PETITION OF (FIRST) IAN ASHFORD BROWN AND ANOTHER FOR RECOGNITION OF A FOREIGN ADOPTION AT COMMON LAW
OUTER HOUSE, COURT OF SESSION
[2015] CSOH 68
P1102/14
OPINION OF LORD BRAILSFORD
In the Petition of
(First) IAN ASHFORD BROWN and (Second) AIDA ASHFORD BROWN
Petitioners;
For recognition of a foreign adoption at common law
Petitioner: Jack; McGill & Co
Amicus Curiae: Beynon
4 June 2015
[1] The petitioners are spouses, having been married in Abu Dhabi on 28 July 2002. They currently reside in Edinburgh. The second petitioner was previously married to a man who died on 16 January 1996. The second petitioner and her now deceased spouse had a child, Mekedes Abdisa Debele (“Ms Debele”), who was on born on 28 June 1990. Following the marriage of the petitioners they lived in family with Ms Debele in various locations in the Persian Gulf. By deed of adoption granted by the Federal Court of First Instance in Lideta, Addis Ababa, Ethiopia dated 31 January 2005 the first petitioner formally adopted Ms Debele.
[2] The petitioners and Ms Debele relocated to Edinburgh in 2012. They have resided there since that time.
[3] What constitutes an “overseas adoption” is defined by section 67 of the Adoption and Children (Scotland) Act 2007 (“the 2007 Act”) as meaning:
“… an adoption of a description specified in regulations made by the Scottish Ministers (being a description of adoptions effected under the law of any country or territory outwith the British Isles), but … does not include a convention adoption”
A “convention adoption” means an adoption effected under the law of a convention country outwith the British Islands (section 119 of the 2007 Act). The “convention” referred to is the Convention on Protection of Children and Cooperation in respect of Intercountry Adoption, concluded at The Hague on 29 May 1993 (section 119 of the (2007 Act). Regulations made under the 2007 Act provide for the recognition of overseas adoptions in Scotland and the schedule to the regulations stipulate the countries to which the regulation applies (Adoption Recognition of Overseas Adoption (Scotland) Regulations 2013/310). Ethiopia is not a country referred to in the schedule to the said regulations. Further, Ethiopia is not a signatory to the Convention. Having regard to that legal framework there is no mechanism for the statutory recognition of the Ethiopian adoption order in respect of Ms Debele in Scotland.
[4] In these circumstances the present petition was presented seeking recognition of the said Ethiopian adoption order at common law. At the initial hearing for a first order for intimation and service it was acknowledged by counsel for the petitioners that, insofar as she could determine, there was no reported decision in Scotland where a foreign adoption order had been recognised and registered at common law. It was however submitted that the editors of the current edition of the leading Scottish textbook on the subject of private international law expressed the view that it was competent to register a foreign adoption order at common law (Anton, “Private International Law” 3rd Edition at paragraph 17.157). In addition it was submitted that recognition of foreign adoptions at common law had been recognised on a number of occasions by the courts of England and Wales. Having regard to these considerations I made an order for intimation and service. Service was effected upon the Office of the Advocate General for Scotland. In the event the Advocate General did not enter appearance. In those circumstances, and having regard to the consideration that there appeared to be no judicial authority in Scotland where the competency of this method of proceeding had been considered, the court appointed an amicus curiae to ensure that the matter was properly considered. When the case called for a hearing I accordingly had the benefit of full submissions from both counsel for the petitioners and from the amicus curiae.
[5] The starting point in determining the competency of the application is the consideration that there is no statutory impediment to the recognition of a foreign adoption under common law in Scotland. Section 39 of 2007 Act provides that the meaning of “adoption” includes, inter alia, “an adoption recognised by the law of Scotland effected under the law of any other country” (section 39(1)(a)). Beyond this whilst it was accepted by both counsel for the petitioners and the amicus curiae that there appeared to be no Scottish judicial authority where a foreign adoption had been expressly recognised at common law the leading Scottish academic authorities on the subject all expressed the view that such recognition was competent. I have already referred to the views of the editors of Anton “Private International Law”. In volume 17 of the Stair Memorial Encyclopaedia at paragraph 242 Dr R D Lesley, an acknowledged expert in this area, observed tersely that “recognition is also possible under the common law”. Professor Norrie in “The Law of Parent and Child” (3rd Edition, at paragraph 22.51) suggested that Scots law should recognise a foreign adoption if the adoption was carried out in accordance with the law of the domicile of the adopted person provided it was recognised that a Scots court always retained a discretion to refuse to recognise a foreign adoption for reasons of public policy.
[6] So far as the position in England was concerned recognition of foreign adoptions at common law appears to have been accepted since the decision of the Court of Appeal in Re Valentines Settlement [1965] Ch 831. The underlying reasoning in that case appears to have been that recognition was based upon the concept of “comity of nations”, in the words of Lord Denning M R at page 842:
“So also, out of the comity of nations, we should recognise an adoption order made by another country where the adopting parents are domiciled there and the child is resident there.”
Whilst that authority has been followed in more recent times the basis of recognition appears to have moved away from the concept of “comity of nations”. The editors of Anton (supra) at paragraph 17.158 note that a more liberal and flexible test than “comity of nations” has been adopted in Australia, in particular in New South Wales. Further some doubt has been expressed as to the need to rely upon the domicile of the parents and the adopted person, this requirement being regarded as introducing a degree of unnecessary inflexibility. The current position in England and Wales appears to be that enunciated by Cobb J in G (Children) [2014] EWHC 2605 to the effect that the common law test is now threefold. It requires the following questions to be answered, affirmatively in the case of the first two questions, negatively in the case of the third question, in order to permit recognition of a foreign adoption at common law:
“(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 English concept?
(iii) If so, was there any public policy consideration that should mitigate against recognition?”
[7] It was submitted by counsel for the petitioner, and supported by the amicus curiae, that the adoption of these three tests, adapted insofar as the second question was concerned to ensure that the concept of adoption in the country of the order substantially conformed with the Scottish concept of adoption, should be adopted and enforced in this jurisdiction. Proceeding in this way would appear to be in line with the views of leading Scottish academic writers on the issue. It would also ensure that in an important area such as recognition of foreign adoptions Scots and English law were in conformity.
[8] I consider these submissions to be well founded and correct. The tripartite test in G (Children) (supra) appears to me, with respect, to be sensible and in accordance with justice. Whilst there may be relatively few jurisdictions which are not covered by UK treaty or convention arrangements I can see no reason in principal why adoption orders from such jurisdictions should not be recognised. The test proposed appears to permit the court in this jurisdiction the flexibility necessary to ensure that adoptions recognised are not inimical to any aspect of the concept of adoption in this country.
[9] If that approach is adopted the three questions set out in G (Children) (supra) have to be addressed. So far as the three questions were concerned the first two were answered in the affirmative on the basis of an expert legal opinion obtained by the petitioners and lodged with the petition (opinion of Dr John R Campbell, University of London, School of Oriental and African Studies, dated 7 August 2014). So far as the third question was concerned there was no suggestion other than the adoption in the present case had been obtained for entirely legitimate reasons in order to recognise the natural child of one party to a marriage to be formally and legally recognised as the child of the other party to the marriage. Affidavits were presented from both petitioners which satisfied me on that question.
[10] Having regard to all the considerations I consider that it is competent to pronounce the order sought and I so do. The interlocutor I have pronounced reflects the three part test in G (Children) (supra) in the hope that this may give assistance in future cases.