KA & Anor v B [2024] EWHC 2855 (Fam)

Jack Owen represented the applicants in the recent case of KA & Anor v B [2024] EWHC 2855 (Fam). The court was tasked with tackling an unusual situation: whether to recognise a Nigerian adoption order under the High Court’s inherent jurisdiction, where a married couple, who jointly adopted a child while living in Nigeria later found themselves with different domiciles – one spouse had acquired a new domicile (England), while the other retained their domicile of origin (Nigeria).

This case not only dealt with the nuances of the law of domicile in cross-border adoption, but also addressed the legal principles and applicability of Article 8 of the European Convention on Human Rights (right to private and family life), to cases of cross-border adoptions.

Legal Issues

The four criteria required in order for the English court to recognise a foreign adoption were set out in the case of Re Valentine’s Settlement [1965] Ch 831, which remains good law. The criteria are as follows:

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...Did the concept of adoption in the foreign jurisdiction substantially conform with the English concept of adoption;
4. There must be no reason in public policy for refusing adoption.

However, this rule was set before the Domicile and Matrimonial Proceedings Act of 1973, which changed the rules so that a married woman no longer automatically shared her husband’s domicile. The result? Married couples can now legally have different domiciles – a reality that wasn’t anticipated when Re Valentine’s Settlement was decided and as a result, the domicile criteria had been disregarded in a number High Court cases.

In re N (A Child) (Secretary of State for the Home Department intervening) [2016] EWHC 3085 (Fam) Munby P reasserted the primacy of the test set out by the Court of Appeal in Re Valentine’s Settlement over the relaxation of that test by a number of High Court Judges in the light of developments in the law since Re Valentine’s Settlement.

Mr Justice Trowell commented at [17] that “His analysis is powerful and although as a matter of strict precedence I am no more bound by it than the High Court decisions with which Munby P disagrees it sets out the law in a way which the parties, sensibly, consider I should follow. That is that to recognise a foreign adoption at common law the four conditions set out in Re Valentine’s Settlement must be met.”

However, in Re N Munby P endorsed the view of MacDonald J in S v S (No 3) (Foreign Adoption Order: Recognition) 2017 Fam 167 that a strict application of the Re Valentine’s Settlement criteria is not always appropriate and that a narrow application of Article 8 cannot be disregarded in the event that the criteria are not met.

This now appears to be the way courts are treating the applicability issue of Article 8, as following Munby P’s decision, MacDonald J has once again departed from the strict application of Re Valentine’s Settlement in the case of KN and BN and RN and TN and the Secretary of State for the Home Department [2023] EWHC 712 (Fam), where it was held that, in the particular circumstances of that case, not to recognise the foreign adoption would be a breach of the adoptive parents Article 8 rights.

Facts

KA and FA, both Nigerian-born British citizens, have been married since 2000. Due to their inability to have children, they connected with B, a child found on the streets of Lagos. KA obtained legal guardianship of B in 2017 and over the years, KA and FA developed a deep parental bond with B, even though he was unable to live with them in the UK. They supported and continue to support him financially, including funding his education in Nigeria.

In December 2023, after a long and delayed process (partly due to COVID), KA and FA finally secured a Nigerian adoption order, formally recognizing them as B’s adoptive parents. However, they then needed to seek recognition of this adoption to allow B to join them in England – hence the current application before the court.

FA and KA had given a joint statement to the court setting out their evidence in relation to the Re Valentine’s Settlement criteria and how they met said criteria.

The court heard evidence from the applicants and during the course of questioning, it became apparent that an unexpected issue had arisen.

This issue was the assertion by FA that he considered himself domiciled in the UK and not Nigeria at the time of the adoption and considered his domicile to have changed to the UK, being his domicile of choice.

In her oral evidence, KA remained steadfast that she was domiciled in Nigeria at the time of the adoption and remained so to this day, thus retaining her domicile of origin.

Application of the Law to the Facts

 The Court was tasked with balancing the evidence and having to decide whether the oral evidence of FA carried more weight than the parties’ written evidence. Ultimately the court rejected the submissions that it should prefer the written evidence, on the basis that the written evidence was given specifically to meet the relevant test.

The court found that FA, despite being Nigerian-born, had established a domicile in the UK after living there for over two decades, while KA retained her Nigerian domicile.

Since the court found that it could not be said that both parties had their domicile in Nigeria at the time of the adoption, the consequential effect was that the first limb of the criteria set out in Re Valentines Settlement was not met and the adoption could not be recognised by this court, unless not doing so would be a breach of KA and FA’s Article 8 rights.

Balancing Law and Family Life

The judge acknowledged that this case presented a unique challenge. Strictly applying the legal test would mean the adoption would not be recognised in this country. Equally, the court could have taken the view of only recognising KA's adoption of B but not FA’s. Such a decision would undermine the family unity they had worked hard to establish and could lead to complications around inheritance, parental rights, and emotional stability – this decision was therefore not made by the court.

When deciding whether to invoke Article 8 of the ECHR, Mr Justice Trowell had to consider KA and FA’s right to family life. Here, Mr Justice Trowell ultimately determined that recognising the Nigerian adoption was appropriate, respecting the couple's family life and their commitment to the child they had adopted together [41].

The court ruled that recognizing only one parent’s adoption would unreasonably interfere with the family’s private and family life. The decision cited previous cases that had allowed some flexibility in applying the legal test where failing to do so would interfere with family life without good justification.

Mr Justice Trowell recognised that strict application of the old rule would disregard the family life that this couple had built with their adopted child. Rather than adhering to strict guidelines, the court chose to relax the Re Valentine’s Settlement criteria in a situation where spouses who have jointly adopted a child have different domiciles.  

This adaptation does not mean that all cases with differing domiciles will lead to adoption recognition; instead, each situation will be carefully assessed based on its unique circumstances.

Final Thoughts

This decision highlights the complexities of international adoption and the importance of balancing strict legal tests with the realities of family life and human rights. By prioritizing the best interests of B and the family’s established bonds, the court offered a pathway for families in similar situations while still respecting legal principles.

It underscores the court's willingness, in specific circumstances, to relax the strict domicile requirements to protect family life under Article 8 in cases involving married couples with different domiciles who jointly adopted a child.

It is a small but significant step forward in ensuring that adoption laws remain relevant and compassionate in an increasingly globalised world. By allowing room for flexibility in unique cases like this, the courts are acknowledging that family life doesn’t always fit neatly into traditional legal frameworks – and that is okay.