Jersey Unreported Judgments

Adoption - applications for adoption of the children.

[2015]JRC038

Royal Court

(Family)

20 February 2015

Before     :

W. J. Bailhache, Bailiff, and Jurats Kerley and Olsen

IN THE MATTER OF THE ADOPTION APPLICATIONS BY THE ADOPTIVE PARENTS RELATING TO LILLY AND FLORENCE (ADOPTION)

AND IN THE MATTER OF TWO APPLICATIONS FOR DECLARATIONS THAT ADOPTIONS IN THE PEOPLE'S REPUBLIC OF CHINA EACH BE TREATED AS AN "OVERSEAS ADOPTION" FOR THE PURPOSES OF ARTICLE 1 AND ARTICLE 25(7) OF THE ADOPTION (JERSEY) LAW 1961 AS AMENDED

The Applicants (Adoptive parents) appeared in person.

judgment

the DEPUTY bailiff (now bailiff):

1.        This is a short judgment handed down because as far as we are aware it is the first occasion on which the Court has had to consider whether an adoption in the People's Republic of China should be treated as an "overseas adoption" for the purposes of Article 1 and Article 25(7) of the Adoption (Jersey) Law 1961 as amended ("the Law").  For this purpose, the Court has had to consider also Rules 25A to 25E with regard to declarations in relation to overseas adoptions under the Adoption Rules 1962 ("the Rules").  There is no guidance in the Law or the Rules on when an adoption should be treated under the Law as an overseas adoption. 

The evidence in this case

2.        The Court has had before it affidavits sworn by both applicants.  The adoptive father's affidavit exhibits a notarised copy of the birth certificates and translations into the English language of both children; similarly a copy of the order/instrument giving effect to the adoption of both children by the applicants and a translation of that document; and finally a notarial certificate as to the authenticity of the seal of the relevant authority having the care of both children immediately prior to the date of the overseas adoption.  The applicants set out their full names and their habitual residence and address in accordance with the Rules. 

3.        Lilly (this is not her real name) is currently aged 14 and Florence (this is not her real name) is aged 11.  They have respectively lived continuously with the applicants since the date of the overseas adoptions, in July 2001 and October 2004. 

4.        Rule 25B requires that the application to the Court should set out the grounds on which the application is made and all material facts in support of the making of the declaration.  The representations in this case confirm that the applicants have been assessed by the Children's Service, Health and Social Services Department, States of Jersey, as suitable to adopt, and approvals to adopt were sent to the Chinese authorities in 2000 and 2003 respectively.  The affidavits set out that the applicants do not consider there is any person whose interests may be affected by the application for a declaration in this case, both children having been found abandoned without any record of their parents or other relatives, and each child having lived continually with the applicants as an adopted daughter since the respective dates of the overseas adoption.  No other information is given in either the representations or the affidavits as to the grounds upon which the applications are based.  In this case, we do not think this causes any insuperable difficulty, but it would be better practice in future if the representation did set out in terms the grounds upon which the application is brought. 

5.        We were given some further information by the applicants when they appeared before us.  It appears that following the sending of the report from the Children's Service to the Chinese authorities, an invitation to travel to China was sent to the applicants by the relevant authorities.  This enabled them to apply for visas to visit China specifically for the purposes of the adoptions, which is what they did.  On both occasions, they had to apply to the British Embassy for a visa so that the children could have entry into Britain on their Chinese passports.  On arrival in Jersey, the applicants have made application for British citizenship for each of their two daughters. 

The Hague Convention

6.        We commence with the Convention of 29^th May, 1993, on the protection of children and co-operation in respect of inter-country adoption which was signed by the United Kingdom of Great Britain and Northern Ireland on 12^th January, 1994, and ratified on 27^th February, 2003.  The Convention came into force on 1^st May, 1995.  The ratification by the United Kingdom included declarations as to the competent authorities for England, Scotland, Wales and Northern Ireland.  In accordance with accepted international practice, the ratification of the United Kingdom, not mentioning expressly the Channel Islands and the Isle of Man, did not extend the UK's ratification of the Convention to those territories.  In the case of the Isle of Man, the Convention was extended on 14^th August, 2014.  The United Kingdom's ratification of the Convention on behalf of Jersey has not taken place and as at the present date the Island is therefore not within its terms. 

7.        We note that the objects of the Convention are set out at Article 1 as follows:-

"The objects of the present Convention are-

(a)       To establish safeguards to ensure that inter-country adoptions take place in the best interests of the child and with respect for his or her fundamental rights as recognised 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 trafficking children;

(c)       To secure the recognition in Contracting States of adoptions made in accordance with the Convention."

8.        We note that the People's Republic of China signed the Convention on 30^th November, 2000, and ratified it on 16^th November, 2005, with entry into force on 1^st January, 2006.  It is clear that the United Kingdom, which is responsible for the international representation of this Island, accepts the People's Republic of China as having appropriate systems in place for the purposes of ensuring that adoptions take place in the best interests of the child and it appears to us that the fact that the United Kingdom has agreed a system of recognition of adoptions made in China is an important factor which this Court can take into account, notwithstanding that the Convention has not been extended to Jersey, in our consideration of the question which arises under Article 1 of the Law.  It is not the only factor which we should take into account however because, as of today's date, there is no confirmed guarantee of reciprocity of treatment in relation to adoptions completed in Jersey were there to be a circumstance when a Chinese couple wished to adopt a child here. 

Discussion

9.        It would be helpful for each child if she had a UK style birth certificate and indeed it would be useful for the purposes of the law of succession and no doubt for other technical purposes for the adoption which has taken place in the People's Republic of China to be recognised in Jersey.  It would probably be better if such information were to be included in the sworn affidavit in support of the application, so that there was formal evidence of the grounds on which the application was made.  As we say, however, we received this information in Court directly from the applicants and have proceeded on that basis without the material being contained in the representations or affidavits.  Article 1 of the Law requires us to be satisfied that the adoption has been effected under the law of a country outside the British Islands.  This is not mere verbiage.  The Court should not give its sanction to an apparent adoption without being satisfied that there has been a proper appropriate procedure followed in the other country.  In other words, we must be satisfied that there has been due process in the country where the adoption has taken place.  There is helpful material in this respect in the Convention.  We note, for example, that Article 4 of the Convention is in these terms:-

"An adoption within the scope of the Convention shall take place only if the competent authorities of the state of origin -

(a)       Have established that the child is adoptable;

(b)       Have determined, after possibilities for placement of the child within the state of origin have been given due consideration, that an inter-country adoption is in the child's best interests;

(c)       Have ensured that

(1)       The persons, institutions and authorities whose consent is necessary for adoption, have been counselled as may be necessary and duly informed of the effects of their consent, in particular whether or not an adoption would result in the termination of the legal relationship between the child and his or her family of origin;

(2)       Such persons, institutions and authorities have given their consent freely, in the required legal form, and expressed or evidenced in writing;

(3)       The consents have not been induced by payment or compensation of any kind and have not been withdrawn, and;

(4)       The consent of the mother, where required, has been given only after the birth of the child; and

(d)       Have ensured, having regard to the age and degree of maturity of the child, that

(1)       He or she has been counselled and duly informed of the effects of the adoption and of his or her consent to the adoption, where such consent is required,

(2)       Consideration has been given to the child's wishes and opinions,

(3)       The child's consent to the adoption, where such consent is required has been given freely, in the required legal form, and expressed or evidenced in writing, and

(4)       Such consent has not been induced by payment or compensation of any kind."

10.      Article 5 of the Convention is in these terms:-

"An adoption within the scope of the Convention shall take place only if the competent authorities of the Receiving State -

(a)       Have determined that the prospective adoptive parents are eligible and suited to adopt;

(b)       Have ensured that the prospective adoptive parents have been counselled as may be necessary; and

(c)       Have determined that the child is or will be authorised to enter and reside permanently in that State."

11.      In this case, we are satisfied that an adoption of both children has taken place under the law of the People's Republic of China.  We have received information as to the travel arrangements which entirely satisfy us that the children would not have been able to leave China, as babies, and come to Jersey with the applicants save with the approval of the relevant authorities in China and the immigration authorities of the United Kingdom.  The children, respectively, have lived nearly all of their lives with the applicants.  The process by which they came to be in the applicants' care has clearly emanated from competent authorities in a country outside the British Islands.  In the circumstances, we are satisfied that for the purposes of Article 1 of the Law, each of these two children have been adopted with due process under the Law of the People's Republic of China, being a country outside the British Islands, and that therefore their adoption is to be treated as an overseas adoption for the purposes of the Law. 

12.      In this case of course the children are here already and so Article 5(c) has been complied with.  As to Article 5(a), we have information that the Children's Service have determined that the applicants are eligible and suited to adopt. 

13.      We do not have any evidence specifically in front of us that the prospective adoptive parents have been counselled as may be necessary.  We think it is very likely that such counselling has taken place, but in any event, we note that as the Island has not had the Convention extended to it, strict compliance with these provisions is unnecessary and falls outside the scope of what we are required to do for the purposes of making the declaration under Article 1 of the Law. 

14.      The order we make today is not an adoption order.  The Superintendent Registrar has jurisdiction under Article 25(7) of the Law to make an entry in the Adopted Children Register where he or she has sufficient particulars "relating to an infant adopted under a[n] ... overseas adoption".  It will be necessary for the applicants to apply to the Superintendent Registrar for the entry to be made in respect of each child, and that application is fortified by the declaration which this Court makes that the adoption of both Lilly and Florence appears to the Court to be an overseas adoption for the purposes of Article 1 of the Law, namely an adoption which appears to be effected under the law of a country outside the British Islands. 

15.      We have considered whether it is necessary to convene any other parties to this application.  We saw an email from the Law Officers' Department confirming that the Fostering and Adoption Service of the Children's Department in Jersey supports this application.  That confirmation therefore is additional evidence supporting the affidavits sworn by the applicants to the effect that they had been approved to adopt as long ago as February 2000.  We think this independent confirmation in support was useful but it is unnecessary to convene either the Fostering and Adoption Service or the Attorney General to have such confirmation repeated before us. 

16.      We did not think it was necessary to appoint JFCAS to conduct any form of report for us.  Had it been the case that there was a very short period of residence in the Island with the prospective adoptive parents, or had there been any question over the form of reports from the Fostering and Adoption Service, we might have considered it necessary to ask JFCAS to conduct the necessary investigation and report back.  Whether or not the Court considers such a course to be necessary will be fact specific according to the particular case before it.  It is not necessary in this case. 

17.      For all these reasons, the declarations have been made as requested. 

Authorities

Adoption (Jersey) Law 1961 as amended.

Adoption Rules 1962.

Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption (Convention) 1993.