Family lawyer organisation, Resolution, has issued two joint notes to assist family lawyers in England and Wales ahead of the end of the Brexit transition/implementation period at 11 pm on 31 December...
The mother, a Brazilian citizen, living in England, adopted two children, now aged 9 and 6, from Brazil where adoption orders were made by the district court 5 years ago. When the mother attempted to return to the UK the children were denied entry clearance due to the immigration rules requiring that the adoption was recognised in the UK or was a de facto adoption where the parents had assumed parental responsibility for the children and had lived abroad with them for 18 months. The Brazilian adoption order was not an overseas adoption as specified in Reg 3 of the Adoption Designation of Overseas Adoptions Order 1973 and, therefore, was not an adoption as defined in s 66 of the Adoption and Children Act 2002.
The family thereafter maintained two homes, travelling between Brazil and the UK. The children were eventually brought to the UK as lawful visitors and applications were made for indefinite leave to remain as the mother's de facto adopted children.
At the time of the adoption, although both parents names were initially registered on the adoption orders and birth certificates, the father's name was subsequently removed in order to comply with Brazilian law which made the father, as a foreign national, ineligible to adopt.
The mother now sought a declaration for recognition of the adoption orders under s 57 of the Family Law Act 1986. If that application were successful, the father sought an adoption order. The local authority reports were extremely positive of the parents' care of the children and the professional opinion was that only adoption would provide the long-term security that the children required.
Section 57 of the Family Law Act 1986 founded jurisdiction to make a declaration based upon the habitual residence of the applicant. The test of habitual residence, while at the outer limits of the court's discretion on the facts, in particular in relation to physical presence, was satisfied. The mother had intended to make her primary residence in the UK but was effectively stranded when the children were refused entry to the jurisdiction. She had in fact spent only 25% of the previous 12-month period in the UK which was significantly less than the case of Ikimi v Ikimi  EWCA Civ 873,  2 FLR 1288 but the primary difference was that this mother did not have the voluntary freedom of movement to be able to move between the two homes. In addition the UK family home was established for a considerable period prior to the mother being in Brazil and the father remained there while the mother was abroad.
The Brazilian adoption was lawfully obtained and valid. The proceedings gave paramount consideration to the children's best interests and the process was very similar to domestic adoption arrangements in this jurisdiction and there were no public policy reasons why a declaration should not be granted.