PD v MD [2008] EWHC 403 (Fam)

[2008] EWHC 403 (Fam)

Case No FD07P02266

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

IN THE MATTER OF THE SUPREME COURT ACT 1981

AND UNDER THE INHERENT JURISDICTION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 03/03/2008

Before

MR. JUSTICE RYDER

Between

P D (Male)Claimant

M D (Female)Defendant

PlaintiffsDefendant

P D (Male)- and -M D (Female) Plaintiffs

Ms. Maggie Jones (instructed by Goodman Ray) for Plaintiffs

Hearing Hearing dates: 3rd March 2008

Judgment

[1]The Applicants, Mr and Mrs D, are the adoptive parents of ND and TD under Indian law, Adoption Orders having been made in respect of ND on 17.10.05 and in respect of TD on 27.4.07 by the Mumbai City Civil Court in India pursuant to The Hindu Adoption and Maintenance Act 1956. The orders are domestic Adoption Orders and are not recognised by the law of England and Wales. Mr and Mrs D seek a declaration under the Common Law for the recognition of these Adoption Orders, in order that the adoptions fall within the definition of "adoption" within section 66(1)(e) and Chapter 4 of the Adoption and Children Act 2002.

[2]Mr and Mrs D are Indian citizens and are domiciled in India. ND and TD are their only children. They have business interests and homes in India, USA and the UK and travel between the three countries. They have plans to expand their UK company, of which they are the sole directors, into Europe using the UK as the base for this. They both have indefinite leave to enter and remain in the UK and the USA. They are planning to live in the UK and to educate both children here. ND is already registered in school. They therefore need their status as the children's legal parents to be recognised in the UK. Having regard to the factual circumstances of this application I have not found it necessary to join the children as respondents or ask for their representation.

Background

[3]Mr and Mrs D were married on 28.7.92. They decided that they wanted to have children in about 1997, but were unable to conceive a child even after going through several medical procedures in India and in Europe. In early 2005 Mr and Mrs D approached the family placement team in the Royal Borough of Kingston upon Thames to enquire about adoption in the UK. They were told that they were unable to make an application as they were not domiciled in the UK nor had they been habitually resident in the UK for the requisite period of time. Hence in the second quarter of 2005 they applied to the Family Service Centre Mumbai for consideration as adoptive parents. The Family Service Centre is a recognised placement agency approved by India's Central Adoption Resource Agency. Both ND and TD were destitute children and had been placed with the Family Service Centre by their birth parents who were unable to care for them. They were placed at four and six days old respectively. They are not related in any way to Mr & Mrs D.

[4]The home study report dated 22.8.05 which was prepared by the Family Service Centre for ND's adoption assessed Mr & Mrs D to be a "loving and compatible couple" and suitable adoptive parents. An adoption order was made on by the Mumbai City Civil Court on 17.10.05. In accordance with the provisions of The Hindu Adoption and Maintenance Act it was Mr D who made the adoption applications for both children, as married women cannot apply to adopt under this Act. There is a certificate dated 17.10.05 which states that it shall be accepted as proof of ND's date of birth for all purposes and that Mr D is the adoptive father and Mrs D is the adoptive mother. Mrs D was required to and did consent to the process and she is recognised as an adoptive parent under the process. A further home study report was prepared prior to TD's adoption. The adoption order in relation to TD was made on 27.4.07, and the certificate in relation to his date of birth and Mr and Mrs D being the adoptive parents is dated 8.5.07. The Municipal Corporation of Greater Mumbai has now also issued normal birth certificates for ND and TD.

[5]Both adoptions required a home study report by a qualified social worker, medical, financial and character references and proof of abandonment or parental consent to the adoptions. The adoption process is rigorous and directed to a "best interest" outcome for the children. There is a requirement that adoptions are monitored after the order has been made. The post adoption report in respect of ND dated 13.4.07 is very positive indeed and the Family Service Centre notes that but for the adoptions, these children would have remained living in an institution. The procedures followed during the adoptions was similar to those followed in UK domestic adoptions. In addition, in domestic adoptions in India under The Hindu Adoption and Maintenance Act three follow up reports are required during the first year after the order has been made.

[6]I take note of the fact that the procedure adopted provides for children who are destitute and abandoned. In such circumstances once the children have been abandoned and not re-claimed by birth parents, the procedure allows for the birth parents' consent to be dispensed with or presumed.

[7]Until 2001 Mr & Mrs D lived in India and the US, and traveled frequently between the two countries in order to manage their companies. They both have residency cards enabling them to live and work in the US. On 27.9.01 Mrs D was granted a five year work permit allowing her to work for the company in the UK, their UK partner having decided to pursue other opportunities. In November 2005 ND was given entry clearance to come to the UK as the dependent child of a work permit holder. In March 2006 Mrs D applied for and was granted indefinite leave to remain in the UK for herself and ND, and Mr D was granted indefinite leave to enter as Mrs D's spouse on 25.10.06.

[8]Following TD's adoption Mr & Mrs D applied for indefinite leave to enter and remain in the UK for him. This was refused, as were two applications for short term visitor's visas for him. The reasons given for refusal included that TD's adoption was not recognised in the UK, that they had entered with ND in breach of the adoption regulations and that they had not disclosed ND's adoptive status. An appeal against this decision and the subsequent confirmation of the decision is pending. During this period Mrs D has remained with the children, whilst Mr D has travelled to the UK, Europe and the USA as and when absolutely necessary for business purposes.

[9]Mr and Mrs D have filed a lengthy affidavit in support of their application and have exhibited the documentation in respect of both adoptions including the home study reports. Although these are not Hague Convention adoptions the procedures followed by the authorities and the court are similar to the procedures in Hague Convention adoptions and in UK domestic adoptions. Mr and Mrs D have also exhibited a report prepared by Professor Werner Menski, Professor of South Asian Laws in respect of Hindu adoptions in India for the purposes of the immigration appeal. As well as discussing the law and emphasizing that Indian law has developed procedures to ensure the safety and protection of adopted children, he gives his opinion that these adoptions are legally valid adoptions under Indian law, and points to the adoptions having taken place through a reputed and nationally recognised adoption agency in Mumbai. Professor Menski is of the view that Indian adoptions under The Hindu Adoption and Maintenance Act 1956 should be recognised in the UK.

The Law

[10]The adoptions of ND and TD are adoptions under Indian domestic law. They are not "intercountry adoptions", as that (in UK terms) is the term used for the adoption of a child resident abroad by adopters habitually resident in the UK. As a result of the proliferation of such adoptions the Hague Convention on Protection of Children and Co-operation in respect of Inter-Country Adoption was concluded at The Hague in May 1993. In broad terms, the Convention, which applies in both the UK and India, aims to provide safeguards to ensure that intercountry adoptions take place in the best interests of the child.

[11]Section 66(1)(c) of the Adoption and Children Act 2002 ("the Act") defines "adoption" as including a "Convention adoption", which means that Convention adoptions are recognised automatically by operation of law and there does not need to be a repeat adoption domestically. Section 66(1)(d) defines "adoption" as including an "overseas adoption", and section 87 allows arrangements to be put in place in England and Wales for the recognition of "overseas adoptions". At the present time, in order to qualify as an "overseas adoption" an adoption has to have been effected in a country specified in the Adoption (Designation of Overseas Adoptions) Order 1973. The designated countries include the USA, all Western European countries and 39 Commonwealth countries, but does not include India, also a Commonwealth country. As with "Convention adoptions", "overseas adoptions" are automatically recognised as adoption orders in England and Wales. Pursuant to section 89 an "overseas adoption" can be impugned by an order of the High Court on the grounds that it is contrary to public policy or that the authority which purported to authorize the adoption was not competent to do so. A "Convention adoption" can be annulled by the High Court on the grounds that it is contrary to public policy. Apart from these provisions, neither a "Convention adoption" nor an "overseas adoption" can be called into question in any proceedings in England and Wales.

[12]Section 66(1)(e) defines "adoption" as including an adoption recognised by the law of England and Wales and effected under the law of any other country. This provides for the recognition of a foreign adoption by common law rules where an adoption order is neither a "Convention adoption" nor an "overseas adoption".

[13]Section 1 of the Act provides that in coming to a decision relating to the adoption of a child the paramount consideration of the court must be the child's welfare throughout his life, and sets out the matters which the court must have regard to.

[14]In Re Valentine's Settlement [2 All ER 226] the Court of Appeal considered the question of recognition of an adoption order made in South Africa. Lord Denning said at page 230:

".. I start with the proposition stated by James LJ in Re Goodman's Trusts [1881-85] All ER Rep1138at 1154: 'The family relation is at the foundation of all society, and it would appear almost an axiom that the family relation, once duly constituted by the law of any civilized country, should be respected and acknowledged by every other member of the great community of nations.' That was a legitimation case, but the like principle applies to adoption. 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 court should recognise a jurisdiction which mutatis mutandis they claim for themselves; see Travers v Holley and Holley [1953] 2 All ER 794 at 800. 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. Apart from international comity, we reach the same result on principle. When a court of any country makes an adoption order for an infant child, it does two things. (i) It destroys the legal relationship theretofore existing between the child and its natural parents, be it legitimate or illegitimate; (ii) it creates the legal relationship of parent and child between the child and its adopting parents, making it their legitimate child. It creates a new status in both, namely the status of parent and child. Now it has long been settled that questions affecting status are determined by the law of the domicil. This new status of parent and child, in order to be recognised everywhere, must be validly created by the law of the domicil of the adopting parent. You do not look at the domicil of the child; for that has no separate domicil of his or her own. The child takes his or hers parents' domicil. You look to the parents' domicil only. If you find that a legitimate relationship of parent and child has been validly created by the law of the parents' domicil at the time the relationship is created, then the status so created should be universally recognised throughout the civilized world, provided always that there is nothing contrary to public policy in so recognizing it."

[15]Dicey, Morris & Collins "The Conflict of Laws" deals with recognition of foreign adoptions at para 20-133:

"If the foreign adoption was designed to promote some immoral or mercenary object, like prostitution or financial gain to the adopter, it is improbable that it would be recognised in England. But, apart from exceptional cases like these, it is submitted that the court should be slow to refuse recognition to a foreign adoption on the grounds of public policy merely because the requirements for adoption in the foreign law differ from those of the English law. Here again the distinction between recognizing the status and giving effect to its results is of vital importance. Public policy may sometimes require that a particular result of a foreign adoption should not be given effect to in England; but public policy should only on the rarest occasions be invoked in order to deny recognition to the status itself."

Expert evidence

[16]Professor Menski notes that Hindu law has developed procedures and safeguards for adoptions which appear to him to be perfectly reasonable and child-centered formal legal provisions, meticulously followed in this case according to the case file he has been shown, and with extensive guarantees and safeguards for the best interests of adopted children in India. (para 14). He cites a major reason for India (and Pakistan and Bangladesh) having been omitted from the list of designated countries as being reservations from Muslims about adoptions (para 21), but stresses that India has an extremely well-developed and now highly formalized law on adoption for Hindus (para 30). He goes on to say: 'There are no indications in the case file that the adoptions either of ND in 2005 or of TD in 2007 were in any form in contravention of the provisions of the relevant Indian statutory law on adoptions among Hindus. They are both fully legally valid and in fact irrevocable adoptions, fully following the required formal legal procedures and thus in my view entitled to legal recognition under the principles of private international law.' (para 55) He cites the leading case of Laxmi Kant Pandey (AIR 1984 SC 469) in which the Indian Supreme Court laid down very detailed normative and procedural safeguards for adoption in India and emphasized strongly that the primary object of giving a child in adoption must be the welfare of the child (para 64). Immigration considerations

[17]Recognition of the adoptions in this case does not effect a change in the citizenship status of the children. (distinguishing Re B (adoption

[18]Recognition of ND's adoption does not confer any immigration advantage to her as she has indefinite leave to remain in line with her parents, granted on the 30th March 2006. ND was granted entry as the dependent child of a work permit holder – her mother; and was granted indefinite leave to remain in line with her mother when the mother qualified for such status on account of her residence in a work permit capacity in the UK. However, at the present time her adoption is not recognised in the UK and no-one has parental responsibility for her in the UK.

[19]Recognition of TD's adoption will confer an immigration advantage as the Immigration Rules require that children seeking to qualify for entry clearance for settlement as the adopted children of British citizens or residents must have been adopted 'in accordance with a decision taken by the competent administrative authority or court in his country of origin or the country in which he is resident, being a country whose adoption orders are recognised by the United Kingdom'. (HC395 para 310(vi) a). Recognition of TD's adoption does not subvert or undermine the immigration rules. The application for recognition is made in order to comply with the immigration rules, to give ND and TD the status of adopted children in the UK, and to give Mr and Mrs D parental responsibility for them. TD must also satisfy additional criteria under the immigration rules (para 310 HC395). The recognition of the adoption does not guarantee TD will be granted entry clearance. The recognition order allows him to satisfy one criterion in the rules dealing with the status of his adoption order.

[20]In refusing entry clearance for settlement to TD, the Entry Clearance Officer has asserted that ND entered the UK in breach of the Adoption with a Foreign Element Regulations, that the applicant parents did not disclose that ND was their adopted child when securing her entry and that these breaches justify a decision declining to exercise discretion 'outside the rules' and pursuant to Article 8 of the Human Rights Convention to allow entry to TD. These assertions by the entry clearance officer are disputed by the applicants and will be adjudicated in TD's immigration appeal, set for hearing before the Asylum and Immigration Tribunal on 25 March 2008.

[21]Insofar as the above matters have some relevance in these proceedings, the applicant parents state that full disclosure of ND's adopted status was provided to the entry clearance officers via Mishcon de Reya solicitors who undertook to arrange the family immigration matters.

[22]Further it is not entirely clear that the Adoption with a Foreign Element Regulations had application to ND's entry in November 2005. The regulations were applicable if both parents were habitually resident in the UK at the time of ND's entry. Mr D's business meant that he was continually travelling between the US, India and the UK. Mrs D was residing in the UK but at that time with temporary immigration status and had no 'settled purpose' with respect to her residence. (applying Akbarali v Brent LBC …. R v Barnet LBC ex p Nilish Shah

[1983] 2 AC 309

HL). If the applicants were not habitually resident, there was no breach of the AFE regulations. If Mrs D was habitually resident and ND was brought to the UK in breach of the AFE regulations (she had been adopted only one month prior to her first entry to the UK) such breach was inadvertent and innocent. The applicants were not alerted to the AFE regulations by their solicitors and there was no immigration notice, guidance or information concerning adopted children or the AFE regulations for persons and their family members seeking entry under the work permit scheme. Such immigration guidance is available only if the adopted children are seeking entry for settlement or for the purposes of adoption in the UK.

Submissions

[23]Mr and Mrs D applied to adopt in India because they were not eligible to adopt in the UK. It is clear that the process in respect of both the adoptions has been rigorous and directed towards the best interests of ND and TD. These are full adoptions, all links with the birth parents have been severed and the adoptions are irrevocable.

[24]It is in the best interests of ND and TD that they should remain in the care of Mr and Mrs D, that they should be recognised as the adopted children of Mr and Mrs D in this jurisdiction, and that the family should be able to be together in the UK. The post adoption report in respect of ND indicates that she is flourishing, and it appears that TD is also flourishing. Mr and Mrs D have business interests in India, the UK and the USA and have travelled widely for business purposes. They now wish to settle in UK, where they have a home as well as substantial business interests, and want to educate the children in the UK. They are asking for recognition of the adoptions in order that there is full and formal recognition of their parental responsibilities for ND and TD and to ensure that TD can comply with the immigration rules for adopted children.

[25]Mr and Mrs D have followed all procedures, both in terms of the adoption and immigration procedures, to the best of their ability. They have done everything in their power to protect and safeguard the best interests of the children. It must now be in the best interests of the children for Mr and Mrs D to have parental responsibility for them and for them to be legally recognised in this country as Mr and Mrs D's adopted children.

[26]There are no public policy considerations which override the best interests of the children or the principle that the court in this country should recognise adoption orders properly made in India under The Hindu Adoption and Maintenance Act.

[27]Mr & Mrs D, ND and TD have an established family life. By recognizing these adoptions, the court is safeguarding the Article 8 rights of ND and TD, as well as those of Mr and Mrs D.

[28]Accordingly, I shall make a declaration that the adoption orders made in respect of ND and TD by the Mumbai City Civil Court in India on the 17.10.05 and the 24.4.07 respectively are recognized as adoptions in England and Wales within the meaning of section 66(1)(e) and Chapter 4 of the Adoption & Children Act 2002.

order

nationality)

[1999] 2 AC 136

, HL). The children do not acquire British citizenship from the adoption as the applicant parents are not British citizens. [British Nationality Act 1981 s1(5, 5A)]