QS v RS & Anor [2016] EWHC 2470 (Fam)

This judgment was delivered in private. The Judge has given permission for this anonymised version of the judgment (and any of the facts and matters contained in it) to be published on condition always that the names and the addresses of the parties and the children must not be published. For the avoidance of doubt, the strict prohibition on publishing the names and addresses of the parties and the children will continue to apply where that information has been obtained by using the contents of this judgment to discover information already in the public domain. All persons, including representatives of the media, must ensure that these conditions are strictly complied with. Failure to do so will be a contempt of court.Case No FD12P01423[2016] EWHC 2470 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 10/10/2016
Before
THE HONOURABLE MR JUSTICE MACDONALD
Between
QSApplicantRSFirst RespondentTSecond Respondent(No 3)
Mr Alistair G. Perkins (instructed by Dawson Cornwell) for ApplicantMr Andrew Bagchi QC (instructed by Lightfoot O'Brien Westcott) for First RespondentMr Jeremy Ford (of CAFCASS Legal) for Second RespondentHearing Hearing dates: 6, 7, 8, 25 and 26 July 2016
JudgmentMr Justice MacDonald:INTRODUCTION
[1]In this matter I am once again concerned with T, a young girl whose date of birth is uncertain but is now believed to be approximately 12 years old. T is a British citizen habitually resident in Dubai. I have delivered two previous judgments in this matter, namely QS v RS (No 1) [2015] EWHC 4050 (Fam) and QS v RS (No 2)(Application to Terminate Appointment of Guardian) [2016] EWHC 1443 (Fam).[2]T was adopted in Nepal in 2008 by QS (hereafter the mother) and RS (hereafter the father). Both the mother and the father are British citizens.The mother is habitually resident and domiciled in the United Kingdom. Whilst he resides in the UAE the father is domiciled in the United Kingdom.In QS v RS (No 2)(Application to Terminate Appointment of Guardian) [2016] EWHC 1443 (Fam) I dismissed an application by the mother to terminate the appointment of the current Children’s Guardian. Accordingly, T’s interests within these proceedings continue to be represented by her Children’s Guardian, Mr Power. T is a British citizen.[3]In QS v RS (No 1) [2015] EWHC 4050 (Fam) I determined that the High Court of England and Wales could exercise its inherent jurisdiction in proceedings concerning the welfare arrangements for T on the basis of her nationality, notwithstanding ongoing proceedings in Dubai, in circumstances where the English court appeared, on the information then available, to be the only court that might remedy the fact that the Nepalese adoption is not automatically recognised under English law.[4]The matter now comes before me for final hearing for the determination of two issues: i) Whether the court can and should recognise T’s foreign adoption at common law and make a declaration regarding her status as the adopted child of the parents pursuant to s 57 of the Family Law Act 1986. This question is considerably complicated by the fact that it transpires that, at the time that they adopted T in Nepal, the parents did not fulfil the requirements of the rule as to domicile laid down by the Court of Appeal in Re Valentine’s Settlement [1965] Ch 831. ii) With which of her parents T should live and what the arrangements should be for her to spend time with her non-resident parent.[5]In circumstances where this case raised issues of public policy, I directed that the Attorney General be given notice of these proceedings and invited him to consider whether he wished to intervene. Having considered certain documents from the proceedings, the judgment of this court dated 15 October 2015 and the expert report on Nepalese law, on 25 May 2016 the Attorney General indicated that he does not consider that there is any public policy ground or other reason for him to intervene in the proceedings. The Attorney General seeks a copy of the final order made in these proceedings.

THE BACKGROUND

[6]The background to this matter is in part contentious. Regrettably, the parents have now been engaged in one form of litigation or another since 2009. Within that context, I made clear to both parties at the outset of these proceedings that in determining the issues before the court I would not be assisted by a detailed forensic exploration of each and every allegation and counter-allegation levelled by the parents over the course of the past 8 years. It is within this context that I begin by examining the background that leads up to the present situation.[7]It has been possible to further refine the details of T’s early life from documentation that has become available since I gave my first judgment in this matter on 15 October 2015. By the Nepalese Bikram Samvat calendar, on 20 August 2062 T was found abandoned in a temple in Chitwan in the Federal Democratic Republic of Nepal (although I note that other documentation seen by the expert appears to suggest that T was discovered near a bridge in Kathmandu).[8]Whilst the record of T’s discovery provided by the first orphanage to which she was taken converts the Bikram Samvat calendar date of 20 August 2062 to 13 August 2005 AD, the expert in Nepalese law makes clear that the correct conversion is in fact to 6 December 2006 AD. It would appear however that the date in the documentary record of T’s discovery provided by the first orphanage is in any event incorrect. Subsequent Police documents examined by the expert suggest that the date of T’s discovery was 13 July 2006 and that she arrived at the first orphanage on 15 July 2006 before being transferred to an orphanage in Kathmandu on 16 July 2006. In the circumstances, the miscalculated AD date given in the records of the first orphanage of 13 August 2005 appears to predate the date given by the Police for T’s discovery by nearly 12 months, and the correctly calculated AD date of 6 December 2006 post-dates the date of discovery given by the Police by nearly six months. Notwithstanding these discrepancies, thereafter T’s date of birth was consistently recorded in the Nepalese documentation as 13 August 2005.[9]The Police documents examined by the expert indicate that on 16 July 2006 the relevant Ward Police Office in Kathmandu instigated a search for the birth parents or relatives of T by writing to the central Police Office in Kathmandu reporting the discovery of T. A further letter was issued by the Police on 18 July 2006 providing details of T and her discovery. A public notice was issued and placed in the National Daily Vernacular newspaper with a picture of T giving 21 days to a parent or concerned relative to claim T and register her birth. It would appear that Police investigations continued until at least October 2006. There is no evidence that a parent or relative came forward. On 7 December 2006 T was certified by the District Administration Office in Kathmandu as being an orphan.[10]Subsequent to T's move to an orphanage in Kathmandu, the mother and the father were introduced to T. Thereafter there followed an adoption of T by the mother and father under Nepalese law in 2008. It is important to note that on the evidence available to the court it is clear that neither parent was domiciled or habitually resident in Nepal at the time they adopted T in that jurisdiction in 2008. Neither parent seeks to dispute this conclusion in respect of domicile or habitual residence.[11]I have before me in the bundle prepared for this hearing the documents relating to T’s adoption in Nepal. That documentation indicates that that adoption took place on 28 July 2008 and was completed under the law of the Federal Democratic Republic of Nepal. As I have noted, prior to the adoption the evidence demonstrates that an extensive search was carried out in an attempt to locate members of T’s birth family. The documents concerning T’s adoption comprise the following: i) A birth certificate for T dated 15 October 2005 (29 June 2063 by the Nepalese Bikram Samvat calendar) recording her birth date as 13 August 2005 (expressed as 20 August 2062 by the Nepalese Bikram Samvat calendar but as set out above in fact, properly converted, 6 December 2006); ii) An ‘Adoption Guarantee Letter’ dated 5 December 2006 signed by the mother and father detailing the outcome of their assessment by the competent authority in Dubai and confirmation that British Citizenship would be conferred on T on the basis of the Home Secretary’s discretion. This letter is also signed by Her Majesty’s Consul at the British Embassy in Kathmandu; iii) Papers from the Ministry of Women, Children and Social Welfare comprising an authorisation from the Government of Nepal to T’s adoption dated 28 July 2008 (16 November 2064 by the Nepalese Bikram Samvat calendar), a form for adoption, a Letter of Permission for adoption, a form requesting adoption of Nepalese boy or girl and a form of consent to adoption, each pursuant to Number 12A of the Chapter on Adoption in the of the 1963 Country Code (Muluki Ain).[12]As I observed in the course of my first judgment in this matter, the evidence then before the court gave no reason to believe that under the law of Nepal the adoption of T by the mother and the father was anything other than properly constituted. That provisional view has now been confirmed by expert evidence on Nepalese law by reference to the documents concerning T’s adoption, which report evidence I deal with in detail below.[13]As I also observed during the course of my first judgment, it appeared on the evidence then available that T's adoption in Nepal had not been the subject of recognition under English law. Once again, that provisional view has now been confirmed by further enquiry.[14]Following their adoption of T the parents moved with her to live in Dubai. Following her arrival in Dubai T was granted British Citizenship. I have had sight of a Certificate of Registration dated the 16 September 2008, registering T as a British citizen. The precise circumstances in which T was granted British Citizenship remain, despite considerable efforts by the parties, unclear. However, the ‘Adoption Guarantee Letter’ dated 5 December 2006 to which I have already referred states the intention to grant British citizenship for T upon her adoption by the parents by way of the discretion afforded to the Home Secretary by s 3(1) of the British Nationality Act 1981. That letter was signed by the British Consul in Kathmandu. Within this context, and in accordance with the intent of the ‘Adoption Guarantee Letter’ T’s Certificate of Registration makes clear that she was registered as a British Citizen by the Home Secretary pursuant to the power conferred by s 3(1) of the 1981 Act on 16 September 2008. The British Certificate of Registration uses the date T’s birth was registered in Nepal, namely 15 October 2005, as her date of birth rather than her given birth date of 13 August 2005. Notwithstanding the use of the 13 August 2005 in the Nepalese documentation, T now considers 15 October 2005 to be her date of birth. I agree with the view taken by all parties that there is no merit in seeking to disturb this position notwithstanding the uncertainties as to her date of birth raised by the documentation now available.[15]Following the return of the parents and T to Dubai the parents' marriage quickly got into difficulties. Much of the history of this period remains hotly disputed between the parents, with that dispute being characterised by cross-accusations of unilateral action, of tactical use of the authorities and laws of the United Arab Emirates and of abduction and obstruction of contact.[16]As to the detailed course of this very troubled and regrettable history, the events comprising it are now of some vintage and, as I have already observed, I am satisfied that it is not necessary to consider that history in depth for the purposes of determining the issues before the court. As Mr Power notes, however one reads the information available, a destructive parental conflict has characterised a large part of T’s childhood to date. In circumstances where both parents have provided cogent evidence of an ability to provide T with a very comfortable and secure physical environment, where there is evidence demonstrating that T has an excellent relationship with both her parents and where each parent is, prima facie,capable of meeting T’s needs were T to reside with that parent, the course of the parents’ relationship in Dubai and the difficulties arising from the now extensive history therein can be taken relatively shortly.[17]Having issued a divorce petition in the Guildford County Court in December 2009, on 1 February 2010 the mother was offered employment in the English School in the Emirate of Sharjah. On or around 14 July 2010 the mother left the family home taking T with her and moved to Sharjah whilst the father was away on business. The law of the UAE required the father to give his permission for the mother to take up her new employment. The mother contends that the father refused to take the necessary steps in this regard. The father contends that the mother left no indication as to where she and T were and that it took him some weeks to locate them. The mother enrolled T in a school in Sharjah.[18]By April 2011 the father contends he had become exasperated regarding the issue of contact, considering that the mother was failing to promote reasonable and consistent contact between him and T, which allegation the mother denies. In any event, on 21 April 2011 the father sent a letter to the mother’s employer containing an ultimatum by which the father informed the employer that if matters in respect of contact were not resolved he would notify the relevant authorities of the mother’s compromised employment and visa status. The letter expressly states that it was sent to “explain why I have got to breaking point”. The father conceded in evidence that “I don’t think I was acting in any way rationally at this point so did the only thing I thought I could”. Matters were not resolved and the father made good his threat. On 8 May 2011 government officials detained the mother for one night in the Sharjah Ladies Prison. She was charged with labour offences and released on bail.[19]In May 2011 the father indicated that his cooperation in respect of the charges faced by the mother was contingent upon the parties reaching an agreement in respect custody and access. On 4 June 2011 the mother signed a draft custody and access agreement, although she told me in evidence that she never intended to honour that agreement. The mother thereafter alleges that the father refused to comply with the requirements of the proceedings concerning her labour offences and that in consequence she was compelled to resign from her job.[20]On 23 June 2011 the father collected T from school. T has resided with her father since that date for a period of a little over five years. The father states he was concerned about the mother’s care of T and the fact that she appeared not to be paying her household bills. The mother contends that the father decided unilaterally not to return T and thereafter denied her contact. The mother made an application to the Dubai court for an urgent order to seek T’s return, which application the Dubai court declined to entertain. Thereafter the father facilitated supervised contact with the mother.[21]On 3 August 2011 the Immigration and Labour Court in Sharjah exonerated the mother and her employer from any wrongdoing with respect to the employment rules. However, on 18 October 2011 the High Court in Sharjah granted a prosecution appeal and ordered that the mother be deported on 11 November 2011. The father offered to fund an appeal for the mother against the deportation order. In the papers before this court there is a document, the contents of which were not challenged by the mother, indicating that the father engaged a lawyer who prepared a case to challenge the deportation order and provided funds to the lawyer acting on behalf of the mother. The mother refused to sign those papers and acquiesced to her deportation. On 16 November 2011 the mother was detained and was deported on 18 November 2011.[22]On 20 November 2011 the mother received a Royal Pardon from the ruler of Sharjah. This came too late to prevent her deportation and to prevent the implementation of a travel ban. In light of the mother’s travel ban in the UAE the mother contends that the authorities would not agree to a member of the maternal family travelling to collect T in order to bring her to England. In April 2013 the mother’s name was removed from the travel ban list of the UAE following assistance rendered by the UK Government and the Ambassador to the UAE in London. The mother commenced monthly trips to the UAE with a view to seeing T. She was detained by the immigration authorities upon entry on each occasion that she visited before being allowed to proceed. Her last direct contact with T was on the 1 June 2013.[23]Notwithstanding the deportation of the mother, proceedings in Dubai concerning T continued. The course of those proceedings, and the parallel wardship proceedings in England is set out in QS v RS (No 1) [2015] EWHC 4050 (Fam). For present purposes, it is sufficient to note that, for the reasons set out at Paragraphs [10] to [16] of that judgment, the effect of the final judgment of the Court of Cassation in Dubai was that for the purposes of the law of the UAE neither the mother nor the father is T's parent.Whilst custody was awarded to the father as a guardian of T, it was not awarded on the basis that he is T's father. The impact of the decision of the Court of Cassation on the mother's position was also stark, namely that she does not have a right of visitation in relation to T under the law of the UAE or, indeed, any rights at all in relation to T.[24]One further matter of background requires mention. Following her deportation, the mother commenced a campaign on Facebook, with a Facebook page entitled “Rescue T”. Whilst the mother contends that this site evolved, ultimately, into a blog through which she seeks to assist people in a similar situation to her own, it is plain on the mother’s own evidence that over a significant period of time she placed into the public domain information that concerned matters intensely private to T. The mother also used the medium to address T publically. The father asserts, in evidence that was not challenged, that at Christmas 2014 the mother posted publically the following message to T “he even abandons you for a significant part of the Christmas holiday to go abroad leaving you alone with a maid for days on end. How utterly, incredibly selfish! Again, you best interests are being ignored. I would NEVER, NEVER do this to you!” The father had been compelled to travel abroad to see a dying relative. At the instigation of the mother the case also featured heavily in the press. The father contends he has been vilified on social media and that the mother has given a false account of him to the newspapers.[25]Within the context of the mother’s online activity, the father contends that his efforts to facilitate contact between the mother and T from June 2013 onwards, including the offer of shared holidays in a neutral country provided proper arrangements for T’s passport were put in place and offers to pay for the mother to visit T at Christmas 2013, were met with no response. The father states that he encouraged T to send emails to her mother on special occasions and there are examples of those messages in the bundle.[26]The mother concedes that she did not reply to emails from T wishing her mother a happy birthday in November 2014 and a happy Valentine’s day in February 2015. The mother asserted during her evidence that she could not be sure that the emails were from T although, significantly in my judgment, she later said that she did not reply because this form of communication did not “fit” with her (the mother’s) requests for contact. The mother further conceded that she did not respond to a request from the father that she provide him with T’s vaccination records, following which refusal T had to be re-vaccinated and suffered a dangerous reaction to one of the additional inoculations, leading to her admission to hospital.[27]The period between 2009 and 2015 was plainly a very difficult time for both parents. It is clear from the oral evidence I heard that the foundation of their marriage was insecure from the outset. Both now have a very fixed view about what happened as a result of this. The father is convinced that he acted with justification having been pushed to the limit by the mother’s actions in removing T from the family home and denying what he considered proper and consistent contact. He candidly admits that “I was still not getting reasonable access to my daughter, and so in desperation, I filed a case with the relevant authorities”. The father contends that he was shocked that this led to a deportation order, worked hard to try and prevent the mother’s deportation and was bemused as to why the mother acquiesced to her deportation from the UAE. For her part, the mother is equally convinced that the father deliberately reported her to the authorities in the UAE with a view to teaching her a lesson for leaving and conspired to get her deported from the UAE so that he could resume care of T and thereafter obstruct her relationship with her daughter. It was clear from her evidence that she considers her subsequent online campaign to have been entirely justified. As a result of her experiences, the mother is now understandably fearful of travelling to the UAE.[28]For the reasons I have already given, it is not necessary for me to adjudicate on the myriad of contested matters that continue to occupy the ground between the parents following the breakdown of their marriage in order to determine the decisions this court must take with respect to T, or to pronounce more broadly on who was “right” and who was “wrong” at points during the parents’ long battle. As the adults in this family, both parents bear responsibility for the course this matter has taken. What in my judgment is far more important is what has been the impact of this long and bitter conflict on each parent’s ability to recognise and meet T’s needs moving forward. I deal with this aspect in detail when examining specific aspects of each parent’s evidence below.[29]As to T’s current situation, T lives with her father in the UAE. She lives in a property with a private garden and she has a number of pets. T has many friends in the local area and at school. In caring for T the father has the assistance of a nanny, with whom T has a close relationship, and the nanny’s husband. The father intends to remain in Dubai until T has completed her secondary education, which in UAE continues until she is 18. T undertakes a range of extra-curricular activities including ballet, riding, swimming and sports. It is clear from the school reports available to the court that T has progressed well in her education. Her school report from October 2015 shows she is working at or above year group expectations in all areas. T is described by the school as a happy and sociable girl who enjoys the friendships of her peers and who is polite and well-mannered in the company of adults. Her teachers say she is reliable, sympathetic to others and is very kind in nature. T is being treated for true precocious puberty and is currently doing well with treatment. Her doctors are aware of the uncertainty regarding T’s date of birth.

THE LAW

[30]The following legal principles are relevant to the decisions the court is required to make in this case.

Declarations

[31]In considering whether to make a declaration recognising T’s Nepalese adoption the court must first consider whether it is in a position to recognise that adoption in accordance with the applicable legal principles in this jurisdiction. Thereafter the court must then consider whether it is appropriate to make a declaration under the Family Law Act 1986 s 57 that the child is to be treated as the adopted child of the named applicants under the relevant provisions of the Adoption and Children Act 2002.[32]T's adoption in Nepal took place in 2008. At the time the adoption of T took place Nepal was not a party to the 1993 Hague Convention on Protection of Children and Co-operation with respect to Intercountry Adoption, Nepal not having ratified the Convention until 2009. Accordingly, T’s adoption in Nepal was not a ‘Convention’ adoption.[33]The list of countries in respect of whom adoptions constitute ‘overseas adoptions’ for the purposes of English law, and hence are automatically recognised under English law, was originally set out in the Adoptions (Designation of Overseas Adoptions) Order 1973 SI 1973/19. Nepal is not on that original list.Whilst the 1973 Order was amended in 1993 to add China to the list (see the Adoption (Designation of Overseas Adoptions)(Variation) Order 1993 SI 1993/690), that appears to be the only amendment to have been made to the list between 1973 and 2013 adding a country to the list of designated jurisdictions. In 2013 the 1973 Order was revoked and replaced by the Adoptions (Recognition of Overseas Adoptions) Order 2013 SI 2013/1801. Once again Nepal does not appear on the 2013 list. As noted, in 2009 Nepal signed and ratified the 1993 Hague Convention on intercountry adoption. In 2010 the Special Restrictions on Adoption from Abroad (Nepal) Order 2010 SI 2010/951 placed restrictions on intercountry adoptions in this country where the child was from the jurisdiction of Nepal. That order, and its guidance, make no reference to Nepal ever having been on the designated list of countries in respect of whom adoptions constitute ‘overseas adoptions’. In the circumstances, and as I concluded in my first judgment in this case, I am satisfied that Nepal has not at any time been on the list of countries for designation of overseas adoptions. I remain further satisfied that T's adoption in Nepal has, to date, not been the subject of recognition under English law.[34]The Adoption and Children Act 2002 s 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”. It has long been established that the recognition of a foreign adoption may be achieved by recourse to the common law. In Re Valentine’s Settlement at 841, a case concerning the recognition of an adoption effected under the law of South Africa, Lord Denning endorsed the observation of James LJ in Re Goodman’s Trusts (1881) 17 Ch.D 266 at 297:
“I start with the proposition stated by James LJ in In re Goodman’s Trusts:‘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 civilised 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 courts should recognise a jurisdiction which mutatis mutandis they claim for themselves: see Travers v. Holley [1953] P. 246, 257; [1953] 3 W.L.R. 507; [1953] 2 All E.R. 794 , C.A. 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 country when the adopting parents are domiciled there and the child is resident there.”
Lord Denning concluded further as follows in relation to the circumstances in which a foreign adoption would be recognised at common law:
“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: (1) it destroys the legal relationship theretofore existing between the child and its natural parents, be it legitimate or illegitimate; (2) 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 domicile. This new status of parent and child, in order to be recognised everywhere, must be validly created by the law of the domicile of the adopting parent. You do not look to the domicile of the child: for that has no separate domicile of its own. It takes its parents' domicile. You look to the parents’ domicile only. If you find that a legitimate relationship of parent and child has been validly created by the law of the parents' domicile at the time the relationship is created, then the status so created should be universally recognised throughout the civilised world, provided always that there is nothing contrary to public policy in so recognising it. That general principle finds expression in the judgment of Scott L.J. in In re Luck's Settlement Trusts, Walker v. Luck [1940] Ch. 864, 907-908; sub nom. In re Luck, Walker v. Luck, 56 T.L.R. 915; [1940] 3 All E.R. 307 C.A. I think it is correct, notwithstanding that the majority in that case created a dubious exception to it. But it is an essential feature of this principle that the parents should be domiciled in the country at the time: for no provision of the law of a foreign country will be regarded in the English courts as effective to create the status of a parent in a person not domiciled in that country at the time: see In re Grove, Vaucher v. Treasury Solicitor (1888) 40 Ch.D. 216; 4 T.L.R. 762 , C.A. (legitimation by subsequent marriage); In re Wilson, decd., Grace v. Lucas[1954] Ch. 733; [1954] 2 W.L.R. 1097; [1954] 1 All E.R. 997 (adoption). I ought to say, however, that in order for adoption to be recognised everywhere, it seems to me that, in addition to the adopting parents being domiciled in the country where the order is made, the child should be ordinarily resident there: for it is the courts of ordinary residence which have the pre-eminent jurisdiction over the child: see In re P. (G. E.) (An Infant) [1965] Ch. 568, 585; [1965] 2 W.L.R. 1, 11; [1964] 3 All E.R. 977, C.A. The child is under their protection and it would seem only right that those courts should be the courts to decide whether the child should be adopted or not.”
[35]Within the context of the present case, I also pause to note the dissenting judgment of Salmon LJ in Re Valentine's Settlement at 852:
“It has been suggested that according to the theory of our law no foreign adoption should be recognised unless, at the time it was made, both adopted child and adoptive parent were domiciled within the jurisdiction of the foreign country and that this appeal should be decided accordingly. Our law, however, develops in accordance with the changing needs of man. These have always been ascertained by experience rather than by the rigid application of abstract theory. Experience has shown that there are sound sociological reasons for recognising an adoption in circumstances such as these. Adoption - providing that there are proper safeguards - is greatly for the benefit of the adopted child and of the adoptive parents, and also, I think, of civilised society, since this is founded on the family relationship. It seems to me that we should be slow to refuse recognition to an adoption order made by a foreign court which applies the same safeguards as we do and which undoubtedly had jurisdiction over the adopted child and its natural parents.The laws of adoption in South Africa are very nearly the same as our own. The principles underlying them are the same. The whole emphasis is upon the welfare of the child and elaborate precautions are laid down for assuring that the adoption order shall not be made unless it is for the benefit of the child; the consent of the natural parents is required. It is difficult to see why in these circumstances, unless compelled to do so, our courts should refuse to recognise these adoption orders made lawfully in South Africa which conferred nothing but benefits on all the parties concerned.” and at 854: “Mr. Templeman, in the course of an exceptionally able argument, emphasised what he described as the danger and absurdity of a childless man and wife being able to go abroad for a short holiday and return the mother and father of three children. It may or may not be absurd but the danger would exist only if the considerations for adoption in the foreign country concerned were quite alien to our own and our courts were obliged to recognise the adoption whatever the circumstances. This is not so, for it is always open to our courts on grounds of public policy to refuse to recognise a foreign adoption even when the domicile of the adoptive father is impeccable.”
[36]I further note that it is clear that Dankwerts LJ came to his conclusion that he must concur with the judgment of Lord Denning with some reluctance (Re Valentine’s Settlement at 846) and that Lord Denning himself recognised that the observations of Salmon LJ cast doubt on his conclusion that the courts of this country will only recognise an adoption in another country if the adopting parents are domiciled there, stating at 843 that:
“I may, however, be wrong about this: because I recognise the force of the opinion which Salmon L.J. will express, namely, that the courts of this country should recognise an adoption in another country if it is effected by an order of the courts of that country, provided always that their courts apply the same safeguards as we do.”
[37]Nonetheless, the common law rule established by Re Valentine’s Settlement is clear and has been applied consistently since 1965. Within this context, pursuant to the Adoption and Children Act 2002 s 49(2) domicile (or, in the alternative, habitual residence) is still a part of “the circumstances we claim for ourselves” when constituting a valid domestic adoption, a valid application for an adoption order under the Act requiring at least one of the couple (in the case of an application by a couple) or the applicant (in the case of an application by one person) be domiciled or habitually resident in a part of the British Islands.[38]Accordingly, as recognised by Moor J in Re J (Recognition of Foreign Adoption Order) [2013] 2 FLR 298, as result of Re Valentine's Settlement the English court is not entitled to recognise a foreign adoption order at common law unless the adopting parents were domiciled in the relevant country at the relevant time. Accordingly, an adoption made in any country outside Great Britain and valid by the law of that country will be recognised in England at common law only if at the time of the adoption the adopters were domiciled in that country (Dicey, Morris & Collins on the Conflict of Laws (Sweet & Maxwell, 15 Edn, 2007) at 20R-117).[39]In Re R (Recognition of Indian Adoption) [2013] 1 FLR 1487 Hedley J held that the ratio of Re Valentine's Settlement is that this jurisdiction will recognise a foreign order affecting status (in this case a foreign adoption order) where, and only where, conditions exist that would permit a domestic court to make such an order. Having reviewed the changes to the law of domicile and the law of adoption that have occurred since the decision of the Court of Appeal in Re Valentine's Settlement Hedley J held that courts in this jurisdiction can recognise a foreign adoption at common law provided that the qualifying conditions as to domicile or habitual residence contained in the Adoption and Children Act 2002 s 49(2) and 49(3) are met (in A County Council v M and Others (No 4)(Foreign Adoption: Refusal of Recognition) [2014] 1 FLR 881 at [66] Peter Jackson J respectfully agreed with Hedley J’s reasoning in this regard).[40]Within the foregoing context, the criteria for determining whether the court should recognise an adoption made in any country outside Great Britain and valid by the law of that country at common law were articulated by Hedley J in Re T and M (Adoption) [2011] 1 FLR 1487 and Re R (Recognition of Indian Adoption) [2013] 1 FLR 1487 as follows: i) Were the status conditions required by English domestic adoption law replicated or fulfilled in the foreign jurisdiction, including the status conditions as to domicile or habitual residence; ii) Was the adoption obtained wholly lawfully in the foreign jurisdiction in question; iii) If so, did the concept of adoption in that jurisdiction substantially conform with the English concept of adoption; iv) If so, was there any public policy consideration that should mitigate against recognition of the foreign adoption.[41]In relation to the application of these criteria to the question of whether the foreign adoption in question should be recognised at common law, Hedley J observed as follows in Re T and M (Adoption) [2011] 1 FLR 1487 in relation to the latter three questions:
“The first question is clear enough and has to be determined on the individual facts of each case. The second question relates to the concept of adoption for the word itself can bear many shades of meaning from the idea of complete substitution of adopted family for natural family at one end of the spectrum through to an idea much more closely akin to our concept of special guardianship. Clearly the English court should not be recognising (and thus giving effect to) a foreign adoption unless what was conferred by that order is substantially the same as would be conferred by an English order. The third question relates to matters that would be repugnant to our jurisdiction as, for example, if what in reality was involved was the buying and selling of children irrespective of their actual welfare needs.”
[42]In respect of the question of whether there is any public policy consideration that should mitigate against recognition of the foreign adoption Dicey, Morris & Collins on the Conflict of Laws (Sweet & Maxwell, 15 Edn, 2007) at 20-133 dealt with this question as follows:
“…it is more than usually important to keep this factor in mind when deciding whether to recognise a foreign adoption, because the laws of some foreign countries differ so widely from English law as to the objects and effects of adoption. Adoption is taken very seriously indeed in this country and is surrounded by all the safeguards which an active social policy can devise. In some other countries it is taken far less seriously and serves quite different objects. 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 ground of public policy merely because the requirements for adoption in the foreign law differ from those of English law. Here again the distinction between recognising the status and giving effect to its results is of vital importance. Public policy may sometimes require that a particular result of a foreign adoption should not be given effect to in England; but public policy should only on the rarest occasions be invoked in order to deny recognition to the status itself…It is also the case that in interpreting and applying public policy as a ground of non-recognition regard must be paid to the European Convention on Human Rights, in particular the right to family life in Art. 8 and the right to a fair trial in Art. 6.”
[43]In A County Council v M and Others (No 4)(Foreign Adoption: Refusal of Recognition) [2014] 1 FLR 881 Peter Jackson J articulated a further criterion for the recognition of a foreign adoption at common law, namely that recognition of the adoption must be in the child’s best interests.[44]As noted above, if the court is satisfied that it is appropriate to recognise the foreign adoption at common law the court may, if the requisite conditions are met, make a declaration pursuant to the Family Law Act 1986 s 57, which section provides as follows: 57 Declarations as to adoptions effected overseas. E+W(1) Any person whose status as an adopted child of any person depends on whether he has been adopted by that person by either— (a) a Convention adoption, or an overseas adoption within the meaning of the Adoption and Children Act 2002, or (b) an adoption recognised by the law of England and Wales and effected under the law of any country outside the British Islands, may apply to the High Court or a county court for one (or for one or, in the alternative, the other) of the declarations mentioned in subsection (2) below.(2) The said declarations are— (a) a declaration that the applicant is for the purposes of section 39 of the Adoption Act 1976 or section 67 of the Adoption and Children Act 2002 the adopted child of that person; (b) a declaration that the applicant is not for the purposes of that section the adopted child of that person.(3) A court shall have jurisdiction to entertain an application under subsection (1) above if, and only if, the applicant— (a) is domiciled in England and Wales on the date of the application, or (b) has been habitually resident in England and Wales throughout the period of one year ending with that date.

Welfare

[45]The legal framework governing the court’s approach to the welfare issues is provided by the Children Act 1989 s 1 which stipulates as follows: 1 Welfare of the child(1) When a court determines any question with respect to – (a) the upbringing of a child; or (b) the administration of a child's property or the application of any income arising from it, the child's welfare shall be the court's paramount consideration.(2) In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child. (2A) A court, in the circumstances mentioned in subsection (4)(a) or (7), is as respects each parent within subsection (6)(a) to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child's welfare. (2B) In subsection (2A) “involvement” means involvement of some kind, either direct or indirect, but not any particular division of a child's time.(3) In the circumstances mentioned in subsection (4), a court shall have regard in particular to – (a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding); (b) his physical, emotional and educational needs; (c) the likely effect on him of any change in his circumstances; (d) his age, sex, background and any characteristics of his which the court considers relevant; (e) any harm which he has suffered or is at risk of suffering; (f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs; (g) the range of powers available to the court under this Act in the proceedings in question.(4) The circumstances are that – (a) the court is considering whether to make, vary or discharge a section 8 order, and the making, variation or discharge of the order is opposed by any party to the proceedings; or (b) the court is considering whether to make, vary or discharge a special guardianship order or an order under Part IV.(5) Where a court is considering whether or not to make one or more orders under this Act with respect to a child, it shall not make the order or any of the orders unless it considers that doing so would be better for the child than making no order at all.(6) In subsection (2A) “parent” means parent of the child concerned; and, for the purposes of that subsection, a parent of the child concerned – (a) is within this paragraph if that parent can be involved in the child's life in a way that does not put the child at risk of suffering harm; and (b) is to be treated as being within paragraph (a) unless there is some evidence before the court in the particular proceedings to suggest that involvement of that parent in the child's life would put the child at risk of suffering harm whatever the form of the involvement.(7) The circumstances referred to are that the court is considering whether to make an order under section 4(1)(c) or (2A) or 4ZA(1)(c) or (5) (parental responsibility of parent other than mother).[46]Accordingly, in summary, in exercising my judgment with respect to the applications before the court the principles to which I have had regard are(a) the principle that T’s best interests are my paramount concern,(b) the principle that the involvement of the parents in the life of T will further her welfare unless the contrary is shown,(c) the factors set out in the statutory ‘welfare checklist’ in the Children Act 1989 s.1(3),(d) the principle that no order should be made unless to do so would be better for the subject child than making no order and(e) to the principle that delay is ordinarily inimical to the welfare of T.[47]With respect to the specific factors set out in the statutory ‘welfare checklist’ in the Children Act 1989 s 1(3), the wishes and feelings of a mature child do not carry any presumption of precedence over any of other the other factors in the welfare checklist (Re P-J [2014] 2 FLR 27). The weight to be attached to the child’s wishes and feelings will depend on the particular circumstances of each case. In particular, having regard to the words of section 1(3)(a), it is important in every case that the question of the weight to be given to the child’s wishes and feelings is evaluated by reference to the child’s ‘age and understanding’.[48]Further with respect to the specific factors set out in the statutory ‘welfare checklist’ in the Children Act 1989 s 1(3), the court is required to consider the effect on T of any change in his circumstances. The fact that a child has been living with one parent for a significant period of time does not create a presumption in favour of that person. However, when considering the outcome that best meets T’s welfare needs the court should also consider, as an element of its analysis of best interests, the extent to which it is desirable to maintain T’s current status quo (see Re E-R (a child)(child arrangements

THE EVIDENCE

[49]As I have already observed, whilst the mother pressed the court to make detailed findings in relation to the long history of parental conflict in this matter, what in my judgment is far more important is what has been the impact of this long and bitter conflict on each parent’s ability to recognise and meet T’s needs moving forward. I now turn to deal with the specific aspects of each parents’ evidence that I consider to be relevant to this aspect of the case, together with relevant aspects of the evidence of the two experts and the Children’s Guardian.

The Mother

[50]It is plain that the mother has been deeply affected by the history I have recounted in this judgment. This is in no way surprising when one considers the efforts to which the mother (and the father) went to adopt T and the loss for the mother that followed consequent on the breakdown of the parents’ marriage. The mother presented as inward looking and self-involved in the witness box. She rarely mentioned T’s interests and tended to view any given issue from her own perspective rather than that of T. Whilst she plainly cares deeply for her daughter I was left with significant concern about the mother’s ability to prioritise T’s emotional needs and her relationship with her father. Whilst I accept the mother’s outlook is likely to be, at least in part, a function of her experiences in the UAE following the adoption of T, the best interests of T remain my paramount consideration. Four points of particular concern arose from evidence I heard from the mother.[51]First, the mother’s negative feelings in respect of the father run very deep indeed and impact heavily on her ability to promote him in a positive light. Listening to the mother’s evidence I was left with grave misgivings about the extent to which the mother will be able to promote a relationship between T and her father and to promote for T a positive image of her father were T to move to England to live with her mother.[52]By way of example, whilst in her statement she says “I know that [RS] loves T, and that he is a good father to her. I know that she has been well looked-after and her needs are being met”, in evidence the mother reverted to asserting that T would be at risk of emotional harm in the care of her father and stated that she remained concerned that the father would cause physical and emotional harm to T by reason of him being controlling and manipulating. The mother appeared extremely reluctant to accept the overwhelming weight of evidence showing that father and daughter have a positive relationship, appearing highly sceptical that this was the case. She characterised the father’s parenting as “not allowing her the freedom to be herself and being controlling and regimental, quashing some of her sparkle.” The mother contended that the father’s parenting style “creates a fear in her of not doing or saying the right thing” and the father “has taken advantage of her need to please” and that “her schedule is based on his needs and not hers”.[53]The mother was unable even to acknowledge the father’s love for T, saying that “in as much as he can love her, I imagine he does” and that “it is a domineering and controlling love done within certain conditions”. The mother’s concluded position in oral evidence appeared to be that T was “probably” physically safe in the care of her father but that she was not emotionally safe, claiming “it is damaging for her to remain with her father, in emotional terms”. These firmly held views of the father’s parenting and his physical and emotional care of T are entirely at odds with all of the other evidence before the court.[54]Second, of further concern was that, even with the benefit of hindsight and as I have already noted, the mother struggled to recognise the undesirability of certain of her actions following her departure from the UAE. The manner in which she pursued her Facebook campaign and blog were, at times, clearly antithetic to T’s needs. Whilst the project evolved, it appeared that over a significant period of time it involved publicising matters private to the family, and private to T, including photographs of T. In explaining why she had set up a website that placed T’s private life on public display the mother said the site provided her (the mother) with support. When pressed that she had placed private details online her response was simply “that is what people do”. When asked about the name of the project she said “I felt she had been kidnapped, that is why I called it ‘Rescue T’”. The mother said she did not think she regretted anything about this online activity. She finally conceded that T may well be upset but did not know whether she would be embarrassed as she questioned whether a 10-year-old would get embarrassed. The mother concluded that “at a certain point, she has to know the truth.” When it was pointed out that her account was only one version of the “truth”, the mother was emphatic that T would need to know “Not a truth, the truth. Certain undeniable facts”. The evidence of the mother on these matters acted to reinforce my concerns regarding her ability to promote T’s emotional welfare moving forward.[55]Third, the mother’s evidence indicated that she struggles to see T’s clearly expressed wishes and feelings regarding where she wishes to live as in anyway genuine. The mother strongly suggested that T had been indoctrinated, saying that she “would not expect her to say anything different”. At other points she ascribed T’s wishes and feelings to habit or lack of understanding, saying “she does not know any different so it is not surprising she would say this”. When asked by Mr Ford to elaborate the mother said that, “She has no experience of knowledge of being anywhere else” and “The idea of going somewhere else is not within her capacity to understand”. The mother eventually conceded that “In so far as she is capable of understanding the issues, they are her genuine wishes”. Whilst I have taken account of the fact that the mother has had little direct experience of T over the last three years and that T’s expressed wishes and feelings are antithetic to the mother’s case, her limited ability to accord respect to T’s wishes and feelings that the evidence before the court suggests are genuine in nature is troubling. Allied to this, the mother simply dismissed the impact of T of a change of circumstances that involved her leaving her established life in the UAE and coming to live in England, saying simply that T is “in the position of every other ex-pat child”.[56]Finally, the mother’s efforts to explain why she had not responded to emails from T on her (the mother’s) birthday and Valentine’s day were unconvincing. The mother confirmed she had not responded. Whilst, when pressed she said she did, with hindsight, regret not answering these emails, ultimately she explained these actions by reference to her own needs, saying, “I had gone through an extreme trauma of my own. I had to re-build my own life, I had to re-build my own strength before I could offer a life to T. Although from the outside looking in it is difficult to understand my position it was because I had been through a trauma”. A particularly illuminating reply when pressed on why she had not responded to birthday and valentine messages from T the mother said “To get a random email, it did not fit with my requests for contact with her”. Likewise, whilst acknowledging that her failure to provide the father with details of T’s vaccinations had worked to the manifest detriment of T because she was ill, the mother made clear that she did not regret her actions in this regard.[57]Within the foregoing context I have significant reservations regarding the mother’s ability to move on from events that have led to the dispute concerning T’s welfare and to promote T’s interests above those of her own. From her evidence it is clear that the mother remains intensely pre-occupied with the history of this matter, largely to the exclusion of being able to consider matters from T’s perspective. One of the most illuminating statements made by the mother in evidence was “I am so full of hurt and betrayal as to what happened it is hard for me to communicate”. Once again, whilst I accept the mother’s outlook is likely to be, at least in part, a function of her experiences in the UAE that followed the adoption of T in Nepal, the best interests of T are my paramount consideration.[58]The mother joins with the father and the Children’s Guardian in inviting the court to recognise T’s Nepalese adoption for the reasons I deal with in detail below. In respect of where T should live, through Mr Perkins the mother submits that T’s welfare demands that she be relocated to England to live with the mother. The mother relies on the following key contentions in support of this submission: i) From the father’s 65th birthday in twelve months’ time, but in any event at the conclusion of T’s secondary education at the age of 18, the father and T will not be permitted to remain in the UAE; ii) Therefore, the period encompassed by T’s late teenage years, her college / university education and her adult life will have to spent outside the UAE; iii) T is likely to settle as a young adult in the United Kingdom and, within this context, spending her teenage years in Dubai or a neighbouring Emirate will ill equip her for life in Europe in the 2020s; iv) The “peculiar societal and religious constraints in the United Arab Emirates” are unlikely to provide T with “positive role models in relation to females of her own ethnic background”, the mother contending, unattractively, that members of the Nepalese community who are (to use the phrase adopted on her behalf by Mr Perkins) “mere” supermarket workers do not provide appropriately aspirational role models; v) Whilst a move for T aged 10 would be manageable, a move in her late teens would present a significant challenge; vi) Research demonstrates that difficulties emerge for internationally adopted children during their secondary school years (The Study of Intercountry Adoption Outcomes in Ireland (2007) Children’s Research Centre at Trinity College Dublin) and that nearly two thirds of adoption disruptions occur during second school years (Beyond the Adoption

The Father

[59]The father is plainly a very reserved and private man. He is not prone to displays of emotion and comes across as relatively stern. He is, by his own admission, not a man at ease with certain aspects of the modern world. However, and in marked contrast to the mother, throughout his evidence T was evidently always at the centre of his thinking. When giving evidence, he repeatedly demonstrated an ability to relegate his own interests behind those of his daughter. He was clearly proud that T is a happy child.[60]I have, of course, been careful to bear in mind that the father has had the care of T for the past five years. Nonetheless, the father’s willingness to place T at the centre of his thinking is notable. He made clear (in evidence that was not challenged) that he has sought to keep the mother in mind for T, telling the court that “She has her mother in her prayers every night. She says ‘Dear God’ thank you for today and God bless mummy, the [maternal] family, the [paternal] family and the animals”. With respect to the dispute between the parents, the father appeared emphatic in his evidence that “It is not about me it is about T, it is not about [the mother] it is about T and that will not be helped by two parents who do not communicate”.[61]The Father disputed that he is alone or isolated in Dubai and lacks a social life. He contended that he likes to spend time with his daughter at the weekends, that he is content with his life in Dubai and chooses to value the virtues of privacy and peace and quiet. He rejected the assertion that his views on internet use by T (that her use of the internet should be rationed and monitored) showed an inability to meet T’s needs and prepare her for the modern world. He also rejected the (somewhat peculiar) criticism levelled by the mother that his dismay at football supporters swearing in front of T on a train during a visit to England demonstrated an inability to meet T’s needs. In response to being challenged about being the father of a teenage girl going through puberty, he stated that he trained as a secondary school teacher and makes clear that he has available to him advice from other parents with daughters. Witness statements filed and served by the father from those who know him in the UAE (and not challenged by the mother) applaud the father’s dedication to T and the relationship between father and daughter. The Principal of T’s school states that:
“He always ensures that she is well-prepared for school, not only for the day to day requirements but for the rather grand festivals and fun theme days we enjoy. This usually entails much parental involvement such as dress-up, baking, transporting children to and from events and ‘being there’. [He] is a great supporter of school functions and is a particularly generous participant in our charity functions. [The school] provides evening ‘parenting’ workshops and [he] is a keen participant.”
These comments are echoed by T’s assistant head teacher, her class teacher and by her private tutor, who notes a lot of quality time spent by T with her father who is a “great support system and a fantastic role model”.[62]The father was candid before the court in conceding that certain of his actions during the course of the parents’ extended dispute concerning T constituted frustrated and irrational behaviour on his part that had led to serious and undesirable consequences. The father was willing to concede that those actions had been at best unhelpful and to express regret in respect of them. The father however rejected the charge that he had failed to meet T’s emotional needs and turned her against her mother. Within this context, the father said in reference to the evidence of the Children’s Guardian that at the first contact between mother and daughter it was as though they had been separated for seconds, not years, that “It did not surprise me the way she fell back into her relationship with her mother because I have not alienated her from her mother, I have said that all along”. The father relied on the fact that T was able to resume a natural and relaxed relationship with her mother almost without pause as negating any allegation on the part of the mother that he has sought to influence T against her mother.[63]The father joins with the mother and the Children’s Guardian in inviting the court to recognise T’s Nepalese adoption. In respect of where T should live, through Mr Bagchi QC the father submits that it is in T’s best interests to remain living with him in the UAE and to have extensive contact with her mother. The father relies on the fact that T has had her home in Dubai since 2008, that she is plainly happy living with him, that she has expressed a strong wish for this to remain the position, that she is thriving at school with a rich social life filled with activities that she loves. The father submits that the contents of the CAFCASS “How it looks to me” document completed by T shows clearly that Dubai is the centre of her life, that she is closely attached to her father and that she is, in his care, a stable, secure and happy child. The father submits that to move T from her primary carer, her friends and her school, as well as other aspects of her life she values such as her pets will have an adverse impact on her, especially where such a move will be to a country that is strange to her, in which she has never lived and which has different social and cultural values and a very different climate. Through Mr Bagchi, the father submits that a move will be further antithetic to T’s best interests if made at a time when T will have only recently commenced re-building her relationship with her mother and, in any event, in context of T being a child who has already suffered the significant losses associated with being an adopted child.

Expert Evidence on Nepalese Law

[64]The expert in Nepalese law, Mr Rishi Bhattarai, Advocate of the Supreme Court of Nepal, has provided an expert report to the court dealing with Nepalese adoption law. Mr Bhattarai has provided his opinion on the basis of the documents I have outlined above, having made contact with the orphanage in Kathmandu from which T was adopted by the mother and father and the Nepalese law relevant to the adoption of T by the mother and father, namely Chapter 15 of the 1963 Country Code (Muluki Ain), which sets out the terms, conditions and process required to be satisfied for the adoption of a Nepali child by foreign adopters.[65]Within the context of the applicable Nepalese legal framework, by reference to the documentation available and by contact with the orphanage in Kathmandu, Mr Bhattarai confirmed that whilst the documentation contains some technical and factual errors, the final decision made by the Nepalese Ministry of Women, Children and Social Welfare “appears legally unquestionable” by reference to the law applicable in Nepal at the relevant time with no “reasonable grounds” to suggest the adoption was unlawful. This evidence is not disputed by either parent nor on behalf of T.[66]As nature and legal effect of adoption under Nepalese, the adoption law of Nepal (which is provided only by the Country Code and not by a separate statute) does not specify in terms the legal effect of adoption on parental responsibility (as broadly defined by the Nepalese Children Act 2048 (1992) s 4(1)) and the child’s legal relationship with his or her natural parent. However, it is clear from the terms and conditions set out in document permitting the adoption of T by the mother and father that it was a requirement of the adoption that they would bring T up “as their own daughter”. Further, under Nepalese law the adopted child is entitled to the same rights as any natural born children of the adopters (Chapter 15(9)(c) of the 1963 Country Code). Indeed, Nepalese law provides that permission for adoption by a foreign adopter shall only be given if the law of the country of the foreign adopter provides that an adopted child has the same rights as a natural born child (Chapter 15(12)(B) of the 1963 Country Code). Under Nepalese law the adopted child is not entitled to make a claim on the property of their natural parent (Chapter 15(9)(c) of the 1963 Country Code). An adoption is not capable of revocation, save by reason of specifically defined defaults (Chapter 15 of the 1963 Country Code). It is also important to note that under Nepalese law it is a condition of the adoption that the adopter will not permit the conversion of the child to another religion or allow the child to be adopted by a third party.

Dr Hamade

[67]Dr Hamade was instructed to provide expert evidence to the court about the ability of the mother to enter and leave the UAE unimpeded for the purpose of spending time with T were the court to decide that T should remain living with her father. Dr Hamade provided a realistic assessment of the position and was frank about certain difficulties that may remain.[68]Dr Hamade explained in evidence that it is common in the UAE for reports to be made to the Police over small grievances and that, by reason of the high level of foreign residents in the UAE, such reports will often have an impact on the ability of an individual to enter or leave the country whilst the authorities seek to ensure that the grievance can be addressed without the individual against whom the grievance is lodged leaving the jurisdiction. Within this context, Dr Hamade was clear that whilst the father can undertake himself not to file any criminal charges this will not guarantee the mother’s position.[69]To reduce the risk of the mother having difficulty entering or leaving the UAE as much as possible, Ms Hamade recommended that a careful check be made in the UAE for any criminal cases filed or pending on each occasion 48 hours prior to the mother’s travelling to the UAE by providing a legal representative with a Power of Attorney along with a copy of her passport and residency visa at a cost of AED 5000. Further, in circumstances where the order made by the Court of Cassation to surrender T’s passport to the father may still result in the issuing of an arrest warrant for the mother which would be executed upon her arrival, either the father will need either to forfeit and waive his rights under the judgment of the Court of Cassation and close the current execution file or the mother will need to honour the judgment of the Court of Cassation and surrender T’s passport to the father. Both parents will need to undertake not to place a travel ban on T in the courts of the UAE.[70]Dr Hamade also proposed that any arrangements between the parents regarding the mother’s entry and egress into the UAE and in respect of T could be made the subject of a private agreement entered into by the parties and registered at court, at which point it would become a judgment enforceable in preference to the judgment of the Court of Cassation by one party if breached by the other. However, the major difficulty with this proposal is that whilst she had experience of this route being adopted in respect of decisions of the lower courts in the UAE, Dr Hamade has no experience of this course being taken in relation to a judgment of the Court of Cassation.

The Children’s Guardian

[71]Mr Power urges the court to recognise T’s foreign adoption. Further, as to the question of with which parent T resides, Mr Power has met with T three times. On 20 May 2016, the day on which T had direct contact with her mother for the first time since June 2013, Mr Power captured T’s wishes and feelings in a CAFCASS document entitled “How it looks to me”. In that document T, who I remind myself is approximately 12 years old, indicated: i) Her mother does not live with her but means a lot to her; ii) That she likes living with her father in Dubai, swimming, playing with her friends in Dubai and school; iii) That her three wishes would be to have her passport, to live in Dubai forever and to visit places with her passport; iv) That what makes her feel safe is living in Dubai and people protecting her; v) That the big decision she would like the family court to make for her is to live in Dubai.[72]As to the contact between T and her mother, as I have already recounted, Mr Power recorded that he was “very impressed with the quality of contact” between T and her mother and as noted that it “was as though the mother and daughter had been separated for seconds, not years” (in his final report Mr Power states that it was hard to believe or detect that they had ever been apart). At the conclusion of her contact with her mother on 20 May 2016 Mr Power again met with T to ascertain if her views had changed as a result of her spending time with her mother. Mr Power recorded T as stating that they had not and that “she wants to continue to live with F in Dubai but would like M to return to live in Dubai or visit her”. T told Mr Power that she did not feel able to tell her mother this.[73]Mr Power considers that T is a self-assured and forthright girl, comparatively mature who at interview he found to be convincing as to the integrity of her ascertained wishes and feelings. Mr Power was however careful to bear in mind the inherent inequality of arms in terms of influence and advantage the father has as the resident parent vis-à-vis the mother.[74]Following T having contact with her mother at the CAFCASS room at the RCJ on 20 May 2016, the parents were able to agree that she have unsupervised contact with her mother in London on 21 May 2016 and unsupervised contact with her mother and maternal family at home on 22 May 2016. It is plain that this contact went extremely well. By virtue of the unavoidable need to list this final hearing across two separate groups of dates, Mr Power has had the opportunity to meet again with T. T’s wishes and feelings remained the same.[75]Mr Power emphasised in evidence the enhanced need for certainty T has as an adopted child in a trans-racial placement. Within this context, Mr Power’s overall recommendation as to the living arrangements for T is that she continue to live with her father and have contact with her mother. Mr Power is clearly of the view that this arrangement is in T’s best interests. He articulated his position as follows in his final report:
“If T is required to live in the UK with her mother in opposition to her ascertained wishes and feelings this could have a calamitous effect upon her. At her age, however imprecise that might be, she is described by her Assistant Head Teacher as incredibly happy, positive, approachable, empathetic, upbeat, humorous girl and a friend to all. If a change in T’s circumstances gets it wrong for her, these advantages and personal attributes could be jeopardised.”

DISCUSSION

[76]Having considered carefully the evidence available, I have come to the conclusion that I am able, in the very particular circumstances of this unusual case, to recognise T’s Nepalese adoption at common law and make a declaration accordingly under the Family Law Act 1986. I have further come to the conclusion that T should continue to live with her father in the UAE and should spend time with her mother, if possible both in England and the UAE but in any event in England. My reasons for so deciding are as follows.

Declaration

[77]As set out above, the criteria for determining whether the court should recognise an adoption made in any country outside Great Britain and valid by the law of that country at common law have been articulated as follows: i) Were the status conditions required by English domestic adoption law replicated or fulfilled in the foreign jurisdiction, including the status conditions as to domicile or habitual residence; ii) Was the adoption obtained wholly lawfully in the foreign jurisdiction in question; iii) If so, did the concept of adoption in that jurisdiction substantially conform with the English concept of adoption; iv) If so, was there any public policy consideration that should mitigate against recognition of the foreign adoption. v) Is recognition of the adoption at common law in the child’s best interests.[78]Taking the criteria somewhat out of sequence, having regard to the documentary evidence before the court and to the evidence of the jointly instructed expert on Nepalese adoption law, I am satisfied that the adoption obtained in Nepal in respect of T was obtained in a lawful manner in that jurisdiction. Whilst I have been mindful of the fact that in 2010 the Special Restrictions on Adoption from Abroad (Nepal) Order 2010 SI 2010/951 placed restrictions on intercountry adoptions in this country where the child was from the jurisdiction of Nepal following concerns regarding such adoptions prior to 2010, the expert evidence in this case, taken with the documentation available to the court, demonstrates to my satisfaction that Nepalese adoption was properly constituted under the laws of that jurisdiction, the adoption process following the law and practice of Nepal and being regarded as lawful in Nepal.[79]I am further satisfied on the evidence that the concept of adoption in the jurisdiction of Nepal conforms substantially with the English concept. Whilst the adoption law of Nepal (which is provided only by the Country Code and not by a separate statute) does not specify in terms the legal effect of adoption of parental responsibility and the child’s legal relationship with his or her natural parent, the terms and conditions set out in document permitting the adoption of T make clear that it is a requirement of the adoption that they bring T up “as their own daughter”. Within this context, the requirement under Nepalese law that the adopted child have the same rights as any natural born children of the adopters and the fact that the adopted child is not entitled to make a claim on the property of their natural parent speaks to the concept of adoption in Nepal being one of in the legal substitution of the adopted family for the birth family and which creates the legal relationship of parent and child. The fact that an adoption is not capable of revocation, save by reason of specifically defined defaults, reinforces this conclusion.[80]Within this context, more widely I note the efforts of the authorities in Nepal to ensure that steps (including a police investigation and an advertisement in the media) were taken to identify and locate the birth parents and/or wider birth family of T prior to approval being given for her adoption. I further note the checks and assessments that were conducted before the parents were permitted to adopt T, including an assessment by a competent authority of the parents’ home circumstances in the UAE, which checks and assessments were similar in nature to that required by our domestic legislation. In the absence of parental consent, the documents indicate that consent was given by the state prior to the adoption being finalised.[81]Accordingly, and whilst I note that there are plainly some differences in the consequences of adoption as between England and Wales and Nepal, in particular that under Nepalese law it is a condition of the adoption that the adopter will not permit the conversion of the child to another religion or allow the child to be adopted by a third party, having regard to the matters set out above, I am, on balance, satisfied that the adoption order in Nepal had substantially the same result as would an English adoption order.[82]The criterion of the child’s best interests was not included by Hedley J in Re T and M (Adoption) and Re R (Recognition of Indian Adoption) as part of the list of criterion for the recognition of a foreign adoption at common law. However, as noted above, in A County Council v M and Others (No 4)(Foreign Adoption: Refusal of Recognition) [2014] 1 FLR 881 Peter Jackson J articulated the further criterion that the recognition of the adoption must be in the child’s best interests. In circumstances where the court is considering whether to give the child the status of an adopted child in this jurisdiction, I agree with Peter Jackson J that the question of whether that step is in the child’s best interests falls to be considered by the court.[83]In this case I am satisfied that recognition would be manifestly in T’s best interests. Recognition of the adoption at common law would confirm the legal relationship of parent and child that T no doubt assumes exists between her parents and herself. In circumstances where Mr Power is clear that T, as a child adopted from a foreign country with parents who have separated, has an enhanced need for certainty as an adopted child in a trans-racial placement, recognition of her adoption will assist in providing this and will assist T developing and making sense of her identity as she grows older. Recognition will also provide T with greater legal certainty throughout her life with respect to such matters as inheritance rights. I agree with Mr Bagchi’s submission that the balance sheet in respect of recognition contains no entries in the debit column from T’s perspective.[84]I have found the analysis in respect of the remaining criteria, those of the need for the status conditions to be fulfilled and the criterion of public policy, to be a much more challenging issue in this case. In this case the analysis of the status conditions criterion impacts on the proper analysis of the public policy criterion. Within this context, I shall deal first with the status conditions criterion before finally dealing with the public policy criterion.[85]The law governing the recognition of foreign adoptions at common law that I have set out above is very well settled. I am bound by the decision of the Court of Appeal in Re Valentine’s Settlement regarding the need for the status conditions to be met and I make clear that the decision for this court has been not whether the rule in Re Valentine’s Settlement is right or wrong (which would be a matter for the Court of Appeal) but rather whether there is a permissible reason for not applying the rule in this case.[86]In my first judgment in this case (see QS v RS (No 1) [2015] EWHC 4050 (Fam)) I observed at [41] that:
“…having regard to the fact that at present it is by no means certain that T is the legal child of the mother and father anywhere other than Nepal, and to the fact that it would appear on the information presently available to the court that only the English court is in a position to remedy that situation (the Dubai courts, as I have said, being bound by the ambit of the law governing that jurisdiction to the position endorsed by the Court of Cassation) I am satisfied in this case that there exist extraordinary circumstances justifying this court having recourse to the inherent jurisdiction on the basis of T's British nationality in addition to any other jurisdictional bases that may apply in this case.”
[87]The totality of the evidence that has subsequently become available demonstrates that it cannot be said that either the mother or the father were domiciled or habitually resident in Nepal at the time they adopted T under the law of that jurisdiction. In circumstances where this court is bound by the precedent set in Re Valentines Settlement, the following questions now therefore arise in this case when the court is considering whether it is able to and should recognise T’s foreign adoption: i) Can the facts of this case be distinguished sufficiently from those in Re Valentine's Settlement for the court to conclude that the principles articulated therein have no application in this case; or ii) Are there are any circumstances in which the rule in Re Valentine's Settlement does not apply or may not be applied such that an adoption made in a country outside Great Britain and valid by the law of that country will be recognised in England at common law notwithstanding that at the time of the adoption the adopters were not domiciled in that country.[88]As to the first question of whether this case can be distinguished on its facts from Re Valentine's Settlement, in short, whilst they plainly differ, I am not satisfied that the facts of this case are sufficiently distinguishable from those in Re Valentine’s Settlement to provide a sound basis for disregarding the rule as to status conditions articulated in that case. No party seeks to argue against this conclusion.[89]As to the second question, each of the parties in this case make common cause that the court is permitted not to apply the rule in Re Valentine’s Settlement in this case in circumstances where its application would, on the very particular facts of this case, result in a breach of the Art 8 right to respect for family life of the mother, the father and the child. Whilst Mr Perkins sought also to craft a solution under the inherent jurisdiction, he accepted during the course of submissions that such a route was fraught with difficulty and elected to concentrate on the Art 8 point.[90]In the majority of the reported cases concerning the recognition of foreign adoptions at common law the requirement of domicile in the foreign jurisdiction in which the adoption took place has not been (or does not appear to have been) in issue (see D v D [2008] 1 FLR 1475, Re N (Recognition of Foreign Adoption Order) [2010] 1 FLR 1102, Re T and M (Adoption) [2011] 1 FLR 1487, Re R (Recognition of Indian Adoption) [2013] 1 FLR 1487, Re J (Recognition of Foreign Adoption Order) [2013] 2 FLR 298, Re Z and Z [2013] EWHC 747 (Fam) and G (Children) [2014] EWHC 2605 (Fam)). In each of these cases the foreign adoption was recognised without opposition and in each the subject child the foreign adoption had taken place in the country of domicile or habitual residence of a least one of the applicants. In A County Council v M and Others (No 4)(Foreign Adoption: Refusal of Recognition) Peter Jackson J found that the requirements of the rule in Re Valentine’s Settlement had not been met and refused to recognise the foreign adoption, noting that the option of making a domestic application to adopt may be available in appropriate cases. As I set put below, I am satisfied that that option is not realistically available in this case.[91]In A County Council v M and Others (No 4)(Foreign Adoption: Refusal of Recognition), having considered the case of Wagner v Luxembourg [2007] ECHR 76240/01 (which I deal with in detail below), Peter Jackson J rejected the submission that the application of the rule in Re Valentine’s Settlement breached Art 8, observing that:
“[75] Broadly viewed, the decision in Wagner and JMWL v Luxembourg calls for an ‘actual examination of the situation' in circumstances where domestic procedural rules conflict with the reality of the family situation. However, the decision cannot, in my view, be so broadly read as to extend to the sweeping away of all procedural rules in favour of an approach that decides each application on a case-by-case basis. The factual situation in Wagner and JMWL v Luxembourg was quite particular. The jurisdictional obstacle was that Luxembourg law did not allow adoption by a single person, and in consequence the child's adoption could never be recognised, regardless of merits. In contrast, English law would have allowed a domestic adoption on the same facts. Additionally, in Wagner and JMWL v Luxembourg the practical daily disadvantages for the child of non-recognition were real; the position is significantly different in C's case. [76] I would, therefore, hold that the common law requirements for recognition of foreign adoptions are necessary in the sense that the reasons for them are relevant and sufficient, and that they are proportionate to the legitimate aim of securing safeguards for children concerned in intercountry adoption. I would regard Re Valentine's Settlement as forming an element of the third criterion for recognition, namely that the foreign adoption process must have been substantially the same as would have applied in England at the time. This conclusion is, in my view, unlikely to prevent a child achieving full adoptive status by other means in an appropriate case.”
[92]I pause to note that in A County Council v M and Others (No 4)(Foreign Adoption: Refusal of Recognition), whilstthe applicant and the subject child had been part of a family unit for a number of years such that Peter Jackson J was satisfied that family life existed for the purposes of Art 8, the facts in the case were otherwise rather different to those in this case. In A County Council v M and Others the applicant mother, who was a US citizen, had adopted the subject child in Kazakhstan using US procedures based on a wholly superficial social work report. The applicant mother had made a deliberate choice not to follow the route provided by English law that would have led to automatic recognition of the adoption in this jurisdiction. The mother had excluded the adoptive father from the lives of the children and had been convicted of cruelty to the subject child and her eldest child (the mother having made the eldest child impregnate herself using a sperm donor in order to provide another child for the mother to raise as her own) and was serving a prison sentence. The court had determined that the subject child should not return to the care of her mother and had made a care order on a care plan of long term foster care. The subject child had been psychologically assessed as a child who has suffered highly significant harm in her social, emotional and behavioural development, and whose attachment patterns were flawed, resulting in an ongoing need for therapy and ongoing support for her carers.[93]As noted by Peter Jackson J in A County Council v M and Others, theargument that the application of the rule in Re Valentine’s Settlement might, in certain circumstances, breach Art 8 is recognised by Dicey, Morris & Collins on the Conflict of Laws (Sweet & Maxwell, 15 Edn, 2007) at 20-129:
“The European Court of Human Rights has held that criteria applied to the recognition of a foreign adoption order must comply with the European Convention on Human Rights. The implications of this ruling remain to be explored in an English context, but at the very least it opens the door to a challenge of the existing common law rule on recognition, should an adopter have established family ties with a child as the result of an enforceable foreign adoption, but is unable to satisfy the domicile requirement. In Wagner an enforceable Peruvian adoption order was denied enforcement in Luxembourg on the grounds that it did not comply with Luxembourg choice of law rules; the latter designated Luxembourg law, which in turn permitted adoption only by married couples. The strict application of the choice of law rules was held to be a violation of Article 8. The European Court of Human Rights, noting that the best interests of the child were paramount in such a case, held that the Luxembourg courts ‘could not reasonably disregard the legal status validly created abroad and corresponding to a family life’.”
[94]Art 8 of the ECHR provides as follows in respect of the right to respect for private and family life: Article 8 Right to respect for private and family life 1 Everyone has the right to respect for his private and family life, his home and his correspondence. 2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.[95]In Wagner v Luxembourg [2007] ECHR 76240/01 the Luxembourg court had refused to recognise a foreign adoption effected lawfully in Peru on the ground that the requisite conditions for adoption under Luxembourg law had not been complied with. That failure to comply with the conditions for adoption under Luxembourg law comprised the fact that the applicant mother was unmarried and therefore was not entitled by reason of Article 367 of the Luxembourg Civil Code to undertake a full adoption. The European Court of Human Rights held that the decision not to recognise the foreign adoption on the ground that the requisite conditions for adoption under domestic law had not been met constituted a violation of Art 8 of the ECHR.[96]After satisfying itself that ‘family life’ existed between the applicant and the child for the purposes of Art 8 and observing that where the existence of a family tie with a child has been established, the State must act in a manner calculated to enable that tie to be developed and establish legal safeguards that render possible the child's integration in his family, the court held as follows at [123] to [136]: i) Although the Luxembourg courts' refusal to grant enforcement of the Peruvian judgment is the result of the absence in the Luxembourg legislation of provisions allowing an unmarried person to obtain full adoption of a child, that refusal represented an “interference” with the right to respect for the applicants' family life. ii) The interference was indisputably based on the Luxembourg Civil Code and was therefore “in accordance with the law”. iii) There was no reason to doubt that the refusal to order enforcement of the Peruvian adoption judgment was meant to protect the “health and morals” and the “rights and freedoms” of the child and it was not unreasonable that the Luxembourg authorities displayed prudence when determining whether the adoption was made in accordance with the Luxembourg rules on the conflict of laws. iv) However, as to whether the interference was necessary in a democratic society, in light of the case as a whole the strict application of the relevant Luxembourg rules was not a sufficient reason for the purposes of Art 8(2) to justify the interference in the mother and child’s right to respect for family life in circumstances where: a) Adoption by unmarried persons was the subject of an advanced stage of harmonisation in Europe, with adoption by unmarried persons permitted without restriction in the majority of countries; b) The applicant had acted in good faith in circumstances were several Peruvian adoptions by unmarried women had previously been recognised by operation of law in Luxembourg and had a legitimate expectation that the lawful Peruvian adoption would be registered but for the sudden cancellation of the procedure; c) The decision to refuse to recognise the adoption failed to take account of the social reality of the situation which was that the mother and child encounter obstacles in their daily life and the child was not afforded legal protection making it possible for her to fully integrated into the adopted family; d) Having regard to the fact that the best interests of the child were paramount in the case, the Luxembourg courts could not reasonably disregard the legal status validly created abroad and corresponding to family life within the meaning of Art 8; e) The Government’s argument that the purpose of the legislation was to ensure that adoption would not be harmful to the adopted child was not convincing because, the child having been declared abandoned and placed in an orphanage in Peru, it was precisely the interests of the child that stood against the refusal to recognise the Peruvian adoption judgment; f) The Luxembourg court could not reasonably refuse to recognise the family ties that pre-existed de facto between the mother and child and thus dispense with an actual examination of the situation.[97]Within this context, the court concluded that where the Art 8 right to respect for family life is engaged, the non-recognition of a foreign adoption based on the strict application of domestic legal rules may, depending on the particular circumstances of the case, amount to an interference with that right, which interference can only be justified if that interference is in accordance with law, necessary and proportionate (see also Negrepontis-Giannisis v Greece [2011] ECHR 56759/08).[98]Pursuant to the Human Rights Act 1998 s 6(1) it is unlawful of a public authority to act in a way that is incompatible with a Convention right. Pursuant to s 6(3) of the 1998 Act the term ‘public authority’ includes a court or tribunal. Accordingly, it is unlawful for the court to act in a manner that constitutes an interference with the Art 8 right to respect for family life unless that interference is in accordance with the law, necessary in a democratic society and proportionate. In this way, the Human Rights Act 1998 affects the legal relationship between private parties because the courts owe a duty to protect individuals against breaches of their rights. Thus, in private law applications with respect to children which engage Art 8, the court is under an obligation not to determine the application before it in a way which is incompatible with the right to respect for family life (Re A (Intractable Contact Dispute: Human Rights Violations) [2014] 1 FLR 1185 at [42]-[46] applying Re B (A Child) [2013] 1 WLR 1911 at [45]).[99]I can identify no principled reason why this approach should not also encompass applications that fall to be determined by reference to common law rules. Indeed, I am satisfied that the authorities make clear that the court should seek to apply the common law and exercise judicial discretion consistently with the Convention. In circumstances where the court, as a public authority for the purposes of the Human Rights Act 1998, must not act in a manner that is incompatible with Convention rights, courts have a duty to comply with the Convention when applying the common law and in granting remedies (see for example Douglas v Hello! Ltd [2001] QB 967 at [166], Venables v News Group Newspapers [2001] Fam 430 at [27] and A v Secretary of State for the Home Department (No 2) [2006] 2 AC 221 at [27]). This is the position even where the common law is certain (see Derbyshire County Council v Times Newspapers Ltd [1992] 770 at 812 and 830).[100]I am satisfied that in determining an application for the recognition of a foreign adoption at common law and an application for a declaration pursuant to the Family Law Act 1986 s 57 the court must ensure that it acts in a manner that is compatible with the Art 8 right of the mother, the father and T to respect for family life. Further, within this context, and after much anxious deliberation, I amsatisfied that the strict application of the rule as to status conditions in Re Valentine’s Settlement to the very particular circumstances of this case, with a concomitant refusal to recognise the adoption lawfully constituted in Nepal in terms which substantially conform with the English concept of adoption by reason of the failure to comply with status conditions as to domicile or habitual residence applicable in this country, would result in an interference in the Art 8 right to respect for family life of the mother, father and T that cannot be said to be either necessary or proportionate.[101]I am satisfied that family life does exist between T and both of her parents for the purposes of Art 8. The Nepalese adoption was lawfully constituted and created a situation corresponding to family life between the parents and T within the meaning of Art 8. Further, it is plain on the evidence before the court that there are de facto family ties between the parents and T. Notwithstanding that the mother’s relationship with T has been somewhat interrupted recently, in my judgment the quality of the recently reinstated direct contact further demonstrates as a matter of fact the reality of the de facto family ties between mother and daughter. In the circumstances, I am satisfied that Art 8 is engaged in this case. I am further satisfied that a decision not to recognise T’s Nepalese adoption at common law on basis of the application of the rule in Re Valentine’s Settlement on status conditions would constitute an interference in the Art 8 right to respect for the family life that exists between the mother, the father and T.[102]Plainly, such interference in the Art 8 rights of the parties would be in accordance with the law, the rule in Re Valentine’s Settlement being well established and of long standing. However, with respect to whether the interference could be said to be necessary in a democratic society and proportionate, in light of the case as a whole in my judgment the strict application of the rule in Re Valentine’s Settlement in this case does not constitute a sufficient reason for the purposes of Art 8(2) to justify the interference in the mother and child’s right to respect for family life constituted by a refusal to recognise the adoption lawfully constituted in Nepal on that basis because: i) In circumstances where T’s best interests fall to be considered, the court cannot not reasonably disregard the legal status validly created in Nepal in 2008, which legal status corresponds to family life within the meaning of Art 8. I note in this regard that the United Kingdom has recognised the legal status validly created in Nepal in 2008 by conferring on T United Kingdom citizenship following her adoption in Nepal. In addition, and in any event, it is plain on the facts of the case that de facto family ties that exist between the mother, the father and T for the purposes of Art 8 that must be considered. ii) In circumstances where family life exists between the parents and T for the purposes of Art 8, the court cannot reasonably refuse to recognise the actual situation of the parents and T and thus cannot dispense with an examination of that actual situation. That actual situation is that the parents, who are both United Kingdom citizens, consider T, who is also a United Kingdom citizen, to be their legally adopted child and have treated her as such since 2008. More importantly, T considers herself the adopted daughter of her British mother and her British father and understands and believes this to be a settled and permanent situation and is comfortable with that life story, which life story forms a cardinal aspect of her identity. This situation has existed now for approaching a decade. iii) A decision to refuse to recognise the adoption in the foregoing circumstances would fail to take account of the social reality of the situation, which reality is that T could not be fully integrated into her adopted family by means of the creation of a permanent legal relationship. The consequence of this social reality is that T would be left without a permanent legal relationship with those she considers to be her legal parents in jurisdiction of her nationality notwithstanding the lawful adoption achieved in Nepal. In this context, I have borne in mind the observation of Goff J (as he then was) in Re B(S)(An Infant) [1968] Ch 204 that the court cannot shut its eyes to the possibility of creating the “limping infant” (referred to in Cheshire’s Private International Law, 7th ed (1965), p 382) whereby if T is, or becomes domiciled or habitually resident in this country, and were the Nepalese order not be recognised, she would continue to “limp” legally. For example, T would have no legal right of succession to the estate of the mother or the father in this jurisdiction. iv) A further consequence of the social reality of T being left without a permanent legal relationship with those she considers to be her legal parents in the jurisdiction of her nationality if the Nepalese adoption were not to be recognised is likely to be an emotional one. The Children’s Guardian is clear that T has an enhanced need for certainty T as an adopted child in a trans-racial placement. That need for certainty can only be increased as a result of the breakdown of her parents’ relationship and the events that have unfolded subsequent thereto. To be left without a permanent legal relationship in the jurisdiction of her nationality with those she considers to be her legal parents in my judgment directly undermines this cardinal need. v) Having regard to the fact that the best interests of the child fall to be considered in the case, neither of the situations articulated in (iii) and (iv) above can be said to be in T’s best interests and, indeed, are plainly antithetic to her best interests. vi) Within this context, whilst I recognise that the common law rule in Re Valentine’s Settlement is designed to ensure that adoption would not be harmful to the adopted child and that adoption of T effected in Nepal does not meet the requirements of that rule, to impose the requirements designed to avoid harm in this case would, on the particular facts of this case, create in my judgment a situation that is likely to be harmful to T, defeating the very purpose for which the rule was created. vii) I am satisfied that these various difficulties are not capable of being remedied by the option of T being adopted by each of her parents under the domestic law of adoption. This is not a realistic option in the circumstances of this particular case. The parents are engaged in divorce proceedings. Whilst the court may make an adoption order in favour of married applicants even where the couple have separated after the adoption application has been issued (see Re WM Adoption : Non-Patrial [1997] 1 FLR 132) in my judgment it would not be appropriate for the parents to issue an adoption application as a couple so long after separation and after the divorce proceedings have been issued. It would also not, in my judgment, be consistent with T’s best interests for only one of her parents to adopt her under the law of England and Wales as this would not reflect the position as T understands it to be and would introduce an imbalance of status and power into what is already a highly dysfunctional relationship between the mother and the father. I am further satisfied that it is not be appropriate for the court to consider two separate applications for adoption orders by the parents as single adopters pursuant to the Adoption and Children Act 2002 s 51. Whilst such a course is not expressly excluded by the Adoption and Children Act 2002 s 51, I am not satisfied that such a course of action falls within the terms of the section, which specifically provides for adoption by ‘one person’. The use of special guardianship order or child arrangements orders would not confer parentage and would not result in the creation of a legal relationship beyond the age of 18. viii) I am satisfied that there is no evidence of bad faith in relation to the adoption of T in Nepal. This is not a case in which the adoptive parents have sought to exploit inter-country adoption or have set out to mislead the Nepalese of domestic authorities in respect of the same. Indeed, I am satisfied on the evidence before the court that, notwithstanding their failure to comply with the relevant statues conditions, the parents have at all times acted with good faith.[103]For all these reasons, I am satisfied that the strict application of the common law rule in Re Valentine’s Settlement in this case, with a concomitant refusal to recognise the adoption lawfully constituted in Nepal in terms which substantially conform with the English concept of adoption, would constitute an interference in the Art 8 right to respect for family life that cannot be said to be either necessary or proportionate and, thus, would result in the court determining the application in a manner that is incompatible with the Convention right, a course rendered unlawful by the Human Rights Act 1998 s 6(1).[104]I make clear that my conclusion does not amount to a decision that the rule in Re Valentine’s Settlement is incompatible with Art 8 of the ECHR per se. Rather, it amounts simply to a decision that the application of that common law rule in the very particular circumstances of this case would breach the Art 8 rights of the parents and T. Further, whilst it may be observed that the reasoning set out in the foregoing paragraphs tacks towards the analysis adopted by Salmon LJ in his dissenting judgment in Re Valentine’s Settlement, I make clear that my conclusions are grounded in an application of the cardinal principles incorporated into our domestic law by the Human Rights Act 1998 and the jurisprudence arising out of the ECHR. Whilst both Mr Bagchi and Mr Perkins submit that there are now good reasons for a wholesale reconsideration of the rule in Re Valentine’s Settlement (see for example the analysis set out in Dicey, Morris & Collins on the Conflict of Laws (Sweet & Maxwell, 15 Edn, 2007) at 20-127 to 20-131, in International Adoption (Family Law, 2012) at 7.85 and (in respect of the position in Scotland) in Anton’s Private International Law (Sweet & Maxwell, 3 Edn, 2011) para 17.158) that is not a matter for this court.[105]Finally, I must consider the public policy criterion. A decision to recognise a foreign adoption in circumstances where the status conditions ordinarily needed to justify such recognition have not been met plainly raises an issue of public policy. There is a plain public interest in the maintenance of all the safeguards which the developed law of adoption in this jurisdiction has devised in respect of foreign adoptions. In this regard, it is useful to recall the salutary words of Peter Jackson J in A County Council v M and Others:
“It is at least arguable that there is good reason why standards for recognition should not be relaxed where approved procedures have not been followed in the case of an adoption from a country that is neither a signatory to the Hague Convention nor a designated country. The world has indeed changed since 1965, and with it the world of intercountry adoption. The ease of international travel has made adoption from overseas more available, with all its benefits and possible pitfalls. The Hague Convention and the overseas adoption procedure are mechanisms that increase confidence that standards are maintained. The same confidence cannot always be felt in relation to adoptions effected in countries that are not Convention signatories, and the importance for child welfare of following approved procedures in these cases is consequently the greater.”
[106]Against this, I bear in mind that this is not a case where the relevant safeguards fall to be considered in the context of, for example, an adoption arising from the buying and selling of children irrespective of their actual welfare needs (to use the example cited by Hedley J in Re T and M (Adoption)) or an adoption to promote some immoral or mercenary object, like prostitution (to use the example cited in Dicey, Morris & Collins on the Conflict of Laws (Sweet & Maxwell, 15 Edn, 2007) at 20-133). Rather, this is a case in which the safeguard comprised of the status conditions fall to be considered in respect of a foreign adoption achieved in good faith and which complies with the requirements for recognition in all other respects, the recognition of which adoption is manifestly in the child’s best interests.[107]Further, and importantly, I remind myself of the view expressed in Dicey, Morris & Collins on the Conflict of Laws (Sweet & Maxwell, 15 Edn, 2007) at 20-133 that:
“It is also the case that in interpreting and applying public policy as a ground of non-recognition regard must be paid to the European Convention on Human Rights, in particular the right to family life in Art. 8 and the right to a fair trial in Art. 6”
. Whilst it is important for the reasons I have given to maintain all the rules which the developed law of adoption in this jurisdiction has devised to safeguard the welfare of children who are subject of foreign adoptions, it would be contrary to public policy in my judgment to apply those rules in a way that results in the breach of the fundamental rights of the parties to the proceedings in a given case, as I am satisfied it would in this case for the reasons that I have already given. In all the circumstances, I am satisfied that it would not be contrary to public policy to recognise the T’s Nepalese adoption at common law.[108]For all of the reasons I have given, and notwithstanding that the rule in Re Valentine’s Settlement as to status conditions has not been met in this case, I am satisfied that I can and should recognise T’s Nepalese adoption at common law. I am further satisfied that it is proper in those circumstances to make a declaration under s 57 of the Family Law Act 1986 that T is the adopted child of the mother and the father for the purposes of s 67 of the Adoption and Children Act 2002.

Welfare

[109]I am entirely satisfied, having T’s best interests as my paramount consideration, that she should remain living with her father and have contact with her mother at regular intervals. In my judgment an analysis of T’s welfare by reference to the matters set out in the welfare checklist laid out in s 1(3) of the Children Act 1989 plainly support this conclusion.[110]T, at the age of approximately 12 years old, has stated clearly, consistently and with some force that she wishes to remain living with her father in the UAE. Whilst not determinative, I am satisfied that T’s wishes and feelings should be given significant weight. Those wishes and feelings have been firmly and consistently expressed. Mr Power was clear when giving evidence that T is a self-assured and forthright girl, comparatively mature who at interview he found to be convincing as to the integrity of her ascertained wishes and feelings. Like Mr Power, I have also been careful to bear in mind the inherent inequality of arms in terms of influence and advantage the father has vis-à-vis the mother. I am however, having regard to the manner in which T immediately re-engaged with her mother during contact after a number of years, satisfied that the father has not sought to influence T’s wishes and feelings. Having regard to the clarity, strength and consistency of T’s expressed wishes, I am satisfied that they should attract substantial weight within the court’s analysis of T’s welfare and that the court would need a good reason to act against these clearly expressed views in circumstances where, as identified by Mr Power, to do so could well result in her emotional wellbeing and security being jeopardised.[111]I satisfied that T’s physical, emotional and educational needs are well met in Dubai. In terms of her physical needs she has a settled, safe and secure home. The medical needs arising out of her precocious puberty are well managed. In terms of her emotional welfare, the majority of her significant attachment relationships and peer relationships are in Dubai. It is plain from the evidence before the court that T’s educational needs are very well met in Dubai and that she is thriving educationally.[112]I am not able to accept the mother’s assertion that life in the UAE will fail to equip T for life in Europe in the 2020s. I likewise reject the mother’s contention that the UAE fails to provide T with aspirational role models. Indeed, in the context of the mother’s various assertions regarding the disadvantages of the UAE it is worth noting that in explaining to the Nepalese authorities the reasons for wishing to adopt T, the mother put her signature to a letter in 2006 stating as follows: “Our home is in Dubai – a country where she will have an international upbringing, learning tolerance and respect for all cultures, nationalities and religions. Educational opportunities are excellent here, with standards of schooling which surpass many schools in the UK. Crime rates are low; quality of life is high. She will only be a few hours flight time away from Nepal, so regular visits to her country of birth are easy to organise, and something we feel will be essential for her”.[113]I have of course borne carefully in mind that the mother is able to provide T with safe and secure accommodation in this jurisdiction, that high quality medical care is available here and that good quality education could be made available for her. Mr Power considers that the mother’s plans for T in England are well thought through, achievable and sensitively tailored to T’s needs and interests. What cannot however be easily transposed to England are T’s well established peer and educational relationships and community. I likewise accept that T has a clear need to re-engage with and develop her relationship with her mother and to have knowledge of and a relationship with her maternal extended family. I am however satisfied that these needs can be met through the provision of good quality, regular contact. In circumstances where T’s relationship with her mother has survived intact despite the physical disruption of their separation as though that separation never occurred, I am satisfied that T’s relationship can be maintained and developed through the medium of contact.[114]In my judgment, the likely effect of a change of circumstances for T further militates against a change in her current living arrangements. In his oral evidence Mr Power described this as the nub of the case in respect of welfare. The mother acknowledges that a move for T would be a “huge change for her”. An order requiring T to live with her mother in England would impose upon T a change in direct contradiction to her expressed wishes and would result in the loss of her peer and educational relationships and disruption to her education and current medical treatment and the enhanced need for certainty T has as an adopted child in a trans-racial placement. Such a change of circumstances would remove her from the stability and security she has known for a significant part of her childhood and from a situation in which she is plainly thriving physically, emotionally and educationally. I am satisfied that this would be antithetic to T’s best interests.[115]With respect to T’s relevant characteristics, Mr Power rightly highlights the enhanced need T has as an adopted child in a trans-racial placement for certainty as to where she will live, and with whom. In my judgment this need is best met by maintaining the status quo that T is content with and wishes to continue. I am not able to accept Mr Perkins’ submission that the adoption research he cites in his closing submissions points to a move to the mother care as being in T’s best interests. Indeed, in so far as that research is relevant to the welfare analysis that the court has to undertake in this case (and I entertain significant doubts that it is), the fact that difficulties emerge for internationally adopted children during their secondary school years (The Study of Intercountry Adoption Outcomes in Ireland (2007) Children’s Research Centre at Trinity College Dublin) and that nearly two thirds of adoption disruptions occur during secondary school years (Beyond the Adoption[116]With respect to the fact that T is a female child about to enter puberty, I am not able to accept the mother’s submission that the father will not be able to cope with this phase of T’s development. As Mr Powers notes, T is not lacking in female input in Dubai and she will, in accordance with the order of this court, have extensive contact with her mother. T’s school Principal notes that the father is “a ‘better mum and dad’ than many parents I have met over the years”. The father’s training as a teacher has given him extensive experience with both teenage boys and girls.[117]With respect to any harm T has or is at risk of suffering, Mr Power considers that T is acutely aware of the differences that exist between her parents. It would appear however, having regard to the happy, confident and balanced child she has developed into, that T has remained to a certain degree insulated from the potentially caustic effects of her parents ongoing internecine warfare. It is however crucial that the parents now find a way to co-operate in the upbringing of T that does not expose her to further family strife if further emotional harm to T is to be avoided. The tentative steps taken by the parents recently towards this end by agreeing contact arrangements are to be heartily commended. It is also the case that the mother’s actions in posting information intensely private to T risk causing her emotional harm in the future. The father is clear that T has already come across her image online. The mother would be well advised to take what steps she is able to see that material private to T is removed from the public domain.[118]Turing to the question of how capable is each of the parents of meeting T’s needs, Mr Power is satisfied that both parents could meet T’s needs. Mr Power credits both parents with the fact that T is comfortable with her identity as an adopted child.[119]With respect to the mother, I have borne carefully in mind that the mother was substantially involved in the parenting of T before she left the UAE and, accordingly, must share credit for the happy, confident and secure young girl T has developed into. Further, it is plain that T has a good relationship with her and that that relationship has been sufficiently strong in terms of attachment to survive physical separation. For the reasons I have set out, I however entertain substantial concerns over whether the mother will be able to meet fully T’s emotional needs. The mother remains pre-occupied with the perceived injustice of her position and I have reservations over the mother’s ability to insulate T from her own raw feelings about the past and to promote for T a balanced picture of, and relationship with her father were she returned to the care of her mother.[120]I am satisfied that father has met, and is capable of meeting T’s needs. His evidence showed clearly that T is at the centre of his thinking at all times. I consider that the fact that T was able to settle back into the company of her mother with such ease to reflect the level of emotional care that the father has provided to T during the period she has resided within him in the UAE. Within this context, I do not accept the mother’s assertion that the father would fail promote a relationship with the mother or that he would seek to obstruct that relationship. The fact that T was able to resume a natural and relaxed relationship with her mother almost without pause negates any allegation on the part of the mother that he has sought to influence T against her mother. In this regard, I have also had regard to fact that the father has been able to agree, ahead of the determination of this court, extensive contact between T and her mother.[121]I am likewise not able to accept the mother’s submission that the father’s personality and parenting style and views on the modern world will “inevitably” lead to conflict with T as she grows older. Indeed, in my judgment the father is to be commended as a parent for ensuring that T’s use of the internet is restricted to reasonable periods of time and monitored for safety and once again demonstrated that the father prioritises T’s welfare. T’s statements, together with the unchallenged statements adduced by the father, gainsay any suggestion that the father is less hands on with T’s care. Within the foregoing context I entirely reject the mother’s contention that the father presents a risk to T’s emotional welfare, which contention is not only contradicted by the witness evidence filed by the father in these proceedings and not disputed by the mother, but also contradicts the mother’s own written evidence.[122]The difference between parents’ respective presentations was perhaps most clearly encapsulated when Mr Ford asked each parent during cross examination to relate the advantages and disadvantages of T moving to live in England. When considering the negatives, the mother did not mention at any point the separation of T from her father until prompted by Mr Ford. She considered that T would experience no more negatives “than any other ex-pat child”. By contrast, the very first advantage the father listed was that “T would be with [her mother]”.[123]Finally, I have of course borne very carefully in mind the potential limitations on the mother travelling to the UAE for the purposes of contact. Whilst Dr Hamade was able to propose a number of options for dealing with this issue, in my judgment it remains clear that, practically, the mother cannot be given a guarantee that she will be able to enter and leave the UAE without difficulty, which situation will inevitably, and understandably in light of her past experiences, impact on the mother’s willingness to entertain contact with T in that jurisdiction. That said, in circumstances where I am entirely satisfied that it is in T’s best interests to remain living with her father in the UAE and in circumstances where the parties have the resources to ensure that extensive contact can be facilitated in this jurisdiction, I am not persuaded that the mother’s difficulties in, and reservations in respect of the UAE constitute a sufficient reason to alter my conclusion regarding T’s living arrangements.[124]Having regard to the foregoing matters, and holding as I must T’s best interests as my paramount consideration, I am satisfied that it is in T’s best interests to make a child arrangements order stipulating that she live with her father in the UAE and spend time with her mother in the UAE and England or, if necessary, England.

CONCLUSION

[125]For the reasons I have given, I make a declaration pursuant to the Family Law Act 1986 s 57 that T is, for the purposes of s 67 of the Adoption and Children Act 2002, the adopted child of QS and RS. Further, I make a child arrangements order providing that T will live with her father and have contact with her mother in accordance with the arrangements agreed between her parents. I direct that a copy of this judgment and the final order be disclosed to the Attorney-General.[126]That is my judgment.

order

best interests) [2015] 2 FCR 385 at [35]). In Re B (A Child) [2010] 1 FLR 551 at [42] Lord Kerr observed as follows: “What we heard of the contact and residence arrangements, made as a result of the conditions imposed by the Court of Appeal’s order granting a stay, confirmed the view that considerable disruption to Harry’s life would have been involved in a transfer to live with his father. The distance between the homes of his grandmother and his father exceeds 30 miles, we were told. It seems inevitable that, if he were to live with his father, he would no longer be able to attend the nursery where he has already made good progress. Transfer of his residence would involve a great deal more than a change of address. Many of the familiar aspects of his life which anchor his stability and sense of security would be changed. The justices were, therefore, right to give significant weight to the desirability of preserving the status quo. This is a factor which will not always command the importance that must be attached to it in the present case but we are satisfied that it was of considerable significance in the debate as to where this child’s best interests lay”. THE EVIDENCE Order: Challenges, Interventions and Adoption Disruption (2014) DfE). vii) The father’s “style” of parenting would inevitably lead to conflict between T and her father with which, as a single, unsupported parent he is ill equipped to deal; viii) The father is a largely isolated figure with little or no emotional support outside paid staff and T’s current school; ix) Teenage years spent “largely in isolation” from her wider family would “rob” T of the opportunity to become integrated with a loving and supporting family network into adulthood and beyond; x) The father has failed to progress steps to ensure that an agreement is lodged with the courts of the UAE to reflect the judgment of and undertakings offered to this court at the conclusion of the hearing on 15 October 2015. The Father Order: Challenges, Interventions and Adoption Disruption (2014) DfE) is, of course, an argument for maintaining the stability and security currently provided by T’s placement with her father and an argument against any disruption of this absent very good reason. Further, in circumstances where T, as an adopted child, needs a clear sense of her life story and of being valued by her family, for the reasons I have already articulated, I have grave concerns over the ability of the mother to provide a balanced account of her life story for T. I am satisfied that the father clearly recognises the issues of identity that may face T as she goes through her teenage years and wishes to be able to take T to Nepal to see where she was born and to her experience her birth culture first hand.

Cited in 11 later judgments

and 2 more of the most senior