IpsofactoJ.com: International Cases [2005A] Part 2 Case 4 [CAEW]


COURT OF APPEAL, ENGLAND & WALES

Coram

Singh

- vs -

Entry Clearance Officer

(New Dehli)

LORD JUSTICE CHADWICK

LORD JUSTICE DYSON

MR JUSTICE MUNBY

30 JULY 2004


Judgment

Lord Justice Dyson

INTRODUCTION

  1. The central issue raised by this appeal is whether "family life" within the meaning of article 8(1) of the European Convention on Human Rights ("ECHR") has been established between the appellant, a 6 year old Indian boy, and his adoptive parents who are settled in the UK. The adoption is valid according to the law of India, but is not recognised by the UK. The issue arises in the context of the refusal of the appellant’s application for entry clearance to join his adoptive parents (to whom I shall refer as "the sponsors") in this country. It is said on behalf of the appellant that the refusal violated his article 8 rights. Although there is a substantial body of Strasbourg jurisprudence as to the meaning of "family life", no decision of our domestic courts has been cited to us in which the issue has been discussed.

    THE FACTS

  2. The appellant was born in India on 9 October 1996 and is an Indian citizen, as are his natural parents. At all material times they have lived in India. Pavitter Singh was born in India and is a British citizen. He and the appellant’s natural father are cousins. Paramjit Kaur was also born in India. She is an Indian citizen and has indefinite leave to remain here. The sponsors were married in the UK in 1977. Their daughter Parvinder Kaur was born on 20 August 1978. In 1981, they opened a clothing manufacturing business in the UK. This business, in which they both work, flourishes to this day. From 1985, they underwent fertility treatment in an attempt to have a second child, but they were unsuccessful. Eventually, the couple considered adoption. In accordance with their social, cultural and religious customs, they looked to adopt within the family. The family are Sikhs. The appellant has three natural siblings. His natural parents and the sponsors agreed that the appellant should be adopted by the sponsors. The sponsors travelled to India on 27 December 1996, and on 29 December a religious ceremony took place as a result of which the appellant was adopted according to the religious laws and practices of the Sikh faith.

  3. Following the religious ceremony, on 8 January 1997 a deed of adoption was executed by the natural parents and the sponsors. They declared and agreed that the natural parents "have given their child Pawandeep Singh in the lap of the adoptive parents who are adopting the child" (para 1). Para 2(iii) provided that:

    Since the date of adoption the adoptive child has ceased to be the son of natural parents and has become the adopted son of the adoptive parents and ceases to claim any right of inheritance over the estate of his natural parents and will be treated as legal heir of his adoptive parents.

  4. The deed was duly registered before Sub Registrar Jalandhar under the Hindu Adoption and Maintenance Act. By a decision of the Indian civil court dated 12 June 1997, this was recognised as a "legal and genuine document". It is common ground that according to Indian law the adoption formally transferred parental rights from the natural parents to the sponsors.

  5. On 3 January 1997, the appellant applied to the British High Commission for entry clearance to join his adoptive parents in the UK for settlement. This application was refused by the entry clearance officer on 11 March 1997. An appeal was dismissed by the Adjudicator on the grounds that the appellant did not satisfy paras 310 or 297 of HC 395. The appeal failed not only because the Indian adoption was not recognised by the UK, so that the sponsors were not "adoptive parents" within the meaning of para 6 of HC 395, but also because he had not been adopted due to the inability of the natural parents to care for him (para 310 (viii)), and he had not lost or broken his ties with his family of origin (para 310(ix)) with whom he was still living (these paragraph numbers have since been changed). The appeal was rejected under para 297 because, although he was seeking entry to join a relative and it was accepted that suitable arrangements had been made in the UK for his care, the Adjudicator found that there were not "serious and compelling family or other considerations which make exclusion of the child undesirable". An appeal to the Immigration Appeal Tribunal was dismissed on 1 February 1999. Permission to appeal to this court was refused by the Tribunal, and on a renewed application by Buxton LJ on 2 December 1999. It was submitted to Buxton LJ that HC 395 para 310(viii) was contrary to the ECHR. In refusing permission to appeal on this point, he said that he did not think that it was arguable that para 310(viii) fell foul of article 8 of the ECHR. I shall have to return to the decision of Buxton LJ later in this judgment.

  6. On 17 July 2000, the appellant and the sponsors made an application to the ECtHR. The basis of the application was that the refusal of the appellant’s application to join the sponsors in the UK for the purpose of settlement involved a breach of articles 8 and 12 read on their own and together with article 14, and that in breach of article 1 and 13 the applicants had been denied an effective remedy in the UK jurisdiction. On 3 September 2002, the ECtHR ruled that the application was admissible in respect of articles 8, 13 and 14.

  7. The Human Rights Act 1998 came into force on 2 October 2000. This inspired a further application for entry clearance on 19 October 2000. The application was refused by the entry clearance officer on 15 February 2001. The appellant appealed to the Adjudicator, who on 14 November 2001 allowed the appeal on the basis that the refusal of entry clearance was in breach of articles 8 and 14 of the ECHR. The entry clearance officer appealed to the Immigration Appeal Tribunal ("the Tribunal"), who by a decision promulgated on 3 December 2003 allowed his appeal. The appellant now appeals with the permission of Tuckey LJ. In order to explain and resolve the issues that arise on this appeal, it is necessary to examine parts of the decisions of the Adjudicator and the Tribunal in some detail. I should say at the outset that neither party challenges any of the primary findings of fact made by the Adjudicator.

    THE ADJUDICATOR

  8. Having set out the history which I have already summarised, the Adjudicator made the following findings:

    10.

    I find that the Appellant was adopted when a baby by the Sponsors. An immediate application for him to join his adoptive parents in the UK failed, therefore, of necessity, the Appellant remained in the household of his natural parents in India. Then and now he lived in this household with his natural parents, whom he calls uncle and aunt, his three natural siblings (there is a difference in emphasis in the evidence as to how he regards them) and his grandmother, whom he calls "grandmother", because everyone else in the household calls her that. The first Sponsor told me that the Appellant regarded his siblings as his brothers and sister although his wife told me the Appellant regarded his siblings as cousins. Both Sponsors stressed that the Appellant has been brought up to regard them as his real parents – he does not know as yet that he was adopted.

    11.

    The Sponsors travel to India regularly, at least once if not twice a year, in order to see the Appellant. (I was provided with copies of their passports but many of the stamps are difficult to read. A schedule of their visits would have been helpful but I accept in any event that they are regular). The UK Sponsors run a successful clothing business in the UK which supports their whole family and they are unable to leave it for prolonged periods. When in India, the appellant spends all his time with the Sponsors, including sleeping in their room. They are generally present on his birthday (I saw photographs of his birthday parties) and they have always supported him financially and made decisions about his upbringing. For example, he recently started at boarding school as a result of a decision made by and paid for by the adoptive parents (I saw documentary evidence and photographs of the school).

    12.

    The Sponsors and the appellant communicate frequently by telephone. The Sponsor’s married daughter told me that she and the Appellant regard each other as brother and sister.

    13.

    The Appellant is still very young, a small child of 5 but as he gets older he wonders why he cannot live with his parents (because of course he regards the adoptive parents as his real parents), at their home in the UK. He has been told that he will join them and cannot understand why he remains separate from them. The continued separation causes distress for all parties.

  9. At para 15 she said:

    15.

    With regard to the Reasons for Refusal under paragraph 310, I find that this is a genuine adoption and I am not satisfied that it is one of convenience to facilitate entry to the UK. I also find that there has been a genuine transfer of parental responsibility, notwithstanding that the family in India still take day to day responsibility for the Appellant when not at school – because I find that the adoptive parents not only support the Appellant financially but make all major decisions about his care and future. However, the evidence indicates clearly to me and this is not disputed, that the Appellant has not lost or broken the ties with his family of origin nor was he adopted because of the inability of his original parents to care for him.

  10. She therefore held that she was not satisfied that the appellant could meet the requirements of para 310 of HC 395. She then turned to para 297 and said:

    17.

    I turn now to the requirement of paragraph 297. The evidence indicates that the Appellant has a home, indeed a comfortable home in India – the first Sponsor indicated in interview that the family are well-off at least in part because he provides £100 per month for the Appellant’s expenses. (Question 14). He lives within the extended family with whom he has always lived and there is no evidence to suggest that it is not a happy family environment. However, he has been brought up to believe that his real parents live in the UK, that they visit him and that at some point he will join the[m], in their home. It is difficult for me to assess any impact on him of believing himself separated, even abandoned by his "real" parents, for so he believes his adoptive parents to be. Nor can I assess the feelings of his natural parents and their attitude towards him given that they have, as his natural father said in interview "given him away". He has now gone to boarding school at the young age of 5 whereas the other children in his household go to local schools. I understand that the intentions of his adoptive parents were to prepare him for an English school – therefore he has been sent to a school where English will be taught but this young Appellant must surely be aware, on some level, that he is being treated differently to the other children in his household. Whilst it is difficult for me to quantify, particularly without expert or specialist evidence, I think it reasonable to infer that the fact that this Appellant lives separately from those he believes to be his real parents and that this enforced separation has led to different treatment of him from other children with whom he lives, must have a negative impact on him, notwithstanding that he has a home in India with his extended family.

    18.

    There is much evidence also to the effect that this continued separation causes great distress to the Sponsors. Indeed, their need, that is the desire for another child, has been central to this case from the outset.

    19.

    I find whether or not there are serious and compelling family or other considerations which make this child’s exclusion from the UK undesirable is a finely balanced issue. It could be argued, on the one hand, that to remove him from everything he knows - his home, extended family, culture and environment could be disruptive, even damaging to him. On the other hand, he has always been brought up to expect this and the continuing uncertainty cannot be helpful to any party. Whilst both his adoptive and natural fathers both told the ECO that there had been no particular change in his circumstances since the previous entry clearance application, there has at least been a development in that the Appellant is getting older all the time. Prolonged delay and uncertainty in a case such as this is unfortunate for all concerned.

    20.

    However, the Rules refer to "serious and compelling" factors and given that the Appellant has a home, family support and education in India I am not satisfied on a balance of probabilities that he satisfies the requirements of paragraph 297.

  11. Next, she dealt with the article 8 and 14 issues. The first question was whether "family life" within the meaning of article 8 had been established. At para 22 she said:

    22.

    Article 8 provides for respect for private and family life in circumstances where there shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. This is not an absolute right and there is no onus on the UK government to provide for family reunion on its territory. The relevant family relationship I examine is that of the Appellant with the Sponsors. I am satisfied that they regard one and other as parents and child, that their legal relationship is that of parents and child, that there is weekly contact between them (in telephone calls) and that they meet and live together at least once or twice a year, for variable periods, often of several weeks. Whilst they quite clearly do not and cannot (given the refusal of entry clearance) live together on a more permanent basis as a family, I consider that the Appellant has established an existent "private and family life.

    23.

    It seems to me self evident that there has been a lack of respect and indeed an interference. The Appellant has been refused entry to the UK and so the only way this family could exercise the right to family life would be if the parents moved to India. I consider there are significant obstacles to such a course even though the first Sponsor told me he had considered this. The family run a business which supports the wider family. Their adult daughter was born in the UK and has now given birth to their grandchild. The choice is open to them to relocate to India, it seems to me it is unreasonable and unrealistic for them to do so. I am satisfied that an interference is established.

  12. She then addressed the question of whether the interference was justified under article 8(2), and concluded that the legitimate aim of regulating immigration had a disproportionate effect on the rights of this family: "they are all but prevented from living together as a family" (para 27). Finally, the Adjudicator considered article 14 and concluded that the discriminatory treatment of Indian nationals (and those from other countries excluded from the designated list) was a breach of article 14.

    THE TRIBUNAL

  13. Before the Tribunal, it was accepted on behalf of the appellant that his case did not come within paras 310 or 297 of HC 395. The only issue raised on his behalf was whether article 8 was on the facts engaged at all, i.e. whether family life was established within the meaning of article 8. It was accepted by the entry clearance officer that if it was established, there was a breach of article 8 on the facts of the present case, since no reliance was placed on article 8(2).

  14. At para 47 of its decision, the tribunal referred to the Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with special reference to Foster Placements and Adoption Nationally and Internationally which was adopted by the UN General Assembly Resolution 41/85 of 3 December 1986. This was one of a number of international instruments for the protection of children relied on before us by Mr. Garnham QC. Having referred to a number of the articles of the Declaration, the Tribunal said at para 48:

    48.

    If the adoption order in the present appeal had complied with all those principles it would no doubt have effectively transferred the parental obligations and rights from the natural to the adopted parents so as to determine the family life between the natural parents and the respondent and to create family life between the respondent and the sponsors. Manifestly, however, it did not meet those important international standards. Specifically, the adoption was effected, albeit according to Sikh custom, not because the natural parents were unable to care for the respondent but because of the desire of the sponsors to have another child to bring up given their inability to have further children of their own. There is no evidence that the sort of intervention by the state envisaged in the articles referred to above in in-country adoption occurred, let alone consideration and compliance with the important requirements for inter-country adoptions, including the vital issue of ensuring the right of entry of the child into the country of his adoptive parents.

  15. At para 51, the Tribunal referred to X & Y v UK (1978) 12 D & R 32, an admissibility decision of the Commission at Strasbourg, a decision whose factual basis was said to be "strikingly similar to the present appeal". A little later, the Tribunal said this:

    53.

    Whilst we have carefully considered all that Miss Harrison urged upon us it seems to us that the rejection of the application in X & Y as manifestly unfounded is of real significance. Although that was a decision in 1977, the passage of time does not seem to us to undermine the underlying principle of the distinction to be made between the position of a natural parent and an adopted parent. We are entirely satisfied that the making of a valid adoption order does not itself create family life. Indeed, that is wholly in line with the views expressed by Thorpe LJ in J where he contrasts sham applications or applications of convenience whose sole purpose is to confer "a legal status unsupported by the fundamental foundations" with those where, as in J, there has been "the creation of the psychological relationship of parent and child with all its far-reaching manifestations and consequences". A little later he says of the adoptive parents that they had "made a much greater contribution and commitment to achieving attachment in the early months of life upon which the psychological relationship of parent and child is so dependent."

    54.

    Looking at the facts of the present appeal it is clear that the respondent’s natural parents did take substantial steps to honour their agreement to his adoption by, for example, the early cessation of breast feeding and bringing their child up to believe that they were his uncle and aunt and his siblings, his cousins. Nevertheless, their home was his home until he was sent away to boarding school by his adoptive parents and it would be unrealistic to suggest that the short term direct contact coupled with the telephone contact which has taken place over the intervening years is such as to create a psychological relationship of parent and child which is comparable to that achieved by prolonged and continuous contact and care from an early age as in J.

    55.

    While we agree that whether family life exists is a question of fact and degree, the issue of whether it exists on the present facts is by no means as simple as the Adjudicator appears to have considered. She defines it at paragraph 22 as consisting of the fact that the sponsors and the respondent regard one another as parent and child, that they have that legal relationship (by virtue of the Indian adoption order), that there is weekly telephone contact between them and that they meet and live together at least once or twice a year. It does not appear that the Adjudicator had the benefit of referral to the extensive international and precedent material produced to us. There is nothing to suggest that she has considered how family life is to be defined for the purposes of Article 8, and in particular there is no reference to the approach which must follow from a consideration of X & Y and J. For these reasons we agree with Mr. Eicke that the Adjudicator’s findings in this respect are not based on any discernible sustainable approach in law and must be reconsidered by us.

  16. Having examined a number of Strasbourg decisions, the Tribunal concluded as follows:

    62.

    Although we have thought it appropriate to review the material cited before us at some length, the issue remains, as we have said, essentially simple. Has the respondent established on the balance of probabilities on the facts as found by the Adjudicator that he enjoys a family life with the sponsors so that Article 8 is engaged. The existence of family life will usually be demonstrated by cohabitation but in its absence there will need to be clear evidence that such contact as has existed has created the lasting psychological bond between adoptive parents and child referred to in J. The present case falls between the extreme situation of X & Y and J on its facts. The legal mechanisms and the intentions capable of leading to the creation of family life are in place but they have not, in our judgment, resulted in the creation of family life between the respondent and his sponsors because they have not been shown to have created that lasting psychological bond necessary to the existence of family life. We therefore find that Article 8 is not engaged and this appeal is accordingly allowed.

    THE ISSUE BEFORE THIS COURT

  17. Subject to the points raised by the Respondent’s notice, the sole issue that arises on this appeal is whether family life within the meaning of article 8(1) of the ECHR exists between the appellant and the sponsors. We heard no argument as to what is the relevant date for the existence of family life in this case. Before the Tribunal, it was common ground that the correct date was the date of the hearing before the Adjudicator. It has not been suggested that there has been any material change of circumstances since that date, and I shall assume (but without deciding) that this is the relevant date. Article 8 provides:

    1.

    Everyone has the right to respect for his private and family life, his home and his correspondence.

    2.

    There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

  18. In summary, Mr. Blake QC submits that the Tribunal erred in two fundamental respects.

    • First, it should not have allowed the respondent’s appeal since the Adjudicator’s decision was not wrong: it was one that she was entitled to reach, and one which was not otherwise wrong in law.

    • Secondly and in any event, the decision of the Tribunal is itself fatally flawed.

    Mr. Garnham QC submits that the Tribunal correctly allowed the respondent’s appeal, since the Adjudicator reached a decision which she was not entitled to reach and/or failed to take into account important relevant facts. He concedes, however, that the decision of the Tribunal is itself flawed, but submits that, rather than remit the matter, this court should decide for itself the question whether there is family life between the appellant and the sponsors.

    THE MEANING OF "FAMILY LIFE" IN ARTICLE 8(1)

  19. It is common ground that the question whether there is family life within the meaning of article 8(1) depends on the circumstances of the individual case. There is now a substantial body of Strasbourg jurisprudence on the subject which gives some guidance as to the meaning of family life. The ECtHR has repeatedly said that the bond between natural parents and their children is a strong indicator of the existence of family life: see Ahmut v Netherlands(1997) 24 EHRR 62, para 60: "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", which subsequent events cannot break save in exceptional circumstances".

  20. The core principle was, I believe, stated by the ECtHR in Lebbink v The Netherlands (App. NO. 45582/99, judgment of 1 June 2004) at para 36:

    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.

  21. These close personal ties will be presumed to exist as between children and their natural parents, but exceptionally the presumption may be displaced. The notion of family life is not, however, confined to families based on marriage, and may encompass other relationships. As long ago as 1979 in its important decision in the case of Marckx v Belgium (1980) 2 EHRR 330 the ECtHR recognised that family life "includes at least the ties between near relatives, for instance, those between grandparents and grandchildren, since such relatives play a considerable part in family life" (para 45). It has since been extended as views have changed as to what is embraced by the concept of family life. In X, Y & Z v United Kingdom (1997) 24 EHRR 143, the ECtHR said (para 36):

    When deciding whether a relationship can be said to amount to "family life", a number of factors may be relevant, including whether the couple live together, the length of their relationship and whether they have demonstrated their commitment to each other by having children together or by any other means.

  22. In that case, X was a transsexual who had undergone gender reassignment surgery. He had lived with Y to all appearances as her male partner since 1979. Following their joint application, the couple were granted AID treatment to allow Y to have a child (Z). X was involved throughout the process, and had acted as Z’s father in every respect since the birth. It was held that the de facto ties linking X, Y and Z were sufficient to establish family life between them.

  23. The relevance of adoption to family life has been considered by the ECtHR on a number of occasions. It is well-established that, although the right to adopt is not one of the rights specifically guaranteed under the ECHR, "the relationship between an adoptive parent and an adopted person is in principle of the same nature as a family relationship protected by Article 8 of the Convention": see the important decision of the ECtHR in Pini et al v Roumania, (unreported, decision of 22 June 2004) at para 140. The Pini decision loomed large in the submissions before us. But before I examine Pini, I need to refer to the decision in X & Y v UK not only because it concerned an Indian adoption, but also because, as we have seen, the Tribunal regarded it as of real significance to the present case.

  24. X & Y is a decision of the Commission. It concerned the adoption under Indian law of X’s nephew by two Sikhs, who were UK citizens. The child was 14 years of age, at the time of the adoption. He was refused entry clearance into the UK on the grounds that, even if the adoption was valid according to Indian law, there had been no genuine transfer of parental responsibility to X, since Y’s natural parents were able to care for him. The Commission rejected the applicants’ complaint under article 8 because:

    This adoption is neither recognised nor eligible for recognition in English law. The first applicant has apparently since made financial contributions towards the upkeep of the second applicant. However, throughout his life, both before and after the adoption, he has lived with his natural parents in India. It appears that they have been and are fully capable of supporting him. In these circumstances the applicants have not, in the Commission’s opinion, established a relationship between them which amounted at any material time to "family life" within the meaning of Article 8, notwithstanding their blood relationship and any legal relationship created under Indian law by the adoption. The Commission does not consider that the second applicant’s relationship with the first applicant is at all comparable to that of a new-born child with its parents, where "family life" might be held to exist from the moment of birth.

  25. In my judgment, this decision does not bear the weight that Mr. Garnham and the Tribunal seek to place on it. I accept that it shows that the mere formal relationship of parent and child that is derived from a legal adoption recognised by the Indian court is not of itself sufficient to constitute family life. There must also be evidence of real close personal ties. But it is not authority for the proposition that an adoption recognised by the courts of India cannot give rise to family life. The question whether the relationship between child and adoptive parent is sufficient to constitute family life will always be one of fact and degree. On the facts in X & Y v UK the Commission held that the links were insufficient. The Commission did not say what weight, if any, ought to be given to the fact of the adoption itself.

  26. The case of Pini concerned applications by Italian nationals who wished to adopt two nine-year old Romanian girls who were living in a private orphanage in Romania. The Romanian national court had made adoption orders, but these had not been carried into effect. The removal of the two children, who had been picked merely from photographs, was opposed by the orphanage authorities as well as by third parties who were concerned for the best interests of the children. The applicants asserted the existence of family life. They relied on the adoption orders and the de facto links between themselves and the children, and they alleged that the refusal of the Romanian authorities to allow the children to join them in Italy violated their article 8 rights. There were no blood links between the applicants and the children, and the de facto links were exiguous: one child had been visited by her adoptive parents five times, and the other only three times. The Romanian government contended that the limited de facto links and the adoption orders were not sufficient to establish family life.

  27. The court decided that there was family life within the meaning of article 8(1), although it went on to hold that there was no violation of article 8 because, on the facts of that case, the positive obligations inherent in an effective "respect" for family life did not require the Romanian authorities to ensure that the children went to Italy against their will. But for present purposes, what is important is what the court said in relation to the question whether family life was established at all.

  28. The court noted at para 138 that the ECHR must be "applied in accordance with the principles of international law, particularly those relating to the international protection of human rights". At para 139, it continued:

    139.

    More specifically, the obligations which Article 8 of the Convention imposes on Contracting States in the area of adoption and the effects of adoption on the relationship between adoptive parents and adopted persons must be interpreted in the light of the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in respect of Intercountry Adoption, the United Nations Convention on the Rights of the Child of 20 November 1989 and the European Convention on the Adoption of Children, signed in Strasbourg on 24 April 1967.

  29. At para 141 the court said that the applicants "can rely on definitive and irrevocable decisions of national courts, which, in granting their applications for adoption, recognised their status as parents of Florentina and Mariana". Having referred to the effect of the adoption order, the court continued:

    143.

    By guaranteeing the right to respect for family life, Article 8 presupposes the existence of a family (the Marckx v Belgium judgment of 13 June 1979, Series A no 31, § 31; the Johnson v United Kingdom judgment of 24 October 1997, Reports of Judgments and Decisions 1997-VII, § 62), a condition which does not, however, appear to be fulfilled in the present case in the absence of cohabitation or of sufficiently close de facto relationships between the applicants and their respective adopted daughters, before or after the adoption orders were granted. In the view of the Court, it does not necessarily follow that all planned family life should fall entirely outside the scope of Article 8. In that connection, the Court has already held that that provision could also have covered the potential relationship which might have developed, for example, between a natural father and a child born out of wedlock (Nylund v Finland (dec.), no 27110/95, ECHR 1999-VI), or the relationship deriving from a marriage that was not a sham, even if family life had not yet been fully established (the Abdulaziz, Cables and Balkandali v the United Kingdom judgment of 28 May 1985, Series A no 94, § 62).

    144.

    In the present case, there is no reason to doubt that adoption took place in accordance with national law and relevant international conventions: the national authorities established that the children, who had been declared abandoned under a court decision, were adoptable, and considered that their intercountry adoption was in their best interests, having satisfied themselves that the adopters and the Brasov Child Protection Department, which exercised parental rights in respect of the children under Article 8 of GEO No 26/1997, gave their consent (paragraphs 100-104 above).

    ....

    146.

     

    Lastly, the Court notes that the fact that family life has not yet been fully established in the present case, in view of the absence of cohabitation or of sufficiently close de facto relationships between the applicants and their respective adopted daughters, before or after the adoption orders were granted, cannot be attributed to the applicants, who by selecting the children merely on the basis of photographs, without having any actual contact with them which would have prepared the children for adoption, were simply following the procedure which had been put in place by the defendant State in this matter.

    147.

    Moreover, it can be seen from the documents in the case that the applicants have always regarded themselves as being the children’s parents and have always behaved as such towards them through the only channel that was open to them, namely by sending them letters written in Romanian (see paragraph 92 above).

    148.

    In the light of this, the Court finds that such a relationship, arising from a lawful adoption that is not a sham, can be considered sufficient to warrant the respect required by Article 8 of the Convention, which accordingly applies.

  30. Mr. Garnham relies strongly on the decision in Pini in support of the proposition that, in deciding whether family life exists within the meaning of article 8(1), regard should be had to relevant principles of international law, and that article 8 should so far as possible be interpreted in harmony with other principles of international law of which it forms part. In the context of a case such as the present, the relevant principles of international law are expressed in international instruments which provide for the protection of children such as The UN Convention on the Rights of the Child 1989 and The Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption 1993. At all material times, the United Kingdom (unlike India) has been a signatory to these instruments.

  31. Mr. Garnham submits that Pini demonstrates that an adoption which is valid according both to the national law under which the adoption order was made and relevant international instruments will require little in the way of de facto links to give rise to family life. He also submits that the decision shows that the converse is true. Thus, unless an adoption is valid both in accordance with national law and relevant international instruments, it should be given little weight in determining whether family life has been established. He puts the point in this way in his skeleton argument: "the court should be slow to recognise as constituting family life a relationship founded without the essential guarantees articulated in the relevant international material".

  32. Mr. Blake accepts that relevant international material should be taken into account in deciding whether there is family life. I consider that he is right to do so. But in my judgment, the decision in Pini does not support the proposition that in all cases where an adoption does not satisfy the requirements of relevant international instruments, it should be given little weight. The court did not address the question what weight should be given to an adoption in such circumstances, and so far as I am aware there is no Strasbourg jurisprudence on the point.

  33. As a matter of principle, I do not see why the fact that an adoption does not meet the requirements of relevant international instruments should invariably be a reason for according little weight to it in determining whether family life exists or not. Such a rigid and formulaic approach is in my view not justified. The significance of the failure to satisfy the requirements of relevant international instruments will vary from case to case. Of considerable importance will be the nature of the departure from the provisions of a relevant instrument. If the departure is one of substance rather than procedure and it goes to the heart of the safeguards that the instrument is intended to promote, then it may well be appropriate to give the adoption order little weight. The Declaration of 1986 provides that the first priority for a child is to be cared for by his or her own parents (art 3). When care by the child’s own parents is unavailable or inappropriate, care by relatives of the child’s parents, by another substitute or an appropriate institution should be considered (art 4). In all matters relating to the placement of a child outside the care of the child’s own parents, the best interests of the child should be the paramount consideration (art 5). The primary aim of adoption is to provide the child who cannot be cared for by his or her own parents with a permanent family (art 13). If a child cannot be placed in a foster or an adoptive family or cannot be cared for in any suitable manner in the country of origin, intercountry adoption may be considered as an alternative means of providing the child with a family (art 17). There are provisions to similar effect in the other instruments to which we were referred. Article 1 of the 1993 Convention identifies its objects as being:

    (a)

    to establish safeguards to ensure that intercountry adoptions take place in the best interests of the child and with respect for his or her fundamental rights as recognized in international law;

    (b)

    to establish a system of co-operation amongst Contracting States to ensure that those safeguards are respected and thereby prevent the abduction, the sale of, or traffic in children;

    (c)

    to secure the recognition in Contracting States of adoptions made in accordance with the Convention.

  34. I would accept that an inter-country adoption which has come about in circumstances in which little or no regard has been had to the best interests of the child must be viewed with great caution. An adoption order made in those circumstances should not, of itself, be given much weight in deciding whether family life has been established. But, there will be cases in which, although the order was made without regard to the best interests of the child, it can be seen, with hindsight, that adoption was, in fact, in the child’s best interests; and that the fact that the order was made, and has been recognised in the jurisdiction in which the child has been living, has enabled a family relationship to develop. In such circumstances the fact that the order was made without regard to the child’s best interests is not a reason to refuse recognition to the family life which has, in fact, developed as a result of the order. All will depend on the circumstances of the case. The best interests of the child will, of course, be relevant – and may well be determinative – at the stage at which the court has to decide the extent to which respect should be given to family life (as demonstrated by the approach in Pini) or whether interference with family life is justified under article 8(2).

  35. Apart from the question whether the adoption is in the child’s best interests, the adjudicator should also have regard to the nature of the arrangement that underlies the adoption. There is a wide gulf between an adoption which is part of a child-trafficking transaction and an arrangement such as was made in the present case. And yet both adoptions may be valid according to the law of another jurisdiction but not recognised under UK law. It is difficult to see what principle dictates that the same meagre weight should be given to each of these adoptions when the adjudicator decides whether there is family life between the child and his or her adoptive parents, and yet, as I understand it, that is the effect of Mr. Garnham’s submission.

  36. The distinction between two such arrangements has been highlighted by this court in the admittedly different context of adoption proceedings in the UK. In Re J (Adoption: non-patrial) [1998] INLR 424, a family arrangement was made in respect of a Pakistani child which was very similar to that which was made in the present case. The arrangement, so far as Pakistani custom was concerned, had the full consequences that would flow from the making of an adoption order in the UK. The judge had found that the arrangement was that "the [natural] mother and father performed an act of great grace with considerable beneficial religious significance for them in giving up their child as a gift to a childless couple". Welfare considerations plainly supported the application for adoption. But there had been immigration irregularities. Nevertheless, this court held that an adoption order should be made. In his judgment, Thorpe LJ contrasted the application in that case with an application of convenience comparable to a marriage of convenience. He said at p 429A:

    In those cases the application or the ceremony are solely designed to achieve a legal status unsupported by the fundamental foundations: in the one case intimate cohabitation and sexual union with a view to procreation, in the other the creation of the psychological relationship of parent and child with all its far-reaching manifestations and consequences. But where the adoption application is supported by that fundamental foundation then the function of the court is to apply s 6 of the Adoption Act 1976.

  37. He went on to say at p 429F that the court should respect the Pakistani custom "founded as it is upon a humane response to a sad deprivation". It is important to emphasise that Re J was not a case about the meaning of family life in Article 8. But it illustrates how, admittedly in the different context of a decision whether to make an adoption order, an arrangement of the kind that was made in the present case is treated by the domestic courts of this country as worthy of respect, and as being very different from an arrangement based on considerations of convenience.

  38. One final point. Mr. Garnham submits that it is irrelevant that it is the decision under challenge (in the present case the refusal of entry clearance) that prevents the development of family life. He submits that the obligation under article 8 to grant entry clearance could only arise if the existence of family life had been established in the first place. The source for this submission is the statement in Marckz (para 31): "By guaranteeing the right to respect for family life, Article 8 presupposes the existence of a family". Mr. Garnham submits that, with the exception of the decision in Pini, the ECtHR has recognised that "potential" family life may be relevant in determining whether family life exists for the purposes of article 8 only in the context of a child and his natural father (see Nekvedavicius v Germany App No 46165/99 (2004) 38 EHRR CD 12 and Nyluind v Finland App No 27110/95, decision of 29 June 1999). But as we have seen (para 29 above), the decision in Pini (para 143) shows that the potential for development of family life is relevant in determining whether family life already exists, and that this is not confined to cases involving children and their natural parents. I cannot see in principle why the potential for development may only be taken into account in relation to family life between children and their natural parents. Para 143 of Pini is plainly inimical to such a restricted view of the scope of the principle. I acknowledge, however, that unless some degree of family life is already established, the claim to family life will fail and will not be saved by the fact that at some time in the future it could flower into a full-blown family life, or that the applicants have a genuine wish to bring this about.

    WAS THE ADJUDICATOR'S DECISION WRONG?

  39. Mr. Garnham submits that the Adjudicator erred in three fundamental respects.

    • First, the facts found by the Adjudicator did not entitle her to conclude that family life was established.

    • Secondly, the conclusion was inadequately reasoned. There was no discussion of the Strasbourg jurisprudence and no analysis of the central issue in the case. This is a reflection of the criticism made by the Tribunal at para 55 of its decision.

    • Thirdly, the Adjudicator failed to take a material factor into account, namely the fact that the adoption order, although valid in Indian law, was not recognised by the UK authorities because it was not made in accordance with the relevant international instruments.

    Although I have identified three separate submissions, they are to some extent interlinked.

  40. In my judgment, the Adjudicator was entitled to conclude that family life was established on the facts of this case. There is no challenge to any of her findings of primary fact. These included the following. The arrangement for the transfer of parental responsibility was made at the appellant’s birth because the sponsors were unable to have any more children. It was a genuine transfer of responsibility in the sense that it was not an arrangement of convenience to facilitate the appellant’s entry into the UK. There was a genuine change in the appellant’s status following his adoption, so that, for example, he has no right to inherit his natural parents’ estate. He is cared for by the sponsors when they are in India. They have made all the major decisions about his care and future, including the decision to send him to boarding school when he was five. Since his birth, one or other or both of them have visited India two or three times each year in order to see him (this figure, which is higher than that given by the Adjudicator, appears at para 21 of the decision of the Tribunal). The sponsors communicate with the appellant frequently by telephone, and support him financially. The appellant is unaware of the adoption and calls his natural parents "uncle" and "aunt", and has been brought up to regard the sponsors as his real parents. He has been told that he will join the sponsors in the United Kingdom and cannot understand why they are still separated from each other. This causes distress for all parties. These are important features of this case and in my view show that real emotional bonds have been established between the appellant and the sponsors.

  41. It is clear that all of these factors were taken into account by the Adjudicator in arriving at her conclusion. She did not spell out what weight she gave to the adoption itself. But it is plain that she must have regarded it as of some relevance, since at para 22 she referred to the fact that the "legal relationship" between the appellant and sponsors was that of "parents and child". In my view, the Adjudicator was entitled to regard the fact that the adoption was valid according to Indian law as a factor of some weight in the circumstances of this case.

  42. The principal reason why it is said by Mr. Garnham that little or no weight should have been given by the Adjudicator to the Indian adoption is that there is no evidence that the interests of the appellant were taken into account. But as against that, this was not an arrangement of convenience, but rather to use the words of Thorpe LJ, an arrangement supported by the fundamental foundation of the psychological relationship between parent and child. Moreover, even if the appellant’s interests were not taken into account in making the adoption, it is clear that the Adjudicator was of the view that it was in the best interests of the appellant that he should be allowed to enter the UK and be united with the sponsors. That emerges most clearly in para 13 where the Adjudicator says that the appellant cannot understand why he remains separated from the sponsors, and that their continued separation causes distress for all parties. I should add that the Tribunal did not state that it considered that it was not in the interests of the appellant that he should be allowed to join the sponsors.

  43. Mr. Garnham summarises the appellant’s case on family life as being based on the adoption, occasional visits to the appellant in India and regular telephone contact. He relies on para 36 of X,Y & Z v UK (see para 21 above) and submits that none of the requirements identified in that paragraph are met in the present case. In particular, the appellant and the sponsors have never lived together; there is no "long" relationship between them; and the commitment shown by the sponsors to the appellant is modest. The least that might legitimately be expected would be for one of the adoptive parents to live in India with the appellant until all the formalities had been concluded. But in my view, it is clear from the Adjudicator’s findings that the links were more substantial than Mr. Garnham suggests

  44. I conclude, therefore, that the Adjudicator was entitled to hold that family life was established in 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.

  45. I turn to Mr. Garnham’s second submission. It is true that the Adjudicator did not discuss the Strasbourg jurisprudence. This is because, as the Tribunal pointed out (para 55), she did not have the benefit of extensive citation of authority as to the meaning of family life. It is unclear what Strasbourg authorities, if any, were cited to her. It is also true that she did not say what weight she was placing on the existence of the adoption. But there can be no doubt that the reasons why she concluded that family life was established were that

    1. there had been a genuine transfer of parental responsibility accompanied by substantial de facto links giving rise to emotional bonds between the sponsors and the appellant; and

    2. this state of affairs was reinforced by an adoption which was valid according to Indian law, although not recognised as such by the UK.

    I have little doubt that, if the Adjudicator had had the benefit of the submissions that were addressed to the Tribunal and to this court, she would have expanded her reasons and explained what weight she was attributing to the Indian adoption. But in my view, the reasons for her conclusion are clear enough. Accordingly, I reject Mr. Garnham’s second submission.

  46. As regards his third submission, the Adjudicator must have take into account the fact that the adoption was not recognised by the UK. At para 4 of her Determination, she said that India was not designated as a country whose adoption orders were recognised under UK law. There is no basis for supposing that, in reaching her decision, she failed to take this into account. It seems to me that Mr. Garnham’s real complaint is not that she failed to take this into account, but rather that she did not explain what weight she was giving to the adoption order in the circumstances of this case. But that is his second submission which I have already rejected.

  47. For all these reasons, subject to the issues raised by the respondent’s notice, I would allow this appeal.

    THE TRIBUNAL'S REASONING

  48. I have already explained why the Adjudicator’s decision was not wrong and the Tribunal should not have allowed the appeal. In my judgment, the Tribunal was in any event in error when (para 55) it criticised the Adjudicator for not referring to the approach which "must follow" from a consideration of X & Y and Re J. For the reasons that I have given earlier (para 25 above), X & Y was not determinative of the present appeal, and Re J was not a decision on Article 8 at all. In so far as it has indirect relevance, it seems to me that Re J supported the appellant’s case: it did not undermine it.

    THE RESPONDENT'S NOTICE

  49. The Entry Clearance Officer seeks permission out of time to raise another ground in support of the Tribunal’s decision to allow the appeal. Mr. Garnham submits that the appeal should have been allowed because the Adjudicator failed to explain why she differed from Buxton LJ on the question of family life.

  50. As I have already said, Buxton LJ refused permission to appeal to this court on 2 December 1999. It is submitted by Mr. Garnham that Buxton LJ made specific findings of law based on the very same facts as were before the Adjudicator in the present proceedings, and that these were binding or at least highly persuasive. Even if the rule of res judicata did not apply, the Adjudicator should have had regard to the judgment of Buxton LJ and should have accorded the conclusions reached by him on the human rights issue the respect due to a detailed statement of the law made by a judge of this court, and should have provided detailed reasons why she disagreed with him.

  51. The relevant issue before Buxton LJ was whether para 310 (viii) of HC 395 was incompatible with Article 8 of the ECHR. He said: "I cannot think in the light of what was said in Abdulaziz and generally in the light of the Convention, that it is arguable that this rule would fall foul of Article 8."

  52. The submissions made to us by Mr. Garnham were rejected by the Tribunal in the present case. They said (para 30):

    The issue of the applicability of Article 8 was not the subject of full argument before Buxton LJ and was in any event put on the basis that the provisions of the European Convention on Human Rights raise arguable issues as to the vires of paragraph 310 (viii) of HC 395 ....

  53. In my judgment, the Tribunal correctly rejected these submissions.

    • First, the challenge being considered by Buxton LJ was based on the vires of para 310 (viii), rather than on the application of Article 8(1) to the facts as found by the Adjudicator.

    • Secondly, in so far as Buxton LJ’s comments are relied on by the respondent in support of the proposition that no family life was established in this case, they have been overtaken by the ruling of the ECtHR of 3 September 2002 that the appellant’s claim was admissible under Article 8.

    • Thirdly, a decision of this court refusing permission to appeal is not authoritative, still less does it create a binding precedent.

    • Fourthly, it is difficult to see how the Adjudicator can properly be criticised for failing to accord respect to the decision of Buxton LJ (or failing to give reasons for not following it) when it was not suggested that she should do so: the point was raised for the first time before the Tribunal.

    • Finally, no explanation has been given for the failure to serve the notice within the time required by CPR 52.5(4) and (5).

  54. For all these reasons, I would not give permission to file the respondent’s notice out of time.

  55. It follows that in my judgment this appeal should be allowed.

    Mr. Justice Munby

  56. I agree with my Lord that this appeal should be allowed and agree entirely with the reasons that he has given for coming to that conclusion. I add some words of my own because the main question raised on this appeal is one of great importance and one which, although it has arisen in the present case in an immigration context, has potentially significant ramifications in many areas of family law. After all, precisely the same question could have arisen in the present case if the child, instead of having been turned back by the ECO in New Delhi (or, what comes to the same thing, by an immigration officer at Heathrow) had been seized on arrival at Heathrow by a local authority acting on the authority of an emergency protection order. Would it then have been open to the adoptive parents to assert that they shared "family life" with their son so as to enable them to rely upon the protection of Article 8 vis-à-vis the local authority?

  57. The narrow question for decision is whether, in the specific circumstances of this particular case, the relationship between this little boy and his adoptive parents constitutes "family life" for the purposes of Article 8 of the Convention. But there is no shirking the fact that, 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 there is, I am afraid, a hard truth that we have to face. The question we are required to answer would never have been raised but for one fact: this boy and his adoptive parents come from a society and embrace a faith which hold to a view of adoption sufficiently different from our own that our law refuses to afford recognition to what I have no doubt was in their eyes, as in the eyes of their community generally, a ceremony of the most profound emotional, personal, social, cultural, religious and indeed legal significance. The consequence is that they have been put to the indignity of having to justify themselves in litigation which, on top of everything else, has, for one reason or another, been the subject of quite unacceptable delays and become quite shamefully protracted.

  58. Before turning to the central issue there are certain preliminary observations I wish to make. The first point is perhaps obvious but needs to be borne in mind. If one takes what until recently was the traditional or conventional form of family it can be seen that there are, in principle, four key relationships.

    • First, there is the relationship between husband and wife.

    • Secondly, there is the relationship between parent and child.

    • Thirdly, there is the relationship between siblings.

    • And, fourthly, there are relationships within the wider family: for example, the relationships between grandparent and grandchild, between nephew and uncle and between cousins.

    Each of these relationships can in principle give rise to family life within the meaning of Article 8: see, for example,

    • Abdulaziz, Cabales & Balkandali v United Kingdom (1985) 7 EHRR 471 at para [62] (family life includes "the relationship that arises from a lawful and genuine marriage"),

    • Berrehab v The Netherlands (1988) 11 EHRR 322 at para [21] ("a child born of such a union [a lawful and genuine marriage] is ipso jure part of that relationship; hence 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’, even if the parents are not then living together"),

    • Marckx v Belgium (1979) 2 EHRR 330 at para [45] ("‘family life’, within the meaning of Article 8, includes at least the ties between near relatives, for instance, those between grandparents and grandchildren") and

    • Boyle v United Kingdom (1994) 19 EHRR 179 (nephew and uncle).

  59. It is also clear that "family life" is not confined to relationships based on marriage or blood, nor indeed is family life confined to formal relationships recognised in law. Thus family life is not confined to married couples. A de facto relationship outside marriage can give rise to family life (Abdulaziz, Cabales & Balkandali v United Kingdom at para [63]), even if the parties do not live together (Kroon v The Netherlands (1994) 19 EHRR 263 at para [30]), and even if the couple consists of a woman and a female-to-male transsexual (X, Y & Z v United Kingdom (1997) 24 EHRR 143 at para [37]). So there can be family life between father and child even where the parents are not married: Keegan v Ireland (1994) 18 EHRR 342 at para [44]. Likewise there can be family life between a parent and a child even where there is no biological relationship: X, Y & Z v United Kingdom at para [37] (family life existed as between the female-to-male transsexual partner of a woman and the child she had conceived by artificial insemination by an anonymous donor). A formal adoption creates family life between the adoptive parents and the child: X v Belgium & the Netherlands (1975) 7 D&R 75, X v France (1982) 31 D&R 241, Pini v Roumania (unreported – 22 June 2004). Family life can exist between foster-parent and foster-child: Gaskin v United Kingdom (1989) 12 EHRR 36.

  60. Now the Strasbourg court has never sought to define what is meant by family life, nor has it even sought to identify any minimum requirements that must be shown if family life is to be held to exist. That is hardly surprising. After all, the considerations that bear upon the question of whether there is family life as between two childless cohabiting adults (perhaps of the same sex) are not the same as those that bear upon the question of whether there is family life as between (say) an uncle and his nephew. And the considerations that bear upon the question of whether there is family life as between a father and his child may differ markedly depending on whether he was married to the mother, whether he has any blood relationship with the child, or whether, for example his relationship is founded on adoption (perhaps recognised, perhaps not) or on a fostering arrangement.

  61. I have referred to the traditional or conventional form of family. That takes me on to my second point. Quite apart from the fact that the form the family has until recently tended to take in Protestant northern Europe differs in certain respects from what would until recently have been familiar in Catholic Mediterranean Europe, we need to remember, as Professor Lawrence Stone’s great works have taught us, that what we currently view as the traditional or conventional form of family is itself a comparatively modern development. Moreover, and perhaps more to the point, we have to recognise that there have been very profound changes in family life in recent decades.

  62. These changes have been driven by four major developments.

    • First, there have been enormous changes in the social and religious life of our country. The fact is that we live in a secular and pluralistic society. But we also live in a multi-cultural community of many faiths. One of the paradoxes of our lives is that we live in a society which is at one and the same time becoming both increasingly secular but also increasingly diverse in religious affiliation. Our society includes men and women from every corner of the globe and of every creed and colour under the sun.

    • Secondly, there has been an increasing lack of interest in – in some instances a conscious rejection of – marriage as an institution. As Dr Stephen Cretney has noted (Cretney, Family Law in the Twentieth Century: A History, 2003, p 33), although there is no lack of interest in family life (or at least in intimate relationships), the figures demonstrate a striking decline in marriage.

    • Thirdly, there has been a sea-change in society’s attitudes towards same-sex unions. Within my professional lifetime we have moved from treating such relationships as perversions to be stamped out by the more or less enthusiastic enforcement of a repressive criminal law to a ready acknowledgment that they are entitled not merely to respect but also, in principle, to equal protection under the law: see Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 3 WLR 113, especially the speech of Baroness Hale of Richmond.

    • Fourthly, there have been enormous advances in medical, and in particular reproductive, science so that reproduction is no longer confined to "natural" methods. Many children to-day are born as a result of "high-tech" IVF methods almost inconceivable even a few years ago.

  63. The result of all this is that in our multi-cultural and pluralistic society the family takes many forms. Indeed, in contemporary Britain the family takes an almost infinite variety of forms. Many marry according to the rites of non-Christian faiths. There may be one, two, three or even more generations living together under the same roof. Some people choose to live on their own. People live together as couples, married or not, and with partners who may not always be of the opposite sex. Children live in households where their parents may be married or unmarried. They may be the children of polygamous marriages. They may be brought up by a single parent. Their parents may or may not be their natural parents. Their siblings may be only half-siblings or step-siblings. Some children are brought up by two parents of the same sex. Some children are conceived by artificial donor insemination. Some are the result of surrogacy arrangements. The fact is that many adults and children, whether through choice or circumstance, live in families more or less removed from what until comparatively recently would have been recognised as the typical nuclear family. As Baroness Hale of Richmond observed in Ghaidan v Godin-Mendoza at para [141]:

    if [a] couple are bringing up children together, it is unlikely to matter whether or not they are the biological children of both parties. Both married and unmarried couples, both homosexual and heterosexual, may bring up children together. One or both may have children from another relationship: this is not at all uncommon in lesbian relationships and the court may grant them a shared residence order so that they may share parental responsibility. A lesbian couple may have children by donor insemination who are brought up as the children of them both: it is not uncommon for each of them to bear a child in this way. A gay or lesbian couple may foster other people’s children.

  64. Many of these changes have given rise to profound misgivings in some quarters. We live in a society which on many social, ethical and religious topics no longer either thinks or speaks with one voice. These are topics on which men and woman of different faiths or no faith at all hold starkly differing views. All of those views are entitled to the greatest respect but it is not for a judge to choose between them. The days are past when the business of the judges was the enforcement of morals or religious belief. The Court of King’s Bench, or its modern incarnation the Administrative Court, is no longer custos morum of the people. And a judge, although it may be that on occasions he can legitimately exercise the functions of an aedile, is no censor.

  65. The law, as it seems to me, must adapt itself to these realities, not least in its approach to the proper ambit of Article 8. Mr. Garnham rightly accepted that the Convention is a living instrument which must be interpreted in the light of present-day conditions: see Selmouni v France (2000) 29 EHRR 403 at para [101]. This is, I think, particularly important in the context of family law. X, Y & Z v United Kingdom is a striking example of the approach of the Strasbourg court to the modern view of what a family is. That, it will be recalled, was the case of a woman (Y) living together with a female-to-male transsexual (X) and having a child (Z) by donor insemination. Holding that family life existed both between X and Y and also between X and Z, the Court said at paras [36]-[37]:

    [36]

    The Court recalls that the notion of "family life" in Article 8 is not confined solely to families based on marriage and may encompass other de facto relationships. When deciding whether a relationship can be said to amount to "family life", a number of factors may be relevant, including whether the couple live together, the length of their relationship and whether they have demonstrated their commitment to each other by having children together or by any other means.

    [37]

    In the present case, the Court notes that X is a transsexual who has undergone gender reassignment surgery. He has lived with Y, to all appearances as her male partner, since 1979. The couple applied jointly for, and were granted, treatment by AID to allow Y to have a child. X was involved throughout that process and has acted as Z’s "father" in every respect since the birth. In these circumstances, the Court considers that de facto family ties link the three applicants. It follows that Article 8 is applicable.

  66. In principle I can see no reason why any of the various relationships I have just been describing – why any of the various forms of the family I have just been considering – should be disentitled to the protection of Article 8. On the face of it, in my judgment, all are examples or manifestations of "family life" within the meaning of Article 8.

  67. I have referred to the increasing religious diversity of our society. This takes me on to my third point. We live, or strive to live, in a tolerant society increasingly alive to the need to guard against the tyranny which majority opinion may impose on those who, for whatever reason, comprise a weak or voiceless minority. Equality under the law, human rights and the protection of minorities have to be more than what Brennan J in the High Court of Australia once memorably described as "the incantations of legal rhetoric". Although historically this country is part of the Christian west, and although it has an established church which is Christian, we sit as secular judges serving a multi-cultural community of many faiths in which all of us can now take pride. We are sworn to do justice ‘to all manner of people’. Religion – whatever the particular believer’s faith – is no doubt something to be encouraged but it is not the business of government or of the secular courts, though the courts will, of course, pay every respect and give great weight to a family’s religious principles. Article 9 of the Convention, after all, demands no less. So the starting point of the law is a tolerant indulgence to cultural and religious diversity and an essentially agnostic view of religious beliefs. A secular judge must be wary of straying across the well-recognised divide between church and state. It is not for a judge to weigh one religion against another. The court recognises no religious distinctions and generally speaking passes no judgment on religious beliefs or on the tenets, doctrines or rules of any particular section of society. All are entitled to equal respect, whether in times of peace or, as at present, amidst the clash of arms. In this context I can do no better than to repeat what Scarman LJ (as he then was) said in Re T (Minors) (Custody: Religious Upbringing) (1981) 2 FLR 239 in a long passage at pp 244-245 which, beginning with the words "We live in a tolerant society", is too long to quote but demands reading in full.

  68. Within limits the law – our family law – will tolerate things which society as a whole may find undesirable. Where precisely those limits are to be drawn is often a matter of controversy. There is no ‘bright-line’ test that the law can set. The infinite variety of the human condition precludes arbitrary definition. As Alhaji Mohamed v Knott [1969] 1 QB 1 shows, our law is prepared to recognise as valid a potentially polygamous marriage entered into by a girl who in our eyes would be under-age. That was a case of 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. Our law also, of course, recognises arranged marriages. But forced marriages, whatever the social or cultural imperatives that may be said to justify what remains a distressingly widespread practice, are rightly considered to be as much beyond the pale as such barbarous practices as female genital mutilation and so-called ‘honour killings’.

  69. This leads on to the point made by Mr. Blake when he appropriately drew our attention to Thorpe LJ’s important observations in Re E (Abduction: Non-Convention Country) [1999] 2 FLR 642. The legal context there was very different – whether the English court should order the peremptory return of an abducted Muslim child to the Sudan – but Thorpe LJ’s comments are of much wider significance. At p 647 he said:

    The welfare principle as paramount has been the cornerstone of the family justice system in this jurisdiction for many years. We regard it as a touchstone in measuring the quality of other family justice systems. Article 3 of the United Nations Convention on the Rights of the Child 1989 requires no less. But what constitutes the welfare of the child must be subject to the cultural background and expectations of the jurisdiction striving to achieve it. It does not seem to me possible to regard it as an absolute standard.

    He continued by calling on "States to respect a variety of concepts of child welfare derived from differing cultures and traditions" and said that "A recognition of this reality must inform judicial policy". And at p 649 he drew attention to:

    the importance of according to each State liberty to determine the family justice system and principles that it deems appropriate to protect the child and to serve his best interests. There is an obvious threat to comity if a State whose system derives from Judaeo-Christian foundations condemns a system derived from an Islamic foundation when that system is conceived by its originators and operators to promote and protect the interests of children within that society and according to its traditions and values.

  70. I respectfully agree. Pill LJ said much the same at p 651:

    I have no difficulty in accepting the judge’s conclusion that the application of Muslim law to this Muslim family is appropriate and acceptable. It is submitted on behalf of the mother that the welfare of children, paramount in English law, must take priority over notions of international comity and respect for foreign courts in non-Convention States. In my judgment the two are not inevitably in conflict. These are Sudanese children. Their welfare may well be served by a decision in accordance with Sudanese law which may be taken to reflect the norms and values of the Sudanese society in which they live.

  71. All of these considerations have, in my judgment, to inform our understanding of what is meant in contemporary Britain by the "family life" referred to in Article 8.

  72. But such is the diversity of forms that the family takes in contemporary society that it is impossible to define, or even to describe at anything less than almost encyclopaedic length, what is meant by "family life" for the purposes of Article 8. The Strasbourg court, as I have said, has never sought to define what is meant by family life. More importantly for present purposes, and this is a point that requires emphasis, the Strasbourg court has never sought to identify any minimum requirements that must be shown if family life is to be held to exist. That is because there are none. In my judgment there is no single factor whose existence is crucial to the existence of family life, either in the abstract or even in the context of any particular type of family relationship. It may be useful for present purposes, however, to focus attention on one particular aspect of the Article 8 jurisprudence.

  73. The Strasbourg case law recognises that in some instances family life arises ipso jure. That is so in the case of a lawful and genuine marriage, both in respect of the relationship between husband and wife and also (see the passage in Berrehab v The Netherlands at para [21] that I quoted in paragraph [58] above) the relationship between the parents and their children. The same principle applies in relation to the children of de facto unions. As the Court said in Lebbink v The Netherlands (unreported – 1 June 2004) at para [35]:

    The Court recalls that the notion of "family life" under Article 8 of the Convention is not confined to marriage-based relationships and may encompass other de facto "family" ties where the parties are living together out of wedlock. A child born out of such a relationship is ipso iure part of that "family" unit from the moment and by the very fact of its birth. Thus there exists between the child and the parents a relationship amounting to family life.

  74. Where there is no family life ipso jure then one has to look to all the circumstances. In many cases cohabitation will be a relevant consideration and in certain contexts it may be more or less important. But it can never be determinative. As the Commission said in Boyle v United Kingdom at para 15(43):

    cohabitation is .... not a prerequisite for the maintenance of family ties which are to fall within the scope of the concept of "family life". Cohabitation is a factor amongst many others, albeit often an important one, to be taken into account when considering the existence or otherwise of family ties.

  75. Take the question of whether there is family life as between the partners in a de facto relationship outside marriage. As the Court observed in Lebbink v The Netherlands at para [36]:

    Although, as a rule, cohabitation may be a requirement for such a relationship, exceptionally other factors may also serve to demonstrate that a relationship has sufficient constancy to create de facto "family ties".

    An illuminating example of such a case is Kroon v The Netherlands, where the Court held that the relationship between a man and a woman amounted to family life, even though they chose neither to marry nor to live together, because they had a stable relationship which had produced four children.

  76. Plainly in the context of non-marital relationships between adults the question of cohabitation is likely to loom large, though even in that context, as Kroon v The Netherlands shows, cohabitation is not determinative. But in the very nature of things cohabitation is likely to play a much less significant role, for example, in assessing whether there is family life as between grandparent and grandchild or between uncle and nephew: grandparents and uncles, after all, however active a role they play in the lives of their grandchildren, nephews and nieces they tend not to live under the same roof with them.

  77. Family life arises ipso jure as between father and child where the child was conceived either in wedlock (Berrehab v The Netherlands at para [21]) or during the course of a stable relationship between unmarried parents (Keegan v Ireland at para [44], Kroon v The Netherlands at para [30], Lebbink v The Netherlands at para [35]). However, sometimes the relationship between the child’s unmarried parents will be so exiguous that there will be no ipso jure family life as between the natural father and his child. But family life may nonetheless be shown to exist. As the Court said in Nylund v Finland (unreported – 29 June 1999) at p 14:

    the Court considers that Article 8 cannot be interpreted as only protecting "family life" which has already been established but, where the circumstances warrant it, must extend to the potential relationship which may develop between a natural father and a child born out of wedlock. Relevant factors in this regard include the nature of the relationship between the natural parents and the demonstrable interest in and commitment by the natural father to the child both before and after the birth.

    The Court made the same point in Lebbink v The Netherlands at para [36]:

    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. Where it concerns a potential relationship which could develop between a child born out of wedlock and its natural father, relevant factors include the nature of the relationship between the natural parents and the demonstrable interest in and commitment by the father to the child both before and after its birth.

  78. In Nylund v Finland the father’s claim to family life failed. In Lebbink v The Netherlands it succeeded, even though, as the Court noted, the father had not sought to recognise his daughter Amber and had never formed a "family unit" with Amber and her mother as they had never cohabited. The Court explained why at paras [37]-[40]:

    [37]

    .... Consequently, the question arises whether there are other factors demonstrating that the applicant’s relationship with Amber has sufficient constancy and substance to create de facto "family ties". The Court does not agree with the applicant that a mere biological kinship, without any further legal or factual elements indicating the existence of a close personal relationship, should be regarded as sufficient to attract the protection of Article 8.

    [38]

    However, in the instant case the Court notes that Amber was born out of a genuine relationship between the applicant and Ms B that lasted for about three years and that, until this institution was abolished when Amber was about seven months old, the applicant was Amber’s auxiliary guardian. It observes that the applicant’s relation with Ms B ended in August 1996 when Amber was about sixteen months old.

    [39]

    The Court further notes that, although the applicant never cohabited with Ms B and Amber, he had been present when Amber was born, that – as from Amber’s birth until August 1996 when his relation with Amber’s mother ended – he visited Ms B and Amber at unspecified regular intervals, that he changed Amber’s nappy a few times and baby-sat her once or twice, and that he had several contacts with Ms B about Amber’s impaired hearing.

    [40]

    In these circumstances the Court concludes that, when the applicant’s relationship with Ms B ended, there existed – in addition to biological kinship – certain ties between the applicant and Amber which were sufficient to attract the protection of Article 8 of the Convention.

  79. I agree with Lord Justice Dyson that what he calls the core principle is to be found in Lebbink v The Netherlands at para [36]:

    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.

    Typically the question will be, as the Court put it in the same case at para [37], whether there is "a close personal relationship", a relationship which "has sufficient constancy and substance to create de facto "family ties"."

  80. In the case of the parent/child relationship a central issue will often be what the Court both in Nylund v Finland and again in Lebbink v The Netherlands referred to as the parent’s "demonstrable interest in and commitment to the child". A parent’s cohabitation or lack of cohabitation with the child will often be significant – sometimes highly significant – but as Lebbink v The Netherlands demonstrates, it cannot be decisive. As long ago as 1988 it had been made clear in Berrehab v The Netherlands at para [21] that:

    The Court .... does not see cohabitation as a sine qua non of family life between parents and minor children.

  81. It is against this background that we must approach the central issue in the present case. We are concerned with the relationship between parent and child; specifically the relationship between adoptive parent and child in circumstances where the adoption, although valid by the lex loci celebrationis, is not recognised in our domestic law. We have no expert evidence, but the documents and the adoptive parents’ evidence – accepted in its entirety by the Adjudicator – are clear enough. Lord Justice Dyson has set it all out and I need not repeat what he has said. I merely draw attention to what the Deed of Adoption has to say about the religious ceremony that took place on 29 December 1996 and also to some of the parents’ evidence.

  82. According to clause 1 of the Deed of Adoption:

    in the presence of relatives and friends the natural parent [sic] have given their child Pawan Deep Singh in the lap of adoptive parents who are adopting the child. The ceremony of giving and taking the child in adoption had been performed under ceremonial pomp and show at Jalandhar 29/12/1996.

    In clause 2 of the Deed the natural parents and the adoptive parents declared and agreed that:

    All the required formalities were observed and performed as per customs, usage, religion and the rites of the parties.

  83. When interviewed by the ECO on 11 March 1997 and asked why he had not considered adopting a child from the United Kingdom, the adoptive father explained that "we would not know which religion the child would be .... and we know that the child is related to the blood relations". In the statement of his evidence which was before the Adjudicator he said that "In accordance with our social, cultural and religious custom and practice we looked to adopt within the family. This is common within the Indian community." He added that on 29 December 1996 "a religious ceremony took place in the Gurdwara and Pawandeep was adopted according to the religious laws and in accordance with the Sikh faith." The adoptive mother said much the same in her statement of evidence: "For us it was and is important to adopt within the family. We would then have a child who is related to us by blood and who would be brought up within the same religious and cultural traditions. If it had not been possible to adopt Pawandeep then we would have adopted another relative."

  84. In Re J (Adoption: Non-Patrial) [1998] INLR 424 Singer J at first instance and then this court on appeal had to consider a customary adoption in Pakistan remarkably similar to the adoption we are considering, though in that case the issue arose in the context of an application in the Family Division for an adoption order and the case turned on the proper application of section 6 of the Adoption Act 1976. The facts were summarised by Thorpe LJ in a passage at p 425 which I need not set out. There, as here, the natural father and the adoptive father were from the same family. There, as here, the adoptive parents were unable to have a children of their own. There, as here, the adoption was a gift – an act of grace. The report does not indicate what the parties’ religious faith was, but I would assume, and Singer J has confirmed to me, that the parties were in fact Muslims. In the present case the parties are Sikhs, but in this respect the custom of their religious community in India would seem to be so similar as to be for present purposes indistinguishable from that of the Muslim community in Pakistan considered in Re J. I make this comparison, which I hope will not cause any offence to either community, because certain comments made by Singer J and Thorpe LJ about the Muslim adoption in Re J seem to me equally applicable to the Sikh adoption in this case.

  85. Singer J, having found that according to custom in Pakistan the arrangement had the full consequences that would flow from the making of an adoption order in our society, said (see at p 426):

    The mother and the father performed an act of great grace with considerable beneficial religious significance for them in giving up their child as a gift to childless relatives.

    Thorpe LJ referred to this at p 429 as "a custom which we are told is recognised in many parts of the world", adding:

    It seems to me that we should respect that custom, founded as it is upon a humane response to a sad deprivation.

    I respectfully agree.

  86. I make these general observations because it seems to me that the personal, emotional, psychological, social, cultural and religious significance of this boy’s adoption in the present case has an importance which many of Mr. Garnham’s submissions inappropriately if unintentionally tended to diminish. It is, of course, a fact, as Mr. Garnham was at pains to emphasise, that the adoption in this case is not formally recognised in our law, any more than was the adoption in Re J. That, after all, was the very reason why Singer J was considering an application by the adoptive parents for an adoption order under the Adoption Act 1976. It is also, of course, a fact, as Mr. Garnham was likewise at pains to emphasise, that the cultural assumptions which underlie such adoptions are very different from those with which we in the West are more familiar. So be it. But that is no reason at all for not affording such an adoption the respect which in my judgment it so plainly merits, let alone reason for blinding ourselves to what I have no doubt were the very intense and personal consequences for these three human beings of what, as I have said, was in their eyes, as in the eyes of their community generally, a ceremony of the most profound emotional, personal, social, cultural, religious and indeed legal significance. As Mr. Blake correctly submitted, it is important in this type of case, even if the adoption is not one that our law recognises, to have regard not merely to the fact of the adoption but also to all the personal, emotional and psychological, as well as the social, cultural and religious, consequences that flow from it.

  87. This adoption, like the very similar adoption considered by this court in Re J, stands in stark contrast to the kind of adoptions that have understandably been criticised by the Parliamentary Assembly of the Council of Europe. On 26 January 2000, in Recommendation 1443(2000) – ‘International Adoption: respecting children’s rights’, the Assembly affirmed that

    The purpose of international adoption must be to provide children with a mother and father in a way that respects their rights, not to enable foreign parents to satisfy their wish for a child at any price,

    and went on to express its fierce opposition to

    the current transformation of international adoption into nothing short of a market regulated by the capitalist laws of supply and demand, and characterised by a one-way flow of children from poor states or states in transition to developed countries.

    The Assembly drew attention to the fact that

    In many cases, receiving countries perpetuate misleading notions about children’s circumstances in their countries of origin and a stubbornly prejudiced belief in the advantages for a foreign child of being adopted and living in a rich country.

  88. The adoption in the present case stands in even starker contrast with the sordid inter-country adoption of a foreign baby, sold and bought through commercial intermediaries, that I had occasion to consider in Re M (Adoption: International Adoption Trade) [2003] EWHC 219 (Fam), [2003] 1 FLR 1111. In that case the 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 contrast could hardly be greater. In the present case, as Mr. Blake correctly pointed out, there was really an intra-family rather than an inter-country adoption. The arrangement, far from being commercial, was religious in its inspiration, and the child, far from being removed from his religious and cultural inheritance remains a member of the same wider family. In Re M the adoption was a disaster for the child. In the present case the adoption appears to have been wholly beneficial (I express myself in somewhat qualified terms only because I am conscious, in the light of our decision, that the question may yet arise for decision in proceedings brought under the Adoption Act 1976).

  89. I am not, of course, in any way criticising either the ECO or the Secretary of State. They, after all, have to apply the law as they find it and, I have no doubt, have conscientiously sought to do so both in the present case and in the other case I have just mentioned. But the contrast between the two cases makes for uncomfortable reading.

  90. Lord Justice Dyson has set out the Adjudicator’s findings and has summarised what are for present purposes the most important of them. I need not repeat the exercise. I merely wish to draw attention to two striking though hardly unsurprising features of the picture which has been drawn for us by the Adjudicator. The first is the fact – and fact it is – that this child has been brought up to regard the adoptive parents as his real parents and believes them to be precisely that. The second is the fact – and fact it is – that this little boy cannot understand why he remains separated from his parents, a state of affairs that the Adjudicator found "causes distress for all parties", indeed "great distress" to the adoptive parents. This was not an arrangement of convenience or one entered into for some ulterior motive. This was an adoption which was plainly intended to bring about, and which as a matter of fact has in very large measure already achieved, the "creation of the psychological relationship of parent and child with all its far-reaching manifestations and consequences" that Thorpe LJ referred to in Re J in the passage at p 429 that Lord Justice Dyson has set out for us. Mr. Garnham very properly drew attention to what he suggested was the somewhat limited involvement of the adoptive parents in their son’s daily life. Lord Justice Dyson has set out the details and I need not rehearse them again. I merely add this comment, that these parents’ practical involvement – never mind their emotional involvement – with their son is at least as great as that which characterised those many English officers of the Indian Army or the Government of India and their wives who, in the days of the Raj, left their infant child to be brought up in this country by some aunt before sending him off at an early age to boarding school, seeing him only at infrequent intervals when on furlough. There are many children who even in contemporary Britain for one reason or another see their parents only infrequently. We must be cautious before setting too high a benchmark for the existence of family life, certainly where there is the constancy and commitment which these parents have shown to a boy who is emotionally and psychologically their son.

  91. For all these reasons, in addition to those referred to by Lord Justice Dyson, I agree that this appeal should be allowed.

  92. There is one final matter I must return to. The application to the ECO was made on 19 October 2000 when this little boy was just over four years old – he had been born on 9 October 1996. It has taken almost four years to resolve, and the child is now rising 8. It is to me a matter of very great concern, and deep regret, that our system has taken so long to come to a final conclusion. The Strasbourg court has repeatedly emphasised the need for speed and the evils of delay in cases involving children. The delays in the present case – I emphasise that I am referring here only to the period since October 2000 – were quite unacceptable. It might be thought that common humanity – never mind the requirements of the Convention – demands that sensitive cases of this kind should in future be dealt with at all stages with a much greater sense of urgency than would seem to have been in evidence here. The delay of over two years between the Adjudicator’s decision on 14 November 2001 and the Tribunal’s decision on 3 December 2003 is particularly troubling.

    Lord Justice Chadwick

  93. I agree that this appeal should be allowed for the reasons given by the other members of the Court.

  94. I should add, for completeness, that it was not suggested on behalf of the respondent that (if otherwise engaged) convention rights under the ECHR or the Human Rights Act 1998 (as the case may be) were not in point in a case where the appellant was a child in India and the relevant decision of the ECO was taken at the British High Commission in Delhi. The appeal was argued on the basis that it was common ground that, if ‘family life’ within article 8(1) of the Convention were established, the appellant had convention rights to which effect should be given. The Court was not invited to consider the question whether the ECHR or the Act should be treated as having extra-territorial reach in this case; and we have not done so. We should not be taken to have reached any conclusion on that question.


Cases

X & Y v UK (1978) 12 D & R 32; Ahmut v Netherlands(1997) 24 EHRR 62; Lebbink v The Netherlands, unreported, App. NO. 45582/99, 1 June 2004; Marckx v Belgium (1980) 2 EHRR 330; X,Y & Z v United Kingdom (1997) 24 EHRR 143; Pini et al v Roumania, unreported, 22 June 2004); Re J (Adoption: non-patrial) [1998] INLR 424; Nekvedavicius v Germany App No 46165/99 (2004) 38 EHRR CD 12; Nyluind v Finland App No 27110/95, decision of 29 June 1999; Abdulaziz, Cables & Balkandali v UK (1985) 7 EHRR 471; Berrehab v The Netherlands (1988) 11 EHRR 322; Marckx v Belgium (1979) 2 EHRR 330; Boyle v United Kingdom (1994) 19 EHRR 179; Kroon v The Netherlands (1994) 19 EHRR 263; Keegan v Ireland (1994) 18 EHRR 342; X v Belgium & the Netherlands (1975) 7 D&R 75; X v France (1982) 31 D&R 241; Gaskin v United Kingdom (1989) 12 EHRR 36; Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 3 WLR 113; Selmouni v France (2000) 29 EHRR 403; Re T (Minors) (Custody: Religious Upbringing) (1981) 2 FLR 239; Alhaji Mohamed v Knott [1969] 1 QB 1; Re E (Abduction: Non-Convention Country) [1999] 2 FLR 642; Re M (Adoption: International Adoption Trade) [2003] EWHC 219 (Fam), [2003] 1 FLR 1111

Legislations

European Convention on Human Rights: Art.1, Art.8, Art.13, Art.14

Declaration on Social and Legal Principles relating to the Protection and Welfare of Children

Foster Placements and Adoption Nationally and Internationally, UN General Assembly Resolution 41/85 of 3/12/1986

The UN Convention on the Rights of the Child 1989

The Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption 1993

Authors and other references

Cretney, Family Law in the Twentieth Century: A History, 2003

Representations

Mr. Garnham QC for appellant.

Mr. Blake QC for respondent.


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