Jurisdiction: Children and their Domicile of Origin.

10012162166_cde34d427e_mIn March 2013 there were 68,110 children in local authority care in the United Kingdom. Between the years of 1999 and 2011 there were a total of 233,934 adoptions worldwide, with children under the age of 1 year making up 40% of these adoptions. Just over 28% of the worldwide adoptions were from China.[i] In addition to this it is estimated that every year within the UK over 50 babies are left abandoned. The BBC recently wrote an article[ii] in this regard stating that campaigners are calling for the introduction of ‘baby hatches’ across the UK where ‘desperate mothers can leave their babies in safety’, this being something that has been ‘widely used in European countries, since 1999 when they were first used in Germany.’

Adults, who were adopted as children, are often left with the question of who their biological parents are. In the UK, once an adopted child attains the age of 18 years they have a right to apply to see their birth records under s.60 of the Adoption and Children Act 2002[iii]. Furthermore they have the right to join the Adoption Contact Register, which is aimed at helping adopted people gain the contact details of birth relatives who are also registered. There are however two competing rights in play here: those of the adopted child and those of the biological parents. Both individuals have rights under Article 8 of the European Convention of Human Rights, ‘the right to respect for his private and family life.’ Therefore, the right of the adoptive child to access information pertaining to the identity of their biological family is juxtaposed with the right of the biological parents to anonymity and privacy. At present an adopted child has no legal right to access any information pertaining to their birth parents aside from the information that may be found on their birth certificate.

With the growing number of national and international adoptions and with the influx of children in local authority care in the United Kingdom it is impossible to ignore the question of jurisdiction and in particular how the domicile of origin of these children is decided and defined. The jurisdiction of a court in England and Wales to entertain matrimonial proceedings is governed by the Domicile and Matrimonial Proceedings Act 1973[iv], s.5(2) which states:

‘The court shall have jurisdiction to entertain proceedings for divorce or judicial separation if (and only if)-

a)      The court has jurisdiction under Council regulation (EC) No.2201/2003- ‘Brussels II Revised’ or

b)      No court of a Contracting States has jurisdiction under the Council Regulation and either of the parties to the marriage is domiciled in England and Wales on the date when the proceedings are begun.’

In the recent case of Ray v Sekhri [2014] EWCA Civ 119[v] Lord Justice McFarlane stated that ‘Holman J rightly relied upon paragraph 8 of the judgment of Arden LJ in Barlow Clowes International Limited v Henwood [2008] EWCA Civ 77[vi] as providing a convenient summary of the relevant principles of the law of domicile in the following terms:

“The following principles of law, which are derived from Dicey, Morris and Collins on The Conflict of Laws (2006) are not in issue:

(i) A person is, in general, domiciled in the country in which he is considered by English law to have his permanent home. A person may sometimes be domiciled in a country although he does not have his permanent home in it (Dicey, pages 122 to 126).

(ii) No person can be without a domicile (Dicey, page 126).

(iii) No person can at the same time for the same purpose have more than one domicile (Dicey, pages 126 to 128).

(iv) An existing domicile is presumed to continue until it is proved that a new domicile has been acquired (Dicey, pages 128 to 129).

(v) Every person receives at birth a domicile of origin (Dicey, pages 130 to 133).

(vi) Every independent person can acquire a domicile of choice by the combination of residence and an intention of permanent or indefinite residence, but not otherwise (Dicey, pages 133 to 138).

(vii) Any circumstance that is evidence of a person’s residence, or of his intention to reside permanently or indefinitely in a country, must be considered in determining whether he has acquired a domicile of choice (Dicey, pages 138 to143).

(viii) In determining whether a person intends to reside permanently or indefinitely, the court may have regard to the motive for which residence was taken up, the fact that residence was not freely chosen, and the fact that residence was precarious (Dicey, pages 144 to 151).

(ix) A person abandons a domicile of choice in a country by ceasing to reside there and by ceasing to intend to reside there permanently, or indefinitely, and not otherwise (Dicey, pages 151 to 153).

(x) When a domicile of choice is abandoned, a new domicile of choice may be acquired, but, if it is not acquired, the domicile of origin revives (Dicey, pages 151 to 153).”’

Lord Justice McFarlane further referred to the leading case of Udny v Udny (1869) 1 LR Sc & Div 441 where ‘the issue was as to the domicile of the respondent’s father at the time of his (the respondents) birth’. The court held that the respondent’s domicile of origin was intrinsically linked to his father’s domicile. Thus while the respondent was born and lived outside of the UK, the respondent’s father’s domicile was Scotland and therefore the respondent’s domicile of origin was adjudged to be Scotland also.

So where does this leave adoptive parents, children who have been adopted and children who were abandoned, not adopted but are later involved in marital litigation?

The Adoption and Children Act 2002 states, at s.67 (1), that an adopted person is to be treated in law as if the person is the legitimate child of the adopter. Furthermore, Bromley’s Family Law (Oxford University Press) [6th Ed.][vii] states that by virtue of s.67 of the Adoption and Children Act 2002 an adopted child’s original domicile of origin is replaced by a new replacement domicile of origin upon adoption. The adopted child’s domicile of origin is generally accepted as being determined at the time of the child’s birth; however the child’s new domicile of origin will change to that of the adopting fathers. If there is no adoptive father then that of the adoptive mother. This therefore resolves the question of where adopted children stand in regard to their domicile of origin. However, it does not answer the questions in relation to children of unknown fathers and abandoned children.

Colliers Conflict of Laws by Pippa Rogerson and John Collier[viii], states that ‘an illegitimate child and… a posthumous child, that is a legitimate child born after the father’s death, both take the child’s mother’s domicile’ therefore the child of an unknown father will take their domicile of origin from their mother. Moreover, it states that ‘a foundling or (a child) whose parent’s domicile is unknown is domiciled in the place where he or she is found or born’.

Something of further interest is that the British Nationality Act 1981 states, at s.1(2)[ix] that ‘a new-born infant who, after commencement, is found abandoned in the United Kingdom, or on or after the appointed day is found abandoned in a qualifying territory, shall, unless the contrary is shown, be deemed for the purposes of subsection (1)—

(a)to have been born in the United Kingdom after commencement or in that territory on or after the appointed day; and

(b)to have been born to a parent who at the time of the birth was a British citizen or settled in the United Kingdom or that territory.’

Therefore, an abandoned child, found within Britain or the British territories will be classed as a British citizen.

There are a number of conclusions that can therefore be made from this information.

  • Firstly, adoptive parents are legally judged to be the adoptive child’s legitimate parents and their child will take the domicile of origin from the adoptive father or the adoptive mother should there be no father.
  • Secondly, for adopted children, who are now adults and sadly facing litigation, their domicile of origin will be that of their adoptive parents and thus dependent on habitual residence they may have the ability to establish jurisdiction within the UK, or the country in which their domicile of origin vests.
  • Finally, for abandoned children, who are now adults and sadly facing litigation, their domicile of origin will be adjudged to be that of the country in which they were born or found and thus, once again, dependent on habitual residence they may have the ability to establish jurisdiction within the UK, or the country in which their domicile of origin vests.

[i] BAAF: Adoption and Fostering Statistics: http://www.baaf.org.uk/res/statengland

[ii] Call for ‘baby boxes’ for abandoned new-borns, BBC News: http://www.bbc.co.uk/news/uk-scotland-22123366

[iii] The Adoption and Children Act 2002: http://www.legislation.gov.uk/ukpga/2002/38/contents

[iv] Domicile and Matrimonial Proceedings Act 1973: http://www.legislation.gov.uk/ukpga/1973/45/part/II?view=plain

[v]  Ray v Sekhri [2014] EWCA Civ 119: http://www.bailii.org/ew/cases/EWCA/Civ/2014/119.html

[vi] Barlow Clowes International Limited v Henwood [2008] EWCA Civ 77: http://www.bailii.org/ew/cases/EWCA/Civ/2008/577.html

[vii] Bromley’s Family Law [6th Ed.], Lowe, N V, Gillian Douglas and N V. Lowe, Oxford: Oxford University Press.

[viii] Collier’s Conflict of Laws [4th Ed.], Pippa Rogerson, John Collier, Cambridge University Press.

[ix] The British Nationality Act 1981: http://www.legislation.gov.uk/ukpga/1981/61

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