Recognition of foreign adoptions at common law

Judgment was handed down in the case of W v The Secretary of State for the Home Department [2017] EWHC 1733 (Fam) on 07 July 2017.  This case concerned an application to the England and Wales High Court for recognition of a foreign adoption at English common law.  Specifically, this case concerned the recognition of an adoption effected in Nigeria.   A useful summary of that case can be found on the Free Movement blog.
 
The court considered the application against the four criteria set out in N (A Child), Re [2016] EWHC 3085:
 
(i) The adoptive parents must have been domiciled in the foreign country at the time of the foreign adoption;
(ii) The child must have been legally adopted in accordance with the requirements of the foreign law;
(iii) 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?;
(iv) There must be no reason in public policy for refusing recognition. 

Applying those criteria, the application for recognition of the foreign adoption was granted.  Pauffley J also held that in the event she were wrong about the adoption meeting the criteria above, it would have also been appropriate to grant the application on the basis that failing to do so would breach the child and his parents’ Article 8 rights to respect for their family life.
 
The position in Scotland is broadly similar, having been set out two years ago by Lord Brailsford in Brown & Anor, Re Recognition of a Foreign Adoption at Common Law [2015] CSOH 68 (04 June 2015), a case brought by McGill & Co and the first of its kind in Scotland.  Lord Brailsford held that the following three criteria (originally established by Cobb J in G (Children) [2014] EWHC 2605,  were relevant for consideration:
 
(i) Was the adoption obtained wholly lawfully in the foreign country?
(ii) If so, did the concept of adoption in that jurisdiction substantially conform with the Scottish concept?
(iii) If so, was there any public policy consideration that should mitigate against recognition?
 
The cases of W v The Secretary of State for the Home Department and N (A Child), Re go further than Lord Brailsford and Cobb J did in Brown and in G (Children) to include a fourth criterion, namely that the adoptive parents must have been domiciled in the foreign country at the time of the foreign adoption.  This additional criterion would not have altered the outcome in Brown, but should be borne in mind for future petitions seeking recognition of a foreign adoption at common law.