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Family Law

The leading authority on all aspects of family law

14 SEP 2016

Recognition of adoption orders: a problem for the courts of England and Wales?

Judith Masson

Professor

Recognition of adoption orders: a problem for the courts of England and Wales?
This article examines concerns expressed recently by family judges about the recognition in other countries of (domestic) adoption orders made in England and Wales in respect of children, who are not UK nationals but are habitually resident here.

Concerns have been expressed both in cases where the parents have relinquished children for adoption to adoption agencies in England and where local authorities have proposed an adoption plan against parents’ wishes for children subject to child protection proceedings. The article concludes that, for both legal and practical reasons, these concerns are overstated, and that the court’s focus should be children’s welfare and rights to permanent care that meets their needs.

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Although there are many common features in adoption laws across the globe, adoption practice varies widely. A key distinction is between domestic and international (inter-country) adoptions. Domestic adoptions create legal status and relationships where the order is made, where the adoptive family live. In contrast, the prospective adopters in international adoptions look outside their home country for a child to adopt. They intend that the child will relocate to their country of origin and live with them there. It is essential for this arrangement that the adoption is recognised in both States.

The Hague Convention, which provides the framework for the majority of these adoptions, ensures that they are recognised in all Hague states subject to very limited exceptions. Where adoptions do not fit within this simple dichotomy issues of recognition can arise: where (domestic) adopters emigrate or international adoptions are arranged in non-Hague States. In such cases, the family’s (new) country of residence has to determine what effect the foreign adoption order has. There is no universal approach to these cases. A range of considerations: the similarity of adoption regimes; the need to protection of children from trafficking or other abusive processes; rights to respect for family life; and the welfare of individual children, may all assist courts to decide whether a foreign adoption order should be recognised.

The full version of this article appears in the September 2016 issue of Family Law. 

Online subscribers can access the article here

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