The applicant, an 8 year old boy, became part of his Indian family who lived in England, through an adoption recognised in Indian Law, but not in English Law. Though the adoption was genuine, his family ties had not been broken in India. The family resisted an order for his return to India.
Held: The Adjudicator was entitled to conclude that family life was established on the facts of this case. There were substantial links between the sponsors and the appellant, and the adoption, although not recognised by UK law, was a further factor which militated in favour of family life. However narrow and technical the question we have ultimately to decide, the case before us cannot be viewed in isolation from its particular social, cultural and religious setting, and ‘in our multi-cultural and pluralistic society the family takes many forms.’ The Appeal was allowed. And te boy should stay with his adoptive parents in England.
Judges:
Lord Justice Chadwick Mr Justice Munby Lord Justice Dyson
Citations:
[2004] EWCA Civ 1075, Times 15-Sep-2004, [2005] 2 WLR 325, [2004] 3 FCR 72, [2005] Fam Law 9, [2004] INLR 515, [2004] Imm AR 672, [2005] 1 FLR 308, [2005] QB 608
Links:
Statutes:
European Convention on Human Rights
Jurisdiction:
England and Wales
Citing:
Cited – X and Y v United Kingdom ECHR 1978
(Commission) A boy of 14, X’s nephew, was adopted under Indian law by two Sikhs, who were UK citizens. He was 14 years when adopted. He had been denied entry clearance into the UK on the grounds that, even if the adoption was valid according to . .
Cited – Ahmut v The Netherlands ECHR 28-Nov-1996
The bond between natural parents and their children is a strong indicator of the existence of family life: ‘from the moment of the child’s birth and by the very fact of it, there exists between him and his parents a bond amounting to ‘family life’, . .
Cited – Lebbink v The Netherlands ECHR 1-Jun-2004
‘The existence or non-existence of ‘family life’ for the purposes of Article 8 is essentially a question of fact depending upon the real existence in practice of close personal ties’ and ‘The Court recalls that the notion of ‘family life’ under . .
Cited – Marckx v Belgium ECHR 13-Jun-1979
Recognition of illegitimate children
The complaint related to the manner in which parents were required to adopt their own illegitimate child in order to increase his rights. Under Belgian law, no legal bond between an unmarried mother and her child results from the mere fact of birth. . .
Cited – X, Y and Z v The United Kingdom ECHR 22-Apr-1997
The court refused to find that the failure of United Kingdom law to recognise a female to male trans-sexual as the father of a donor insemination child, born to his partner and brought up as their child, was a breach of their rights to respect for . .
Cited – Phelps v Hillingdon London Borough Council; Anderton v Clwyd County Council; Gower v Bromley London Borough Council; Jarvis v Hampshire County Council HL 28-Jul-2000
The plaintiffs each complained of negligent decisions in his or her education made by the defendant local authorities. In three of them the Court of Appeal had struck out the plaintiff’s claim and in only one had it been allowed to proceed.
Cited – Ghaidan v Godin-Mendoza HL 21-Jun-2004
Same Sex Partner Entitled to tenancy Succession
The protected tenant had died. His same-sex partner sought a statutory inheritance of the tenancy.
Held: His appeal succeeded. The Fitzpatrick case referred to the position before the 1998 Act: ‘Discriminatory law undermines the rule of law . .
Cited – Alhaji Mohamed v Knott 1969
A 26 year old Nigerian Muslim man who entered into a potentially polygamous marriage in Nigeria with a Nigerian girl aged 13; both were domiciled in Nigeria and the marriage was valid according to Nigerian law.
Held: The marriage was capable . .
Cited – In Re E (Children) (Abduction: Non-Convention Country) CA 7-Jul-1999
Where a child has been abducted from a country which has not signed the Convention on abduction of children, an English court should be very reluctant to apply English cultural traditions in substitution for those of the home country. Exceptions . .
Cited – Boyle v The United Kingdom ECHR 28-Feb-1994
The court considered whether a family relationship could exist where the individuals were not cohabiting: ‘cohabitation is . . not a prerequisite for the maintenance of family ties which are to fall within the scope of the concept of ‘family life’. . .
Cited – Berrehab v The Netherlands ECHR 21-Jun-1988
Family life arises ipso jure as between father and child where the child was conceived in wedlock. Divorce and separation do not bring family life between the child and the absent parent to an end, even if the divorce leads to a significant period . .
Cited – Re J (Adoption: Non-Patrial) CA 1998
The court considered an adoption in Pakistan which was valid in Pakistan but would not be recognised here. The natural father and the adoptive father were from the same family. The adoptive parents were unable to have a children of their own, and . .
Cited – Re M (Adoption: International Adoption Trade) FD 7-Mar-2003
A baby was for all practical purposes waved through immigration control because it had been adopted, with judicial sanction, in the United States of America and the adoption was accordingly recognised in this country. The adoption was a disaster for . .
Cited – Kroon And Others v The Netherlands ECHR 27-Oct-1994
Neither marriage nor living together were necessarily a requirement for establishing family ties, exceptionally other factors may . . serve to demonstrate that a relationship has sufficient constancy to create de facto ‘family ties’. The . .
Cited – Keegan v Ireland ECHR 26-May-1994
The mother and father were not married, and their relationship broke up before the birth of the child, and the father was excluded from seeing the baby after the first time in hospital. He sought guardianship, and objected to his exclusion from . .
Cited by:
Cited – Regina (Charlton Thomson and Others) v Secretary of State for the Department of Skills and Education Admn 4-Jul-2005
The claimants complained of the respondent’s decision to suspend temporarily but without notice all further inter-country adoptions from Cambodia.
Held: There were proper concerns about a major humanitarian crisis for orphaned children and for . .
Cited – Makhlouf v Secretary of State for The Home Department SC 16-Nov-2016
(Northern Ireland) The appellant (born in Tunisia) was made subject to a deportation order. He had married a UK citizen and they had a child. After moving to the UK, at various times, the relationship broke down and he was convicted of several . .
Lists of cited by and citing cases may be incomplete.
Immigration
Updated: 21 August 2022; Ref: scu.199795