ELO v CLO (recognition of a Nigerian adoption order) [2017] EWHC 3574 (Fam)

[2017] EWHC 3574 (Fam)Case No FD17P00262
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 08/12/2017
Before
MRS JUSTICE THEIS DBE
Between
ELO1 st ApplicantCLO2 nd Applicant
Ms Kathryn Cronin (instructed by Goodman Ray) for 1 st& 2 nd ApplicantsMs Claire Van Overdijk (instructed by Government Legal) for IntervenorHearing Hearing date: 4 th August 2017; Judgment date 8 December 2017
Judgment ApprovedThis judgment was delivered in private. The judge has given leave for this version of the judgment to be published, the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.Mrs Justice Theis DBE:Introduction
[1]This matter concerns the application by ELO and CLO for recognition of a Nigerian (Anambra State) adoption order of their daughter V, age 5 years 2 months. The Applicants have lived here for a number of years, V remains in Nigeria living with the Applicants’ relatives.[2]The Applicants submit they meet the criteria set down in In re Valentines Settlement, Valentine and others v Valentine and others [1965] Ch 831. If they do, such an order will allow them to be treated as V’s ‘parents’ in immigration law and allow V to seek entry clearance for settlement as their adopted child. Her entry is not assured by the recognition order, as she must satisfy the criteria in the Immigration Rules HC 395 para 310.[3]This application is resisted by the intervenor, the Secretary of State for the Home Department (‘SSHD’) who submits, in particular, that two of the four criteria in In re Valentines Settlement are not established, namely; that the Applicants were not domiciled in Nigeria at the time of the adoption order in March 2014 and that V has not been legally adopted in accordance with the requirements of Nigerian law.[4]The matter was listed for hearing on 4 August 2017 but, during that hearing it became apparent that further relevant information may be available. I made directions that timetabled the extra information to be sought, and for the parties to provide written closing submissions. There was some slippage in that timetable, and as a result the final written submissions were filed and served in mid-October. Regrettably, there has been further delay due to commitments on other cases.[5]I am indebted to both Ms Cronin and Ms van Overdijk for their detailed written submissions. Their thorough analysis of the legal framework (statutory, regulatory and case law) was of considerable assistance. Their respective arguments were very well articulated, both orally and in writing. The court is particularly grateful to Ms Cronin and her solicitors, for continuing to represent the Applicants pro bono.[6]For the reasons set out below, I have concluded that the Applicants have met the relevant criteria and that the adoption order made in favour of the Applicants concerning V should be recognised. Relevant Background[7]CLO, 65 years, and ELO, 50 years, were both born in Nigeria. They have filed three statements in support of their application, setting out the background and circumstances leading up to their decision to adopt V.[8]Due to political difficulties, connected to his activities with one political party, CLO left Nigeria in 1995 and came to England. His five children and their mother remained in Nigeria. CLO applied for political asylum. In 1998 he was recognised as a refugee and granted leave to remain in the UK until June 2002, then in 2002 he was given indefinite leave to remain. In 2003 CLO was issued with a refugee travel document allowing him to travel to countries, except Nigeria. He made short visits to Ghana and Cameroon, in order to try and see his family, which he was able to do in 2008.[9]ELO came to England in 1996 on a visitor visa. She married DE, a British citizen, in 1999 and in 2003 was granted leave to remain in the UK as a spouse. She divorced DE in 2005 due to domestic abuse, for which DE was imprisoned.[10]CLO and ELO met in 2009, formed a relationship and married here in 2012.. They had a customary wedding in Nigeria in February 2014. They were both naturalised as British Citizens in 2011. In her statement ELO describes CLO discussing whether he should apply to be naturalised as a British Citizen so that he could visit his children in Nigeria. When he decided he was going to apply ELO decided to apply also, as she says ‘We could both see the travel advantages this gave us and as Nigeria allows dual citizenship we did not see the British Naturalisation as affecting out Nigerian citizenship, our Nigerian loyalties or attachment.’ They both wished to have their own children, but after a period of trying were unable to. Having considered the options, they decided to pursue adoption.[11]During 2011 they made enquiries with Local Authorities here and were referred to Parents and Children Together (PACT) Adoption agency about adopting a Nigerian child. They became aware that a Nigerian adoption order would be automatically recognised in English law (ss66 and 87 Adoption and Children Act 2002 and Adoption (Designation of Overseas Adoptions) Order SI 19/1973).[12]In early 2012, following ELO making initial enquiries by telephone, they applied by letter dated 29 January 2012 to the Ministry of Women Affairs and Social Development (‘MWASD’) in Anambra State, Nigeria about adopting a child. Their letter made it clear they resided in the UK and included details of their personal circumstances. Their letter referred to their wish to ‘nurture and parent a child from our home country Nigeria’. In their statement they describe the information they were required to send to support their application. They said they were contacted twice by the MWASD. In August 2012 about a baby boy who was available for adoption and then in October 2012 about V, who they were told may be available for adoption.[13]V was born in October 2012; her birth date is estimated as she was abandoned by her birth parents. V was placed in the Model Motherless Babies Home in, Anambra State near to where she was found. This establishment is owned and managed by MWASD. Despite formal inquiries, there was no information found concerning her parentage and identity. Her birth was not registered.[14]In February 2013 the Applicants travelled to Nigeria for two weeks to be assessed as to their suitability to be adopters. They could not travel before then due to the need to save up for the cost of the trip and their limited leave through their respective jobs here. During that visit they met V for the first time. The Applicants were staying with a family friend, whom they would normally stay with when they visited Nigeria. They are clear the MWASD were aware they lived in England and they had to show their British passports and the originals of the documents they had previously submitted. They were visited by the social worker on two occasions, whom they describe as undertaking background checks.[15]The Nigerian home visit report was completed. This was positive, and the Applicants were considered suitable to adopt. The report is dated 3 March 2014. The front of the report details the Applicants home address as being in the UK, although the body of the report refers to their ‘home town’ as being the address they were staying at in Enugu, Nigeria.[16]In March 2013 V was placed in the applicant’s care under a fostering arrangement. V was introduced to ELO’s sister, A. The MWASD met to approve A as a carer for V under a delegated fostering arrangement, which is confirmed in the letter dated 4 July 2016 from the Director of Child Development MWASD. V was introduced to her two grandmothers and, in keeping with Nigerian tradition, each grandmother named her. At the end of March 2013, the Applicants returned to the UK and began making enquiries as to how V could enter the UK to live with them. They initially contacted PACT for a home study report to be undertaken, they were advised this was going to cost between £6 - 8,000, which they state they were unaware of. As a result they needed to save to fund the report, and were unable to afford to return to Nigeria until 2014.[17]Anambra social workers visited and telephoned to monitor V’s placement with A. The Applicants describe in their statements how they fully funded V’s placement with A, including paying a regular monthly payment to A, the household expenses and any medical costs for V. They also made all the decisions about V’s care. In October 2013 the Applicants arranged a birthday party in Nigeria for V, attended by close family and friends.[18]Unbeknown to the Applicants on 4 January 2014 the Adoption (Recognition of Overseas Adoptions) Order 2013 came into effect, which removed Nigeria (as a non-Hague Convention signatory) from the list of countries whose adoptions are automatically recognised in England and Wales.[19]The Applicants returned to Nigeria in February 2014, whereupon they had a traditional marriage and proceeded with their application to adopt V. The affidavit of facts, signed by the then Director of Child Development MWASD is dated 3 March 2014 and confirms the Applicants had been assessed as being suitable to adopt.[20]As to V’s care arrangement with A, Anambra’s Child Rights Law requirement in s 134(e) is for an adoptive child to be ‘in the care’ of the adopters for 3 months prior to the making of an adoption order. The Director of Child Development MWASD, stated in her letter dated 20 July 2017 that this provision can be satisfied if the child is in the direct care of the adopters or their extended family, noting the importance of the extended family.[21]The Applicants state they were assisted throughout the adoption process by the MWASD Director of Child Development, Mr E. They did not instruct a lawyer. They worked closely with Mr E, who assisted with the preparation of their adoption application. Mr E, a barrister by training, represented V in the adoption process and maintained close contact with the Applicants, including involving ELO in the preparation of papers for the adoption hearing. ELO attended court with Mr E who presented the case to the magistrate and ELO responded to questions as to V’s welfare from the magistrate. She gives a detailed description in her second statement and confirms that CLO was not present at the hearing, as he was visiting his sister who was not well.[22]On 4 March 2014 an adoption order was made by the Magistrates Court of Anambra State in Nnewi Magisterial District in respect of V in favour of the Applicants. The MWASD confirmed that the Applicants are at liberty to travel to and reside outside Nigeria with V.[23]On 6 March 2014 permission was given to the Applicants by the Director of Child and Development to apply for a Nigerian passport for V to leave Nigeria.[24]On their return to the UK the Applicants discovered their Nigerian adoption order relating to V was not recognised in English law. As the letters included in the court bundle make clear between 2014 and 2016 the Applicants sought legal advice about bringing V to the UK. They contacted Parents and Children Together (‘PACT’) for advice and sought the assistance of their local MP. It was only in late 2015/early 2016 that the Applicants were provided with the names of solicitors with expertise in intercountry adoption, ELO then made contact with the Applicant’s current solicitors. During this period, they remained in regular contact with V, were financially responsible for her care with A and made all the decisions about her care.[25]In March 2016 the Applicants planned visit to Nigeria didn’t go ahead due to ELO requiring an operation, and being unable to travel. They visited in June 2016 for three weeks and assisted moving V to CLO’s relative’s home in Lagos, as A was planning to get married and move away from the area and it would be easier for the Applicants to visit V if she was nearer Lagos. On 20 June 2016 V’s birth certificate was re-registered with the Applicants as V’s legal parents.[26]V started school in September 2016. The Applicants detail in their statement the steps they took to select her school and how they remain in contact to monitor V’s education.[27]CLO visited Nigeria for three weeks in November 2016 to visit V.[28]On 30 November 2016 Goodman Ray, solicitors for the Applicants, wrote to the Attorney General to give notification of the applicant’s intention to seek recognition of their Nigerian adoption order concerning V.[29]On 26 April 2017 the Applicants’ applied for a declaration of recognition of the Nigerian Adoption Order dated 4 March 2013. Following directions given by Peter Jackson J (as he then was) the matter was listed for hearing on 4 August 2017. The SSHD applied to intervene on 18 July. That application was granted.[30]The Applicants’ solicitor wrote to Mr E (Director of Child Development MWASD) on 5 July requesting further information on a number of matters. Mrs O(Director of Child Development) responded on 20 July and set out the basis upon which the court would consider waiver of the legislative requirements ‘on the balance of probability and the evidence presented before the court would waive certain legislative criteria to ensure the best interest of the child which is of paramount consideration. This was so in the case of Mr and Mrs LO’. As regards the 5 year residence requirement under s 134 (b) and (c) she responded that as ELO resided in Anambra state from 1990 – 1996 and CLO worked in Anambra State prior to going to the UK the MWASD was satisfied about the Applicants strong ties and links with Anambra State to meet the residence requirement for them to adopt a child from the State. She confirmed that having acquired resident status V was then placed in their care for 3 weeks in March 2013 and thereafter resided with A, with the approval of the MWASD and, following their return to the UK, under the direction and control of the Applicants. On the facts, she continued, the applicants had complied with the requirement for V to live with them for 3 months prior to the adoption order being made as the child had lived with extended family under their direction. She said that in her role as the Probation Officer and Appropriate investigating officer, she was satisfied, having considered all the evidence, that the Applicants were eligible to adopt a child in Anambra State and made a recommendation to the Court on the basis of the evidence available. She set out the documents in support of the application and Mr E’s role, under the court rules, was as the Guardian ad Litem for the child to safeguard V’s interests.[31]In their written evidence the Applicants set out ELO’s difficulties in having children, and that she had undergone a number of failed IVF procedures in her first marriage. The Applicants state they wanted a child and both agreed they would adopt a Nigerian child. They describe choosing Anambra State due to ELO’s close connections there, being where she lived and worked prior to coming to the UK.[32]According to their statements they have maintained close contact with V, have been responsible for her care and have made the necessary decisions connected with her care. They have visited V whenever their holiday entitlements have allowed it. They each have 3 weeks holiday a year, their income is relatively modest (ELO is an administrator and CLO was a bus driver). Whilst V remains in Nigeria they are having to support two homes, which places financial pressure on them as well as the cost of travelling to Nigeria and the legal and other expenses in pursuing this application. In addition, as ELO describes, their visits to see V can be unsettling for her.[33]At the hearing on 4 August both Applicants gave oral evidence, as did Mr Badejo, the expert on Nigerian law.[34]In her oral evidence ELO confirmed that she had worked with her current employers for 16 years, CLO was a bus driver but now undertook taxi driving. She said they both contributed to pensions here, because this is where they had worked. She confirmed their intention to return to live in Nigeria and described the options as to where they would live when they returned, including building on some land she said they had purchased near Lagos (which was not mentioned in their statements). She confirmed some of the factors behind her application for British Citizenship which included easier travel and job applications. She said she lived here but her roots remained back in Nigeria. She confirmed the regular payments made to the burial fund, so that in the event of their death she and CLO would be repatriated and buried in Nigeria. She produced further photographs of family gatherings and the properties. In his evidence CLO confirmed he had a 6th child, now age 11 years, who lives here but he has not had contact with. He agreed if V came here they would apply for British Citizenship for her, as it made things easier if they were travelling but she would retain her Nigerian citizenship. CLO was pressed why, when the political situation in Nigeria changed, he did not return there. He said by then he had spent time here, was settled here but still retained strong connections to Nigeria. He was pressed why he had not gone back to Nigeria more regularly, he said to do so may make him appear ‘an ungrateful person’ for the help he had been given here and he did travel to neighbouring countries to try and see his children. They both agreed as part of their citizenship application they had said their ‘main home’ was here, but were clear that did not mean they had given up their connections with Nigeria or their intention to return to live there. CLO said he retired at the end of 2014 for medical reasons and cashed in his pension. Since then he has done some part time driving work. He plans to re-train and work here and in due course return to live in Nigeria. He described his family home in Nigeria and the plans to build one on the land near Lagos for ELO.[35]It became apparent following the oral evidence that further relevant evidence may be available; in particular further information that may be available on V’s adoption process. The agreed information was set out in the annex to the order and is detailed below: We are very grateful to the Ministry for providing its detailed response in the letter of 20.7.2017 concerning the LO adoption but have some further questions concerning this. In particular the High Court and parties note that the letter recites certain Court findings and refers to the Court’s exercise of the waiver power concerning certain statutory adoption criteria in the LO case. As the case was heard by the Court some 3 years ago it would be most helpful if Mr E (or the Ministry) could confirm the source of the information in the 20.7.2017 letter on the LO adoption. It would be most helpful for the court and parties if Mr E and of the Ministry could respond to the following as soon as possible so that the High Court here could make its decision whether to recognise the adoption. We are very grateful for your help in this matter. Our questions are: 1. Did the magistrate’s court issue a written judgment in the LO case giving their reasons for making the adoption order? Do you have a copy and if so can you supply it? 2. Is the information in the letter of 20.7.2017 about the Court’s findings and its waiver of certain of the section 129 requirements recorded on Court or Ministry documents or files? If so could the Ministry provide us with copies of such documents – if so, what time period would be required for this? 3. Can we be provided with a copy of the Ministry file in relation to the LO adoption? 4. Can the Ministry access the court file on the LO adoption and provide copies of it. What time would be needed to provide a copy of this file? 5. If the information in the letter of 20.7.2017 letter is not recorded in Ministry files or court documents, can Mr E or the Ministry confirm how this information is known? Please identify the person who supplied the information in the letter and how the person has retained a detailed knowledge of the Court decisions in the LO case. 6. The letter of 30.7.2017 makes clear that the Ministry approved Mr and Mrs LO as adopters knowing that they were resident in the UK, that only Mrs LO had lived for 5 years in Anambra State and that V would be fostered during the pre-adoption period by Mrs LO’s sister. In the light of the provisions of section 129 of the Childs Right Law 2003, can the Ministry explain the reasons for their approval? 7. Where the Ministry has approved adopters in the circumstances described and 6. above – what is the approach taken by the court to the adoption application? As stated above – we are most grateful for the assistance of the Ministry in this case. If a response could be sent to me by 7 August this would be most helpful and much appreciated. Sincerely Katrin White Senior Associate Goodman Ray Solicitors The response from the MWASD is set out below: TO WHOM IT MA Y CONCERN ADOPTION OF [V] BY MR. LO AND MRS ELO RE: ADOPTION ORDER DATED 4thMARCH, 2014 I am further directed to refer you to the above subject matter and to in form you that in the light of the request from the Home Office for the information contained in their email dated 5th August 2017, I hereby respond as contained herein; 1. We consider your request for confidential information concerning a child born and adopted outside the UK to be unrealistic and unethical. The information you are requesting is information which you have already been provided in the form of a detailed letter from the Ministry signed by me, the current Child Development Director explaining and confirming the adoption processes surrounding the Adoption of [V] including the circumstances explaining and supporting the waiver, reference Sec 129 of the Anambra State Child Rights Law 2004- these information were gotten from available records in the office. 2. As previously mentioned, the information you are requesting is considered highly confidential and should not be disclosed to a third party, particularly one from another country. The fact that this information has already been provided to you and yet you are now asking for it again is only not in the child's best interest. Ifone were to be cynical, it could be suggested that you were throwing up as many obstacles as possible in an effort to prevent a successful conclusion to this application. I certainly hope for the sake of the child at the centre of this case, this is not true. 3. The Ministry as an establishment set up to be in charge of adoptions in Anambra State have information of every adopted child considered confidential and the case of the child in question is not an exception. 4. The beauty of adoption is that once concluded the adopted child and the adopting parents are as quickly as possible made to stay together as child and parents not to deny the child right to a family. My regards. Mrs O Director Child Development For Honourable Commissioner. Date stamped 10.8.2017[36]The order provided for the response to the questions to be filed by 18 August, the applicants to file and serve written submissions by 4 September and the SSHD to respond by 20 September, with the Applicants to file any response by 27 September and my clerk was to notify the parties of the date of the judgment hand down by early October. There was slippage in that timetable due to uncertainty about the applicant’s continued representation. Fortunately, Ms Cronin and her solicitors agreed to continue to represent the applicant’s pro bono. The Applicants’ closing written submissions were dated 26 September, those on behalf of the SSHD 5 October and the applicant’s response 13 October. Due to commitments in other cases it was not possible to hand down the judgment until early December.[37]The additional information received since the August hearing consists of a response dated 10 August from Mrs O, Director of Child Development at the MWASD to the email dated 5 August (set out above). There is reference in Ms Cronin’s written submissions to land title documents, but those have not been submitted to the court. In her written response Ms O refused to provide any further information, stating that the information that was requested had either already been provided or was ‘highly confidential’ and concluding that ‘The beauty of adoption is that once concluded the adopted child and the adopting parents are as quickly as possible made to stay together as child and parents not to deny the child right to a family’. The Expert Evidence[38]Mr Badejo provided a written opinion and gave oral evidence. He is a barrister who practises both here and in Nigeria. His expert opinion is that V ‘has been legally adopted in accordance with the Child Rights Law of Anambra State’ and that the adoption ‘was in accordance with the requirements of the Child Rights Law of Anambra’ and the court had power to waive the requirements of the Anambra State law that were not satisfied ‘and those requirements were lawfully waived by the Court that made the order’.[39]His expertise is set out in paragraph 1 of his opinion and his compliance with the requirements to be an expert witness are set out in the declaration at the end of his opinion.[40]In his written opinion he sets out the requirements that need to be satisfied for adoption under Anambra Child Rights Law before an adoption order can be made.[41]Section 129 provides for the application to be made in a prescribed form with various documents to be submitted in support, such as a marriage certificate and a birth certificate. He confirms he has not seen that documentation, but relying on what is set out in the Applicants’ statements and the letter from the MWASD he states ’it appears that this requirement was satisfied’. S 129(2) provides that on receipt of the application certain investigations are required to be carried out, in particular a report that assesses the suitability of the Applicants as adopters. In his view the home visit report, dated 3 March 2014, appears to be in compliance with s 129(2).[42]S 129 (3) imposes obligations on the court that in reaching a decision relating to the adoption of a child the court shall have regard to all the circumstances first consideration being given to the need to safeguard the welfare and best interest of the child throughout its childhood, and, so far as is practicable, ascertaining the wishes and feelings of the child and giving due regard to those wishes, having regard the age and understanding of the child.[43]Mr Badejo recognises that there is no full judgment of the court which sets out reasons for the adoption order. In his view V would have been too young to express any wishes and feelings. He notes that paragraph 19 of the letter from the MWASD dated 20 July 2017 states the court ‘had regard to all the circumstances; however, first consideration was; The need to safeguard and promote the welfare and best interest of the child’. In his opinion, on the basis of the information he had available the requirements of s 129 ‘appears to have been satisfied’.[44]In his written opinion he considers that as V was abandoned the requirement for parental consent under s 131 was not required. S 132 requires the adopters to be over 25 years, married and deemed to be suitable to adopt. As Mr Badejo observes, there is no dispute about these matters.[45]S 134 provides that an adoption order shall not be made unless the Applicants are over 25, citizens of Nigeria and had at least twelve months before the making of the order informed the social welfare officer of his intention to adopt (none of which are in dispute); it also requires (b) The applicant or in the case of a joint application both or at least one of them and the child are resident in the State (c) The applicant has been resident or, in the case of a joint application both of them have been resident for a period of at least 5 years… (e) The child has been in the care of the applicant for a period of at least three consecutive months immediately preceding the date on which the adoption order was made[46]Mr Badejo recognises that s134 is a key provision, but states that the letter from Mrs O on 20 July 2017 confirms that where the best interest of the child require it, some of the requirements of this section may be waived by the courts. He sets out the relevant extracts from the MWASD letter and concludes ‘It is not clear to me on the evidence how the actual residence requirements were satisfied. It seems to me therefore that this requirement is likely to have been waived by the Ministry and the Court in deciding to make the adoption order’.[47]The other requirement, in s 134 (e)¸requires the child to have been in the care of the applicants for a period of at least three months immediately preceding the date on which the order is made. He notes the evidence is V was in the Applicants’ care for three weeks, although prior to that had been cared for by A, and on the Applicant’s behalf and under their direction, they remained in regular contact and provided for V financially. As the letter from Mrs O makes clear, the court was aware of the position, the MWASD had approved the care arrangements and the letter sets out that the Court waived the requirement under s 134 (e). Mr Badejo’s view is it is ‘seriously arguable that the obligatory provisions of section 134 of the law may be waived if the court considers such waiver to be in the child’s best interests. It is arguable section 3 of the law is authority for such waivers….On balance therefore I think the waivers were lawful’.[48]In his oral evidence he accepted he did not have any direct experience of adoption proceedings in Nigeria. As regards the views he expressed on waiver he said he relied on the letter from the MWASD and spoke to people ‘on the ground, lawyers in local practice’, but he accepted he did not make a note to these discussions, he did not inspect the court file and the only documents he had seen were those in the court bundle. He agreed there was no judgment, in his view there may be a judgment as there should be a summary of reasons which should ‘ideally be on the court file’, although he noted that in the case Re W [2017] EWHC 1733 where he gave expert evidence in a similar situation, when he inspected the court file there wasn’t a judgment. He agreed that ideally the order should record the waiver of any of the requirements, but he said from experience this is often not adhered to. He said if there had not been the explanation from the MWASD in the letter dated 20 July 2017 he would have been concerned about the material he had. He agreed there was nothing in the statute expressly giving the power to waive the requirements, but in his view the question of waiver was driven by welfare requirements as set out in the MWASD letter. Relevant Legal Framework[49]When the Applicants began V’s adoption in February/March 2013 Nigerian adoption orders were ‘designated Overseas adoption’ recognised in England and Wales in accordance with ss66 and 87 and The Adoption (Designation of overseas Adoptions) Order 1973. The list was revised with effect from 4 January 2014 and the replacement SI, The Adoption (Recognition of Overseas Adoptions) Order 2013, included only those countries which had ratified The Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption (‘Hague Convention’). As Nigeria was no longer a Hague Convention signatory, it was no longer on the list and Nigerian adoptions are not automatically recognised. V was adopted 2 months after this change came about.[50]Sections 66 and 67 ACA define the meaning of ‘adoption’ and the status conferred by such adoptions. S 66(1) (e) includes as an adoption ‘an adoption recognised by the law of England and Wales and effected under the law of any other country’.[51]The foundation of such recognition was set out in some detail by Sir James Munby, President in N (A Child), Re [2017] 2 FLR 297 (Fam) as he said to ‘demonstrate the extent to which the principles which in my judgment can properly be derived from In Re Valentine’s Settlement have been re-interpreted in recent years, in a manner which has not always commanded universal assent, and because, not to put too fine a point on it, I am far from persuaded any of these developments is justified’. He continued that the ‘analysis of the reasoning in In Re Valentines Settlement indicates the existence of four, and only four, criteria’namely:(1) The adoptive parents must have been domiciled in the foreign country at the time of the foreign adoption;(2) The child must have been legally adopted in accordance with the requirements of the foreign law;(3) The foreign adoption must in substance have the same essential characteristics as an English adoption.(4) There must be no reason in public policy for refusing recognition. In para [129] he explained that public policy in this context ‘has a strictly limited function and is, in my judgment, properly confined to particularly egregious cases, as explained, compellingly and correctly, in the passage from Dicey, Morris and Collins, the Conflict of Laws, ed 15, 2012, para 20-133. I have already set it out, but it requires to be repeated (with emphasis added) "If the foreign adoption was designed to promote some immoral or mercenary object, like prostitution or financial gain to the adopter, it is improbable that it would be recognised in England. But, apart from exceptional cases like these, it is submitted that the court should be slow to refuse recognition to a foreign adoption on the grounds of public policy merely because the requirements for adoption in the foreign law differ from those of the English law. Here again the distinction between recognizing the status and giving effect to its results is of vital importance. Public policy may sometimes require that a particular result of a foreign adoption should not be given effect to in England; but public policy should only on the rarest occasions be invoked in order to deny recognition to the status itself."[52]In relation to domicile a person has his or her domicile in the place where he or she has a permanent home and lasting attachments. The object of determining a domicile is to connect the person with a particular system or rule of law determining personal or family status or property rights (see Mark v Mark [2006] 1 AC 98 [9] per Lord Hope and [44] – [47] per Baroness Hale).[53]In Barlow Clowes International Ltd (In Liquidation) & Ors v Henwood [2008] EWCA Civ 577 Arden LJ summarised a number of uncontentious principles relevant to this case:(i) A person is, in general, domiciled in the country in which he is considered by English law to have his permanent home. A person may sometimes be domiciled in a country although he does not have his permanent home in it.(ii) No person can be without a domicile.(iii) No person can at the same time for the same purpose have more than one domicile.(iv) An existing domicile is presumed to continue until it is proved that a new domicile has been acquired.(v) Every person receives at birth a domicile of origin.(vi) Every independent person can acquire a domicile of choice by the combination of residence and an intention of permanent or indefinite residence, but not otherwise.(vii) Any circumstance that is evidence of a person's residence, or of his intention to reside permanently or indefinitely in a country, must be considered in determining whether he has acquired a domicile of choice. In order to acquire a domicile of choice the intention of residence must be fixed and for the indefinite future.[54]The cases make it clear the court is concerned with the ties that bind a person to a chosen domicile and the strength and durability of those ties. In Aguilan & Anor v Cyganik [2006] EWCA Civ 129, which concerned a succession dispute, the deceased had resided in England for 45 years, and built up a substantial business here, nevertheless he was held to have not given up his domicile of origin. At para 46 Mummery LJ said "Although it is helpful to trace Andreas's life events chronologically and to halt on the journey from time to time to take stock, this question cannot be decided in stages. Positioned at the date of death in February 2003 the court must look back at the whole of the deceased's life, at what he had done with his life, at what life had done to him and at what were his inferred intentions in order to decide whether he had acquired a domicile of choice in England by the date of his death…” At para [49] he concluded as follows:
“In my judgment, the question is not so much whether Andreas intended eventually to return to live permanently in Cyprus, but whether it had been shown that, by the date of his death, he had formed the intention to live permanently in England. The crucial point is that Andreas had a domicile of origin in Cyprus until it was proved that he intended to reside permanently or indefinitely in England.”
In setting aside the first instance judgment Mummery LJ (with whom the Court agreed) held (at [51]) ‘Had he taken into account all the connecting factors with Cyprus and England over the whole of Andreas's lifetime, he would have found that the evidence was not sufficiently "cogent and convincing" to establish such a serious matter as a change of domicile. He would have concluded that the cumulative effect of the preponderance of the factors did not point "clearly and unequivocally" to an intention to make his permanent home in England, but rather re-inforced the enduring character of his Cypriot domicile of origin.” Discussion and Decision[55]The two criteria that have been the focus of the hearing and the written submissions have been the question of domicile, and whether V had been legally adopted in accordance with the requirements of Nigerian law. I will consider each of these issues in turn. Domicile[56]The applicant’s case is that whilst they acknowledge their habitual residence is in the UK, they have retained their domicile of origin in Nigeria and, in particular, were domiciled in Nigeria in March 2014 when the adoption order was made.[57]That is disputed by the SSHD, who bears the burden of proving a change in domicile (see Cyganik ibid [7]). In order to succeed it would be necessary to establish to the required standard that at the date of V’s adoption they had formed the intention to live permanently and indefinitely in England. Ms Cronin submits a person’s domicile of origin has an enduring durable character and is assumed to persist ‘unless the judicial conscience is satisfied by evidence of change’Barlow Clowes (ibid) per Arden LJ [85-88][58]The factors relied upon by Ms Cronin can be summarised as follows:(1) CLO as a refugee was forced to leave Nigeria, leaving behind his wife and five children. He borrowed money to pay his passage and entered on a false passport. The immigration Special Immigration Adjudicator found him to be a witness of truth, to be committed to Nigerian democracy and to prefer to return to Nigeria on the restoration of democracy as it is his home and he has evident affection for it. She submits it is telling he didn’t bring his family here. His written evidence details the close contacts he has maintained with them, providing for their financial support and using his earnings here to build a family home for their use in their home village. He did not, as he could have done, sponsor his family’s relocation to the UK under the refugee family reunion procedures as he wanted his children to remain in their home in the hope that he would be able to return there. In his oral evidence he said he remained living here after the restoration of Nigerian democracy as he was by then too old to secure a job in Nigeria.(2) Whilst it is accepted both Applicants naturalised as British Citizens in 2011 both detail in their statements that their application was underlined by a number of considerations, including to assist CLO travelling to Nigeria to see his children and for them both to have ease of travel. ELO stated it also made job applications here easier. Ms Cronin submits that a change in civil status does not, in itself, effect a change in domicile, although she recognises that such a change can be relevant to any assessment of domiciliary intention. The application form requires confirmation of the applicant’s ‘main home’ in England, which Ms Cronin submits is not a commitment for the UK to be the applicant’s permanent domiciliary home (see Wahl v Attorney General (1932) 147 LT 382 (HL) ‘It is not the law either that a change of domicile is a condition of naturalisation, or that naturalisation involves necessarily a change of domicile’.) It is of note that both Applicants retained their Nigerian citizenship, as they were entitled to do.(3) Both Applicants have a large close extended family who remain in Nigeria and they have close and regular contact with them. Their linguistic, ethnic and cultural ties remain strong and have not diminished during their residence in the UK. It is of note that ELO has taken all of her holiday entitlement in Nigeria, with the exception of a week’s holiday in Spain and a day trip to France. Any trips CLO made abroad (prior to being able to travel to Nigeria) were to West Africa, to try and see his family.(4) Dicey notes the evidence of animus manendi that “it must be a fixed intention to reside in the relevant country not for a limited period or a particular purpose, but must be general and indefinite in its future contemplation, and directed exclusively towards one country’. Ms Cronin submits the Applicants have been clear that they plan to return to Nigeria and have not fixed England as their permanent or indefinite future home.(5) The Applicants operate in England within a close home country community. It was through this community they met and married, they remain closely involved within the Nigerian diaspora. Here they attend Nigerian church services, where services are conducted in Yoruba or Urhobo and attend in traditional dress. ELO is a member of her Udo clan group and they meet every two months. The Applicants live their lives here, but very much within the Nigerian community.(6) The Applicants have continued to demonstrate a connection to Nigerian personal law, evidenced by their traditional marriage ceremony celebrated in 2014, choosing to adopt a child under Nigerian law and following the tradition of V being named by her grandmothers. ELO chose Anambra state for the adoption as this is where she describes her home to be and when they were in Nigeria in 2014 they participated in ceremonies marking the death of ELO’s father.(7) In their supplemental statements, filed just before the hearing in August, the Applicants describe how for many years they have subscribed to a community burial fund so as to ensure that if prior to their return to Nigeria they should die here, their bodies will be returned to Nigeria for burial. This, submits Ms Cronin, further evidences their continuing Nigerian domicile.(8) The Applicants plan to retire to Nigeria. They plan to sell their home here so that they will have funds to build on their land in Lagos. CLO explained in his oral evidence that on his death ELO will not be entitled to live in his family home in the village. They purchased the land in Lagos, so ELO would have her home there.[59]In her submissions Ms van Overdijk emphasises that the object of determining a domicile is to connect a person with a particular system or rule of law, determining personal or family status or property rights.[60]As regards domicile both Applicants are British Citizens who have continuously resided here as their sole place of residence for over 20 years. Their initial statement provides limited detail of their links to Nigeria beyond some family remaining there, visiting Nigeria now and again, their observance of Nigerian culture in the UK and a generalised reference that they will return to Nigeria ‘most likely in our retirement’.[61]The SSHD relies on certain features of each applicant to support the submission that neither have retained their domicile of origin and each have a domicile of choice here.[62]In relation to ELO she has been here since 1996 and did not return to Nigeria between then and 2003. In her application for naturalisation made on 22 October 2010 she declared that in the previous 8 years she was outside the UK for a total of 89 days, including 6 trips to Nigeria totalling 82 days, and that she was planning to have the UK as her main home if naturalised. It is submitted that over a period of 15 years from 1996 ELO only spent 89 days outside the UK, which Ms van Overdijk submits, demonstrates ELO has a strong connection to the UK as the place where she has chosen to permanently live for an indefinite period, and that it is more likely than not that she has acquired a domicile of choice in the UK.[63]In relation to CLO he was recognised as a refugee in 1998 and granted leave to remain in the UK until June 2002. The basis for his asylum claim was that he had a well-founded fear of persecution in Nigeria due to his political opinion. CLO was granted indefinite leave to remain on 5 December 2002 on the basis that he had spent four years in the UK as a refugee. His refugee status would have prevented the use of his Nigerian passport, and travel to Nigeria. He was granted a refugee travel document which permitted him to travel to all countries except Nigeria. He was granted British Citizenship on 3 November 2011, in his application form he confirmed that in the preceding 5 years he had spent only 49 days outside the UK (In Ghana, Cameroon and Germany), no time in Nigeria and that he was planning to have the UK as his main home if naturalised. Since then he has only visited Nigeria on four occasions. The SSHD submits that the evidence demonstrates that once granted political asylum CLO did not intend to return to Nigeria, even when the political situation changed, and that he has acquired a domicile of choice in the UK.[64]Ms van Overdijk submits that it is clear the Applicants wish to bring V here so that she can acquire British Citizenship, be educated here and grow up here supports the long term plan to remain here, rather than a clear and definite intention to retire to Nigeria which, she submits, is vague and indefinite. She submits no satisfactory explanation was given why CLO had failed to mention in his statement owning the land he referred to in his oral evidence. She relies on the following matters as pointing towards both Applicants having acquired a domicile of choice here: the length of residence here; the limited time either applicant has spent in Nigeria, including around the time of V’s adoption; the majority of their assets are based here; their acquisition of British citizenship; the vague and indefinite retirement plan; the clear intention to bring V to the UK so she can grow up here.[65]In her response, Ms Cronin submits this places too much emphasis on only one facet of the Applicant’s lives, namely their immigration history. The Applicant’s domicile falls to be considered by reference to all the connecting factors with Nigeria and England over their lifetimes, the evidence to establish a serious matter such as change of domicile must be clear and unequivocal.[66]Having considered the evidence I am satisfied the Applicants have retained their domicile of origin. I acknowledge the length of time they have lived here, that part of their application to become British Citizens included confirmation that their main home was here, the limited time they have spent in Nigeria and that CLO did not return to Nigeria as soon as he could, when the political situation changed there. But in my judgment those factors are outweighed by the clear evidence of the strong links they have each retained to Nigeria, which establish they have not abandoned their domicile of origin. As Dicey [Dicey, Morris and Collins, The Conflict of Laws (15th Edition)] notes of the evidence of animus manendi that "it must be a fixed intention to reside in the relevant country not for a limited period or a particular purpose, but must be general and indefinite in its future contemplation, and directed exclusively towards one country." The Applicants are unambiguous in stating that their longer term future is in Nigeria, where they intend to retire to and be buried in. They retained their Nigerian citizenship, the majority of their travel abroad was to Nigeria, or in the case of CLO, when he was unable to travel to Nigeria, to neighbouring countries to maintain his family links with Nigeria. They have retained a family home in Nigeria and have plans to build another home there, they have financially supported their family there and, in the case of CLO, did not historically make arrangements for his family to join him here. They have each actively retained their close family, social and cultural ties and attachments to Nigeria. They are an integral part of the Nigeria diaspora here and actively retain their Nigerian customs and heritage here, through the way they live and their social and religious contacts. Most aspects of their life remain wholly focussed on their Nigerian heritage and origins, underpinning the retention of their domicile of origin and their wish to return to live there in the future. Whether the adoption was made in accordance with the requirements of Nigerian law[67]Ms Cronin submits the evidence from the MWASD, supported by the expert evidence, demonstrates that V was adopted by the Applicants in ‘accordance with the requirement of the foreign law’ in accordance with the test set out by the President in Re N.[68]The Anambra Child rights Law section 143 states that an adoption shall not be made unless the following requirements are met:(1) The adopters are at least 21 years older than the child(2) One of the adopters is resident in Anambra State(3) Both adopters have previously been resident in Anambra State for a period of at least 5 years(4) The Applicants are Nigerian citizens(5) The child has been in the care of the applicant for at least 3 consecutive months immediately preceding the making of an adoption order(6) The Applicants informed the social welfare officer of his/her intention to adopt the child at least 12 months before making the order[69]There is no issue that the Applicants met the criteria in (1), (4) and (6). The MWASD and the Court were satisfied that ELO had been resident for more than five years, Mr Badejo considered it was ‘not an unreasonable’ view for the MWASD and the Court to rely on ELO’s residence alone, both the MWASD and the Court were aware the Applicants were residing in the UK. In addition, the MWASD and the Court were satisfied that the supervision of V’s care by the Applicants met the requirement for V to have been in the Applicants care for 3 months. Mr Badejo concludes that it is ‘seriously arguable that the obligatory provisions in section 134 can be waived if the court considers such waiver to be in the child’s best interest’. As V had been living with the applicant’s family for 12 months, such waiver is explicable and in Mr Badejo’s opinion ‘lawful’. The Applicants were not legal represented. The MWASD’s report is, submits Ms Cronin, important as the MWASD, as representatives for V, ensured the court was apprised of the applicant’s history, present residence and that V was cared for within the extended family. Ms Cronin submits the court made its decision apprised of all that information. The court is entitled to have regard to the fact that Anambra States recognition that the adoptive child’s required care and home could be with the extended family reflects their family customs. Ms Cronin recognises that Anambra’s approach to adoption may differ in some respects from that here, but comity calls for recognition of their adoption order. She submits the order has been made by the constituted court, and has not been appealed or revoked. The court had before it all the relevant evidence, was guided by the MWASD official with responsibility for the adoptive child and the decision is stated to be in the best interests of the child. It is, she submits, a matter for the Anambra Court to insist upon compliance with section 134, or to waive certain of its requirements.[70]At the hearing the SSHD appeared to challenge MWASD’s assessment, or at least to question the source of the information contained in the case report dated 20 July signed by Mrs O. In her response dated 10 August to the further questions Mrs O confirmed the information set out in the July letter was obtained from their confidential records. Paragraphs 3,5,14 and 17 of the July letter refer to Mr E as the person who considered all the evidence, was satisfied the Applicants were eligible adopters and made the recommendation to the court. The MWASD declined to provide copies of their case files as this information is confidential. As Ms Cronin observed, a similar protection attaches to adoption files in the UK.[71]Ms Cronin submits the adoption papers are written by or sworn by Mr E (a barrister and probation officer), the Chief Social Welfare Officer and Mrs O (Director of Child Development). Their titles indicate they are all senior officials with direct responsibility for this adoption, for V as an abandoned child and for child development. They support the Applicants’ account of the adoption process and can properly be relied upon because of their rank and official responsibility, coupled with their direct knowledge of this case.[72]Ms Cronin submits the documents explain the following matters:(1) The MWASD’s efforts to encourage safe abandonment of babies by unwed mothers and the large number of orphans for whom they seek to find good homes.(2) That V was abandoned and her mother was not found.(3) MWASD informed the Applicants of V’s abandonment and that she was free for adoption.(4) That the Chief Social Welfare Officer and Mr E both made positive assessments of the Applicants as prospective adopters.(5) Mr E sought and obtained detailed information concerning the applicant’s previous residence in and present ties with Nigeria and presented this evidence to the court. He was satisfied this met the residence requirements of the Anambra adoption.(6) The MWASD approved A, a direct family member, as the carer for V during the fostering period and Mr E was satisfied that the Child Rights Law fostering requirement was met.(7) The family court values extended family involvement in bringing up children as this shows the adoptive child’s ‘real integration and acceptance…into the family’.(8) The unchallenged evidence from ELO was that Mr E presented the case to the magistrate and prepared all the adoption papers. The MWASD was therefore directly engaged and in the hearing, as a consequence the July 2017 letter was able properly to attest to the courts deliberations and conclusions.(9) MWASD concludes, setting out Mr E’s role as V’s guardian, that the Court’s first consideration was her welfare and best interests and the court determined to waive the 3 month fostering requirement as V lived with the extended family and this was known to the MWASD.(10) The July 2017 MWASD letter concludes that the adoption is final and should be recognised.[73]As Ms Cronin submits there is no suggestion the Applicants deceived the Anambra court or the MWASD officials. The MWASD evidence is that its officials allowed the adoption to proceed knowing that certain eligibility criteria were not strictly complied with. Mr Badejo, Mr E and the MWASD concur that the adoption is valid and all point to the Court’s over-riding discretion to make such order where it is in the best interest of the abandoned child.[74]Ms Cronin submits that in the context of a dispute concerning the nature and scope of the English court’s jurisdiction to make an adoption order in relation to the child who was a foreign (EU) citizen the President in N (Children: Adoption: Jurisdiction) [2015] EWCA Civ 112; [2016] 2 WLR 713 at [20] emphasised the importance of comity, he counselled against the ‘sins of insularity’ and the need to respect other ‘equally effective ways of doing things’. These observations apply to the recognition process, in particular to the Court’s discretion as to the proof of validity of a foreign adoption order. Ms Cronin submits the SSHD’s approach to proof in this case is at odds with the approach in the immigration tribunal. In Buama (inter-country adoption – competent court) Ghana [2012] UKUT 146 (IAC)the Tribunal ruled that the Ghanaian adoption order was valid on its face and that if the SSHD was to challenge the validity this had to be by expert evidence, not simply by citing the provisions of the foreign adoption statute. The SSHD in this case has not sought to adduce any expert evidence to challenge the validity of the adoption in this case.[75]Ms van Overdijk submits ‘the court tasked with deciding whether to recognise the foreign adoption is permitted to look beyond the existence of a foreign adoption order to ascertain if the requirements of foreign law were made out. This is an assessment of fact to be determined with the benefit of evidence on the relevant foreign law.’ The focus of her submissions are on what she says are the mandatory requirements in s134 of the Child Rights Law, two of which the Applicants accept were not met when the adoption order was made. She submits there is no contemporaneous evidence to support the assertion that the Nigerian court waived the mandatory requirements. In particular, she places reliance on no reference to this on the face of the court order; the affidavit from Mr E does not refer to the Applicants living in the UK or that V was cared for by the wider family; the home visit report referring to the Applicants’ home town as being in Nigeria. In her submission reliance can’t be placed on Mrs O’s letter written over 3 years after the adoption hearing without it being clear what her source of information was. The ‘accuracy and reliability’ of the letter is challenged. This, she submits, is supported by the fact that when asked for further information regarding the foundation of her views, it was not forthcoming. Limited weight can be placed on the conclusions reached by Mr Badejo as he, in large part, relied on the assertions on the 20 July letter.[76]I have carefully considered the information that is available to the court. There is no suggestion the Applicants sought to hide the fact that they were living in the UK at the relevant time or that V was placed with A, with the consent of the MWASD. Their residence in the UK was clear in their initial letter to MWASD, their UK address was on the front of the home study report and the adoption order refers to the Applicants being able to travel and reside outside Nigeria with V. So there is no suggestion that they have sought to mislead the court or that this information was not before the court when it made the adoption order. The same applies regarding the placement of V in the care of A, as part of the extended family. The Applicants set out this was with the knowledge and approval of the MWASD, which is confirmed by Mrs O. The Applicants describe how the MWASD were involved in the process from the start, which is supported by the documents and ELO’s account of her involvement with Mr E, his knowledge of the circumstances and the court hearing was not challenged. Mr Badejo made clear in his written report and his oral evidence he relied on the letter from Mrs O dated 20 July, he did not have similar information available to him in Re V (ibid) so there is no inconsistency in his opinion (as was suggested by Ms van Overdijk) as he had different information available to him. The letter dated 20 July sets out the basis upon which the requirements could be waived. I reject the suggestion by Ms van Overdijk that, in effect, no reliance can be put on this letter. In similar circumstances in Re W, Pauffley J accepted Ms Cronin’s wide construction of the phrase ‘in the care of’. In that case, as here, the child was placed in the care of the wider family under the direction and supervision of the Applicants. Mr Badejo’s advice in that case, as here, strongly supports the contention that V’s welfare interests predominated in accordance with Child Rights Law of the State in question and the inference must be that the residence requirements were capable of liberal interpretation, both as to precise timescales and delegation of the care of the child. This supports what Mr Badejo states in this case. I am satisfied this adoption order was made in accordance with the requirements of Nigerian law. Remaining Criteria[77]No issue is taken that the adoption order has the same essential characteristics as an English adoption. It clearly does. AsMr Badejo states in his expert report in accordance with s 144 Anambra Child Rights Law V’s adoption was a full adoption ‘transferring all rights in respect of parenthood [to the Applicants] to the exclusion of the birth parents and anyone else’.[78]As regards public policy, it is agreed no such issues arise in this case.

Cited in 4 later judgments