RECOGNITION OF FOREIGN ADOPTIONS / LEGAL GUARDIANSHIP ORDERS AS ADOPTIONS UNDER ENGLISH COMMON LAW
IN THE HIGH COURT OF JUSTICE (FAMILY DIVISION)
IN THE MATTER OF THE INHERENT JURISDICTION OF THE HIGH COURT
AND IN THE MATTER OF THE SENIOR COURTS ACT 1981
This case concerns an application under England jurisprudence for the recognition of the legal (and it is asserted permanent) parent-child relationship between Mr and Mrs D (‘the applicants’) and their two children, (‘I’), and (‘E’). That relationship is captured under the auspices of legal guardianship orders (‘the orders”) made in Calcutta, India in 2007 and 2010 respectively.
At this final hearing, the applicants invite the court to exercise its inherent jurisdiction and recognise the foreign legal guardianship Orders of I dated 1 June 2007 and E dated 24 February 2010, finding that these orders created permanent legal relationships akin to adoptions in England and Wales. Under India’s domestic laws, legal guardianship orders were granted pursuant to Section 10 of the Guardians and Wards Act 1890 (“GWA”), and to ‘parents’/’guardians’ who, for all intents and purposes, were habitually resident and domicile in India at the time.
The court is cognizant of the submissions respectfully advanced on behalf of the applicants, that it would not be enough to recognise the applicants as guardians of E and I, that recognising the legal and permanent parent/child relationship as synonymous to an English adoption is necessary to achieve a crucial outcome for this family, endorsing the parent-child relationship in satisfaction of Home Office rules. Thus, the court will be invited to give declaratory effect to the same and find that E and I are the adopted children of the applicants. It is respectfully submitted that the applicants were prejudiced by the legal climate in India at the time of E and I’s legal guardianship orders, and as non-Hindus were not entitled to rely on the “simple….and straightforward process for adoptions for Hindus” under the Hindu Adoptions and Maintenance Act 1956 (“HAMA”) HAMA, a law that legally sanctioned the discrimination of non-Hindus in India for decades.
Indeed, it may be argued that by the time Mr and Mrs D sought to become parents of I and E, a new provision had come into force enable adoptions by non-Hindus, in reality and for various reasons, non-Hindus continued to defer to the GWA; and in Mrs and Mrs D’s case, upon legal advice. The expert further observes how although the coming into force of the JJA 2000 and 2015 sought to address the discrimination between religions, in reality, the process remained blatantly different and discriminatory. In essence, access to justice remained skewed and inequitable.
This court is not being invited to appraise the Indian legal system, nor are the applicants seeking to cast aspersions, the court is respectfully invited to issues pertaining to recognition in this jurisdiction, and ultimately to find that to deny recognition in a manner sought would constitute an unwarranted interference with this family’s Article 8 rights: QS v RS & Anor [2016] EWHC 2470 (Fam).
E and I’s legal guardianship orders took place in India. The applicants cannot directly apply for recognition under the Adoption (Recognition of Overseas Adoptions) Order 2013 as they do not satisfy the criteria. India is not on the “overseas list” or list of designated countries relDnt to the periods to which I and E’s respective orders were made. In any event, pursuant to the requirements under Section 83 of the Adoption and Children Act 2002, adoptions in Indian or before 3 January 2014 are not recognised in the UK.
Thus, it is not opened to the applicants for the orders in respect of I and E to be registered in the Adopted Children Register, nor are the applicants able to obtain a certificate of eligibility for a foreign adoptive child.
The court may be amply persuaded it can recognise the legal guardianship orders of E and I from the evidence before it, but respectfully, the arguments advance on behalf of the parents goes beyond that. It would seem that under Home Office rules and in order that the children may enjoy the full benefits of their British Citizen Mother, the recognition of these orders need to bear the characteristics of an English adoption.
For the full judgment and report, please see Case No: FD22P00448