20 July 2017

Nigeria: Astute Judge and 'Exceptional' Counsel Help Reunite Nigerian Family

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A Nigerian couple, living temporarily in the United Kingdom to further their studies, are to be reunited with their adoptive baby son now that the High Court in London has made an unusual ruling, agreeing to recognise their original Nigerian adoption order.

The couple, known only as Mr and Mrs W, are married and are citizens of Nigeria, living lawfully in the UK. They will be returning to Nigeria in 2019 when the husband has completed his current further medical training. It was important to the couple that the court should consider and approve the Nigerian adoption order as this was the only way to have the child, referred to by the court as 'V', join them in the UK.

The decision of Mrs Justice Anna Pauffley was quite technical, though I want to mention two other aspects of the judgment right at the end.

In the dilemma faced by 'Mr and Mrs W' the judge confronted an unusual problem, and one that saw her, for example, having to examine Nigerian adoption legislation to establish that there was nothing about it that would be objectionable to UK law.

First off, the judge explained why the couple needed the court's help to have their child with them in the UK: they fell through the cracks in relation to adoption provisions for foreign families in the UK. As a result, the child had so far been refused entry into the country and is living with the couple's extended family in Nigeria.

The couple could not satisfy the conditions of the UK's Family Law Act: to do so, the child would have had to be domiciled in the UK and living in the UK for a year before the application. And the couple were also excluded from starting from scratch, as it were, and asking the UK courts to let them adopt the child. This is because UK law says that if the domestic courts make an adoption order the result will be that such a child may 'enter and reside permanently in the UK'. The UK authorities were, obviously, not willing to allow that level of entry to V, given that his parents are only temporary residents.

In addition, the UK adoption authorities told the couple they would not be eligible for consideration as adoptive parents (of V) under local law, because they are not entitled to live indefinitely in the UK.

The problem was made more complicated by the fact that Nigeria has not ratified The Hague Convention on children, which deals with intercountry adoptions among other issues. Under the relevant 2002 UK law, 'adoptions' were defined to include an adoption recognised by the law of England and Wales 'and effected under the law of any other country' listed in a 2013 order. But without ratification of The Hague Convention, Nigeria is no longer on that list of countries where adoption is 'reciprocally' recognised.

This meant that all other avenues were closed and the couple's only option was to ask the court to recognise and approve V's Nigerian adoption order.

The judge said for a foreign adoption to be recognised by UK law, it had to meet four criteria. The parents wanting to adopt the child had to have been domiciled in that foreign country (Nigeria in this case) at the time of the adoption; the child must have been legally adopted under the law of the relevant foreign country; the foreign adoption had to have substantially the same 'essential characteristics' as a UK adoption and, lastly, there must be no public policy reason to refuse recognition of the adoption.

In working through these four criteria, the court had the input of an expert on Nigerian law, as well as documents and evidence on all aspects of the original adoption.

But apart from solving the technicalities and ensuring the family was able to live together, there were two other issues that stood out in the decision.

One was the sensitive, astute, attitude of the judge - highly experienced in cases involving family matters - to the couple in the middle of this complex problem. In her explanation of the background to the case, the judge commented: 'V lives abroad with material relatives, he has almost daily contact using social media with Mr and Mrs W but the strain upon them (Mrs W in particular) of being separated from their long-awaited and much loved son was all too evident when Mrs W gave evidence.'

Later the judge referred to some ambiguities on the papers that were resolved in evidence by the couple. 'Those evidential matters were very considerably buttressed by the oral evidence of Mrs W who was, in my assessment, a palpably honest and reliable woman.'

At another point Pauffley commented that there was, in her judgment, 'no public policy reason, none at all, for refusing recognition. Indeed, it would be an affront to public policy to refuse to recognise V's adoption order.'

Why I mention the judge's comments is that they stand out in the midst of the court's legal slog. Her words must give a sense of relief, vindication, encouragement, satisfaction even, to the couple after the long struggle for permission to have their child live with them.

The second aspect that stood out for me was the judge's comments about counsel in the matter, the two barristers who appeared - one for the couple and another for the Secretary of State for the Home Department.

She wrote, 'I should make it quite clear at the outset that I am indebted to both Ms (Kathryn) Cronin and Ms (Claire) van Overdijk for two quite exceptional Skeleton Arguments. Their thorough analyses of the legal framework ... are unparalleled in terms of content and discussion.

Their arguments, concisely put, were extraordinarily well articulated both in writing and orally.'

It is rare to read any appreciation of counsel's argument in a judgment, and I have never seen comments like 'unparalleled' and 'extraordinarily well articulated' used about one, let alone both. Pauffley's remarks highlight the names of both the women who argued the case and would make any keen court-watcher sorry not to have been in court for what must have been a quite exceptional hearing.

Link to court's judgement >

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