Z & Z, Re [2013] EWHC 747 (Fam)

Case No FD12P002144[2013] EWHC 747 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of JusticeDate Tuesday, 22 nd January 2013
Before
MRS. JUSTICE THEIS(In Private)
B E T W E E N:
Between
ZFirst ApplicantZSecond Applicant
Transcribed by BEVERLEY F. NUNNERY & COOfficial Shorthand Writers and Tape TranscribersQuality House, Quality Court, Chancery Lane, London WC2A 1HPTel: 020 7831 5627 Fax: 020 7831 7737info@beverleynnnery.com
MISS K. CRONIN appeared for Applicants.MRS. P. LOGAN (instructed by CAFCASS Legal) appeared for Guardian.
J U D G M E N T

Introduction

[1]This is a short ex tempore judgment in this case where I am considering two applications.[2]First an application for the recognition of Mrs Z’s Brazilian adoption relating to two children - A, born on 17th October, 2003, and B, born on 24th June, 2006. They were adopted by her on 25th March, 2008. She has applied under the inherent jurisdiction to this court, seeking a declaration for recognition of the Brazilian adoption orders which were made in the District Court of P on 25th March, 2008 in respect of her adopted children, A and B. The jurisdiction for that application is founded in s.57 of the Family Law Act 1986, which I shall come to in a moment.[3]The second application, if that declaration is made, is an application for an adoption order by Mr. Z. But, obviously that is dependent on the outcome in relation to the first application.[4]I am enormously grateful for the very high standard of representation in this application, both by Ms Cronin and Ms Logan. Their detailed written submissions have set out the relevant considerations and factors which the court has to take into account. Because of my wish to give an ex tempore judgment so that there is finality for Mr. and Mrs. Z - and, more particularly, for A and B - in relation to this matter Ms Cronin, in particular, will recognise a considerable amount of her position statement in this judgment, for which I am very grateful.[5]As I have indicated, Mrs. Z's recognition application to this court is dated 13th September, 2012. The application is necessary because the Brazilian adoption order is not an overseas adoption order as specified in the Adoption Designation of Overseas Adoptions Order 1973, Regulation 3. Therefore, Mrs. Z's adoption is not an adoption as defined in s.66 of the Adoption & Children Act 2002 (ACA 2002). A Brazilian adoption would be such an adoption as defined in s.66 if this court were to recognise the adoption. That is pursuant to s.66 (e) ACA 2002. Obviously such a declaration would recognise Mrs. Z as the children's parents in English law.[6]Just by way of background, on 21st November, 2012 Mr. Z notified a County Council in relation to his intention to adopt the children. On 3rd January of this year he applied to adopt the children. If Mrs. Z is recognised as the children's parent she can give her consent to Mr. Z’s adoption of the children. As Mr. Z is a British citizen, on the making of such an order the children will become British citizens.[7]The County Council is a respondent to the adoption proceedings. The social worker, who is in court, has provided detailed reports which I will obviously come to consider if I deal with the second application.[8]On 2nd October, 2012 the court informed the Secretary of State for the Home Department of these proceedings. There has been no positive response, one way or the other, to that notification.[9]Finally, in relation to the legal framework, by order of this court when the matter first came before me on 20th September, the children had been living with Mr. and Mrs. Z in the United Kingdom subject to an interim residence order.

Background

[10]I am now, just briefly, going to set out the relevant background facts before I go on to consider the position in relation to s.57. Mrs. Z is a Brazilian citizen who has retained her Brazilian domicile. Mr. Z is a British citizen born and domiciled in England. Mrs. Z moved to the United Kingdom in 1995 and acquired permanent resident status on 9th April, 2002, following her marriage in September 2001 to Mr. Z. At all times following their marriage the applicants' principal family home was in England. I have been informed that that has been their home since about the end of 1998. They also had an apartment in Rio de Janeiro, which served as a Brazilian holiday home during the early years of their marriage and, from May 2007, as a secondary home. Following the Brazilian placement and adoption of the children Mrs. Z resided there with the children.[11]Soon after their marriage, unfortunately Mrs. Z was diagnosed with breast cancer. Her treatment left her infertile. In consideration of what steps they would take to be able to have children the applicants agreed to adopt a child. As Mrs. Z wished to share the same cultural ties with their child, they made inquiries in relation to adopting in Brazil. The position there is that you can make applications to adopt in different Brazilian states and you are approved as adopters by that particular state. On 29th January, 2007 the P District Court issued its certification that Mrs. Z was qualified to adopt a child in that state's jurisdiction.[12]A and B are half-siblings with the same mother, but different fathers. The relevant judgment records that the identity of A's father is unknown and that at the time of the adoption proceedings B's birth father had died. They were placed in care in May 2007, as a result of the high level of concerns in relation to the birth mother's care for them. The papers paint a graphic description in relation to their plight. They were placed in an orphanage at about that time. Soon thereafter, as a result of Mrs. Z's approval as an adopter, they were placed with her. That was on 21st June, 2007. At the time of their placement with Mrs. Z their birth mother's family rights were suspended owing to her neglect of the children. The District Court formally placed the children with Mrs. Z under a provisional custody order. At that time A was then aged four and a half and B was one. The parents have been living effectively as a family since that date although, for various different reasons, they have had to live between two jurisdictions - between Brazil and this country.[13]The Brazilian adoption was undertaken with the same careful, thorough, and best interests assessment as in a UK adoption. There was a home study report, termed a "psychological report", which went into some considerable detail. In Brazil they require the children to have lived with the adoptive parent for up to twelve months before an adoption order can be made. The Brazilian adoption is a full adoption as here, extinguishing the parental responsibility and rights of the children's birth parents and irrevocably transferring the same to Mrs. Z. The P District Court's judgment records that on the adoption of the children "irrevocably and definitely become the adopter's legitimate children" and that the children's best interests "must be above any other interest when their destinies are being discussed".[14]The Brazilian lawyer, who represented the family in the adoption rectification proceedings, confirms the validity of the adoption order and the irrevocable transfer of parental rights affected by the Brazilian adoption.[15]Mrs. Z was the sole applicant in the Brazilian proceedings and is the sole parent of A and B. The Brazilian adoption order, dated 25th March, 2008, originally showed Mr. and Mrs. Z to be the children's adoptive parents and the children's immediate post-adoption birth certificates, dated 19th June, 2008, showed both parents and grandparents. But, by further order made in May 2011 Mr. Z's name was deleted from the adoption order and the children's adoption birth certificates were re-issued just showing Mrs. Z as their sole parent. It is understood this rectification was to comply with Brazilian law under which Mr. Z, as a foreign national, was ineligible to adopt the children. The rectification judgment appears to recognise that the rectification was necessary to enable the order to be recognised in this country and to comply with the Hague Convention.[16]From the time they commenced the adoption process the applicants have made clear that their intention was to bring their adoptive children back to this country and to resume their family life in the family home they have here, which they have owned for a number of years. However, that was not to be for reasons which were, in effect, beyond their control.[17]Soon after their adoption order they applied for A and B to be granted indefinite leave to enter this jurisdiction as their adoptive children. But, their entry clearance was refused. They lodged an appeal, but on advice chose not to pursue that appeal. The entry clearance officer accepted that the children were genuinely adopted. But, it was refused because the immigration rules require either that the adoption is recognised in the United Kingdom or that it is a de facto adoption as defined in the rules; that is, that the adoptive parent, or parents, have assumed parental responsibility for the child applicants and have lived abroad with the children for eighteen months prior to the child's entry to the United Kingdom. The entry clearance officer noted that Mr. Z had not lived in Brazil with the children for the required eighteen month term. They were placed in an impossible situation in trying to regularise their family life in the way they had intended. By following all the appropriate procedures they were then faced with a hurdle which, at that stage, appeared difficult to overcome.[18]Faced with that position they maintained two homes. Mr. Z has, at all times, shared the care and parenting of the children but he could not live full-time in Brazil because his business - which was the family's main financial support - required his presence in the United Kingdom to be able to run that business. Mr. Z visited Brazil three or four times a year, and maintained regular contact, including daily Skype sessions with the children, internet and telephone contact. At all times he has fully maintained the family, both financially and otherwise. As Miss Cronin sets out in her position statement, this family separation has not been by choice, but by necessity. I agree on the evidence I have seen. It is clear from the papers I have seen that separation has been very difficult for all the parties and, to some extent, detrimental to the children. But, Mr. and Mrs. Z have done all they can to be able to maintain the normality and their relationships in the difficult situation they found themselves in. That is perhaps most vividly seen - as Mrs. Z recalls - when they were advised about the current application and that children could apply for settled status in the United Kingdom after they had arrived in June of last year. She recalls she "felt almost faint with relief"; which perhaps is an understatement in the context of the difficulties which they have had to face since 2008.[19]On 25th June, 2012 the children came to the United Kingdom lawfully as visitors. On about 21st September, 2012 they lodged applications for indefinite leave to remain as Mrs. Z's de facto adopted children. The United Kingdom Border Agency has not made a decision yet on these applications.[20]The reports that I have seen from not only the independent social worker, but also the children's guardian, are glowing in their praise of the parents' commitment of the children; of the loving relationship that exists between the children and Mr. and Mrs. Z; and the efforts, despite their difficult situation, to be able to maintain relationships and maintain family life. In the professionals' opinions it is only adoption that will provide the long-term legal security that these children need and the family wish there to be to ensure that they are kept together.[21]It is against that background that the court is being asked to consider this application.

The Law

[22]The jurisdictional foundation for a recognition application is Section 57 of the Family Law Act 1986, which provides declarations as to adoptions effected overseas. The relevant part is at s.57(3): "A court shall have jurisdiction to entertain an application for such a declaration in sub-section (1) if and only if the applicant is domiciled in England and Wales on the date of the application or [and this is the relevant part] has been habitually resident in England and Wales throughout the period of one year ending with that date".[23]It is submitted by Ms Cronin that the domestic law definition of that habitual residence falls to be applied in this case, although she does note that had the autonomous community meaning been in issue the evidence shows that Mrs. Z's position, she submits, would have met the required test.[24]English domestic law recognises that persons can be habitually resident in two different countries at the same time. The definition of habitual or ordinary residence has received a considerable amount, and continues to receive a considerable amount, of judicial attention. In the House of Lords in Barnet, London Borough Council (ex parte Shah) [1983] 2 AC, 309, Lord Scarman said "In their natural and ordinary meaning the words 'ordinarily resident' means that the person must be habitually and normally resident here apart from temporary or occasional absences of long or short duration. The significance of the adverb 'habitual" is that it recalls two necessary features, namely, residence adopted voluntarily and for settled purposes. A person can be habitually resident when in the UK simply for short periods of time - education, family visits. But the essential requirement is for residence with a settled purpose, and that may be long or short". Lord Scarman emphasised the importance that the residence was adopted voluntarily. Mrs. Z's situation in Brazil did not have the character, as described by Lord Scarman in the Ex parte Shah case, of enforced presence by reason of kidnapping or imprisonment, or a Robinson Crusoe existence on a desert island with no opportunity of escape, which he held:
"..may be so overwhelming a factor as to negative the will to be where one is. However, the significance of that as to the importance placed on the mind of the propositus in determining ordinary residence"
. In this case Mrs. Z wanted only to return to the United Kingdom and did not want to continue living as a sole parent in Brazil.[25]I have been referred to the case of Ikimi v. Ikimi [2001] EWCA (Civ) 873 which was a case concerning jurisdiction in the matrimonial context. The question was whether the applicant had been habitually resident in the twelve months preceding the divorce application. In that case Thorpe LJ concluded that there was just sufficient foundation for jurisdiction where Mrs. Ikimi had spent less than half of the necessary twelve months in the United Kingdom (I think it was about 44 percent in that case). She had moved between her home in this country and the home in Nigeria. I do not propose to set out in detail various passages which I have been referred to in that case. For the purposes of this judgment I would read in, in particular, para. 35 of the judgment of Thorpe LJ where he determined that the test which was applied by Coleridge J at first instance - that habitual residence is a state of affairs which exists regardless of the precise time spent in the particular country - has been too relaxed. He said it was important that there is an ingredient of bodily presence. However, he did say: "As a matter of policy I, like Coleridge J, would favour a liberal rather than a restrictive outcome. Of course the consequence of liberality may be forum-shopping. But that feature, particularly undesirable in matrimonial proceedings, can be controlled by the power to stay ... The danger of stated tests is that they are soon exposed by the arrival of a challenge in the form of a set of facts unforeseen by the architect of the test. No field is more vulnerable to such challenges than the field of family law. But I would find it hard to envisage that any petitioner could rely on this statutory provision unless he or she had spent an appreciable part of the relevant year within this jurisdiction".[26]I note the sections of Ikimi at paras. 15 to 31 which deal with the development of habitual residence and, in particular, the observations made in para. 24 in the quote from Oundjian, a case in 1980, where it sets out the purpose of the statutory provision of habitual residence in this context. "I remind myself that the underlying purpose of the statutory provision is to ensure a proper and sufficient connection between a propositus and this country to warrant the courts of this country assuming matrimonial jurisdiction."[27]So, even in the context of this case, one has to bear in mind those considerations and to look at the wider picture.[28]The question of habitual residence is very fact sensitive. So, it is for the court, on a case-by-case basis, to consider whether the facts of that case satisfy the test that Mrs. Z has been habitually resident in this jurisdiction.

Decision

[29]Having considered all the written submissions I have reached the conclusion on the facts of this case that Mrs. Z has established that she has been habitually resident in England and Wales throughout the period of one year prior to the date of her application for the declaration dated 13th September, 2012. In doing so I appreciate the facts of this case are probably somewhere near the outer limit in relation to that, particularly in relation to the aspect of physical presence. But, when I stand back and look at the circumstances of this case as I am entitled to when looking at the position in relation to habitual residence, I am supported by other considerations in reaching my conclusion.[30]My reasons for reaching that conclusion can be summarised as follows: Firstly, whilst in Ikimi it was said that the wife's 44 percent residence just satisfied the test that has to be looked at, in my judgment, in the circumstances of that case where here movements were wholly voluntary. She had the freedom to move between the two homes and had decided to make her London home the more important of the two homes. In this case Mrs. Z was not choosing her home to be in Rio, but was, in effect, stranded there as she understood her children could not be permitted entry to the United Kingdom for settlement as had been intended. Her intention, following the adoption in Brazil in 2008, had been to resume living in the family home with her husband and children. That has remained her position. She has in fact only spent just under 25 percent of her time physically here in the relevant period namely, from September 2011 to September 2012. I am told that she came here with the children for a period of about nine to ten days in March 2012 and was here from 25th June 2012 to 13th September 2012, which was obviously when she issued her application. Prior to that, she had visited this jurisdiction with the children on two or three times a year for holiday periods. So, even though her percentage physical time is considerably less than in Ikimi, the significant difference in this case is the fact that she did not have the voluntary freedom of movement that Mrs. Ikimi had to be able to move between the two homes.[31]Secondly, the evidence demonstrates the family home was established a considerable period of time prior to Mrs. Z being in Rio. I am told that it was purchased in about 1998 and the parties have lived there through the majority of their marriage. It was, and remained, their principal and chosen family home during the relevant period. Mr. Z remained here. He ran the business here which financed the family. It remained, in my judgment, the focus of their family life.[32]Thirdly, whilst it has to be recognised that there were periods of time when Mrs. Z was not present in the jurisdiction, on one analysis of Ex parte Shah it allows habitual residence to continue when the person is absent abroad. As Lord Scarman said, "Temporary or occasional absences of long or short duration". In considering the context of the absences in this case, although long, they were of an involuntary nature. I am also inclined to take into account the daily contact that was maintained between the family through the internet, telephone and Skype contact. Despite being separated, that contact helped maintain Mrs. Z's connection with the residence here. Obviously this consideration must be considered on a fact-specific basis. But, in this case it was a significant part of the continued connection and residence here. In this case it supports Mrs. Z's contention that despite her physical absence during the relevant period, the family home here remained the focus.[33]Fourthly, Mrs. Z resumed her United Kingdom residence as soon as she was assured it was lawful for the children to do so. She had indefinite leave to remain but did not want to be, understandably, separated from her children. I accept that her recognition application was made relatively promptly. It would have been open to her to wait further time to enhance the quantum of time her physical presence had been in this jurisdiction. But, she was anxious, to her credit, that the immigration authorities were aware of the application as soon as they had received that advice that such an application could be made sooner rather than later, as the children had come here on a visitor's visa which carries with it the clear implication that they were coming for a short-term period only.[34]Fifthly, there is no evidence to support any suggestion that Mrs. Z is forum-shopping. This is the appropriate and only jurisdiction capable of resolving legal status issues for the applicants and the children.[35]Finally, there is no evidence that I can see of bad faith on any level by this family. They have sought to comply with all procedures that are necessary when faced with an extremely difficult and challenging legal situation.[36]Therefore, following that analysis I conclude that the court does have jurisdiction to deal with the recognition application under s.57 of the Family Law Act 1986 as Mrs. Z was habitually resident here for the twelve months prior to the application being made.[37]Turning if I may, shortly, now to the substance of the application, the criteria for recognition of an external adoption such as in this case are summarised by Hedley J in characteristically coherent form in both Re R and Re T & M, respectively reported at [2012] EWHC 2956 and [2010] EWHC 964. There are three considerations:
"i) Was the adoption order obtained wholly lawfully in the foreign jurisdiction? ii) If, so, did the concept of adoption in that foreign jurisdiction substantially conform to the English concept and replicate or fulfil the status conditions required by our domestic adoption law? And iii) If so, was there any public policy consideration that should mitigate against recognition?"
[38]It is submitted by Ms Cronin that Mrs. Z's adoption satisfies these criteria. Firstly, consistent with the status conditions required in s.49(2) of the ACA 2002 Mrs. Z is domiciled and was habitually resident in Brazil during the twelve months preceding the adoption when the children were placed in her interim custody. Mrs. Z, as I have said, is Brazilian-born. She has retained her Brazilian nationality. The importance of her attachment to Brazilian personal law is clear. They were married in Brazil and Mrs. Z has explained that she wanted to adopt Brazilian children so that she could have a cultural link with them. She has maintained a property in Brazil and Mr. Z has cemented their future ties there through his Brazilian import business. The applicants intend to maintain strong future links to Brazil so that their children retain their Brazilian culture and heritage. Mrs. Z clearly had a domicile of origin in Brazil. That has been described as being "tenacious". The court would need powerful evidence to indicate that that has been given up. There is no evidence in this case that suggests that that had been given up by Mrs. Z.[39]Secondly, the adoption in Brazil was obtained lawfully and is valid. That is demonstrated very clearly from the documents which I have seen and has been confirmed by all the investigations which have been carried out.[40]Thirdly, as is clear from the judgment in the Brazilian adoption proceedings and the report from the Brazilian lawyer, the adoption gave paramount consideration to the children's best interests. It severed the birth mother's parental rights and responsibilities and transferred those rights and responsibilities irrevocably to Mrs. Z. So that accords with the English concept of adoption.[41]Fourthly, the Brazilian adoption process is protective of the children's welfare and is very similar to the domestic adoption arrangements here. There is an extensive vetting procedure which has been gone through. There are comprehensive home study reports and provision for seeking, or dispensing with, parental consent where the welfare of the children demands that.[42]Finally, as I have indicated, there are no public policy reasons against recognition. This family have been subjected to considerable investigation by professionals not only in Brazil, but also in this country. They are all glowing in their praise in relation to Mr. and Mrs. Z. All recommend that the resolution of the children's legal status is important for their wellbeing and security, and for the family to be reunited. I have seen nothing in what I have read and seen in the detailed documents before me to suggest that there is any public policy consideration against this recognition.[43]For those very brief reasons, and having determined that the court has jurisdiction, I shall make the declaration as is sought and will recognise the Brazilian adoption orders in relation to both A and B which will mean that they are capable of coming within s.66 (e) ACA 2002. That is the gateway in relation to the second application concerning Mr. Z's adoption.

Cited in 4 later judgments