X (A Child) (Recognition of Nigerian Adoption), Re [2026] EWHC 638 (Fam)

[2026] EWHC 638 (Fam)Case No FD24P00610
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 17/03/2026
Before
THE HONOURABLE MR JUSTICE HARRISONRe X (A Child) (Recognition of Nigerian Adoption)The applicants appeared in personMs Eva Holland, solicitor, of Cafcass Legal appeared on behalf of the child, acting through her Children’s Guardian, Sarah Gwynne.Mr Mark Smith (instructed by the Treasury Solicitor) appeared by written submissions only on behalf of the Secretary of State for the Home DepartmentHearing dates: 9 and 10 February 2026
Approved JudgmentThis judgment was handed down remotely at 2pm on 17 March 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
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This judgment was delivered in private [and a reporting restrictions order OR transparency order is in force]. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media and legal bloggers, must ensure that this condition is strictly complied with. Failure to do so may be a contempt of court.

Introduction

[1]I am concerned with a girl to whom I shall refer as X. She was born in early 2019 and now aged 7.[2]On 31 Jan 2020, X was the subject of an adoption order of the Family Court in Imo State, Nigeria. The order was made in favour of the two applicants who now apply for it to be recognised in England and Wales. For convenience I shall refer to the applicants individually as ‘W’ and ‘H’. They are a married couple.[3]The applicants were previously represented by solicitors and counsel but, for financial reasons, they represented themselves at the final hearing before me; I record that they did so with courtesy and respect. X is a party to these proceedings and acts through her Children’s Guardian, Ms Sarah Gwynne. She was represented by Ms Holland of Cafcass Legal; I am very grateful to her for her helpful written and oral submissions.[4]The Secretary of State for the Home Department was invited to intervene in the proceedings. Pursuant to that invitation, I received helpful written submissions on her behalf from Mr Mark Smith of counsel.[5]The applicants each gave sworn evidence to the court in which they confirmed the truth of written evidence they had previously submitted and of the oral representations they made during the course of the hearing. Neither of them was cross-examined.

Background

[6]The applicants are now aged respectively 67 (W) and 58 (H). They are both hardworking people who hold respectable jobs. They were both born in Nigeria but moved to England in the 1990s. Since their moves each of them has acquired British citizenship. Accordingly, they are both now dual UK and Nigerian nationals. They are both practising Christians and wish for X to be raised in the same faith.[7]The applicants married in 2018 having cohabited for some 15 years before then. H has a daughter from a previous relationship. She is now an adult and lives in Nigeria. W’s parents are still alive. They are in their nineties and also live in Nigeria, as does her older sister, who is currently caring for X, and at least one other sister.[8]In circumstances where they had been unable have a biological child together, the applicants decided to make an application to adopt a child in Nigeria. In his statement dated 2 October 2025, H explains:
“After many unsuccessful attempts to conceive naturally, we both agreed that adoption was the best way to complete our family. It was a joint decision, made with love and intention, to adopt a daughter from Nigeria. We specifically sought adoption in Nigeria because of our deep ties there, our shared heritage, and our belief that this would allow us to give a Nigerian child a safe and loving home.”
[9]The adoption application was made in 2019 through the Nigerian Ministry of Gender and Vulnerable Group Affairs (‘the Ministry’). The applicants approached the Ministry in the early part of 2019. In June 2019 they were sent photographs of X and thereafter they commenced the process of applying to adopt her.[10]X was born to a mother whose identity is unknown. When she was 3 days old, her mother placed her with an orphanage stating that she could not care financially for her new-born daughter. It appears that the orphanage understood the mother’s name to be one which I shall anonymise as ‘CN’. In a subsequent report she was referred to as ‘an indigent young lady of about 20’. X’s place of birth was not disclosed. Her father was not identified.[11]It appears that on 18 February 2019 X’s mother swore an affidavit at the court registry in Owerri, Imo State which she gave to the police and which was later passed on to the orphanage. In that affidavit she gave her name as CN and deposed to being aged 20 and X’s mother. She said that X’s father had denied paternity from the time of her conception. She had decided before the birth that she would relinquish the child for fostering and adoption. She wanted the adopters to give X a name and to bring her up ‘in fear of God’. She said that was relinquishing her rights to X and authorised the orphanage to allocate the child to foster parents. She stated that her consent to adoption was freely given and that she understood the legal implications of adoption.[12]On 5 February 2019 the orphanage wrote to the Ministry seeking approval to care for X. This was granted by letter dated 12 February 2019. The orphanage was advised to make contact with the police. Thereafter a Principal Social Welfare Officer (‘the Welfare Officer’) was assigned responsibility for investigating X’s circumstances. The Welfare Officer visited X at the orphanage and inspected documents held by it including the affidavit provided by X’s mother.[13]Subsequently efforts were made by the Welfare Officer to trace X’s mother but these were unsuccessful. She had provided the orphanage with an address in Imo State, but the officer was unable to locate her at that address. He made enquiries in the village where the address was situated, but those to whom he spoke did not know of a person by the name CN.[14]The Nigerian police also undertook investigations into X’s case the details of which are set out in a report dated 8 March 2019. Those investigations were initiated after the police were contacted on 20 February 2019 by a pastor from the orphanage. She swore an affidavit setting out her understanding of X’s circumstances including her belief that the person who presented X to the orphanage was genuinely X’s mother. The police were unable to trace a person by the name of CN in the locality of the address X’s mother had provided. They concluded that it was likely that she had provided a false name. X’s father was not identified. The police report noted that no report had been received of a missing baby and that there was no reason to suspect that X had been stolen or that this was a case of child trafficking.[15]On 20 June 2019 the Ministry wrote to the orphanage granting approval for X to be prepared for fostering and adoption. The orphanage was asked to contact the applicants, who had by that date made an application to the Ministry seeking to adopt a child.[16]The adoption process proceeded quickly. On 18 October 2019 the orphanage signed a letter of consent confirming that X was available to be adopted by the applicants. The applicants were referred to in the letter as residing in the United Kingdom and also keeping a residential house at an address in Imo State, Nigeria. This was in fact W’s younger sister’s home.[17]On 23 October 2019 an order was made placing X under the foster care of the applicants as a precursor to adoption. A designated officer (the same Welfare Officer who had conducted the initial investigations into X’s case) was directed to make periodic visits to the applicants at the named address in Imo State and to carry out an investigation to assess their suitability as adopters.[18]The hearing at which this preliminary order was made was attended in person by W, but not by H. The latter had signed an affidavit giving his consent for his wife to represent his interests.[19]Before an adoption order can be made, the law in Imo State requires a child to be fostered by an applicant for three consecutive months. The applicants were unable to fulfil this requirement and applied successfully for it to be waived as was recorded in the order dated 23 October 2019.[20]H did not travel to Nigeria at all before the adoption order was made. W spent only two weeks caring for X in the period immediately after the preliminary fostering order was made. Thereafter, she delegated the task of fostering X to her sister. She made clear her approach to the Welfare Officer charged with investigating the process.[21]The Welfare Officer was able to observe W with X on three occasions over the two weeks she spent in Nigeria before her return to England. The officer concluded in a report dated 28 January 2020 that W’s care of the child was ‘good enough’ to be able to say that the fostering of the child was ‘well done’. The report referred to the applicants as hailing from Ogun State, Nigeria. It recorded that they resided in the United Kingdom but maintained residential accommodation in Imo State. As I have already noted, the accommodation in question was the home of W’s sister; it was where X resided over the three-month fostering period.[22]An adoption order was made on 31 January 2020. W, but not H, was present in court on that date. The order records once again the waiver of the three-month fostering period. The court found that the applicants were suitable to adopt, that they had complied with all necessary legal requirements for adoption and that adoption was in X’s best interests. The order sets out that the applicants were entitled to travel with X to their place of residence in the UK. X was issued with a post-adoption birth certificate a few days later.[23]Some two weeks after the adoption W returned to England. X was left in the care of W’s elderly parents and a nanny. This arrangement remained in place until July 2023 when the nanny decided to leave for personal reasons. There followed a period of instability for X in which she was cared for by four different nannies within the space of four months. The last of these nannies left suddenly without giving notice. W’s parents were unable to look after a young child without support and therefore in November 2023 X moved to live with W’s older sister (not the sister who cared for her during the fostering period). She has remained living there since then.[24]X has been attending the same school in Oyo State since September 2020 when she was first enrolled there at nursery level. Her reports show that she is doing very well academically at the school.[25]Following X’s birth, the applicants applied for her to be issued with a British passport, but this application was refused on 28 January 2021. The refusal letter noted that X’s adoption had not taken place in accordance with the scheme of the 1993 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (‘the 1993 Hague Adoption Convention’).[26]On 15 September 2022 the applicants applied to the Home Office for X to be granted leave to enter the United Kingdom under paragraphs 309 to 316 of the Immigration Rules or alternatively pursuant to Article 8 of the European Convention on Human Rights (‘ECHR’). This application was refused on 8 March 2023. The applicants sought to appeal the decision but their appeal was unsuccessful.[27]Since the adoption order was made the applicants (mainly W) have travelled to Nigeria to spend time with X once or twice a year. W was in Nigeria following the adoption until 17 February 2020 and thereafter over the following periods: 27 January to 14 February 2021; 6 to 19 August 2021; 30 January to 19 February 2022; 31 December 2022 to 4 February 2023; a day in January to 24 February 2024; 12 May to 25 May 2024; 30 January to 1 March 2025 (an average of approximately 30 days a year). H joined his wife on just two of these trips.[28]On each trip W and, occasionally, H have taken part in X’s day-to-day life. Additionally, they have maintained daily contact with X through video and telephone calls. They have liaised with X’s carers and managed her care from afar. They have been responsible for authorising medical treatment for X and have attended appointments virtually. They were involved in choosing her school. They provide financial support for X’s upkeep, healthcare and school fees.[29]At paragraph 20 of her statement dated 1 October 2025, W says:
“I am [X]’s adoptive mother and from the moment the court in Nigeria granted us the adoption order, in fact from the very first time I saw her, she has been my daughter in every way that matters. She is my whole world. Everything I do is for her. She is the reason I wake up each day with purpose. My deepest wish is to give her the love, safety, and opportunities every child deserves.”
Having heard from W directly during the hearing, I have no difficulty in accepting this evidence.

The expert evidence

[30]I have had the benefit of three reports prepared by Mr Abimbola Badejo of counsel, a qualified barrister in both England and Wales and Nigeria. His first report is dated 14 May 2025, the second 30 December 2025 and the third 23 January 2026.[31]Mr Badejo explains that Nigeria operates a federal system of government under the auspices of a written constitution. This sets out the different legislative functions of the National Assembly and the State Houses of Assembly. Matters relating to the welfare of children are within the legislative competence of the latter.[32]In 2003, the National Assembly passed the Child Rights Act 2003, a piece of federal legislation. Most states have since then enacted laws which are similar in material respects to the Child Rights Act. The relevant legislation in Imo State is the Child Rights Law 2004 (“the 2004 Law”).[33]Mr Badejo emphasises that child rights law in Nigeria is an evolving area. The jurisprudence is not as developed as that which exists in England and Wales. Nigerian courts can resort to decisions of English and Welsh courts as an aid to interpretation; particularly so for legislative provisions which are, in Mr Badejo’s words, ‘inherited from England and Wales’. The adoption provisions in the 2004 Law of Imo State are very similar to our Adoption Act of 1950.[34]Mr Badejo considered the question of whether X was legally adopted by the applicants in accordance with the requirements of the 2004 Law. He recorded that section 127 of the 2004 Law requires an application for adoption to be made in a prescribed form and accompanied by various documents. Although Mr Badejo has not seen the application or its accompanying documents, he notes that the minutes of the adoption hearing state that the applicants have complied with the necessary legal requirements. Accordingly, he says that ‘giving due deference to the record of a court of competent jurisdiction, it is safe to assume that the application and relevant supporting documents were likely to have been submitted in accordance with requirements set out in section 127 of [the 2004 Law]’.[35]Section 127(2) of the 2004 Law provides that upon receipt of an adoption application the court shall order an investigation by an appropriate officer. As I have recorded, such an investigation was undertaken in this case.[36]Section 127(3) of the 2004 Law requires the court to have regard to all the circumstances, first consideration being given to the need to safeguard the welfare and best interests of the child throughout its childhood. The court is required to ascertain ‘so far as practicable’ the wishes and feelings of the child and to give ‘due consideration’ to those having regard to the child’s age and understanding. Mr Badejo points out that the adoption order makes clear that the court was satisfied with the findings of the investigating officer as to the best interests of the child. The child was too young for her wishes and feelings to be canvassed.[37]Section 128 of the 2004 Law requires the court to have regard as far as is practicable to the wishes, if any, of the parents or guardian of the child as to the religious upbringing of the child. As Mr Badejo makes clear, this particular requirement was not applicable in this case as X had been given up for adoption and the whereabouts of her mother were unknown.[38]Section 129 of the 2004 Law provides that the court shall not make an adoption order unless the parent or guardian of the child has consented or the child is abandoned, neglected or persistently abused or ill-treated and there are compelling reasons in the interest of the child why he should be adopted. Mr Badejo considers that there is clear evidence that X’s mother relinquished X and provided her consent.[39]Section 130(a) of the 2004 Law provides that a married couple may apply for an adoption order where each of them has attained at least 25 years of age and there is an order authorising them jointly to adopt a child. As Mr Badejo points out, both of these requirements are satisfied in this case.[40]In his first report, Mr Badejo further states that, in conformity with section 130(d) of the 2004 Law, the applicants were found to be suitable adopters by the investigating officer and that this was confirmed in the adoption order. This is a matter to which I shall return below.[41]Section 132(1) of the 2004 specifies various requirements which must be met before an adoption order can be made. The applicants must be Nigerian citizens and at least one of them must be not less than 25 years old and at least 21 years older than the child. Those matters are clearly satisfied in this case. Additionally, the section specifies the following:(a) In the case of a joint application at least one applicant and the child must ‘reside’ in Imo State and both applicants must have been ‘resident’ there for a period of at least 5 years.(b) The child must have been in the care of the applicant(s) for a period of at least three consecutive months immediately preceding the date on which the adoption order was made; and(c) The applicant(s), at least 12 months before the making of the order, must have informed the social welfare officer of his/their intention to adopt the child.[42]As to the last of these provisions, Mr Badejo is unclear about the date upon which the relevant notice was given, but makes clear that, in his opinion, the notice requirement is not a fundamental provision. Accordingly, he does not consider that ‘strict compliance as to the time frame is strictly necessary and prevails over the overall best interest of the child’.[43]Mr Badejo similarly considers that the Nigerian court had the ability to waive the three-month fostering requirement ‘as it has the power to make any order that it considers to be in the best interest of a child’. He also points out that in Re V (a Child) (Recognition of Foreign Adoption) [2017] EWHC 1733 (Fam), the English court held in similar circumstances that it was not necessary for the child to have been in the actual physical care of the applicant for the requisite period. The applicant had ‘directed the care of the child’ and that was held to be sufficient. According to Mr Badejo, this decision is of persuasive authority in Nigeria.[44]The residence requirements have been the subject of particular focus in this case. In his first report, Mr Badejo pointed out that there are various letters produced from Nigeria in which the applicants are said to keep a residential home at an address in Imo State (W’s sister’s home). He said that, although the applicants were residing in England at the relevant time, it was recorded in the minutes of the fostering hearing that the child was to be fostered at this address and that the applicants had complied with the requirements of the law. Mr Badejo accordingly said that ‘[t]his suggests … that the court was satisfied when the fostering and adoption orders were granted that the applicants satisfied the residence requirements’. He further made the point that it is not uncommon in Nigeria for people to have homes in different parts of the country; the fact that the applicants resided in England would not have precluded them from being regarded as resident in Imo State if they had a home there.[45]In his first report, having commented upon the question of residence, Mr Badejo expressed the following conclusion on the issue of whether the child was adopted in accordance with the relevant law:
“In answer to the question whether the child has been adopted in accordance with Nigerian Law, I have seen the sealed court order from the Family Court in Owerri, Nigeria. Under Nigerian Law, this order is valid and subsisting unless and until set aside. I have also seen the minutes of the adoption hearing which records that the applicants complied with the necessary legal requirements for adoption. … In my opinion there is a subsisting order from a court of competent jurisdiction in Nigeria that order remains valid and had the consequences under Nigerian law of changing the status of the child to an adopted child. Therefore, it is my opinion that the adoption order was made in accordance with the relevant Nigerian law. In any event and as stated above the minutes of the adoption hearing records that the court concluded that the applicants complied with the necessary legal requirements. Based on that finding by the court I am also able to conclude that the child was adopted by the applicants in accordance with the requirements of the relevant law in Imo State, Nigeria.”
[46]Mr Badejo also provided his opinion as to the relevant characteristics of a Nigerian adoption and concluded that in all material respects these are the same as an English adoption. The effect of section 142 of the 2004 Law is that the adoption order transferred all rights in respect of parenthood of the child to the applicants to the exclusion of the child’s birth parents or anyone else.[47]Following the preparation of his first two reports, Mr Badejo was instructed to revisit his opinion in relation to the question of whether the applicants had fulfilled the residence requirement for an adoption order under the 2004 Law. The applicants had made it clear that the address they had provided in Imo State was the home of W’s sister. The home which they owned in Nigeria was located in a different State. This further information led Mr Badejo to conclude that the residence requirements were not satisfied at the time the adoption order was made. He made the point that these requirements were not waived by the court. On that basis, his revised conclusion was that the order ‘was not granted in accordance with the law in Imo State’. Nevertheless, he restated his view that there was ‘a valid and subsisting adoption order which remains valid until set aside and which has the effect in law of making [X] the adopted child of the applicants’.[48]Mr Badejo further noted that information communicated to him by the Children’s Guardian suggests that H’s involvement in the adoption process was very limited. He did not, for example, meet X prior to the adoption order being made. Indeed, the guardian understood his position to be that he had little or no involvement in the process at all. As Ms Badejo observed, if correct, this gives rise concerns as to how the court could have concluded that H (or the applicants as a couple) were suitable to be adopters. I consider this issue further below.

The Children’s Guardian’s evidence

[49]I have had the benefit of two reports from Ms Gwynne dated 1 July 2025 and 26 January 2026.[50]Ms Gwynne has met X three times by video. On the second occasion X was in the company of W who had travelled to Nigeria to be with her. Most recently, Ms Gwynne met X on 8 January 2026; she joined a video call made by the applicants from their home in London.[51]Ms Gwynne describes X as ‘a delightful little girl’ who ‘presents with a wonderful sense of energy and enthusiasm for life’. Whilst acknowledging the limitations of a video call, Ms Gwynne was able to observe that X appeared at ease in her home environment. She also observed a close bond between X and W. During the video call on 8 January 2026, Ms Gwynne noted that X interacted enthusiastically and affectionately with both applicants.[52]X expressed a willingness to move to London, although Ms Gwynne considers that she does not have a sufficient understanding of her family situation to appreciate what this would entail. Nevertheless, Ms Gwynne considers it likely that X would wish to become a full and permanent member of a stable, supportive and nurturing family.[53]Ms Gwynne is limited in her ability to comment upon the relationship between X and H, but it is clearly less developed than that which she enjoys with W. As Ms Gwynne points out, H has only travelled to Nigeria twice in the last six years. The applicants explained to her that they have constrained finances and have prioritised funding trips for W to spend time with X.[54]When Ms Gwynne first became involved in the case, she was concerned to learn that X had not been told that she was an adopted child. This has since been remedied to some extent by W although, in Ms Gwynne view, there remains work to do.[55]Given that the applicants have not undergone an adoption assessment in the UK, Ms Gwynne finds it hard to make an unqualified welfare recommendation in favour of their recognition application. On balance, she felt able to say in her first report that the application ‘is consistent with [X]’s expressed wishes and feelings and her welfare interest in so far as it would provide her with a degree of stability and security’.[56]In her second report, Ms Gwynne noted that the applicant’s current predicament whereby they find themselves separated from X arises from their failure to grasp the complexities of intercountry adoption. As she says:
“The consequence for [X] is that she has been living in limbo for the past six years in circumstances at odds to the very purpose of the adoption being to provide her with a second chance of a stable and permanent home.”
[57]Based upon the most recent report from Mr Badejo, Ms Gwynne questioned in her second report whether the ‘Re Valentines criteria’ (see below) were met. If not met, however, she suggested that the court could recognise the adoption on the basis of Article 8 of the ECHR (again, see below). Ms Gwynne remained unable to provide a wholesale endorsement of the application on welfare grounds. At paragraphs 26 to 30 of her report she said the following:
“This lack of presence from the applicants in Nigeria, particularly from [H], does concern me given that they do not have the backing of a robust professional assessment of them as adopters for [X]. The applicants will be in their late 60s and 70s when she hits adolescence. Applying the resilience and vulnerability matrix, [X], despite her current presentation as a happy child, does have identified vulnerabilities which could impact upon the remainder of her childhood including separation from her birth parents, a period of institutional care followed by changes in primary carer and an uncertain legal status. It would be my strongest advice to both applicants to engage with the professional parenting support accessible within their local area to best equip themselves with the baseline parenting skills so that they can be better prepared to navigate the challenges which might lie ahead for them as a family. Notwithstanding these concerns, it is important to highlight that there are strong examples of the applicants, particularly [W], demonstrating detailed involvement in the minutiae of [X]’s life. [W] has arranged travel to Nigeria to coincide with [X]’s birthday in early February every year and it clear from the photobooks she has shown me that these are cherished occasions. At the time of my visit to the applicants’ home on 08/01/2026, [W] had been ordering items to make up 17 party bags for [X] to take to school on her birthday to distribute to every one of her classmates and had arranged for these packs, and other gifts, to be shipped to Nigeria ahead of her visit so that everything would be ready and in place. As I set out in my first report, [X] expresses a willingness to move to London, but it is my view that she does not have sufficient understanding of her family situation or a frame of reference (having not travelled outside of Nigeria) to properly understand what this change might entail for her. Nevertheless, I do feel able to advocate on [X]’s behalf that she would wish to become a full and permanent member of a stable, supportive and nurturing family. [W] shared that [X] experiences extended family members in Nigeria expressing dismay to her that she is ‘still here and not with her mummy in England’. These small interactions are likely to chisel away at any child’s self-esteem over time and there is a risk of [X] internalising blame and feeling responsible for her current circumstances. It is difficult to imagine how confusing everything must feel for [X] right now and she is in urgent need of sensitive life-story work to address her identity needs. The applicants state that they are unable to care for [X] themselves in Nigeria and have not shared any alternative plan for [X]’s long-term care arrangements if they are unable to bring her to live with them in England. When balancing [X]’s welfare needs, the court may question whether it is indeed in [X]’s best interests to be moved from her current circumstances which have endured for the past three years and disrupt the bond she will have with her day-to-day carers and connection with her country of birth. This is a difficult question for me to address when I am unable to assess [X]’s situation on the ground in Nigeria and without greater insight into the maternal family dynamics. However, from the limited information available, I do feel that [X]’s current situation is not one of [W]’s sister and brother-in-law’s choosing given they are the third set of family carers for [X], and that they have stepped in most likely out of a sense of family duty rather than a sincere and lasting commitment to raise another child in addition to their own biological children. Taking all of the above factors in consideration, it therefore remains my view that an outcome where [X] would be able to live as a family with [the applicants] in the UK is likely to be consistent with her welfare interests in so far as it would provide her with stability and security, access to education and statutory services, and a permanent placement with carers of Nigerian heritage. However, the court will also appreciate that it is difficult for me to fully endorse this outcome when [the applicants] have not undergone an adoption assessment in the UK, a rigorous and thorough process which would have provided confidence as to their ability to meet [X]’s holistic needs had they been successful.”

The legal principles

[58]It goes without saying that adoption is a status of transformative significance for the adopted person and his or her adoptive parents. It creates a parent-child relationship between them.[59]As a matter of the domestic law of England and Wales, an adoption order has the effect of conferring parental responsibility upon the adoptive parents and extinguishing any parental responsibility which existed prior to the making of the[60]Section 67 (1) of the ACA 2002 provides that an adopted person is to be treated in law as if born as the child of the adopter(s).[61]Section 66(1) of the ACA 2002 defines adoption for the purposes of Chapter 4 of the Act. It includes adoption brought about by orders made in England and Wales, Scotland and Northern Ireland (paragraph (a)) and by orders made in the Isle of Man or any of the Channel Islands (paragraph (b)). It also includes the following:(i) An adoption concluded under the law of a Contracting State to the 1993 Hague Adoption Convention which has been certified pursuant to Article 23 of that Convention (s 66(1)(c)).(ii) An ‘overseas adoption’ (paragraph (d)). This is a term defined in section 87 of the ACA 2002 as meaning an adoption of a specified description concluded in a country included in an order to be made by the Secretary of State for Education (not including a Convention adoption). The relevant order is The Adoption (Recognition of Overseas Adoptions) Order 2013 (‘the 2013 Order’) which came into force on 3 January 2014 (s 66(1)(d)).(iii) An adoption recognised by the law of England and Wales and effected under the law of any other country (paragraph (e)).[62]It can thus be seen that Parliament provided that certain categories of adoption, including Convention adoptions and ‘overseas adoptions’, would automatically be treated as adoptions under the law of England and Wales. Adoptions concluded in a foreign jurisdiction which are not Convention adoptions or ‘overseas adoptions’ will only be treated as adoptions under our domestic law if they are recognised at common law. Nigeria is not a Contracting State to the 1993 Hague Adoption Convention; nor is it included in the list designated of countries in the 2013 Order (although it was included in a previous list).[63]Where a child has been adopted in a foreign jurisdiction, as an alternative to seeking recognition of the adoption at common law, the adoptive parents can make an application for an adoption order under the domestic law of England and Wales. This is what occurred in the recent case of D v London Borough of Bromley and Ors (Special Restrictions – Refusal of Adoption Order) [2025] EWHC 247 (Fam) (‘the Bromley case’).[64]As the Bromley case illustrates, the adoption of a child who is not habitually resident in the British Islands (the United Kingdom, the Channel Islands and the Isle of Man) is a complicated process. The relevant legislative framework was set out in detail by MacDonald J at paragraph 40 onwards of the judgment.[65]A hurdle in the path of those seeking to adopt children from overseas can be found in section 83 of the ACA 2002. This provides that it can be criminal offence for a person habitually resident in the United Kingdom to bring a child habitually resident outside the British Islands into the United Kingdom without complying with conditions now contained in the Adoption with a Foreign Element Regulations 2005 ("the AFER 2005").[66]In Re TY (Preliminaries to intercountry adoption) [2019] EWHC 2979 (Fam) Cobb J (as he then was) summarised the position as follows at paragraph 17:
“Regulation 3 and Regulation 4 of the AFER 2005 set out a number of requirements which apply before, during, and after the proposed adopter brings or causes a child to be brought into the UK. I paraphrase them here. Of the requirements which are imposed prior to the resettlement of the child, a "person intending to bring" a child into the UK "must apply in writing to an adoption agency for an assessment of his suitability to adopt a child; and give the adoption agency any information it may require for the purpose of the assessment" (regulation 3). Also prior to bringing the child into this jurisdiction, the proposed applicant must obtain a certificate from the Secretary of State at the Department for Education, confirming that the applicant has been properly assessed; the proposed applicant must visit the child abroad, and report on that visit (both before and afterwards).”
[67]Section 9(4) of the Children and Adoption Act 2006 (‘the 2006 Act’) grants the Secretary of State for Education the power to declare that special restrictions are to apply for the time being in relation to the bringing in of children to the United Kingdom for the purpose of adoption from a particular country. Special restrictions were imposed in relation to adoptions from Nigeria by the Special Restrictions on Adoptions from Abroad (Nigeria) Order 2021 (“the 2021 Order”), which came into effect on 12 March 2021.[68]As pointed out by MacDonald J in the Bromley case, the reasons for the imposition of restrictions under the 2021 Order are set out by the Department for Education in Adoptions: Restricted List – list of countries where special restrictions are in place under the Children and Adoption Act 2006 dated April 2023, as follows:
“Reasons The Order has been made in response to significant child safeguarding concerns due to issues affecting the Nigerian intercountry adoption system. This is based on evidence received through international partners including Central Adoption Authorities and diplomatic missions. The specific areas of concern included: • difficulties confirming the background and adoptability of children; • unreliable documentation; • concerns about corruption in the Nigerian adoption system; • evidence of organised child trafficking within Nigeria; and • concerns about weaknesses in checks completed by Nigerian authorities in relation to adoption applications from prospective adopters who are habitually resident in the United Kingdom and therefore are likely to in fact be intended to be intercountry adoptions. This includes weaknesses in pre and post adoption monitoring procedures. There is an absence of checks as to whether the adoption is intended to be an intercountry adoption in light of the habitual residence of applicants and accordingly whether prospective adopters have been assessed and approved by a UK adoption agency and issued with relevant UK authority documentation (e.g. certificate of eligibility to adopt) to proceed with an intercountry adoption from Nigeria. Such practices are contrary to the principles of the 1993 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (‘the Hague Convention’) and the United Nations Convention on the Rights of the Child. There is therefore a lack of confidence that adoptions from Nigeria meet the requirements expected in regard to the adoption process and to ensure adoption is the best outcome for the children. As a result of this evidence the Parliamentary Under Secretary of State, in the name of the Secretary of State, is of the view that it would be contrary to public policy to further the bringing of children into the United Kingdom from Nigeria as specified in section 9 (2) of the Children and Adoption Act 2006.”

The specific areas of concern included:

[69]Under the Adoptions with a Foreign Element (Special Restrictions on Adoptions from Abroad) Regulations 2008, a request can be made to treat an individual case as an exception to a special restriction imposed under the 2006 Act. In deciding whether a case is exceptional, the Minister will consider all the information provided which is relevant to the individual facts and circumstances of the case including a number of matters set out in rule 6 of the 2008 Regulations.[70]As MacDonald J held in the Bromley case a breach of the section 83 of the 2002 Act and the associated Regulations does not preclude a court from making an adoption order. He rejected the suggestion that in such cases the court would apply a ‘most exceptional circumstances’ test before doing so, holding that:
“Rather, as made clear in the long line of authority set out above, the court must undertake a careful analysis of both public policy and welfare and determine whether public policy requires that [the] application should be refused, giving paramount consideration to the welfare of [the child] throughout her life. Where welfare and public policy point towards differing outcomes for the child, welfare will prevail as it is paramount. The court will not refuse an order where to do so would be materially to deny the rights of the child and the applicant under Art 8. Each case will turn on its own facts.”
[71]MacDonald J further held in the Bromley case (at paragraph 88) that the court was not required to adopt a materially different approach in cases where there had been a breach of section 83 and the country in question was on the Restricted List. He said:
“The 2006 Act and the 2008 Regulations provide the legal framework for the decision of the Secretary of State to grant or refuse an exception request. Questions of the standard of review to be applied to that decision (whether “pay[ing] extra special attention” or applying “anxious scrutiny”, to use the phrases in Mr Tyzack’s Skeleton Argument, or otherwise) may fall for consideration in the context of a judicial review. In circumstances where the court is coming to a decision relating to the adoption of a child, the legal framework the court is required to apply when deciding whether public policy requires that an adoption application should be refused, giving paramount consideration to the welfare of child throughout his or her life, is that contained in s.1 of the 2002 Act.”
[72]The complicated process involved in obtaining a domestic adoption order in a case with a foreign element is presumably the reason the authors of Hershman and McFarlane Children Law and Practice have expressed the opinion at paragraph D[753] that:
“If there is a reasonable chance of achieving recognition of [a foreign adoption order], the adopters would be best advised to apply for the appropriate declaration rather than applying to adopt the child in this jurisdiction.”

Recognition of adoption at common law

[73]The common law test for recognition of a foreign adoption was considered by Sir James Munby, P in Re N (A Child) [2016] EWHC 3085 (Fam). After surveying the relevant authorities dating back to in In re Goodman’s Trusts (1881) 17 Ch D 266, the former President held at paragraph 74 that the Court of Appeal majority decision in In re Valentine’s Settlement [1965] Ch 831 established that there exist four criteria for recognition:
“On a straightforward reading of the judgments there are, as it seems to me, four, and only four, strands in the majority's reasoning: first, the adoptive parents must have been domiciled in the foreign country at the time of the foreign adoption; second, there must be proof of the relevant foreign law, demonstrating that the child has been legally adopted in accordance with the requirements of the foreign law; third, the foreign adoption must in substance have the same essential characteristics as an English adoption; and, fourth, there must be no reason in public policy for refusing recognition.”
I shall refer to these below as ‘the Re Valentine’s criteria’. They derive primarily from the judgment of Lord Denning MR in that case.[74]The first of the Re Valentine’s criteria requires both of the applicants for adoption to have been domiciled in the relevant state at time when the adoption order under consideration was made. In Re C (A Child) (Recognition of Nigerian Adoption) [2025] EWHC 204 (Fam) I held that it is at least arguable that, on an application of Lord Denning’s comity principle (encapsulated in a passage from his judgment which I set out in that case), it may now be sufficient to demonstrate that at the relevant time either(a) just one of the applicants was domiciled in the overseas jurisdiction or(b) both were habitually resident there. This would align the common law with the jurisdictional bases for obtaining a domestic adoption in section 49 of the ACA 2002. I am now aware that this proposition was accepted by Hedley J in Re R (Recognition of Indian Adoption) [2013] FLR 1487, by Peter Jackson J (as he then was) in A County Council v M (No 4)(Foreign Adoption: Refusal of Recognition) [2014] 1 FLR 881 and, implicitly at least, by MacDonald J in S v S (No 3)(Foreign Adoption[75]An issue which does require resolution on the facts of this case relates to the second of the Re Valentine’s criteria identified by Sir James Munby, namely that ‘the child must have been legally adopted in accordance with the requirements of the foreign law’. Does an application of this principle require the court to scrutinise the process by which a foreign adoption order was obtained? Or is it sufficient for an applicant to demonstrate that they have obtained an adoption order which is valid and subsisting in the state in question?[76]This issue was considered by Mr David Lock KC (sitting as a Deputy High Court Judge) in Re A (A Child) (Recognition of Nigerian Adoption: Common Law Test) [2024] EWHC 2888 (Fam). At paragraph 26 he held:
“The child’s “status” in this sense is, in my judgment, changed by a legally effective adoption order being made by the court in the country where the order was made. As long as that order is legally effective in the country in which the order was made, the child has new legal parents for the purposes of the law of that country and has thus changed his or her status to being an adopted child with new legal parents. That, it seems to me, is what this part of the test is properly focused upon.”
[77]At paragraph 32 of his judgment Mr Lock KC went on to say:
“Having read the relevant cases, I doubt that, in a normal case, I am entitled to look beyond the order apart from asking whether it was effective to change the child’s status to being an adopted child and whether the applicant thereby became the child’s parent under the law of Nigeria. In my judgment, if the answer to those questions is “Yes”, that is highly likely to be sufficient to meet this part of the test propounded by Lord Denning in In re Valentines Settlement. This is, I think, the point that Lord Justice Munby was seeking to make at paragraph 92 of Re N by referring to outcome and not process, and was implicitly referred to by Theis J at paragraph 84(8) of in Re X (Recognition of Foreign Adoption) [2021] EWHC 355 (Fam) where at paragraph 84(8) of Mrs Justice Theis’ judgment she said: ‘Even if the above analysis is incorrect, I am satisfied that the adoption order is subsisting, as is accepted by Mr Nsugbe and Mr Badejo, and is unlikely to be set aside.’” ‘Even if the above analysis is incorrect, I am satisfied that the adoption order is subsisting, as is accepted by Mr Nsugbe and Mr Badejo, and is unlikely to be set aside.’”
[78]So far as I am aware Re A (A Child) is the only authority in which this issue has been expressly considered, although Ms Holland has drawn my attention to other cases in which the courts appear to have conducted an examination of the overseas process as part of their consideration of whether the adoption order was made in accordance with the requirements of the relevant foreign law. In KN & Anor v RN & Ors [2023] EWHC 712 (Fam), for example, MacDonald J was not satisfied that an adoption order (valid as a matter of Nigerian law) had been obtained ‘in accordance with the requirements of’ Nigerian law in circumstances where the documentary evidence suggested that the birth mother’s consent had been procured before the child was born.[79]It is worth remembering in this context that the four Re Valentine’s criteria identified by Sir James Munby in Re N were plainly not intended by him to be read as equivalent to a statutory test. Rather, he was seeking to provide clear guidance as to the essential elements of Lord Denning MR’s seminal decision. As for the second criterion, Lord Denning MR in fact expressed himself somewhat more pithily than the former President, holding at 842: “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.” (my emphasis) As can be seen from the words I have highlighted, his focus was on whether the parent-child relationship had been ‘validly created’.[80]In Re D (A Child) (Abduction: Rights of Custody) [2006] UKHL 51, the House of Lords considered in a very different context the extent to which it was permissible for an English court to go behind a foreign court’s ruling on the basis of expert evidence that the ruling was not in conformity with the law. The proceedings concerned an application by a father for the return of his child to Romania under the 1980 Hague Convention on the Civil Aspects of International Child Abduction. The Romanian court, at the behest of the English court, had made a determination as to the extent of the father’s rights in relation to the child and a further determination that these did not amount to ‘rights of custody’ for the purposes of Article 3 of the Convention. The father challenged that ruling and, on the basis of expert evidence from a Romanian lawyer, the English court at first instance was persuaded that the Romanian court had been wrong in its determination. The House of Lords was critical of that approach, particularly in regard to the challenge to the Romanian court’s ruling as to the content of the father’s rights (as opposed to their characterisation under the Convention). It held that:
“Save in exceptional circumstances, for example where the ruling has been obtained by fraud or in breach of the rules of natural justice, it must be conclusive as to the parties' rights under the law of the requesting state.”
[81]Re D was wholly different from the present case, but it provides an important reminder of the need for great caution whenever expert evidence is deployed to assert that a ruling or order in an overseas jurisdiction, despite being legally valid, should be rejected on the basis that it does not conform with established principles in the overseas state. Leaving aside questions of comity, an overseas court is obviously far better placed than an English court to interpret and apply its own laws.[82]In the present context, in my judgment, in applying the second of the Re Valentine’s criteria the court’s primary focus must be upon whether under the law of the overseas state the status of adoption has been validly created. I agree with Mr Lock KC that ‘in a normal case, [the court is not] entitled to look beyond the order apart from asking whether it was effective to change the child’s status to being an adopted child and whether the applicant thereby became the child’s parent under the law of [the overseas jurisdiction]’. It is only in exceptional cases that the court can hold that the second criterion is not satisfied on the basis of defects in the procedure which led to the making of the adoption order. Examples of such exceptional cases include, in my judgment, ones where there is evidence of fraud or a breach of the rules of natural justice. I would also add to those categories of case ones where there has been a breach of a requirement which fundamental to the process of adoption. KN v RN was plainly an exceptional case. The absence of valid consent by the mother was a clear breach of the rules of natural justice.[83]By parity of reasoning with that expressed by MacDonald J in the Bromley case (see paragraph 88 of his judgment cited at paragraph 71 above) I do not consider that the court should adopt a materially different approach in cases such as the present one which involve a country appearing on the Restricted List. I agree with the submission on behalf of the Secretary of State as to the need for rigorous scrutiny, but that approach must surely apply to all cases, not just those involving Restricted List counties.[84]The third of the Re Valentine’s criteria is that the foreign adoption must in substance have the same essential characteristics as an English adoption. This does not require elaboration.[85]So far as the fourth of the Re Valentine’s criteria is concerned, in Re N Sir James Munby emphasised that the principle of public policy in this context has a strictly limited function and is properly confined to particularly egregious cases. In coming to that conclusion, he relied upon a passage from Dicey, Morris & Collins, The Conflict of Laws, ed 15, 2012, para 20-133 [paragraph 129]:
"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 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."

Relevance of welfare

[86]In Re N, Sir James Munby rejected the proposition that the child's best interests is a factor to be considered separately when deciding whether to recognise an adoption at common law although it may be taken into account as an aspect of public policy (see paragraph 126 of the judgment). With a degree of trepidation, I feel bound to say that I find it difficult to reconcile the former President’s judgment in this respect with Articles 3(1) and 21 of the United Nations Convention on the Rights of the Child (‘UNCRC’).[87]Article 3(1) of the UNCRC provides:
“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”
[88]Article 21 of the UNCRC provides:
“States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall: (a) Ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child’s status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary; (b) Recognize that inter-country adoption may be considered as an alternative means of child’s care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child’s country of origin; (c) Ensure that the child concerned by inter-country adoption enjoys safeguards and standards equivalent to those existing in the case of national adoption; (d) Take all appropriate measures to ensure that, in inter-country adoption, the placement does not result in improper financial gain for those involved in it; (e) Promote, where appropriate, the objectives of the present article by concluding bilateral or multilateral arrangements or agreements, and endeavour, within this framework, to ensure that the placement of the child in another country is carried out by competent authorities or organs.”
[89]In ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, the Supreme Court considered the impact of Article 3(1) UNCRC on our domestic law. Baroness Hale (delivering the majority judgment of the court) held as follows at paragraphs 23 and 25:
“For our purposes the most relevant national and international obligation of the United Kingdom is contained in article 3(1) of the UNCRC: ‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.’ This is a binding obligation in international law, and the spirit, if not the precise language, has also been translated into our national law.” … “Further, it is clear from the recent jurisprudence that the Strasbourg Court will expect national authorities to apply article 3(1) of UNCRC and treat the best interests of a child as "a primary consideration". Of course, despite the looseness with which these terms are sometimes used, "a primary consideration" is not the same as "the primary consideration", still less as "the paramount consideration". The UNHCR, in its Guidelines on Determining the Best Interests of the Child (May 2008), explains the matter neatly, at para 1.1: ‘The term 'best interests' broadly describes the well-being of a child. . . . The CRC neither offers a precise definition, nor explicitly outlines common factors of the best interests of the child, but stipulates that: ◦ the best interests must be the determining factor for specific actions, notably adoption (Article 21) and separation of a child from parents against their will (Article 9); ◦ the best interests must be a primary (but not the sole) consideration for all other actions affecting children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies (Article 3).’ This seems to me accurately to distinguish between decisions which directly affect the child's upbringing, such as the parent or other person with whom she is to live, and decisions which may affect her more indirectly, such as decisions about where one or both of her parents are to live. Article 9 of UNCRC, for example, draws a distinction between the compulsory separation of a child from her parents, which must be necessary in her best interests, and the separation of a parent from his child, for example, by detention, imprisonment, exile, deportation or even death.” ‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.’ ‘The term 'best interests' broadly describes the well-being of a child. . . . The CRC neither offers a precise definition, nor explicitly outlines common factors of the best interests of the child, but stipulates that: ◦ the best interests must be the determining factor for specific actions, notably adoption (Article 21) and separation of a child from parents against their will (Article 9); ◦ the best interests must be a primary (but not the sole) consideration for all other actions affecting children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies (Article 3).’ This seems to me accurately to distinguish between decisions which directly affect the child's upbringing, such as the parent or other person with whom she is to live, and decisions which may affect her more indirectly, such as decisions about where one or both of her parents are to live. Article 9 of UNCRC, for example, draws a distinction between the compulsory separation of a child from her parents, which must be necessary in her best interests, and the separation of a parent from his child, for example, by detention, imprisonment, exile, deportation or even death.”
[90]I have not heard any argument on this issue, but I find it very difficult to contemplate that a court would feel able to recognise a foreign adoption if to do so would be at odds with the child’s welfare, even in cases where the four Re Valentine’s criteria were satisfied. Given the limited circumstances in which recognition can be refused on public policy grounds, it is unsatisfactory that the child’s welfare should be relegated to being considered as an aspect of this wider concept of restricted application. Re Valentine’s Settlement, of course,did not concern a child and therefore the welfare question did not arise.

Similarity of process

[91]Sir James Munby also rejected the notion that the court should give separate consideration to the extent to which the overseas process leading to the adoption order was similar to our own. He said at paragraph 75:
“Nor do I read [Lord Denning MR’s] judgment as requiring that the process by which the foreign adoption was obtained should contain the same or similar safeguards as English adoption law would require. Read in context, his comment, set out in para 67 above, about a foreign adoption “constituted in another country in similar circumstances as we claim for ourselves”, is a reference to substance and not to process… So, as I read Lord Denning MR's analysis, whereas similarity as to the substance is essential to recognition, similarity in safeguards is not.”
The former President held that questions of similarity of process can also be considered within the ambit of issues of public policy. Again, and without having heard argument on the issue, I feel bound to question whether in the modern age such an approach is consistent with the spirit of Article 21 of the UNCRC. Should our courts, for example, automatically recognise adoption orders made following a superficial process of investigation which falls well short of the rigorous standards of assessment undertaken in this jurisdiction?

Article 8 ECHR

[92]In QS v RS and T (No 3) [2016] EWHC 2470 (Fam), MacDonald J considered whether an application for recognition of an adoption order made in Nepal could succeed notwithstanding a concern that the applicants were not domiciled in Nepal at the time the adoption order was made. In paragraphs 100 and 104, he held as follows:
"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 am satisfied that the strict application of the rule as to status conditions in Re Valentines 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." "
My conclusion does not amount to a decision that the rule in Re Valentines 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 … 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."[93]This approach has subsequently been endorsed by other judges at first instance including Sir James Munby in Re N and Knowles J in Re G (Recognition of a Nigerian Adoption) [2024] EWHC 2769 (Fam).[94]In KN & Anor v RN and Ors [2023] EWHC 712 (Fam), MacDonald J restated the above considerations in a case involving the recognition of an adoption order granted in Nigeria. He was not satisfied that the circumstances of the adoption in Nigeria of one of the two children met the criteria in Re Valentines Settlement but determined that a refusal to recognise the Nigerian adoption order would constitute an interference in the Article 8 right to respect for family life of the applicants and both children which was neither necessary nor proportionate.

Domicile

[95]In Barlow Clowes International Ltd (In Liquidation) & Ors v Henwood [2008] EWCA Civ 577 at paragraph 8 Arden LJ summarised a number the principles relevant to the question of domicile. She said:
“The following principles of law, which are derived from Dicey, Morris and Collins on The Conflict of Laws (2006) are not in issue: (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 (Dicey, pages 122 to 126). (ii) No person can be without a domicile (Dicey, page 126). (iii) No person can at the same time for the same purpose have more than one domicile (Dicey, pages 126 to 128). (iv) An existing domicile is presumed to continue until it is proved that a new domicile has been acquired (Dicey, pages 128 to 129). (v) Every person receives at birth a domicile of origin (Dicey, pages 130 to 133). (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 (Dicey, pages 133 to 138). (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 (Dicey, pages 138 to 143). (viii) In determining whether a person intends to reside permanently or indefinitely, the court may have regard to the motive for which residence was taken up, the fact that residence was not freely chosen, and the fact that residence was precarious (Dicey, pages 144 to 151). (ix) A person abandons a domicile of choice in a country by ceasing to reside there and by ceasing to intend to reside there permanently, or indefinitely, and not otherwise (Dicey, pages 151 to 153). (x) When a domicile of choice is abandoned, a new domicile of choice may be acquired, but, if it is not acquired, the domicile of origin revives (Dicey, pages 151 to 153).”
[96]In Barlow Clowes, Arden LJ also noted that "the domicile of origin is tenacious" (paragraph 85), indicating that strong evidence was needed to show that an alternative domicile of choice had been acquired. It was further held that:(a) Given that a person can only have one domicile at any one time, he must have a singular and distinctive relationship with the country of supposed domicile of choice. That means it must be his ultimate home or the place where he would wish to spend his last days.(b) The fact that residence is precarious or illegal is a circumstance that is relevant to the question of intention (but the fact that presence is illegal does not prevent residence).(c) A person can acquire a domicile of choice without naturalisation. On the other hand, citizenship is not decisive.

Position of the Secretary of State

[97]In his very helpful position statement prepared for a hearing on 25 July 2025, Mr Mark Smith makes clear that the Secretary of State ultimately adopts a neutral position in relation to the determination of this application. She invites the court to undertake ‘a rigorous examination’ of whether the Re Valentine’s criteria are met having regard to the submissions advanced on her behalf.[98]Mr Smith highlights the reasons for the decision to place Nigeria on the restricted list (see above) and draws attention to the following features of the evidence:(a) The adoption application and accompanying documents have not been provided (Expert report, §25);(b) It is not known when the applicants made known their intention to adopt (Expert report, §43).(c) There is no evidence the Nigerian court expressly waived these requirements as they did with the requirement under s.132(1)(e) for X to be in the care of the applicant for 3 months immediately prior to the adoption order.[99]Mr Smith accordingly submits that, in light of the concerns raised by Department of Education when including Nigeria on the Restricted List, the court should carefully consider whether these requirements were properly considered by the Nigerian court such that the adoption order was made ‘in accordance with Nigerian law’. At the time Mr Smith filed his position statement, the Secretary of State was not aware of the matters raised by Mr Badejo in his most recent report regarding the lack of involvement by H in the process and the issue of residence in Imo State. He she been made aware of those matters, I assume that they would also have been highlighted in Mr Smith’s representations.[100]Mr Smith further makes the following submissions as to the approach to be taken to the issue of whether the adoption order was made in accordance with the requirements of the law in Nigeria:
“The Secretary of State does not concede that the approach set out by David Lock KC sitting as a Deputy High Court Judge in Re A (Recognition of Nigerian Adoption: common law test) [2024] 2888 (Fam) is the correct approach to the common law test. The Secretary of State notes it runs contrary to numerous other recent decisions that have involved more detailed consideration of the decision made by the foreign court.”
Mr Smith goes on to say:
“Notwithstanding the above, the Secretary of State does not raise any public policy concerns in this case and simply seeks that the above points are taken into account when applying the Re Valentine’s Settlement test.”

Discussion and conclusions

[101]I begin by considering whether the Re Valentine’s criteria are met.[102]On the basis of the evidence of the applicants, which I accept, I am satisfied that both of them were domiciled in Nigeria at the time the adoption order was made.[103]I am also satisfied, on the basis of Mr Badejo’s evidence, that the Nigerian adoption has the same essential characteristics as an adoption order made by the courts of England and Wales.[104]I am further satisfied that there are no public policy considerations which require me to refuse recognition. As I have recorded above, the Secretary of State did not suggest otherwise. Neither did X’s guardian.[105]The most difficult issue is whether the court can be satisfied that X was legally adopted in accordance with the requirements of Nigerian law. Notwithstanding the submissions made by Mr Smith, I have held in considering this issue the court’s primary focus must be upon whether the status of adoption has been ‘validly created’. Mr Badejo is clear in his evidence that this is the case here.[106]Nevertheless, as I have also held, the court is entitled to refuse to recognise the adoption if it finds that there has been fraud, a breach of natural justice or that a fundamental aspect of the process has been breached.[107]In this case, it appears on the basis of the applicants’ own evidence that they may (I emphasise ‘may’) have fallen foul of a requirement in the 2004 Law to have been ‘resident’ in Imo state (as opposed to Nigeria more generally) for a period of five years up to the date of the adoption order. I do not consider that the English court is entitled to reject the validity of the Nigerian order on this basis. In my judgment, this provision of the 2004 Law is not sufficiently fundamental to require the court to reject a status which has been ‘validly created’.[108]Moreover, although the adoption order does not record this, it is entirely possible that the Nigerian court was satisfied that as a matter of Nigerian law the applicants’ stays at W’s sister’s home in Imo state qualified as ‘residence’ for the purposes of the 2004 Law; it is also possible that the court considered it appropriate to exercise a discretion to waive this requirement in order to further the interests of the child (a discretion which, as Ms Badejo observes, can be exercised to waive other provisions of the 2004 Law which appear, on a literal reading, to be mandatory). I remind myself, in this context, that in this jurisdiction the courts interpret purposively the criteria for making parental orders in section 54 of the Human Fertilisation and Embryology Act 1954, stretching the English language in ways that might puzzle an overseas court. To my mind, this provides a further reminder as to the need for caution before reaching a conclusion that an overseas court has made a decision which is contrary to its own laws.[109]The point made by Mr Badejo about the potential failure by the Nigerian authorities to assess H’s suitability to adopt a child does, however, cause me greater concern. In my view, assessing the suitability of a proposed adoptive parent is a fundamental part of the adoption process, not just in Nigeria but universally. It is an essential safeguard for the child. Without such an assessment, as Mr Badejo says, it is difficult to see how a court could come to a conclusion that an individual was suitable to be an adopter or indeed that a proposed adoption was in the child’s best interests. A conclusion that the adoption order was made without any assessment of H would, in my view, require me to find that it was not made in accordance with the requirements of Nigerian law. I also consider that it would probably contravene public policy to recognise an order made without any such assessment.[110]H, however, disputes the suggestion that he had minimal involvement in the process. His position (set out clearly in writing by his former solicitors) is that he was actively engaged, was in constant communication throughout and was contacted as and when required. Although H gave evidence, he was not cross-examined on behalf of the Guardian as to his involvement in the process; nor has his position been challenged by the Secretary of State. In those circumstances, it seems to me that I must proceed on the basis of his unchallenged position. His position is moreover consistent with the documentary evidence from Nigeria including the express finding of the court that he was suitable as an adopter.[111]In all the circumstances, therefore, I find that the second of the Re Valentine’s criteria is met. It follows from this conclusion and those I have recorded above that all of the criteria for recognition at common law are satisfied.[112]Notwithstanding the judgment in Re N and the other authorities in which it has been held that the court is not required to give separate consideration to the child’s welfare, I would have found it very difficult to recognise the Nigerian order had I reached the conclusion that to do so would be contrary to X’s interests.[113]I entirely understand the reasons for Ms Gwynne’s reticence about providing an unqualified endorsement of the outcome sought by the applicants. As she points out, X is a vulnerable child and the applicants will be in their sixties (H) and seventies (W) at the point she reaches adolescence. Given their ages, it is highly unlikely that an assessment of suitability conducted in this jurisdiction would result in a positive conclusion in their favour.[114]Nevertheless, essentially for the reasons given by Ms Gwynne, I am satisfied on balance that recognition would be in X’s best interests. I agree with Ms Gwynne’s assessment that X’s current carers are likely to be looking after her primarily out of a sense of obligation as opposed having to a sincere and lasting commitment to raise another child. For so long as that situation persists, X is unlikely to achieve the level of stability and sense of belonging necessary to meet her long-term emotional and psychological needs. She has no contact with her birth parents who cannot be traced. From her perspective, the applicants are her only parents even though their participation in her life is largely happening from afar.[115]For the reasons set out above, therefore, I propose to recognise X’s adoption.[116]Given the conclusions I have reached as to the common law position it is unnecessary for me to consider the matter through the lens of Article 8. For the avoidance of doubt, however, had the applicants had failed to satisfy an aspect of the Re Valentine’s criteria, I would have concluded that on the facts of this case that a refusal to recognise the adoption on that basis would amount to a disproportionate interference with the Article 8 rights of the applicants and X herself. I would accordingly have followed the approach of MacDonald J in the two cases referred to above and afforded the adoption recognition on that basis. I agree with the submission made by Ms Holland that it would not be reasonable or proportionate to decline recognition on the basis that the applicants could seek an adoption order under our domestic legislation. They lack the means to fund the assessments that would be necessary; the process would be a lengthy one with an uncertain outcome during which X’s life would remain in limbo.[117]In conclusion, I would emphasise my agreement with the submission made by Mr Smith that cases of this type need to be considered with care. I observe, however, that in this case, and indeed in other similar cases which have come before the court, the evidence presented by the applicants has not been subject to challenge. Their application was supported by the Guardian and the Secretary of State chose to intervene by written submissions only and to adopt a neutral position. The court has to proceed on the basis of the evidence with which it is presented and is not in a position to undertake its own investigation outside the parameters of the evidential canvass before it.[118]It is axiomatic that children who encounter the adoption system are often highly vulnerable, especially in cases involving inter-country adoption. Rigorous processes exist to ensure that children are not severed from their family of birth save exceptionally and for good reason. An absence of rigour can result in young vulnerable mothers, in particular, being encouraged to relinquish their babies by disreputable agencies who stand to gain financially from the process and in children being trafficked across international borders. Re Valentine’s Settlement did not concern a child and was decided more than sixty years ago when the world was very different. The principles established in that decision are today applied in only a limited category of cases usually involving jurisdictions which are not parties to the 1993 Hague Adoption Convention and which do not feature of the list of approved countries set out in the 2013 Order. There are obvious reasons why particular vigilance is needed to safeguard the interests of the child when considering adoptions emanating from such jurisdictions. As I have already made clear, I question whether the necessary vigilance can today be achieved within the framework established by Master of the Rolls in 1965, especially if the child’s welfare does not feature as a central part of the process.[119]For the avoidance of doubt, there is no evidence to suggest that the applicants in this case have not acted in good faith. On the contrary, I have found them to be loving and committed parents who are devoted to X’s welfare.

order

see section 46 of the Adoption and Children Act 2002 (‘the ACA 2002’). Order: Recognition) [2017] Fam 167; in contrast, Sir James Munby disagreed with the point in Re N albeit obiter dicta (see paragraph 24 of the judgment). It is not a point which arises for determination in this case.

Cited in 1 later judgment