Foreign adoption order recognised at common law in Scottish legal first

A married man who was granted adoption of the child of his wife’s previous marriage before the couple relocated to Scotland has had the adoption formally recognised by a judge in the Court of Session in the first reported decision of its kind.

Lord Brailsford heard that Ian Ashford Brown and Aida Ashford Brown married in Abu Dhabi in July 2002, she having been previously married to a man who died in 1996.

Mrs Ashford Brown and her now deceased spouse had a child, Mekedes Abdisa Debele, born in June 1990, who was adopted by Mr Ashford Brown by deed of adoption granted in January 2005 by the Federal Court of First Instance in Lideta, Addis Ababa.

Following the marriage the couple lived with their child in various locations in the Persian Gulf before moving to Edinburgh, where they have resided since 2012, and they sought recognition of the adoption in Scotland.

What constitutes an “overseas adoption” is defined by section 67 of the Adoption and Children (Scotland) Act 2007 and regulations made under the 2007 Act provide for the recognition of overseas adoptions in Scotland, while the schedule to the regulations stipulate the countries to which the regulation applies.

Since Ethiopia is not one of those countries, a petition was presented seeking recognition of the Ethiopian adoption order at common law.

The judge explained that the “starting point” in determining the competency of the application was there was “no statutory impediment to the recognition of a foreign adoption under common law in Scotland”, but it was accepted by both counsel for the petitioners and the court-appointed amicus curiae that there appeared to be “no Scottish judicial authority” where a foreign adoption had been expressly recognised at common law.

However, it was submitted that the leading Scottish academic authorities on the subject, including the editors of the current edition of the leading Scottish textbook on the subject of private international law, expressed the view that it was “competent” to register a foreign adoption order at common law.

In addition, it was said that recognition of foreign adoptions at common law had been recognised on a number of occasions by the courts of England and Wales, subject to the test set out in the 2014 case of G (Children).

The threefold test required the following questions to be answered, affirmatively in the case of the first two questions, negatively in the case of the third question: “(i) Was the adoption obtained wholly lawfully in the foreign country?; (ii) If so, did the concept of adoption in that jurisdiction substantially conform with the English concept?; (iii) If so, was there any public policy consideration that should mitigate against recognition?”

It was submitted by counsel for the petitioner, and supported by the amicus curiae, that the adoption of these three tests – the second question being adapted to ensure the concept of adoption in the country of the order substantially conformed with the Scottish concept – should be adopted and enforced in this jurisdiction.

Proceeding in this way, it was argued, would be in line with the views of leading Scottish academic writers on the issue and would also ensure that Scots and English law were “in conformity”.

The judge considered the submissions to be “well founded and correct” and the interlocutor pronounced reflected the three-part test in G (Children) in order to “give assistance in future cases”.

In a written opinion, Lord Brailsford said: “The tripartite test in G (Children) appears to me, with respect, to be sensible and in accordance with justice. Whilst there may be relatively few jurisdictions which are not covered by UK treaty or convention arrangements I can see no reason in principal why adoption orders from such jurisdictions should not be recognised.

“The test proposed appears to permit the court in this jurisdiction the flexibility necessary to ensure that adoptions recognised are not inimical to any aspect of the concept of adoption in this country. If that approach is adopted the three questions set out in G (Children) have to be addressed.

“So far as the three questions were concerned the first two were answered in the affirmative on the basis of an expert legal opinion obtained by the petitioners and lodged with the petition.

“So far as the third question was concerned there was no suggestion other than the adoption in the present case had been obtained for entirely legitimate reasons in order to recognise the natural child of one party to a marriage to be formally and legally recognised as the child of the other party to the marriage. Affidavits were presented from both petitioners which satisfied me on that question.

“Having regard to all the considerations I consider that it is competent to pronounce the order sought and I so do.”