Thomas Jones represented the Secretary of State for the Home Department in Re C (A Child) (Recognition of Nigerian Adoption) [2025] EWHC 204 (Fam)

Summary

In Re C (A Child) (Recognition of Nigerian Adoption) [2025] EWHC 204 (Fam), Mr Justice Harrison allowed an application to recognise an international adoption where the strict application of the conditions in Re Valentine’s Settlement [1965] Ch 831 would have resulted in a disproportionate interference with the article 8 rights of the applicants and the child.

Background

C was born in Nigeria in 2017. C’s mother could not care for her and took her to an orphanage. The applicants are both from Nigeria but now live in the United Kingdom. After the applicants married, they were unable to have a child and decided to adopt. They approached the relevant authorities in Nigeria and C’s orphanage. In 2018, they formally adopted C in Nigeria. C remained in Nigeria with a series of nannies and her parents returned to the United Kingdom, travelling back a number of times to spend time with her. In 2021, the applicants applied for entry clearance for C to join them in the United Kingdom, which was refused by the Secretary of State for the Home Department as, amongst other matters, she could not be satisfied that there had been a genuine transfer of parental responsibility, Nigeria not being listed in the Adoption (Recognition of Overseas Adoptions) Order 2013. The applicants applied to the High Court to recognise the Nigerian adoption in this jurisdiction. The Secretary of State was invited to intervene, which she accepted.

Decision

Nigerian adoptions can only be recognised pursuant to section 66 of Adoption and Children Act 2002 if they are recognised at common law. The common law test derives from the Court of Appeal’s majority decision in Re Valentine’s Settlement [1965] Ch 831, namely:

1. The adoptive parents must have been domiciled in the foreign country at the time of the 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; and
4. There must be no reason in public policy for refusing recognition.

As stated by Harrison J, at [42], it is apparent from Lord Denning’s judgment in Re Valentine’s Settlement that he considered that there were two bases upon which an overseas adoption should be recognised, termed ‘international comity’ and ‘principle’. The first criterion required both applicants to have been domiciled in the relevant state at the time when the adoption order was made.

In the applicants’ case, Harrison J was satisfied that the second, third and fourth criteria were met. In respect of the first criterion, Harrison J concluded that the applicants were not domiciled in Nigeria at the time of the adoption as both applicants had acquired a domicile of choice in this jurisdiction. However, Harrison J noted that the applicants are the only parents C has ever known, they are an integral part of her family life and a failure to recognise her adoption would amount to a denial of her status. The application was allowed, as to do otherwise would have resulted in an interference with the article 8 rights of the applicants and the child, an interference which could not be said to be either necessary or proportionate. 

Comment

It is of note that Harrison J comments obiter, at [45] that given the way in which the law has developed, it is at least arguable, on an application of Lord Denning’s comity principle, that where a couple seeks recognition of an overseas adoption at common law, it may no longer be necessary to demonstrate that both applicants were domiciled in the relevant overseas jurisdiction in order for the court to recognise an adoption, if they otherwise fulfil the jurisdictional criteria in section 49 of the Adoption and Children Act 2002 transposed to the overseas jurisdiction in question.

Read the judgment in full: Re C (A Child) (Recognition of Nigerian Adoption).