(Family Division, MacDonald J, 10 October 2016)
Private law children – Adoption – Child abandoned in Nepal – Adoption by British parents under Nepalese law – Father and child lived in Dubai – Whether the adoption should be recognised at common law – Whether a child arrangements order should be made
A declaration was granted pursuant to s 57 of the Family Law Act 1986 that the Nepalese adoption should be recognised.
The child, who was approximately 12-years-old, was abandoned at a temple in Nepal. Despite investigations by the authorities her birth parents were never found. The British mother and father adopted her according to Nepalese law in 2008.
Following the adoption the parents moved to Dubai with the child who had been granted British citizenship. The parents’ relationship broke down and since 2011 the child had lived with the father. The mother was deported from UAE after being charged with labour offences, she had since been exonerated but she remained living in the UK.
In addition to legal proceedings being commenced the mother also launched an internet campaign seeking the child’s return.
The child was reportedly well settled with her father in Dubai where she attended school and undertook a range of extra-curricular activities.
It fell to be determined whether the English court should recognise the Nepalese adoption and whether a child arrangements order should be made. The parents and the children’s guardian were in agreement that the adoption should be recognised but the mother sought for the child to be returned to her care in the UK. The father submitted it was in her best interests to remain in his care in Dubai with extensive contact with the mother. An expert on Nepalese law confirmed that the adoption had been properly constituted.
The adoption took place at a time when Nepal was not a signatory of the Hague Convention on Protection of Children and Co-operation with respect to Intercountry Adoption 1993. The domicile requirements of Re Valentine’s Settlement for adoption at common law had not been met in this instance, however, 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 acted in a manner that was compatible with the Art 8 right of the mother, the father and the child to respect for family life. Further, within this context, the strict application of the rule as to status conditions in Re Valentine's Settlement to the very particular circumstances of this case, with a concomitant refusal to recognise the adoption lawfully constituted in Nepal in terms which substantially conformed 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 the child that could not be said to be either necessary or proportionate and, thus, would result in the court determining the application in a manner that was incompatible with the European Convention right, a course rendered unlawful by the Human Rights Act 1998, s 6(1).
A declaration was granted pursuant to s 57 of the Family Law Act 1986 s 57 that the child was, for the purposes of s 67 of the Adoption and Children Act 2002, the adopted child of the mother and father. A child arrangements order was made providing for the child to live with her father and have contact with her mother in accordance with the arrangements agreed between her parents.