Re Valentine's Settlement

It is the case on the recognition of a foreign adoption, and it supplies both the rule and the distinction — between recognising a status and giving effect to its incidents — that resolves most problems on this head.

A British subject domiciled in Southern Rhodesia settled funds on his son Alastair for life with remainder to his children. Alastair, domiciled and resident in Southern Rhodesia, adopted two children in South Africa, and those orders were not recognised in Southern Rhodesia. The question was whether the adopted children could take under the settlement.

By a majority, no. Lord Denning M.R.'s rule: for the adoption to be recognised, the adoptive parents must be domiciled, and the child resident, in the country where the order was made. The Court also held that a foreign adoption order would be refused recognition on public policy grounds where appropriate; and it drew the distinction between recognising a foreign adoption and the effects of recognition — recognition of the status of adoption is determined by the lex domicilii, while rights of succession are governed by the lex successionis.

Step one — why this rule and not another. It is in line with the Travers v. Holley principle: the court recognises a jurisdiction which, mutatis mutandis, it claims for itself. Compare the English jurisdictional rule — an order may be made if the applicant is domiciled in England or Scotland, or if applicant and infant reside in England, and there is no requirement that the infant be domiciled in England — and the recognition rule maps onto it exactly.

Step two — why recognition of adoption is difficult at all. Two systems use the same word for different institutions. English law emphasises the legal nature of adoption as a transfer, the social purpose being to establish ties between child and adoptive parents. Civil law systems inherit the Roman adoptio and adrogatio, under which one purpose was to prevent a family becoming extinguished and to create heirs, so adoption there may be used to affect inheritance, and may even be applied for in respect of adults. That is the classic setting for a characterisation problem, and it is also the practical instance where public policy bites.

Step three — the status/effects distinction. A foreign adoption may be perfectly good and still give the adopted child no more succession rights than the law governing the succession chooses to give.

It opens: When will a foreign adoption be recognised? — state the rule, the public-policy qualification and the status/effects distinction.

Add the Convention scheme. Following the 1964 session of the Hague Conference the United Kingdom signed and later ratified the Hague Convention on Adoption, implemented by the Adoption Act 1968 and consolidated in the Adoption Act 1976; its guiding idea is to provide uniformity of status by balancing the rules of the country of the adoptive parents with the legislative requirements of the country of the natural parents. Where the applicants come from a Convention country, no order is to be made if it conflicts with the internal law of that country; where the child is not a national of the forum State, the consents and consultations required by the internal law of the child's national Convention country must have been complied with, and with full understanding.

Close with the parallel in Mira Devi, which draws the same line for legitimation and succession: the lex situs governs who takes, but must take the claimant's status as it finds it.

It does not decide India's position, and this course does not state India's position on the 1993 Hague Convention on intercountry adoption; say so rather than guess.