QS v RS (2015)

The High Court could exercise its inherent jurisdiction in proceedings concerning the custody of a child, who had been adopted in Nepal and was a British national resident in Dubai. The English court was the sole court which could remedy the non-recognisability of adoption at all under UAE law, and the fact that the Nepalese adoption was not automatically recognised in England.
The court was required to determine whether it should exercise its inherent jurisdiction in proceedings concerning a child, a British national resident in Dubai.

 

The claimants, who were both British citizens, had adopted a child in Nepal and moved with her to Dubai where the child was granted British citizenship. The parties’ marriage fell into difficulty; the father commenced custody and contact proceedings in Dubai where he remained with the child, while the mother came to England and commenced divorce proceedings, matrimonial finance proceedings and wardship proceedings. The High Court made the child a ward of the court, and ordered that she should be in the care and control of her mother, on the basis of the mother’s success at first instance in the Dubai courts. On ultimate appeal to the Dubai Court of Cassation, however, the court granted custody to the father on the basis he was the child’s guardian with legal and financial responsibility for her in the UAE. The effect of the Court of Cassation judgment was that under UAE law neither party was recognised as a parent to the child, and that, at best, the child was the father’s ward. Additionally, the adoption was not recognised in England and Wales, given that it was not a Convention adoption, and Nepal was not on the list of countries whose adoptions were recognised under English law pursuant to the Adoption (Recognition of Overseas Adoptions) Order 2013. The issue for the court was whether it had jurisdiction in relation to the child and if so whether that jurisdiction ought to be exercised.

 

HELD: Given that the child’s adoption was not recognised under UAE law; that none of the automatic mechanisms applied for the recognition of a foreign adoption in England and Wales, and no steps had been taken to have the adoption recognised under English law, the parties were not the child’s legal parents either in Dubai or England. Nepal was the sole jurisdiction to recognise the adoption. Given those facts, and the fact that the English court was the only court which could remedy that situation, there existed extraordinary circumstances justifying the instant court invoking its inherent jurisdiction on the basis of the child’s British nationality in addition to any other jurisdictional bases that might apply in the instant case, B (A Child) (Habitual Residence: Inherent Jurisdiction), Re [2015] EWCA Civ 886, [2016] 2 W.L.R. 487 distinguished (see paras 33-34, 36-41 of judgment).

 

Judgment accordingly

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s