Re D: [2022] EWHC 3602 (Fam)

Dr Onyoja Momoh represented the applicants in the case of Re D [2022] EWHC 3602 (Fam) – a complex application for the recognition of guardianship orders which had taken place in India to be recognized in England and Wales. She successfully argued that these guardianships should be recognized akin to the legal definition of adoption in England and Wales. Newton J commenced by saying “I should record that I am extremely indebted to Dr Momoh for her very considerable assistance in this case. The principles are not straightforward although my conclusions are clear.”

Background

The case concerned two children – I (D.O.B. 13 March 2005) and E (D.O.B 17 December 2007). Both were relinquished babies who were taken into the care of a charity and a children’s home respectively before being placed with the applicants. On 11 June 2007, the applicants became I’s legal guardians, and there was then a Deed of Adoption for him certified on 28 September 2007. In respect of E, the applicants became her legal guardians on 24 February 2010. There was no Deed of Adoption for her, but she was regarded as having been adopted pursuant to the 24 February 2010 order.

By 2020, the applicants were seeking to relocate to the UK which presented the problem of the non-recognition of the parent child relation between the parents and  I and E.

Recognition under English law

Recognition of the orders made in India is not straightforward, for a number of reasons:

1. The orders made in India were guardianship orders rather than adoption orders because the applicants, as non-Hindus, were not entitled to rely on the straightforward process for adoption which Hindus could use under the Hindu Adoptions and Maintenance Act 1956;
2. The applicants were not able to apply directly for recognition under the Adoption (Recognition of Overseas Adoptions) Order 2013 as they did not satisfy the criteria – India was not on the overseas list or list of designated countries relevant to the periods in which the Indian guardianship orders were made;
3. In any event, pursuant to s83 of the Adoption and Children Act 2002, adoptions in India made prior to 3 January 2014 were not recognized in the UK.

There were 4 questions which the judge had to address:

1. Were the legal guardianship orders obtained lawfully in India?
2. Does the concept of legal guardianship for non-Hindus in India substantially correspond with the English concept of adoption?
3. Can the Court make the declaration that the legal guardianship orders in this case substantially conform with the English concept of adoption?
4. Are there any public policy considerations that should mitigate against recognition?

The four criteria required in order for the English court to recognise a foreign adoption were set out in the case of Re Valentines 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.

Re G (Children) [2014] EWHC 2605 (Fam) refined the criteria slightly by removing the domicile requirement and setting out 3 essential questions:

1. Was the adoption obtained wholly lawfully in the foreign jurisdiction?
2. If so, did the concept of adoption in that jurisdiction substantially conform with the English concept? And
3. If so, was there any public policy consideration that should mitigate against recognition?

There is, as set out in QS v RS and Anor [2016] EWHC 2470 (Fam), also the necessity to ensure that the Article 8 rights of both the parents and children are not infringed by a very strict application of the criteria set out in Re Valentines Settlement.

Application of the law to the facts

Following Re G, the judge in this case confirmed that he did not need to determine the issue of domicile.

The first issue to resolve was, therefore, whether the children had been lawfully adopted in India. The judge held that both children had been legally adopted in India and went onto consider whether the ‘adoptions’ (which were, in fact, guardianships) constituted adoptions as understood in English law. Dr Momoh argued that the guardianships were effectively adoptions which lawfully constituted and created family life akin to a permanent legal relationship. The position in India was that historical discriminatory practices existed and persisted at a time when non-Hindus (specifically Muslims, Christians and Parsi) did not have any Act or law that governed adoptions, and where, despite the coming into force of the Juvenile Justice (Care and Protection) Act 2000, the legal process of adoption remained inequitable. In cases such as the present one, guardianship was used by non-Hindus as an alternative to adoption which was not otherwise available. Essentially, it was not open for certain sectors of the community in India to adopt and whilst the position has now changed, it could not be relied on by non-Hindus until 2015.

In respect of I, the fact that there was a Deed of Adoption in place for him helped to persuade the judge that his adoption could be treated as such in accordance with English requirements and characteristics. However, there was no such deed for E. Dr Momoh successfully argued that this should not preclude her guardianship from being treated as an adoption particularly in circumstances where her situation is entirely analogous to that of I.

Finally, the judge found that there were no public policy reasons not to recognise the adoptions. He also said that he would have found that the guardianships are effectively adoptions had he been asked to do so under Article 8, albeit that it was not necessary in this case because Dr Momoh had already persuaded him that that was the case. In summary, the judge determined that:

[42] Leaving all those issues aside, which are not straightforward, even if I was not comprehensively persuaded by the way in which the case has been so attractively put by counsel, I would nonetheless declare that the guardianships are, effectively, adoptions

….

[44] Therefore, it is without any hesitation that I declare that the legal guardianship orders for both children in India made respectively in June 2007 and February 2010 are recognised in accordance with the common law of England and Wales.”

The full judgment can be read here: https://caselaw.nationalarchives.gov.uk/ewhc/fam/2022/3602

See also article on the recognition of foreign orders by Dr Momoh in relation to Nigeria (and non-Hague (1993) countries generally): https://iiste.org/Journals/index.php/JLPG/article/view/53223