Strand, London, WC2A 2LL
B e f o r e :
|- and -
|- and -
|O. C. C.
|- and -
|C (a child)
Mr. Alex Forbes (instructed by Darbys Solicitors) for the 2nd Respondent
Hearing date: 19th April 2010
Crown Copyright ©
"(d) which is an overseas adoption; or (e) which is an adoption recognised by the law of England and Wales and effected under the law of another country."
As Nicaragua is not a signatory of the 1993 Hague Convention on Protection and Co-operation with respect to Intercountry Adoption nor is it a country named in the Schedule to the Adoption (Designation of Overseas Adoption) Order 1973 (SI 1973/19), the only route to recognition is recognition under the Common Law of England and Wales.
"But when is the status of adoption duly constituted? Clearly it is so when it is constituted in another country in similar circumstances as we claim for ourselves. Our courts should recognise a jurisdiction which mutatis mutandis they claim for themselves see Travers v. Holley. We claim jurisdiction to make an adoption order when the adopting parents are domiciled in this country and the child is resident here. So also, out of the comity of nations, we should recognise an adoption order made by another country when the adopting parents are domiciled there and the child is resident there."
And further on at p. 842 F he adds this
"If you find that a legitimate relationship of parent and child has been validly created by the law of the parents' domicile at the time the relationship is created, then the status so created should be universally recognised throughout the civilised world, provided always that there is nothing contrary to public policy in so recognising it."
A more recent example may be found in the judgment of Ryder J in D -v- D (FOREIGN ADOPTION)  1FLR1475. The key questions seem to be: first, was the adoption order obtained wholly lawfully in the foreign jurisdiction; secondly, if it was, did the concept of adoption in that jurisdiction substantially conform to the English concept; and thirdly, if so, is there any public policy consideration that should mitigate against recognition?
"(4) In this Act, a couple means-
(a) a married couple, or
(aa) two people who are civil partners of each other, or
(b) two people (whether of different sexes or the same sex) living as partners in an enduring family relationship."
Clearly the crucial words are "living as partners in an enduring family relationship." These words are no doubt chosen so as not to require the residence of both in the same property. That is not surprising as historically many a parent has had to work abroad whilst the family remained at home without in anyway imperilling an enduring family relationship. Nor is that unusual today with people having to move jobs often at short notice. What is required is: first, an unambiguous intention to create and maintain family life, and secondly, a factual matrix consistent with that intention. That is clearly a question of fact and degree in each case.