One adoptive parent or two?
By Danielle Cohen Immigration Law Solicitor LinkedinDanielle Cohen has over 20 years of experience as a lawyer and a reputation for offering professional, honest and expert advice.
We have represented a Nigerian national child born in 2015. The person who was claiming to be her adoptive parent was a dual British/Nigerian national who is married to a British national man. As a result of his work the couple lived in Nigeria for a spell and then moved to Bulgaria and then to the UK. The husband and wife returned to Nigeria, but from 2010 onwards the mother began visiting Nigeria more frequently and over time decided to move back to Nigeria and engage in business opportunities there. During the time in Nigeria she began visiting orphanages. She had no children of her own and no realistic prospects of having children with her husband. In December 2014 she visited a particular orphanage and eventually decided to foster a baby girl. The child went to live with the mother in April 2015 and has continued to do so ever since.
In August 2015 the Family Court in Imo State made an adoption order in favour of mum. A somewhat unusual feature of this case is that the husband was not involved in the adoption process. Although he was supportive of his wife’s position, he did not feel strongly about starting a family at this stage of his life, and throughout the marriage they respected each other’s identities and decisions. This included the decision to live apart. The mother asserted that there would be nobody else in Nigeria to care for the child and the child should not be separated from her or returned to the orphanage.
The application we made for the mother to bring the child to the UK was refused. Adoptions authorised in Nigeria are not recognised in the UK and therefore the application for entry clearance was considered under paragraph 309A of the Rules, i.e. de facto adoption.
This approach was said not to be within the spirit of the Rules. It was said that the mother was deliberately attempting to evade processes which would lead to the issuing of a certificate of eligibility by the Department of Education in the UK.
Finally, Article 8 of the Human Rights Act and section 55 of the Borders Citizenship and Immigration Act 2009 was considered and it was said that the child’s right would not be breached by the refusal of an entry clearance. The appeal was based on Article 8. Both the mother sponsor and the husband attended the hearing and both gave oral evidence. The Home Office representative argued that as the sponsor and her husband were a couple, both had to be treated as potential adoptive parents. The husband would be involved in the appellant’s upbringing as he was always part of the family unit. As a result of this status, he had not had the requisite contact with the appellant in Nigeria required by paragraph 309A and therefore the Rules could not be met. In relation to paragraph 309B, the Home Office representative submitted that this did apply and that the certificate of eligibility was required. The inability to meet the relevant Rules counted against the appellant’s Article 8 claim. She argued that the sponsor’s sister could care for the appellant if the sponsor does not return to live in Nigeria permanently. Our barrister, Ms Smith, accepted that the adoption of the appellant could only ever be considered as de facto adoption under the Rules. She submitted that the reference to adoptive parents in paragraph 309A allowed for either one or two parents. There was no guidance or case law to suggest that the appellant’s argument in this appeal was misconceived. She emphasised the entry clearance manager’s acceptance that the sponsor had not acted in bad faith on making the application. Ms Smith submitted that in cases of de facto adoptions, there were no specific checks made by the authorities in this country. These were not requirements under paragraph 309A. Even if the husband had been residing in Nigeria with the appellant and the sponsor for the requisite period of time, there would have been no assessment as to his suitability by any authority in the United Kingdom or indeed in Nigeria. Further, she submitted that the singular adoptive parent might bring a child over to this country and then very soon thereafter begin a relationship with somebody who was completely unknown to the United Kingdom authorities.
The Judge decided in our favour. He found that it was credible that the sponsor began investigating the possibility of adopting a child in Nigeria and that the sponsor did not inform her husband about these investigations at the time. He found that the sponsor did in fact foster the appellant. He found that the sponsor went through the proper official channels in respect of the fostering arrangements and the appropriate authority was issued by the relevant Governmental Department. He found that the sponsor put herself forward as the sole foster carer of the appellant for the genuine reason that this was a very important life changing decision which had been taken by her and her alone.
The Judge accepted that there are cases were one member of a couple may, for perfectly genuine reasons, be the sole individual who undertakes the emotional and practical journey leading to the de facto adoption.
Putting all the parts of paragraph 309A together, he concluded that there has been a de facto adoption of the appellant by the sponsor. He also concluded that there is no requirement to obtain a certificate of eligibility because it is by no means clear that de facto adoptions fall within the scope of inter-country adoptions. Secondly, as de facto adoptions are a construct of the Rules, rather than domestic or international law, he could not see how, in general terms, they could be subject to regulatory frameworks established by legislation and or international conventions unless this was expressly provided for. That was a great success for all involved and we expect the mother and child to be in the UK very shortly.