COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE DYSON
MR JUSTICE MUNBY
|- and -
|Entry Clearance Officer New
Mr Neil Garnham QC and Mr Tim Eicke (instructed by The Treasury Solicitor) for the Respondent
Hearing dates : 5th and 6th July 2004
Crown Copyright ©
Lord Justice Dyson:
“Since the date of adoption the adoptive child has ceased to be the son of natural parents and has become the adopted son of the adoptive parents and ceases to claim any right of inheritance over the estate of his natural parents and will be treated as legal heir of his adoptive parents.”
“10. I find that the Appellant was adopted when a baby by the Sponsors. An immediate application for him to join his adoptive parents in the UK failed, therefore, of necessity, the Appellant remained in the household of his natural parents in India. Then and now he lived in this household with his natural parents, whom he calls uncle and aunt, his three natural siblings (there is a difference in emphasis in the evidence as to how he regards them) and his grandmother, whom he calls “grandmother”, because everyone else in the household calls her that. The first Sponsor told me that the Appellant regarded his siblings as his brothers and sister although his wife told me the Appellant regarded his siblings as cousins. Both Sponsors stressed that the Appellant has been brought up to regard them as his real parents – he does not know as yet that he was adopted.
11. The Sponsors travel to India regularly, at least once if not twice a year, in order to see the Appellant. (I was provided with copies of their passports but many of the stamps are difficult to read. A schedule of their visits would have been helpful but I accept in any event that they are regular). The UK Sponsors run a successful clothing business in the UK which supports their whole family and they are unable to leave it for prolonged periods. When in India, the appellant spends all his time with the Sponsors, including sleeping in their room. They are generally present on his birthday (I saw photographs of his birthday parties) and they have always supported him financially and made decisions about his upbringing. For example, he recently started at boarding school as a result of a decision made by and paid for by the adoptive parents (I saw documentary evidence and photographs of the school).
12. The Sponsors and the appellant communicate frequently by telephone. The Sponsor's married daughter told me that she and the Appellant regard each other as brother and sister.
13. The Appellant is still very young, a small child of 5 but as he gets older he wonders why he cannot live with his parents (because of course he regards the adoptive parents as his real parents), at their home in the UK. He has been told that he will join them and cannot understand why he remains separate from them. The continued separation causes distress for all parties.”
“15. With regard to the Reasons for Refusal under paragraph 310, I find that this is a genuine adoption and I am not satisfied that it is one of convenience to facilitate entry to the UK. I also find that there has been a genuine transfer of parental responsibility, notwithstanding that the family in India still take day to day responsibility for the Appellant when not at school – because I find that the adoptive parents not only support the Appellant financially but make all major decisions about his care and future. However, the evidence indicates clearly to me and this is not disputed, that the Appellant has not lost or broken the ties with his family of origin nor was he adopted because of the inability of his original parents to care for him.”
“17. I turn now to the requirement of paragraph 297. The evidence indicates that the Appellant has a home, indeed a comfortable home in India – the first Sponsor indicated in interview that the family are well-off at least in part because he provides £100 per month for the Appellant's expenses. (Question 14). He lives within the extended family with whom he has always lived and there is no evidence to suggest that it is not a happy family environment. However, he has been brought up to believe that his real parents live in the UK, that they visit him and that at some point he will join the[m], in their home. It is difficult for me to assess any impact on him of believing himself separated, even abandoned by his “real” parents, for so he believes his adoptive parents to be. Nor can I assess the feelings of his natural parents and their attitude towards him given that they have, as his natural father said in interview “given him away”. He has now gone to boarding school at the young age of 5 whereas the other children in his household go to local schools. I understand that the intentions of his adoptive parents were to prepare him for an English school – therefore he has been sent to a school where English will be taught but this young Appellant must surely be aware, on some level, that he is being treated differently to the other children in his household. Whilst it is difficult for me to quantify, particularly without expert or specialist evidence, I think it reasonable to infer that the fact that this Appellant lives separately from those he believes to be his real parents and that this enforced separation has led to different treatment of him from other children with whom he lives, must have a negative impact on him, notwithstanding that he has a home in India with his extended family.
18. There is much evidence also to the effect that this continued separation causes great distress to the Sponsors. Indeed, their need, that is the desire for another child, has been central to this case from the outset.
19. I find whether or not there are serious and compelling family or other considerations which make this child's exclusion from the UK undesirable is a finely balanced issue. It could be argued, on the one hand, that to remove him from everything he knows - his home, extended family, culture and environment could be disruptive, even damaging to him. On the other hand, he has always been brought up to expect this and the continuing uncertainty cannot be helpful to any party. Whilst both his adoptive and natural fathers both told the ECO that there had been no particular change in his circumstances since the previous entry clearance application, there has at least been a development in that the Appellant is getting older all the time. Prolonged delay and uncertainty in a case such as this is unfortunate for all concerned.
20. However, the Rules refer to “serious and compelling” factors and given that the Appellant has a home, family support and education in India I am not satisfied on a balance of probabilities that he satisfies the requirements of paragraph 297.”
“Article 8 provides for respect for private and family life in circumstances where there shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. This is not an absolute right and there is no onus on the UK government to provide for family reunion on its territory. The relevant family relationship I examine is that of the Appellant with the Sponsors. I am satisfied that they regard one and other as parents and child, that their legal relationship is that of parents and child, that there is weekly contact between them (in telephone calls) and that they meet and live together at least once or twice a year, for variable periods, often of several weeks. Whilst they quite clearly do not and cannot (given the refusal of entry clearance) live together on a more permanent basis as a family, I consider that the Appellant has established an existent “private and family life”.
23. It seems to me self evident that there has been a lack of respect and indeed an interference. The Appellant has been refused entry to the UK and so the only way this family could exercise the right to family life would be if the parents moved to India. I consider there are significant obstacles to such a course even though the first Sponsor told me he had considered this. The family run a business which supports the wider family. Their adult daughter was born in the UK and has now given birth to their grandchild. The choice is open to them to relocate to India, it seems to me it is unreasonable and unrealistic for them to do so. I am satisfied that an interference is established.”
“48. If the adoption order in the present appeal had complied with all those principles it would no doubt have effectively transferred the parental obligations and rights from the natural to the adopted parents so as to determine the family life between the natural parents and the respondent and to create family life between the respondent and the sponsors. Manifestly, however, it did not meet those important international standards. Specifically, the adoption was effected, albeit according to Sikh custom, not because the natural parents were unable to care for the respondent but because of the desire of the sponsors to have another child to bring up given their inability to have further children of their own. There is no evidence that the sort of intervention by the state envisaged in the articles referred to above in in-country adoption occurred, let alone consideration and compliance with the important requirements for inter-country adoptions, including the vital issue of ensuring the right of entry of the child into the country of his adoptive parents.”
“53. Whilst we have carefully considered all that Miss Harrison urged upon us it seems to us that the rejection of the application in X and Y as manifestly unfounded is of real significance. Although that was a decision in 1977, the passage of time does not seem to us to undermine the underlying principle of the distinction to be made between the position of a natural parent and an adopted parent. We are entirely satisfied that the making of a valid adoption order does not itself create family life. Indeed, that is wholly in line with the views expressed by Thorpe LJ in J where he contrasts sham applications or applications of convenience whose sole purpose is to confer “a legal status unsupported by the fundamental foundations” with those where, as in J, there has been “the creation of the psychological relationship of parent and child with all its far-reaching manifestations and consequences”. A little later he says of the adoptive parents that they had “made a much greater contribution and commitment to achieving attachment in the early months of life upon which the psychological relationship of parent and child is so dependent.”
54. Looking at the facts of the present appeal it is clear that the respondent's natural parents did take substantial steps to honour their agreement to his adoption by, for example, the early cessation of breast feeding and bringing their child up to believe that they were his uncle and aunt and his siblings, his cousins. Nevertheless, their home was his home until he was sent away to boarding school by his adoptive parents and it would be unrealistic to suggest that the short term direct contact coupled with the telephone contact which has taken place over the intervening years is such as to create a psychological relationship of parent and child which is comparable to that achieved by prolonged and continuous contact and care from an early age as in J.
55. While we agree that whether family life exists is a question of fact and degree, the issue of whether it exists on the present facts is by no means as simple as the Adjudicator appears to have considered. She defines it at paragraph 22 as consisting of the fact that the sponsors and the respondent regard one another as parent and child, that they have that legal relationship (by virtue of the Indian adoption order), that there is weekly telephone contact between them and that they meet and live together at least once or twice a year. It does not appear that the Adjudicator had the benefit of referral to the extensive international and precedent material produced to us. There is nothing to suggest that she has considered how family life is to be defined for the purposes of Article 8, and in particular there is no reference to the approach which must follow from a consideration of X and Y and J. For these reasons we agree with Mr Eicke that the Adjudicator's findings in this respect are not based on any discernible sustainable approach in law and must be reconsidered by us.”
“62. Although we have thought it appropriate to review the material cited before us at some length, the issue remains, as we have said, essentially simple. Has the respondent established on the balance of probabilities on the facts as found by the Adjudicator that he enjoys a family life with the sponsors so that Article 8 is engaged. The existence of family life will usually be demonstrated by cohabitation but in its absence there will need to be clear evidence that such contact as has existed has created the lasting psychological bond between adoptive parents and child referred to in J. The present case falls between the extreme situation of X and Y and J on its facts. The legal mechanisms and the intentions capable of leading to the creation of family life are in place but they have not, in our judgment, resulted in the creation of family life between the respondent and his sponsors because they have not been shown to have created that lasting psychological bond necessary to the existence of family life. We therefore find that Article 8 is not engaged and this appeal is accordingly allowed.”
The issue before this court
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The meaning of “family life” in article 8(1)
“The existence or non-existence of “family life” for the purposes of Article 8 is essentially a question of fact depending upon the real existence in practice of close personal ties”.
“When deciding whether a relationship can be said to amount to “family life”, a number of factors may be relevant, including whether the couple live together, the length of their relationship and whether they have demonstrated their commitment to each other by having children together or by any other means.”
“This adoption is neither recognised nor eligible for recognition in English law. The first applicant has apparently since made financial contributions towards the upkeep of the second applicant. However, throughout his life, both before and after the adoption, he has lived with his natural parents in India. It appears that they have been and are fully capable of supporting him. In these circumstances the applicants have not, in the Commission's opinion, established a relationship between them which amounted at any material time to “family life” within the meaning of Article 8, notwithstanding their blood relationship and any legal relationship created under Indian law by the adoption. The Commission does not consider that the second applicant's relationship with the first applicant is at all comparable to that of a new-born child with its parents, where “family life” might be held to exist from the moment of birth.”
“139. More specifically, the obligations which Article 8 of the Convention imposes on Contracting States in the area of adoption and the effects of adoption on the relationship between adoptive parents and adopted persons must be interpreted in the light of the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in respect of Intercountry Adoption, the United Nations Convention on the Rights of the Child of 20 November 1989 and the European Convention on the Adoption of Children, signed in Strasbourg on 24 April 1967.”
“143. By guaranteeing the right to respect for family life, Article 8 presupposes the existence of a family (the Marckx v Belgium judgment of 13 June 1979, Series A no 31, § 31; the Johnson v United Kingdom judgment of 24 October 1997, Reports of Judgments and Decisions 1997-VII, § 62), a condition which does not, however, appear to be fulfilled in the present case in the absence of cohabitation or of sufficiently close de facto relationships between the applicants and their respective adopted daughters, before or after the adoption orders were granted. In the view of the Court, it does not necessarily follow that all planned family life should fall entirely outside the scope of Article 8. In that connection, the Court has already held that that provision could also have covered the potential relationship which might have developed, for example, between a natural father and a child born out of wedlock (Nylund v Finland (dec.), no 27110/95, ECHR 1999-VI), or the relationship deriving from a marriage that was not a sham, even if family life had not yet been fully established (the Abdulaziz, Cables and Balkandali v the United Kingdom judgment of 28 May 1985, Series A no 94, § 62).
144. In the present case, there is no reason to doubt that adoption took place in accordance with national law and relevant international conventions: the national authorities established that the children, who had been declared abandoned under a court decision, were adoptable, and considered that their intercountry adoption was in their best interests, having satisfied themselves that the adopters and the Brasov Child Protection Department, which exercised parental rights in respect of the children under Article 8 of GEO No 26/1997, gave their consent (paragraphs 100-104 above).
146. Lastly, the Court notes that the fact that family life has not yet been fully established in the present case, in view of the absence of cohabitation or of sufficiently close de facto relationships between the applicants and their respective adopted daughters, before or after the adoption orders were granted, cannot be attributed to the applicants, who by selecting the children merely on the basis of photographs, without having any actual contact with them which would have prepared the children for adoption, were simply following the procedure which had been put in place by the defendant State in this matter.
147. Moreover, it can be seen from the documents in the case that the applicants have always regarded themselves as being the children's parents and have always behaved as such towards them through the only channel that was open to them, namely by sending them letters written in Romanian (see paragraph 92 above).
148. In the light of this, the Court finds that such a relationship, arising from a lawful adoption that is not a sham, can be considered sufficient to warrant the respect required by Article 8 of the Convention, which accordingly applies.”
“(a) to establish safeguards to ensure that intercountry adoptions take place in the best interests of the child and with respect for his or her fundamental rights as recognized in international law;
(b) to establish a system of co-operation amongst Contracting States to ensure that those safeguards are respected and thereby prevent the abduction, the sale of, or traffic in children;
(c) to secure the recognition in Contracting States of adoptions made in accordance with the Convention”.
“In those cases the application or the ceremony are solely designed to achieve a legal status unsupported by the fundamental foundations: in the one case intimate cohabitation and sexual union with a view to procreation, in the other the creation of the psychological relationship of parent and child with all its far-reaching manifestations and consequences. But where the adoption application is supported by that fundamental foundation then the function of the court is to apply s 6 of the Adoption Act 1976.”
Was the Adjudicator's decision wrong?
The Tribunal's reasoning
The Respondent's notice
“The issue of the applicability of Article 8 was not the subject of full argument before Buxton LJ and was in any event put on the basis that the provisions of the European Convention on Human Rights raise arguable issues as to the vires of paragraph 310 (viii) of HC 395…”
Mr Justice Munby :
“if [a] couple are bringing up children together, it is unlikely to matter whether or not they are the biological children of both parties. Both married and unmarried couples, both homosexual and heterosexual, may bring up children together. One or both may have children from another relationship: this is not at all uncommon in lesbian relationships and the court may grant them a shared residence order so that they may share parental responsibility. A lesbian couple may have children by donor insemination who are brought up as the children of them both: it is not uncommon for each of them to bear a child in this way. A gay or lesbian couple may foster other people's children.”
“ The Court recalls that the notion of “family life” in Article 8 is not confined solely to families based on marriage and may encompass other de facto relationships. When deciding whether a relationship can be said to amount to “family life”, a number of factors may be relevant, including whether the couple live together, the length of their relationship and whether they have demonstrated their commitment to each other by having children together or by any other means.
 In the present case, the Court notes that X is a transsexual who has undergone gender reassignment surgery. He has lived with Y, to all appearances as her male partner, since 1979. The couple applied jointly for, and were granted, treatment by AID to allow Y to have a child. X was involved throughout that process and has acted as Z's “father” in every respect since the birth. In these circumstances, the Court considers that de facto family ties link the three applicants. It follows that Article 8 is applicable.”
“The welfare principle as paramount has been the cornerstone of the family justice system in this jurisdiction for many years. We regard it as a touchstone in measuring the quality of other family justice systems. Article 3 of the United Nations Convention on the Rights of the Child 1989 requires no less. But what constitutes the welfare of the child must be subject to the cultural background and expectations of the jurisdiction striving to achieve it. It does not seem to me possible to regard it as an absolute standard.”
He continued by calling on “States to respect a variety of concepts of child welfare derived from differing cultures and traditions” and said that “A recognition of this reality must inform judicial policy”. And at p 649 he drew attention to:
“the importance of according to each State liberty to determine the family justice system and principles that it deems appropriate to protect the child and to serve his best interests. There is an obvious threat to comity if a State whose system derives from Judaeo-Christian foundations condemns a system derived from an Islamic foundation when that system is conceived by its originators and operators to promote and protect the interests of children within that society and according to its traditions and values.”
“I have no difficulty in accepting the judge's conclusion that the application of Muslim law to this Muslim family is appropriate and acceptable. It is submitted on behalf of the mother that the welfare of children, paramount in English law, must take priority over notions of international comity and respect for foreign courts in non-Convention States. In my judgment the two are not inevitably in conflict. These are Sudanese children. Their welfare may well be served by a decision in accordance with Sudanese law which may be taken to reflect the norms and values of the Sudanese society in which they live.”
“The Court recalls that the notion of “family life” under Article 8 of the Convention is not confined to marriage-based relationships and may encompass other de facto “family” ties where the parties are living together out of wedlock. A child born out of such a relationship is ipso iure part of that “family” unit from the moment and by the very fact of its birth. Thus there exists between the child and the parents a relationship amounting to family life.”
“cohabitation is … not a prerequisite for the maintenance of family ties which are to fall within the scope of the concept of “family life”. Cohabitation is a factor amongst many others, albeit often an important one, to be taken into account when considering the existence or otherwise of family ties.”
“Although, as a rule, cohabitation may be a requirement for such a relationship, exceptionally other factors may also serve to demonstrate that a relationship has sufficient constancy to create de facto “family ties”.”
An illuminating example of such a case is Kroon v The Netherlands, where the Court held that the relationship between a man and a woman amounted to family life, even though they chose neither to marry nor to live together, because they had a stable relationship which had produced four children.
“the Court considers that Article 8 cannot be interpreted as only protecting “family life” which has already been established but, where the circumstances warrant it, must extend to the potential relationship which may develop between a natural father and a child born out of wedlock. Relevant factors in this regard include the nature of the relationship between the natural parents and the demonstrable interest in and commitment by the natural father to the child both before and after the birth.”
The Court made the same point in Lebbink v The Netherlands at para :
“The existence or non-existence of “family life” for the purposes of Article 8 is essentially a question of fact depending upon the real existence in practice of close personal ties. Where it concerns a potential relationship which could develop between a child born out of wedlock and its natural father, relevant factors include the nature of the relationship between the natural parents and the demonstrable interest in and commitment by the father to the child both before and after its birth.”
“ … Consequently, the question arises whether there are other factors demonstrating that the applicant's relationship with Amber has sufficient constancy and substance to create de facto “family ties”. The Court does not agree with the applicant that a mere biological kinship, without any further legal or factual elements indicating the existence of a close personal relationship, should be regarded as sufficient to attract the protection of Article 8.
 However, in the instant case the Court notes that Amber was born out of a genuine relationship between the applicant and Ms B that lasted for about three years and that, until this institution was abolished when Amber was about seven months old, the applicant was Amber's auxiliary guardian. It observes that the applicant's relation with Ms B ended in August 1996 when Amber was about sixteen months old.
 The Court further notes that, although the applicant never cohabited with Ms B and Amber, he had been present when Amber was born, that – as from Amber's birth until August 1996 when his relation with Amber's mother ended – he visited Ms B and Amber at unspecified regular intervals, that he changed Amber's nappy a few times and baby-sat her once or twice, and that he had several contacts with Ms B about Amber's impaired hearing.
 In these circumstances the Court concludes that, when the applicant's relationship with Ms B ended, there existed – in addition to biological kinship – certain ties between the applicant and Amber which were sufficient to attract the protection of Article 8 of the Convention.”
“The existence or non-existence of “family life” for the purposes of Article 8 is essentially a question of fact depending upon the real existence in practice of close personal ties.”
Typically the question will be, as the Court put it in the same case at para , whether there is “a close personal relationship”, a relationship which “has sufficient constancy and substance to create de facto “family ties”.”
“The Court … does not see cohabitation as a sine qua non of family life between parents and minor children.”
“in the presence of relatives and friends the natural parent [sic] have given their child Pawan Deep Singh in the lap of adoptive parents who are adopting the child. The ceremony of giving and taking the child in adoption had been performed under ceremonial pomp and show at Jalandhar 29/12/1996.”
In clause 2 of the Deed the natural parents and the adoptive parents declared and agreed that:
“All the required formalities were observed and performed as per customs, usage, religion and the rites of the parties.”
“The mother and the father performed an act of great grace with considerable beneficial religious significance for them in giving up their child as a gift to childless relatives”
Thorpe LJ referred to this at p 429 as “a custom which we are told is recognised in many parts of the world”, adding:
“It seems to me that we should respect that custom, founded as it is upon a humane response to a sad deprivation.”
I respectfully agree.
“The purpose of international adoption must be to provide children with a mother and father in a way that respects their rights, not to enable foreign parents to satisfy their wish for a child at any price”,
and went on to express its fierce opposition to
“the current transformation of international adoption into nothing short of a market regulated by the capitalist laws of supply and demand, and characterised by a one-way flow of children from poor states or states in transition to developed countries”.
The Assembly drew attention to the fact that
“In many cases, receiving countries perpetuate misleading notions about children's circumstances in their countries of origin and a stubbornly prejudiced belief in the advantages for a foreign child of being adopted and living in a rich country.”
Lord Justice Chadwick