De-facto adoption

Danielle Cohen
By Danielle Cohen Immigration Law Solicitor Linkedin
Danielle Cohen has over 20 years of experience as a lawyer and a reputation for offering professional, honest and expert advice.
19 September 2011

Adoption has increasingly become a hot topic in immigration law in the UK and here at Danielle Cohen Solicitors we are proud to say that we have helped an Indian child join her adoptive parents in the UK.

The distinctive feature about this case is that involved an Indian mother, though not the biological mother, and a Christian, British father. The family lived in India and it was there where they obtained a guardianship order for the child, not being able to adopt formally under Indian law as non-Hindus.

This family applied for their child to enter the UK under the de-facto adoption rules. A de-facto adoption is regarded as having taken place if immediately preceding the entry clearance application, the parents have been living together abroad for a least 18 months, of which the 12 months immediately preceding the application must have been spent living together with the child. The parents must also have assumed the role of the child’s parents from the beginning of the 18 month period, so that it can be considered that they have genuinely been transferred parental responsibility.

The difficulty in our case was that the legal proceedings in India to obtain the guardianship order were very drawn out. One parent had already relocated back to the UK in order for the couple’s other children to attend school, and therefore had not been with the child in India immediately preceding the application being made. Essentially we had one family split over 2 countries.

In addition, the Entry Clearance Officer did not accept that the biological mother had transferred her parental responsibility to the adoptive parents.

We represented the family at appeal and were successful. We relied on evidence from India to show that the parents could not have formally adopted the child and that the guardianship order was their only recourse. We provided evidence of the family’s life together in India to show that the child had very much integrated in the family and that there were no ties to the biological mother. We also provided evidence as to the other children’s lives in the UK as evidence that their rights to private and family life would also be breached if the family could not live together in the UK.

The Immigration Judge accepted that the parents had had joint responsibility for the child since she was 5 days old and accepted that the child had been de-facto adopted. The child is now just waiting for her visa!