, arbitrarily, favour application of the law of the mother’s domicile (eg Smijth v Smijth (1918) 1 SLT 156), whereas others favour application of the law of the father’s domicile (eg Re Grove (1888) 40 Ch D 216; Re Don’s Estate (1857) 4 Drew 194 at 198; Re Andros (1883) 24 Ch D 637 at 642; R and McDonell v Leong Ba Chai  1 DLR 401 at 403; Perpetual Executors and Trustees Association of Australia Ltd v Roberts  VR 732 at 756, 575; and Hashmi v Hashmi  Fam 36).
54 Cf the position in Scots law where, by s 22 of the Family Law (Scotland) Act 2006, the domicile of a person under sixteen years of age no longer is tied to the issue of the marital status of his parents. Where the child’s parents are not domiciled in the same country as each other, the child shall be domiciled in the country with which he has for the time being the closest connection (s 22(3)). See also s 21 of the 2006 Act (abolition of status of illegitimacy). For criticism of the s 22 rule, see Crawford and Carruthers, paras 6-05 and 14-02.
57 There seems to be no English authority on the domicile of a posthumous child, but academic opinion favours the view that it is the same as the mother’s: Westlake (7th edn), s 250; Dicey, Morris and Collins, para 6-028.
62 See, for Scotland, the rule in s 41 of the Family Law (Scotland) Act 2006, which states that: “Any question arising as to the effect on a person’s status of—(a) the person’s parents being, or having been, married to each other; or (b) the person’s parents not being, or not having been, married to each other, shall be determined by the law of the country in which the person is domiciled at the time at which the question arises.”
63 On the subject generally see Taintor (1940) 18 Can Bar Rev 589 and 691; F A Mann (1941) 57 LQR 112; Lipstein (1954) Festschrift für Ernst Rabel, Vol I, p 611. For problems connected with legitimation under a foreign statute, see Dicey, Morris and Collins, paras 20R041–20-091.
70 This provision has been extended to cover children conceived by assisted reproduction and born to a same sex female couple who enter into subsequent civil partnership or marriage. S 2A of the Legitimacy Act 1976 (added by the Human Fertilisation and Embryology Act 2008, Sch.6(1) para.16, and amended by SI 2014/560, Sch.1 para.15(4)).
72 This applies even though the father or mother was married to a third person at the time of the child’s birth; cf Legitimacy Act 1926, s 1(2) since repealed, but its effect is preserved by Legitimacy Act 1976, s 11 and Sch 1, para 1(1).
73 This provision has been extended to cover children conceived by assisted reproduction and born to a same sex female couple who enter into subsequent civil partnership or marriage. S 3(2) of the Legitimacy Act 1976 (added by the Human Fertilisation and Embryology Act 2008, Sch 6(1) para 17, and amended by SI 2014/560, Sch 1 para 15(5)).
76 It is important to notice, as F A Mann has shown ((1941) 57 LQR 112, 119), that the Californian method was not adoption, but legitimation by recognition. The unwary might assume from the judgments in the Court of Appeal that it was equivalent to adoption in the English sense. See Adoption and Children Act 2002, s 55, by which an adoption order may be revoked, upon application, in circumstances where a child is legitimated by the marriage of his natural parents to each other, and s 67.
81 For general information see UK Government, Department for Education website: https://www.gov.uk/child-adoption/adopting-a-child-from-overseas, and Department for Education, “A Guide to Intercountry Adoption for UK Residents”, February 2011.
82 “Intercountry adoption should never be considered as the first or only option for a child”: Explanatory Memorandum to the Adoptions with a Foreign Element Regulations 2005 (SI 2005/392), p 14. See also Full Regulatory Impact Assessment for the Adoptions with a Foreign Element Regulations 2005 (SI 2005/392), p 2.
84 See House of Commons Library Research Paper 06/07, 7 February 2006, “Children and Adoption Bill”; and Full Regulatory Impact Assessment for the Adoptions with a Foreign Element Regulations 2005 (SI 2005/392), p 2.
87 See Adoption (Intercountry Aspects) Act 1999, supplemented by the Intercountry Adoption (Hague Convention) Regulations, SI 2003/118; and Adoption and Children Act 2002, supplemented by the Adoptions with a Foreign Element Regulations, SI 2005/392, as amended, and the Adoptions with a Foreign Element (Amendment) Regulations, SI 2009/2563.
94 See also the Family Procedure Rules, SI 2010/2955, Part 14 (In relation to adoption, the 2010 Rules have replaced the Family Procedure (Adoption) Rules, SI 2005/2795). See also Practice Direction 14B.
95 Except provisions regarding the status of children already adopted. The 2002 Act includes some provisions amending the Adoption Act 1976, which enabled certain important elements of the new adoption framework to be implemented in advance of full implementation of the 2002 Act.
96 Ss 1 and 2 (regulations to give effect to the 1993 Hague Convention), 7 (amendments to the British Nationality Act 1981), and Sch 1 (the text of the 1993 Hague Convention) continue in force. The remaining provisions of the 1999 Act have ceased to apply in England and Wales, and instead are incorporated in the 2002 Act.
98 See generally Explanatory Memorandum to the AFE Regulations, paras 14 and 15. See also the Adoption Agencies Regulations, SI 2005/389 and the Adopted Children and Adoption Contact Register Regulations, SI 2005/924.
101 SI 2003/1173; made under the transitional provisions in the 2002 Act (s 56A of the 1976 Act, as amended by the 2002 Act), and applicable to adoptions from non-Hague Convention countries, or from Contracting States that have acceded to the Convention, but in respect of which the United Kingdom has raised an objection.
102 The 2003 Regulations put in place the necessary provisions to give effect in England and Wales to the 1993 Convention. See corresponding legislation in Scotland (SSI 2001/236, 2003/19 and 2003/67) and Northern Ireland (SR 2002/144 and 2006/336), which enabled the United Kingdom to ratify the 1993 Convention. Essentially, the 2003 Regulations required anyone habitually resident in England and wishing to adopt a child living in another country to be assessed and approved as suitable to adopt by a local authority or Voluntary Adoption Agency registered to work on intercountry adoption, regardless of the nature of that person’s relationship to the child or the country from which they wished to adopt.
105 Ie a married couple, civil partners or two people (of different sexes or the same sex) living as partners in an enduring family relationship (but not two people one of whom is the other’s parent, grandparent, sister, brother, aunt or uncle): 2002 Act, s 144(4), as amended by the Civil Partnership Act 2004, s 79.
113 See 1993 Hague Convention, Art 2: “The Convention shall apply where a child habitually resident in one Contracting State (‘the State of origin’) has been, is being, or is to be moved to another Contracting State (‘the receiving State’) either after his or her adoption in the State of origin by spouses or a person habitually resident in the receiving State, or for the purposes of such an adoption in the receiving State or in the State of origin.”
114 Eg, s 47. See generally the 2002 Act, ss 18–65, especially ss 42–45 (preliminaries to adoption). Rules on service, including service out of the jurisdiction, are set out in the Family Procedure Rules 2010, SI 2010/2955, Pt 6.
119 See In re B (S) (An Infant)  Ch 204, per Goff J (in relation to the Adoption Act 1958 which, like the 2002 Act, contained no reference to the child’s domicile): “it is clear that this court has jurisdiction to make an adoption order in respect of an infant domiciled abroad”. Ibid, p 208. The reasoning and conclusion of Goff J was approved and held applicable to the 2002 Act by Munby P and Black LJ in Re N (Children) (Adoption: Jurisdiction)  EWCA Civ 1112, at  and  respectively. (The decision was later appealed to the Supreme Court; however, on different points: Re N (Children) (Adoption: Jurisdiction) (AIRE Centre and others intervening)  UKSC 15. See Chapter 25, supra, pp 1115–16).
125 The question of the parental consent may arise either at the stage of the making of the adoption order, or earlier—i.e. at the stage of an application for a placement order. The relevant jurisdictional provisions are ss 49 and 21 (together with s 22) respectively. (See supra).
126 Re N (Children) (Adoption: Jurisdiction)  EWCA Civ 1112, per Munby P, at  and Black LJ at . For a recent discussion of these issues see Laing  Fam Law 565. See also Dicey, Morris and Collins, paras 20-096−20-097.
144 See in particular s 1(2)—the paramount consideration of the court or adoption agency must be the child’s welfare, throughout his life; s 1(4)—the “welfare checklist” for courts and adoption agencies when determining the best interests of the child in any decision relating to adoption; and s 52(1)(b)—dispensation with parental consent on the ground that the welfare of the child requires the consent to be dispensed with. The paramountcy of the child’s welfare and the welfare checklist apply also to dispensing with consent.
145 Re N (Children) (Adoption: Jurisdiction)  EWCA Civ 1112, at . In order to avoid the possibility of a “limping” adoption order, the English court should follow the guidance set out at para  et seq of Munby P’s judgment. Throughout this process, particular attention should be paid to the child’s national, linguistic, cultural, ethnic and religious background, whilst bearing in mind the requirement to consider “the likely effect on the child throughout her life of having ceased to be a member of her original family.” Ibid, at .
147 In J v C  AC 668, the House of Lords granted custody of a child to foster parents against the desire of the unimpeachable natural parents in Spain. Their Lordships were at pains to indicate they were not considering an application for an adoption order (see at 692, 714, 719), thus suggesting greater weight would be paid to the interests of the natural parents in the case of adoption because of its permanent effect.
155 Recently, as a consequence of the EU enlargement process that culminated in the 2000s, a number of care or placement order proceedings potentially leading to adoption, involving in particular children of Eastern/Central European origin, have been brought before the English courts. These cases tend to arise mainly (but not exclusively) in the context of applications under Article 15 of the Brussels II bis Regulation. See supra, p 1116.
159 See van Loon  VII Hague Recueil 191,  Hague Yearbook of International Law 325–8; Pfund in Borras (ed), E Pluribus Unum (1996) 321–36; Hinchliffe  Fam Law 570; Watkins  CFLQ 389; Cabeza et al, International Adoption (2012); Fenton-Glynn, Children’s Rights in Intercountry Adoption: A European Perspective (2014); and Baker and Groff in Scherpe (ed), European Family Law: Volume I (2016) 163–77.
162 As at March 2017, there are 98 Contracting States to the Convention. See Parra-Aranguren, Explanatory Report on the Convention (1994) (hereinafter “Explanatory Report”); and documents drawn up by the Permanent Bureau of the Hague Conference on Private International Law, regarding the Special Commissions of 2000, 2005, 2010 and 2015 on the practical operation of the 1993 Convention; and the Hague Conference Guides to Good Practice (2008 and 2013) (http://www.hcch.net).
166 The Convention does not define when a child or a prospective adopter shall be deemed to be habitually resident in a Contracting State. For an overview of challenges concerning the interpretation of the concept of habitual residence in the context of the Convention see Permanent Bureau of the Hague Conference, Special Commission of June 2015, Prel Doc No 4, April 2015; and Conclusions and Recommendations adopted by the Special Commission of June 2015, paras –.
167 There was some early criticism of this expression, born of fear that it would cause misunderstandings, especially if interpreted as meaning the “State of the nationality”. The drafters concluded, however, that the specific meaning for the purpose of the Convention was clear. Parra-Aranguren, Explanatory Report, para 73.
168 Art 2. The Convention applies in every case where an application pursuant to Art 14, infra, has been received after the Convention has entered into force in the receiving state and the state of origin: Art 41.
170 Eg Re A (A Child) (Adoption of a Russian Child)  1 FLR 539; Re C (A Child) (Foreign Adoption: Natural Mother’s Consent: Service)  1 FLR 318; Re AMR (Adoption: Procedure)  2 FLR 807—consent of Polish guardian—child’s grandmother.
171 Eg Re N (A Child) (Adoption: Foreign Guardianship)  2 FLR 431—consent of orphanage qua guardian; Re J (A Child) (Adoption: Consent of Foreign Public Authority)  EWHC 766,  2 FLR 618; and Re D (Adoption: Foreign Guardianship)  2 FLR 865—consent of Romanian hospital not required as not guardian appointed in accordance with Children Act 1989.
175 Cf the 1980 Hague Convention on the Civil Aspects of International Child Abduction, supra, p 1134 et seq. Ch III (Arts 6–13) of the 1993 Convention sets out the role and responsibilities of Central Authorities. The Central Authority for England and Wales is the Secretary of State. Chapter III should be read in conjunction with Art 22, which permits, within some limits and under certain conditions, delegation of the functions assigned to the Central Authority by Chapter IV to other public authorities or accredited bodies, or even non-accredited bodies or persons. See Parra-Aranguren, Explanatory Report, paras 194–279, especially para 196.
177 Parra-Aranguren, Explanatory Report, para 289.
178 Ibid, para 294.
181 Art 30 imposes a duty on the competent authorities of a Contracting State to ensure that information held by them concerning the child’s origin, in particular information concerning the identity of his parents, and medical history, is preserved. See Art 30(2) as regards the child’s access to such information.
201 Application for an order for transfer of parental responsibility prior to adoption abroad (infra, p 1220). See Re G (A Child) (Adoption: Placement Outside Jurisdiction)  EWCA Civ 105,  WLR (D) 56, and the sequel to this decision Re G (Adoption: Placement Outside Jurisdiction) (No 2)  EWCA Civ 105 2; and A LBC v Department for Children, Schools and Families  EWCA Civ 41. See also reg 47(2).
211 2002 Act, s 83(1) and (5). The conditions are set out in reg 4 of the AFE Regulations. See Re X (A Child), Northumberland County Council v Z and Others (No 2)  EWHC 1324 (Fam), and Northumberland City Council v Z, Y, X  EWHC 498 (Fam) (illustration of the consequences of illegally bringing a child from a foreign jurisdiction to the UK in connection with adoption). See also Re IH (A Child) (Permission to Apply for Adoption)  EWHC 1235 (Fam) (permission to apply for adoption was refused in respect of a fourteen-year-old boy who had been brought to the UK from Pakistan outside the immigration rules and the rules relating to adoption of a foreign child).
218 Ibid, s 85(4).
220 Hansard, 22 June 2004, cols WS61 and WS62. Concerns have been widely shared by the international community, leading a number of countries to impose suspensions: see R (On the Application of Thomson) v Minister of State for Children  EWHC 1378,  1 FLR 175, per Munby J, at p .
221 Including evidence of systematic falsification of Cambodian official documents relating to the adoption of children, and evidence relating to the procurement of children by facilitators’ use of coercive tactics and financial incentives.
237 2006 Act, s 9(2): where a British resident (a) wishes to bring, or cause another to bring, a child who is not a British resident into the United Kingdom for the purpose of adoption by the British resident and, in connection with the proposed adoption, there have been, or would have to be, proceedings in the other country or dealings with authorities or agencies there, or (b) wishes to bring, or cause another to bring, into the United Kingdom a child adopted by the British resident under an adoption effected, within the period of twelve months ending with the date of bringing in, under the law of the other country. These cases mirror the cases to which s 83 of the Adoption and Children Act 2002 (restriction on bringing children in) applies, subject to the amendment of that section by s 14 of the 2006 Act.
247 SI 2008/1808 (Cambodia); SI 2008/1809 (Guatemala); SI 2010/951 (Nepal); and SI 2010/2265 (Haiti). The first two orders place on a statutory footing the suspension of adoptions from Cambodia and Guatemala, where adoptions had already been suspended under existing common law power. See supra pp 1220–1. See Department for Education, Adoptions: restricted list, June 2010; and Department for Education, Post-legislative assessments of the Education and Inspections Act 2006, Childcare Act 2006 and Children and Adoption Act 2006: Memorandum to the Education Committee of the House of Commons, December 2011.
262 Art 27 provides that where an adoption granted in the state of origin does not have the effect of terminating a pre-existing legal parent-child relationship, it may, in the receiving state be converted into an adoption having such an effect if the law of the receiving state so permits and if relevant consents have been given. See, for England, infra, pp 1229–30 (status conferred by adoption).
280 Though there may be cases where, although the order in question was made without regard to the best interests of the child, it could be seen, with hindsight, that adoption was in fact in the child’s best interests, and that a family relationship sufficient to be recognised as family life had developed: Singh (Pawandeep) v Entry Clearance Officer (New Delhi)  EWCA Civ 1075,  QB 608.
282 Adoption and Children Act 2002, s 66(1)(e). For recent examples of foreign adoption orders recognised under the common law rules see D v D (Foreign Adoption)  EWHC 403 (Fam); Re N (Recognition of Foreign Adoption Order)  1 FLR. 1102;  Fam. Law 12; Re T and M (Adoption)  EWHC 964 (Fam); Re R (Recognition of Indian Adoption)  EWHC 2956 (Fam); Re J (Recognition of Foreign Adoption Order)  EWHC 3353 (Fam); Z v Z (Recognition of Brazilian Adoption Order)  EWHC 747 (Fam); and Re G (Recognition of Brazilian Adoption)  EWHC 2605 (Fam). Cf A County Council v M & Others (No 4) (Foreign Adoption: Refusal of Recognition)  EWHC 1501 (Fam).
287  Ch 831 at 842; and see National Insurance Decision No R(F) 1/65; Perpetual Trustee Co Ltd v Montuori  1 NSWLR 710; R v Secretary of State for the Home Department, ex p Brassey  FCR 423,  2 FLR 486; Patel v Visa Officer, Bombay  Imm AR 297; MF v An Bord Vehtala  ILRM 399.
288 It was further held that, even if the South African adoptions were to be recognised, Carol and Timothy would be treated in English law (the law governing the settlement) as if they had been adopted in England. They would, therefore, be unable to take as the settlement was made before 1 January 1950, and English adopted children by virtue of s 5(2) of the Adoption of Children Act 1926 would have had no rights under it.
291 The test was applied in a number of subsequent cases—eg Re J (Recognition of Foreign Adoption Order)  EWHC 3353 (Fam); Z v Z (Recognition of Brazilian Adoption Order)  EWHC 747 (Fam); and Re G (Recognition of Brazilian Adoption)  EWHC 2605 (Fam). In A County Council v M and Others (No 4) (Foreign Adoption: Refusal of Recognition)  EWHC 1501 (Fam) Jackson J added a further requirement, ie that the adoption is in the best interests of the child. Ibid, at para . This additional condition is, however, not supported by other authority.
300 Ibid, at para . See also Re G (Recognition of Brazilian Adoption)  EWHC 2605 (Fam) where Cobb J found that both limbs of s 49 were met simultaneously as the sole adopter mother had been domiciled and was also, for the twelve months preceding the adoption, habitually resident in Brazil. Ibid, at para .
301 That criterion was relied on in Re Valentine’s Settlement because at that time there was a similar requirement for the jurisdiction of the English courts. In particular, it was required that the adoptive parents be resident and domiciled in England and the child be resident in England. See Adoption Act 1950, ss 1(1) and 2(5).
311 See Re C (A Child) (Foreign Adoption: Natural Mother’s Consent: Service)  1 FLR 318; and A County Council v M & Others (No 4) (Foreign Adoption: Refusal of Recognition)  EWHC 1501 (Fam), at para .
313 The European Court of Human Rights has held that the rules on the recognition of foreign adoptions have to be compliant with the European Convention on Human Rights. See Wagner v Luxembourg  ECHR 76240/01, and Negrepontis-Giannisis v Greece  ECHR 56759/08. See, generally, Fawcett, Ní Shúilleabháin and Shah, Human Rights and Private International Law (2016), paras 14.72–14.87.
320 Namely, under the law of the country in which the adoption was effected, the adoption is not a full adoption; the consents referred to in Art 4(c) and (d) of the 1993 Convention have not been given for a full adoption or the United Kingdom is not the receiving state; and it would be more favourable to the adopted child for a direction to be given under s 88(1).
328 Ibid, per Lord Hoffman, at 141, distinguishing Re K (A Minor) (Adoption Order: Nationality)  Fam 38. Cf D v D (Foreign Adoption)  EWHC 403 (Fam), at para ; Re G (Recognition of Brazilian Adoption)  EWHC 2605 (Fam) at paras –; and ASB and KBS v MQS (Secretary of State for the Home Department Intervening)  EWHC 2491 (Fam). See also SK (India) v Secretary of State for the Home Department  Imm A R 142.
332 See eg MN (India) v Entry Clearance Officer (New Delhi)  EWCA Civ 38 (interrelationship between a refusal of entry to the UK to a child adopted by British residents in India and the child’s rights under Article 8 of the ECHR); D v D (Foreign Adoption)  EWHC 403 (Fam); Re IH (A Child) (Permission to Apply for Adoption)  EWHC 1235 (Fam); and Re G (Recognition of Brazilian Adoption)  EWHC 2605 (Fam).