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Cite as: [2019] IEHC 935

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THE HIGH COURT

[2019] IEHC 935

[2018/853 SS]

IN THE MATTER OF SECTION 49 OF THE ADOPTION ACT 2010

AND IN THE MATTER OF K (A MINOR) AND F (A MINOR)

AND IN THE MATTER OF A CASE STATED BY UDARAS UCHTALA NA hÉIREANN

-AND-

PP, YY AND K (A MINOR)

XM, ZW AND F (A MINOR)

THE ATTORNEY GENERAL

-AND-

THE CHILD AND FAMILY AGENCY

NOTICE PARTIES

JUDGMENT of Mr. Justice Jordan delivered on 27th day of November 2019

1. Inter-country adoption as a subject of international cooperation was submitted on the

19th January 1988 by the Permanent Bureau of The Hague Conference on private

international law to the Special Commission on General Affairs and Policy of the

Conference. After much preparatory work and debate the Convention on Protection of

Children and Cooperation in Respect of Inter-Country Adoption was concluded on the 29th

May 1993. This Convention, known as The Hague Convention, was subsequently given

the force of law in Ireland by the Adoption Act 2010 which came into force on the 1st

November 2010. Insofar as inter-country adoption is concerned the Hague Convention is

regarded as the gold standard with the force of law throughout the signatory states,

numbering ninety-eight currently. As an international convention its effectiveness

depends on all the signatory states adhering to its provisions as deviation from it would

undermine the Agreement. Article 40 provides that, “no reservation to the Convention

shall be permitted”. The Convention is designed to protect children since many children

are vulnerable and open to exploitation and require the protection of the international

community. The preamble to the Convention states: -

“Recognising that the child, for the full and harmonious development of his or her

personality, should grow up in a family environment, in an atmosphere of

happiness, love and understanding, recalling that each state should take, as a

matter of priority, appropriate measures to enable the child to remain in the care of

his or her family of origin, recognising that inter-country adoption may offer the

advantage of a permanent family to a child for whom a suitable family cannot be

found in his or her state of origin, convinced of the necessity to take measures to

ensure that inter-country adoptions are made in the best interests of the child and

with respect for his or her fundamental rights and to prevent the abduction, the

sale of, or trafficking children, desiring to establish common provisions to this

effect, taking into account the principles set forth in international instruments, in

particular the United Nations Convention on the Rights of the Child, of 20th of

November, 1989, and the United States Declaration on Social and Legal Principles

relating to the protection and welfare of children, with special reference to foster

placement and adoption nationally and internationally (General Assembly

Resolution 41/85, of 3rd December, 1986) ” – [the state’s signatory to the

Convention agreed the provisions detailed in it.]

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2. One immediate consequence of the signing into law of the Hague Convention in Ireland

and its commencement as and from the 1st November 2010 was that it altered the pre-

existing system which prevailed in Ireland under the Adoption Act 1991 and which

permitted the recognition of inter-country adoptions which resulted from private

placements or privately sourced adoptions abroad. Under the Adoption Act 1991 it was

perfectly permissible and appropriate for a couple who had obtained a declaration of

eligibility and suitability from An Bord Uchtála, following assessment under the 1991 Act,

to travel abroad with that declaration and to pursue a private placement adoption. The

Convention moves the system away from the private placement option towards a public

placement system. The Convention requires each signatory state to have a central

authority. Adopting a child from a signatory state which is bound by the Convention

requires the cooperation of the central authority in the child’s state of origin and the

central authority where the child is being relocated – the central authority of the receiving

state.

3. Article 17 of the Convention provides as follows: -

“Any decision in the state or origin that a child should be entrusted to prospective

adoptive parents may only be made if –

(a) the central authority of that state has ensured that the prospective adoptive

parents agree;

(b) the central authority of the receiving state has approved such decision, where

such approval is required by the law of that state or by the central authority

of the state of origin;

proceed; and

(d) it has been determined, in accordance with Article 5, that the prospective

adoptive parents are eligible and suited to adopt and that the child is and will

be authorised to enter and reside permanently in the receiving state.”

4. Article 23 of the Convention provides: -

“(1) An adoption certified by the competent authority of the state of the adoption as

having been made in accordance with the Convention shall be recognised by

operation of law in the other contracting states. The certificate shall specify when

and by whom the arrangements under Article 17, sub-paragraph (c) were given.

(2) Each contracting state shall, at the time of signature, ratification, acceptance,

approval or accession, notify the depository of the Convention of the identity and

the functions of the authority or the authorities which, in that state, are competent

to make the certification. It shall also notify the depository of any modification in

the designation of these authorities.”

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5. The shift in focus in terms of inter-country adoptions from the private placement process

to the public placement process represented a sea change in terms of the availability of

and recognition of inter-country adoptions for those couples wishing to travel abroad to

adopt a child from abroad. As with other changes in the law there had to be transition

provisions in circumstances where many couples hoping to adopt had already commenced

the process before the Convention had the force of law in their country. This matter is

before the court by way of case stated and is concerned with the situation in which two

families find themselves. Each of the families consist of a couple and a child adopted by

the couple in Mexico as a private placement adoption. In each case the couple had

commenced the adoption process in Ireland under the 1991 Act but the child whom they

adopted in Mexico was not born until after 1st November 2010 – being the date of

commencement of the Adoption Act 2010 in Ireland. Essentially each couple is unable to

prove compliance with The Hague Convention to the satisfaction of the Adoption Authority

and they are thus unable to have the Mexican adoptions recognised in Ireland under The

Hague Convention. They do not have the Article 23 certificate required by the Convention

which allows the inter-country adoption in question be recognised by operation of law in

Ireland and in the other contracting states. The two children in question are now

approximately 9 years of age and were adopted in Mexico as infants. They are and have

been happy, thriving and settled children in their family units. For almost all of that time

their adoptive parents are and have been lost and wandering in the wilderness of

uncertainty that exists by reason of the transition from the old to the new.

Background

Couple A: -

6. This couple are both approaching 60 years of age and married each other in 2003. They

live together with their daughter, Baby K, who was born in November 2010 and whom

they adopted in Mexico.

7. In early 2006 they made an application for an assessment of eligibility and suitability for

adoption of a child. This is a critical step in the process of adoption. An adoption

assessment was carried out and the assessment dated 24th November 2009 was

exhibited before the court. This assessment recommended that the couple be approved

to adopt a child of either gender, as young as possible, up to the age of 15 months. The

first appendix to the assessment acknowledged Mexico as the country of choice. At the

time of this assessment Mexico was an approved jurisdiction for the purposes of adoption

abroad, and the procedures complied with the requirements for recognition of a foreign

adoption under the Adoption Act 1991 (as amended).

8. A declaration of suitability and eligibility was granted to the couple by the Authority on

24th February 2010. The couple received a further declaration of suitability and eligibility

dated 8th February 2011 from the Authority. There followed six explanatory letters to the

couple from the Authority and the foreign adoption unit of the Irish immigration services.

The couple agreed to all the necessary post placement assessments. All four of the

scheduled assessments have at this stage been completed and are extremely positive.

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9. Having been assessed as eligible and suitable and having already indicated their intention

to adopt from Mexico the couple set about making the necessary arrangements in Mexico

to progress the adoption in February 2010. On 21st March 2010 they made contact with

Gabriella Chumacera, a Mexican lawyer. The couple began the Mexican adoption process

with their Mexican lawyer. This process included them sending to her copies of their

declaration, their home study, their passports and their birth and marriage certificates.

They continued to engage with their Mexican lawyer on a regular basis afterwards. On

2nd August 2010 they signed a letter of acceptance. On 6th August, 19th August and

31st October 2010 they sent emails to the adoption society in Ireland which they were

dealing with (PACT) advising it of their intention to travel to Mexico and requesting

documents from it. On 29th September 2010 they emailed the Authority advising it that

they were compiling their Mexican dossier and requesting documents from it, which

documents were sent to them by post by the Authority. A similar email was sent to the

Health Service Executive on 15th October 2010. By letter dated 3rd November 2010 the

couple wrote to the Authority advising it that they were planning on travelling to Mexico

and seeking a renewal of their declaration.

10. Following a referral, the couple travelled together on 17th November 2010. They first

met Baby K in November 2010. They met the birth mother once after the Mexican court

proceedings concluded. With the full knowledge of the birth mother they cared for Baby K

from 22nd November 2010. The birth mother consented to the adoption on 14th March

2011 in court when the judge heard from her. The couple were grated the status of

“temporary residents” while in Mexico on 6th December 2010. Following their application

on 21st February 2011 the couple received an adoption permit issued by the Interior

Ministry. On 14th March 2011 they attended a Mexican court with their witnesses. On

14th March 2011 the Mexican authorities, (the Department of Psychology, Desarrollo

Integral de la Familia and the Department of Social Services) carried out a psychology

survey on the husband and wife separately followed by a psychological assessment of

them both, all of which were approved. On 13th May 2011 Baby K underwent a

paediatric assessment for her passport.

11. On 10th May 2011 the couple adopted Baby K in Mexico and the Adoption Order was

made by the Family and Civil Court of First Instance in United States of Mexico. In

relation to Article 23 of the Convention the court ruled that it would not issue a separate

document but rather that it would integrate it into the Deed of Adoption. In the context

of the Adoption Order the court ruled that “The Hague Convention of 29th May regarding

the protection of children and cooperation in the matter of international adoption is

formally enacted in Ireland. Therefore, this procedure of adoption intends to fully comply

with the Article 23 of the above mentioned Convention”. I should pause here to point out

that the Mexican authorities subsequently advised the Adoption Authority in Ireland that

the court was not a central authority for the purpose of the Convention and could not

issue the Article 23 certificate.

12. The couple say, and I accept, that in all good faith they believed that they had complied

with all necessary requirements of the Hague Convention. As far as they were concerned,

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they had taken explicit steps in this regard while in Mexico completing the adoption

procedures.

13. Towards the end of May 2011 the adoption decree was received by the couple and Baby

K’s birth certificate was issued. On 29th May 2011 a passport was issued to Baby K by

the Mexican authorities.

14. Prior to the couple’s departure with Baby K from Mexico, on 1st January 2011 and on

17th February 2011 the Foreign Adoption Unit of the Irish Immigration Services, by letter,

and on the Authority’s instruction, gave immigration clearance for Baby K, granting an

authorisation to permit her travel to and enter into Ireland. On 2nd June 2011 the couple

and Baby K arrived back to Ireland having flown from Mexico City through Amsterdam.

15. Having returned to Ireland on 2nd June 2011 and within the three-month statutory period

on 5th June 2011 the couple applied to the Authority to have the adoption of Baby K

entered in the Register of Foreign Adoptions. They say, and I accept, that they had no

idea that any difficulty would arise in this regard. After all, they had been assessed to be

eligible and suitable for adoption and since the outset of the adoption process it was

known to all parties concerned that they had intended to adopt from Mexico.

16. The couple acknowledge that prior to travelling to Mexico they were aware that the law

was changing and they actively sought clarification from the Authority in this regard.

They were alert because of their inquiries as to the need for an Article 23 certificate.

Prior to travelling their Mexican solicitor satisfied them that the adoption would comply

with Article 23. Before travelling to Mexico the couple wrote to the Authority on 3rd

November 2010 advising that they were travelling to Mexico to adopt a baby while at the

same time including their application to renew their declaration and providing contact

details. While in Mexico they were in touch with the Authority several times via email,

including on 28th December 2010 when they emailed the Authority advising that they

were currently in Mexico completing the adoption and pointing out that they had not

received a reply to their request for a renewal of the declaration. The couple’s Mexican

lawyer wrote to the Authority on 4th January 2011 stating that they were in the process

of adopting Baby K and that should the Authority require further information it should

phone her. The letter went on to state that one of the court’s legal requirements was to

have the declaration updated by the Authority and with the new changes implemented on

1st November 2010 the declaration should reflect such changes. The renewed declaration

issued without any reference to the changes in the law nor were any requests for further

information received from the Authority. The couple say, and I accept, that they had

numerous phone calls and exchanged numerous emails with the Authority while they

were in Mexico. What the couple say is borne out by the documentation exhibited by

them. Their Mexican lawyer sent the Authority a statutory declaration that they had

sworn towards the end of December 2010 stating that they were in the process of

adopting a baby in Mexico and that the process had commenced but was not complete.

17. The Authority issued a further letter on 9th February 2011 and headed it “to whom it may

concern”. It stated that “the bearer(s) (of the declaration) are entitled to seek an entry in

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the register…upon their return to Ireland” and that “a foreign adoption…is deemed to be

effected by a valid Adoption Order if the following requirements are satisfied – (1) as

having been effected in accordance with The Hague Convention on Inter-Country

Adoption (1993) or (2) the adoption must be a recognised ‘foreign adoption’ as defined in

Section 1 of the Adoption Act 1991…and (3) is not contrary to public policy.”

18. Following the couple’s application to have the adoption entered in the Registry of Foreign

Adoptions on 5th June 2011 it came as a shock to them when they were informed by the

Authority that there were many difficulties in so doing. Then on 26th February 2013 the

solicitors for the Authority wrote to the solicitor acting for the couple and stated that the

Authority was refusing to register the adoption and that it was taking no steps other than

to notify the Health Service Executive that it was so refusing. The couple say that this

action caused them enormous distress and concern. They were concerned that it would

appear to imply that their care of Baby K required the attention of the HSE even though

they had successfully completed all adoption post placement requirements as required by

the Authority. Their distress and concern is understandable and is not overstated.

19. There were nineteen “Mexican adoptions” which encountered difficulty because of the

commencement of the 2010 Act. There is reference in the case stated to 20 cases

encountering difficulty, but this difference is not material.

20. Fifteen of the nineteen Mexican adoptions were resolved as a result of the decision of

Abbott J. in the case of O’C v. Údarás Uchtála na hÉireann [2015] IEHC 637. However,

the Adoption Authority advised the couple by letter dated 26th February 2015 that it:

“determined that, on the basis that the third named notice party was not born by

the time of entry into force of the Adoption Act 2010, vested rights could not have

accrued under the Adoption Act 1991…the Authority had no option but to continue

to refuse your application”.

Following discussions between their legal advisers and the Authority’s legal advisers

between December 2015 and February 2017 the couple did decide to consider and indeed

to utilise Part 7 of the Adoption Act 2010 as their priority was to regularise Baby K’s

position in Ireland as soon as possible. The couple say, and I accept, that they have

always been most anxious to resolve the problem in the least acrimonious, least

expensive and most time-efficient manner possible and they have been happy to enter

any dialogue that may result in a mutually acceptable resolution. However, difficulties

arose with the Part 7 process in circumstances where the Child and Family Agency

insisted on confirmation that a child is eligible for adoption before carrying out an

assessment under s. 37 of the 2010 Act. This insistence gave rise to the third question in

the case stated before me. At the commencement of the hearing, counsel for the Child

and Family Agency indicated that it was no longer maintaining the position that it required

confirmation that a child was eligible for adoption before carrying out the s. 37

assessment.

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21. Insofar as the couple and Baby K are concerned it is also worth pointing out that, in

addition to being completely settled into the family unit as a content and active young

girl, Baby K’s biological sibling lives in Ireland having been adopted by another Irish

couple. Baby K and her sibling have a close relationship and see each other regularly.

Baby K’s sibling’s adoptive parents first met their child in December 2010, who was

adopted in Mexico approximately five months after Baby K who was adopted. Her sibling

was born in 2008 and has had the particulars of the adoption entered in the Register by

the Authority. This moving postscript to the events leading to the arrival in Ireland of

Baby K is but one small part of the family dynamic that is such a vibrant undercurrent

beneath the legal issues before the Court.

Couple B:

Baby F

22. The second set of parents are again a married couple in their mid-50s. They got married

in 2005 and reside together with Baby F who was born in January 2011 in Mexico.

23. By letter dated 20th February 2007 the couple made an application for an assessment of

eligibility and suitability for adoption of a child. The adoption assessment was carried out

by the regional Child and Family Centre and the assessment resulted in a

recommendation that the couple be approved to adopt one child of either sex as soon as

possible. The first appendix to the assessment acknowledged Mexico as the country of

choice of the couple. As already stated Mexico was at this time an approved jurisdiction

for the purposes of adoption abroad, and the procedures complied with the requirements

for the recognition of a foreign adoption under the Adoption Act, 1991 (as amended).

24. The first declaration of suitability and eligibility dated 26th May 2009 was issued to the

couple by the authority under cover of an undated letter. The most recent, renewed,

declaration was dated 25th January 2011.

25. All the necessary post-placement assessments were agreed to by the couple. All four of

the scheduled assessments have been completed with positive results. These post-

placement visits were carried out by the Health Service Executive in the context of the

adoption processes administered and agreed to by the couple with the Authority.

26. Having been assessed as eligible and suitable and having already indicated their intention

to adopt from Mexico, the couple set about making the necessary arrangements in Mexico

to progress the adoption around February 2009. At that time, they made contact with

Adoption Alliance in Colorado USA when they sent in a preliminary application. In 2008

an official of the Health Service Executive made the couple aware that Adoption Alliance

specialised in Mexican adoptions. The couple’s preliminary application was acknowledged

by email dated 11th February 2009.

27. Following submission of further documentation, the couple were accepted on the waiting

list and they were to await a match with a birth mother. On 17th April 2010 the couple

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emailed their dossier to Adoption Alliance. The dossier comprised the documents which

would ultimately be presented to the Mexican court. Initial matching with a birth mother

occurred in July 2010 and the couple were informed that they had been matched with a

birth mother. However, the arrangement did not proceed due to a change of mind on the

part of the birth mother. Ultimately the couple were matched around January 2011 and

they then applied for a renewal of their declaration so that it would not expire while they

were in Mexico. It was due to expire on 25th May 2011. The wife, by arrangement,

visited the Authority’s offices in person towards the end of January 2011 in order to

collect the renewed declaration – which is dated 25th January 2011. At that time, she

indicated that she and her husband were planning to travel to Mexico soon. When the

couple arrived in Mexico they gave all their original documentation to the Mexican lawyer.

28. Following a referral, the couple travelled to Mexico on 13th February 2011. They first met

Baby F on 23rd February 2011. With the full knowledge of the birth mother they cared

for Baby F from 23rd February 2011. The birth mother consented to the adoption on 24th

March 2011, in court, when the judge heard from her. The couple were lawfully in Mexico

on temporary visas. On 1st April 2011 the couple were interviewed by the Mexican

authorities. A psychologist from Desarrollo Integral De La Familia and a social worker

from the Department of Social Services conducted the interview. Later on that same day

the couple attended the court with their witnesses. On 17th June 2011, Baby F

underwent a paediatric assessment.

29. On 17th May 2011 the couple adopted Baby F. The adoption order was made by the

relevant Family and Civil Court of First Instance, United States of Mexico. The court order

recites “the adopters have complied with the requirements ratified by the government of

the United States of Mexico in the Convention on the Protection of Children and Co-

operation in respect of inter country adoption established in The Hague on 29th May,

1993”. In May 2011, upon learning from another Irish adoptive couple that a s. 23

certificate would be required upon their return to Ireland, the couple asked their Mexican

lawyer to request same and they received what they believed was the certificate dated

2nd June 2011. In that “Article 23 certificate” the Desarrollo Integral De La Familia in

that location in Mexico wrote to the Central Authority of Ireland notifying it of the birth

mother’s consent and stating that “by virtue of Article 6, 17, 22, 23 and other Articles of

(The Hague Convention) … declares the following: … certifies that the adoption

proceedings were (mostly legitimate) … validating all the proceedings of the adoption …”.

I pause at this point in relation to the use of the word “mostly”. It is curious. However,

the use of this word may well be a translation issue as it does seem clear that the

intention of the document is to confirm and provide the Article 23 certificate required

under The Hague Convention. The couple say, and I accept, that in all good faith they

fully believed that they had complied with all necessary requirements of The Hague

Convention. They point out that they had taken explicit steps in this regard while in

Mexico completing the adoption procedures.

30. On 24th June 2011 the adoption decree was received by the couple and the birth

certificate was issued on the same day. On 28th June 2011 Baby F’s passport was issued

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by the Mexican authorities. Prior to the departure of the couple and Baby F from Mexico,

on 28th January 2010 the foreign adoption unit of the Irish Immigration Services, by

letter, granted an authorisation to permit Baby F travel to and enter into Ireland. On 6th

July 2011 the couple arrived home in Ireland having flown from Mexico City through

Amsterdam.

31. The couple, having returned to Ireland on 6th July 2011, applied within the three-month

statutory period on 27th August 2011 to the Authority to have Baby F’s adoption entered

in the Register of Foreign adoptions – and enclosing the Article 23 certificate along with

the application. No response was received from the Authority until 27th January 2012

when it informed the couple that it was in contact with the Mexican authorities. The

couple say, and I accept, that they had no idea that any difficulty would arise. They point

out that they had been assessed to be eligible and suitable for adoption and that since the

outset of the adoption process it was known to all parties concerned that they had

intended to adopt from Mexico. By this time Baby F was fully integrated and thriving in

the family unit in Ireland. The couple say, and I accept, that no correspondence was

received by them from the Authority relating to any alterations or changes which would

arise from the Adoption Act 2010 prior to their adoption of Baby F. On 23rd February

2010 they sought an extension of their declaration. In response they received a letter

dated 23rd February 2010 from the Authority requiring them to complete an affidavit

which was enclosed and which they swore on 2nd March 2010. These documents made

no reference to the Act of 2010 while making express reference to the fact that the

couple’s application for an extension of their declaration was being made pursuant to the

1991 Act. Before travelling to Mexico, on 16th January 2011, the couple wrote to the

Authority advising that they were travelling within the next three to four weeks while at

the same time seeking another extension of their declaration and requesting immigration

clearance. The declaration was renewed without any reference to the changes in the law.

A further letter issued from the Authority on 27th January 2011. It was headed “to whom

it may concern” and it stated that “the bearer(s) (of the declaration) are entitled to seek

an entry in the Register…upon their return to Ireland” and that “a foreign adoption…is

deemed to be effected by a valid Adoption Order if the following requirements are

satisfied – (1) as having been effected in accordance with The Hague Convention on

Interlocutory Adoption (1993) or (2) the adoption must be a recognised ‘foreign adoption’

as defined in Section 1 of the Adoption Act 1991…and (3) is not contrary to public policy”.

32. Following their application to have Baby F’s adoption entered in the Registry of Foreign

Adoptions, it came as a shock to the couple to be informed by the Authority that there

were many difficulties in so doing. On 26th September 2012, after significant contact

between the couple and the Authority, the latter wrote to the couple indicating that it

intended to bring the matter before the High Court. During all this time the couple point

out that the Authority was aware that Baby F was integrating into and bonding with the

family – as was apparent from the post-placement reports carried out on behalf of the

Authority.

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33. Ultimately, the solicitors for the Authority wrote to the solicitors acting for the couple and

stated that the Authority was refusing to register the adoption and it was taking no steps

other than to notify the Health Service Executive that it was so refusing. Again, this

second couple say that this caused them enormous distress and concern. In addition to

the refusal, the communication to the HSE, the couple say, appeared to imply that their

care of Baby F required the attention of the HSE even though the couple had successfully

completed all adoption post-placement requirements as specified by the Authority. Once

more, their distress and concern is as understandable as it is understated.

34. Reference is made by the second couple, and indeed by the first couple, to a general

notice issued from the Mexican Embassy in Ireland in relation to Mexican adoptions

generally. In common with the first couple, the position is that they have not been

contacted by any agency in relation to any issues or investigations concerning children

adopted in Mexico. The first couple and the second couple say, and I accept, that there

has been no investigation concerning Baby K or Baby F in Mexico to their knowledge.

Once more, the second couple point out that the procedure adopted in the case of Baby F

complied in all respects with the requirements of the Adoption Act 1991 (as amended). As

previously indicated, a group of Mexican adoptions were identified as problematic after

the commencement of the 2010 Act. Some fifteen of the group of adoptions were

resolved because of the decision of Abbott J. in O’C v. Údarás Uchtála na hÉireann

[2014] IEHC 580. Again, insofar as Baby F is concerned the Authority has indicated that it would

not register her adoption as she was born after the Adoption Act 2010 came into force.

As in the case of Baby K the second couple agreed to pursue the Part 7 process procedure

with a view to regularising the position of Baby F in this jurisdiction. The Part 7 procedure

did not progress because of similar difficulties to those which arose in the case of Baby K.

35. Although Baby F does not have a sibling resident in Ireland she does have several cousins

of the same age with whom she is best friends and she is thriving in what is clearly a

stable and secure family unit and environment. Moreover, it is the position that the

second couple were very open concerning involvement by the birth mother – from the

outset. When they were in Mexico they were able to send some written questions to the

birth mother and they asked her whether she would like to continue contact with Baby F

or receive photographs of her. Although she declined she gave the couple various pieces

of information about herself that she wanted the couple to pass on to Baby F. The offer

to be open with the birth mother is a not insignificant feature of Baby F’s adoptive parents

approach to the adoption – as it reflects the desire on their part to put the welfare of

Baby F to the fore from the outset. And it is only proper to add that that desire is one I

see common to both couples in so far as the two children are concerned.

36. Taken together or taken separately the facts concerning both children and their adoptions

in Mexico offer no cause for concern insofar as the objectives of the Hague Convention

are concerned. Having said that, both cases do present the difficulty of deciding on the

consequence of the absence of a valid Article 23 certificate from the competent authority

when it would be wrong to allow the Convention be circumvented.

Page 11 ⇓

37. Insofar as the Central Authority in Mexico is concerned the position is explained as follows

on its website: -

‘In connection with Article 6, paragraph 2, and Article 22, paragraph 2, of the

Convention, the systems for Integral Family Development act as the sole Central

Authorities in each of the 31 federal units of Mexico, which are listed below. The

National System for Integral Family Development has exclusive jurisdiction within

the Federal District and subsidiary jurisdiction with the 31 federal units. The Legal

Department of the Ministry of Foreign Affairs acts as the Central Authority for the

receipt of documents from other countries.’

38. But it has not been as simple or clear as that. The Permanent Bureau sent out a

questionnaire on accredited bodies in the framework of the Hague Convention of 29th

May 1993 on the Protection of Children and Cooperation in Respect of Inter-Country

Adoption. This questionnaire was sent out at a time when the Permanent Bureau was

undertaking preparations for the third special commission meeting to review the practical

operation of the Hague Convention which meeting was to be held in The Hague in June

2010. The questionnaire was sent out in the context of the Permanent Bureau gathering

information for a new guide to good practice on accreditation. As pointed out in the

introduction to the questionnaire, in many countries, accredited bodies perform the

functions of central authorities in relation to particular adoptions under the 1993 Hague

Convention. The process of accreditation of bodies is one of the Convention’s safeguards

to protect children during the adoption process. The introduction to the questionnaire

also stated that it was intended, except where expressly requested that it not do so, to

place all replies to the questionnaire on the Hague Conference website. The answer which

Mexico gave to question number 3 in the questionnaire is worth quoting in full: -

“3. Have you informed the Permanent Bureau all of the details of bodies accredited by

your state, as required by Article 13? Is the information which is currently on The

Hague Conference Website up to date?

Answer: We have not used accredited bodies.

If your state has decided not to use accredited bodies, please explain the reasons

and indicate what has influenced the decision. Please answer any questions that

are relevant to your state’s situation.

Answer: Mexico has decided not to use accredited bodies, the reason being that in

our country there are 32 central authorities and taking into account the amount of

international adoptions that take place there is no need for accredited bodies as the

central authorities have the capability to deal with this matter.”

39. This reply seems to be at odds with the statement that the legal department of the

Minister of Foreign Affairs acts as the Central Authority for the receipt of documents from

other countries.

Page 12 ⇓

40. While it does now seem to be clear that the Central Authority in Mexico is the legal

department of the Ministry of Foreign Affairs it does appear nonetheless judging by the

answer to the questionnaire that there was some level of uncertainty on the point as late

as 2009 and indeed for some time after that judging by the evidence before this court.

41. Commenting on the situation in O’C v. Údarás Uchtála na hÉireann [2014] IEHC 580,

Abbott J. stated at para. 14: -

“This recital and the purported certification by the Mexican judge in the order is an

anomalous aspect of this case and some background to it is given by an undated

letter sent by the applicants to the individual members of the respondents board

after difficulties had emerged in relation to having the adoption of the child

registered in the Register of Foreign Adoptions from which it may be inferred that,

whereas the applicants did not receive notice of the Article 23 certificate

requirement of the Convention through the website, they had, through their

Mexican lawyer, found out about an Article 23 certificate requirement but were

assured that the Mexican judge could deal with same. This anomaly becomes more

complex when it is realised (as it was drawn to the attention of the court by counsel

for the applicants) that, in 1995, the Mexican Government reported to the working

committee on The Hague Convention that certain Mexican judges were competent

authorities for the purpose of issuing Article 23 certificates.”

42. When issues arose in relation to inter-country adoptions involving Mexican children after

the commencement of the 2010 Act the Adoption Authority of Ireland was in significant

contact with the Mexican Central Authority. Indeed, on 9th December 2011 a delegation

from the Adoption Authority of Ireland met with officials from the Mexican Central

Authority in Mexico City. A note of the events of the meeting is exhibited.

43. It appears that the actual identity of the Mexican Central Authority for Adoptions is the

Secretary for Exterior Relations or the Secretaria de Relaciones Exteriores (SRE). The

SRE is responsible for policy and issues key documentation certifying Hague compliance,

including the Article 23 certificate that the adoption or grant of custody occurred in

compliance with the Convention. The SRE implements the Hague Convention through the

national system for the full development of the family, or the Sistema Nacional de

Desarollo Integral de la Familia (DIF). The DIF is a public institution in Mexico in charge

of implementing national policies on all matters pertaining to the family, and the

implementation of domestic and inter-country adoptions resides in their purview, along

with final execution of adoptions through the legal system.

44. At the meeting in Mexico City on 9th December 2011 it is noted that; -

“The DIF representative described how the adoption process had evolved

worldwide, how the ratification of the Hague Convention imposed obligations on

Mexico as a sending country to co-operate with other contracting nations to

safeguard the rights of minors. He stressed that the Ministry of foreign Affairs was

the only official body which could receive documentation from other countries. He

Page 13 ⇓

further stressed that the documentation must go through the DIF in Mexico City

and that this had not always been the case and that confusion must be eliminated

and Hague adhered to.”

45. In detailing the situation and the position of the Adoption Authority in respect of both

Baby K and Baby F, its Director of Operations has sworn comprehensive affidavits which

are informative and helpful.

46. The Director of Operations points out that, as has already been eluded to by the High

Court in the O’C case, the Authority engaged in correspondence with the Irish Embassy in

Mexico and the Mexican Embassy in Ireland from early 2011 onwards in relation to some

19 cases. On 12th June 2012 the Mexican Embassy issued a third party note to the

Authority, confirming that the National Central Authority does not have the power to issue

a certificate under Article 23 of The Hague Convention in respect of the 19 adoptions at

issue, given the “irregularities” with the adoptions.

47. It is worth setting out the third party note in full: -

“the Embassy of Mexico presents its compliments to the Adoption Authority of

Ireland and has the honour to refer to the 19 cases of Mexican children adopted by

Irish couples and who have not been issued the certificate referred to in Article 23

of The Hague Convention for the Protection of Children and Co-Operation in respect

of inter-country adoptions. The Mexican authorities have sent this Embassy the

following:

(1) The procedures established by The Hague Convention for the Protection of

Children and Co-Operation in respect of inter-country adoptions, valid for

both countries is the instrument which determines that an adoption has been

arranged in a regular or irregular manner, and not what either the Mexican or

Irish authorities decide.

(2) The Mexican authorities and in particular the Central Authority in Mexico does

not have the powers under the Convention, to regularise migration matters in

the adoptive country of minors, to redress the existing inconsistencies in the

adoption proceedings made in infringement of the provisions set in the

Convention, but is impeded to issue the certificate referred to in Article 23 of

the International Instrument.

The above is regardless of the results of investigations carried out by the

Attorney General’s office and the responsibilities which may result from such

irregularities.

(3) If the Irish authorities wish to assist to regularise the situation it is their

prerogative and it should be in accordance with their legislation. However, it

would be deemed as strange if they were to seek to proceed with the

regularisation of migration of cases that are clearly in violation of the rules

Page 14 ⇓

and procedures contracted bilaterally. It would also be a concern, as it could

be construed as encouragement to violate Mexican procedures and then to

have them validated by Irish authorities. The Hague Convention contains no

provision to make up or improve the processes of adoption made outside its

jurisdiction in fact it presupposes that those procedures are only valid in the

Convention’s. However, the adopters could, under their own volition,

attempt to get judgments to remedy the mistakes which occurred in the

previous procedure and argue the case in the best interests of the child. This

might perhaps mean that the adoptions referred to the Mexican authorities

would be nullified and that they would have to restart the process through

the mechanism of The Hague. In this vein, the Mexican authorities should

not be obliged to provide the elements that enable the adopters to nullify

such decisions, but only to maintain official contact with the Irish authorities

for purposes of The Hague Convention, as set out in Article no. 4.

(4) The above comments are made independently of the conclusions that the

Attorney General’s Office or any other authority could reach, on cases in

analysis and administrative responsibilities that may distance themselves as

a result thereof.

(5) The wellbeing of the child must prevail over the multiple considerations.

Under the circumstances and given the social acclimatisation and the

familiarity of the children, it is not advisable to remove the children and

return them to Mexico but to keep them in Ireland. The children are the

victims here of procedural errors which occurred, therefore if the granting of

Irish citizenship is to occur this will be determined by the Irish authorities,

experts in Irish legislation.

The Embassy of Mexico avails itself of this opportunity to renew to the Adoption

Authority of Ireland the assurances of its highest considerations.

Dublin, 12th of June 2012.”

48. For Baby K and Baby F the possibility of starting from scratch with a view to exhausting

the Hague Convention procedure in Mexico and with a view to obtaining an Article 23

certificate from the Mexican Central Authority has not been an option, at least not for

Baby F. When the issue concerning recognition arose and when it became apparent that

the purported Article 23 certificate had not in fact issued from the Mexican Central

Authority it also became apparent that the policy in Mexico in relation to inter-country

adoptions permitted such adoptions in a limited number of scenarios, namely:

(a) minors from 5 years of age onwards;

(b) minors suffering from some form of incapacity (physical and/or mental);

Page 15 ⇓

(d) groups of siblings.

49. Insofar as Baby K is concerned and speaking theoretically this Mexican policy may permit

her inter-country adoption as she has a biological sibling living in Ireland whose

particulars are registered with the Authority as an inter-country adoption.

50. Whether or which, the practical reality is, as pointed out in the third party note from the

Embassy of Mexico, that it is not advisable to remove the children and return them to

Mexico. They should be kept in Ireland as they are, it is said, the victims of procedural

errors which occurred.

51. It is also apparent to me from the affidavit sworn by the Authority’s Director of

Operations that the incoming change in the law was something visible to both couples

before they travelled to Mexico. This cannot however detract from the fact that both

couples had engaged significantly with the predecessor of the Adoption Authority under

the 1991 Act over a considerable period before travelling to Mexico – and did then travel

during the very early stages of transition from the old to the new with their Declarations

and accompanying paperwork.

52. The difficulties which arose in relation to the group of inter-country adoptions from Mexico

in the early stages post Hague implementation in Ireland occurred against a backdrop of

serious concerns regarding alleged irregularities concerning inter-country adoptions

effected in Mexico. In early 2011 the Authority became aware of an investigation by the

Mexican National Agency for Family Development (DIF) into corruption in the adoption

process in the City of Rosarito in the State of Baja, California. The corruption did not

appear to be isolated to this area but also included adoptions to Irish couples elsewhere in

Mexico. The concerns raised were real concerns. One consequence of the concerns was

that the then CEO of the Authority wrote to the Mexican Ministry of Foreign Relations in

June 2011 and the manager of the Inter-Country Adoption Unit wrote to the DIF by email

on 26th July 2011, seeking clarification in relation to the application of Hague protocols in

Mexico. The letter of June 2011 specifically sought clarification, inter alia, as to whether

an Order from a Mexican court meets the requirements of Article 23 of The Hague

Convention. Information on the alleged irregularities in the adoption process in Baja,

California was also sought. A reply was received on 8th August 2011 to the letter June

2011 and a reply to the email was received on 26th July 2011. These replies provided

further details on the Mexican adoption procedure. It clarified that only children over five

years of age were eligible for inter-country adoptions in Mexico unless the minor in

question suffered from a disability or high cost illness or was part of a group of siblings.

The replies did not address issues in relation to the Court Orders purporting to certify

compliance with Article 23 or with the alleged irregularities in the adoption process.

There followed meetings and interactions between the Authority and the Mexican

authorities.

53. By letter dated 27th July 2011 two social workers from the HSE notified the Authority that

they were aware that prospective adopters were being matched with Mexican children,

before the children were born, during the third trimester of pregnancy. Such practices

Page 16 ⇓

are contrary to the provisions of the Hague Convention. The irregular practices were also

brought to the Authority’s attention by others, thus heightening the concerns. It was

because of these concerns that the representatives of the Authority travelled to and met

with the representatives of the Mexican National Central Authority on the occasion which I

have referred to above – the meeting taking place in Mexico City on 9th December 2011.

At that meeting the representatives from the Mexican National Central Authority also

indicated that they would review the group of adoptions in question and obtain a legal

opinion on their compliance with the Hague Convention. The NCA expressed concerns in

relation to the adoption of the children other than those falling into the most eligible

groups referred to above. The Mexican representatives also made it clear that newborn

babies were not generally available for inter-country adoption and they confirmed that

only the NCA could issue Article 23 certificates and then only where the adoptions were in

compliance with the requirements of the Hague Convention.

54. Despite the passage of time nothing further has occurred in relation to the Mexican

adoptions of Baby K and Baby F. It seems clear that the Mexican court orders remain

intact and there is no evidence before the court to suggest anything other than Baby K

and Baby L being the subject of “procedural errors which occurred” thus preventing the

recognition of their adoptions in Ireland by reason of the absence of an Article 23

certificate from the Mexican National Central Authority. The evidence does satisfy me that

both couples did their best to satisfy The Hague Convention requirements in this regard

and believed that they had done so. It is clear at this stage that only the National Central

Authority in Mexico can certify Article 23 compliance but I am satisfied that that was far

from clear to all stakeholders at the time we are speaking of.

55. I should say also that I am satisfied on the evidence that the Mexican adoptions of Baby K

and Baby F would have been recognised in Ireland under the 1991 Act and that the only

reason for the difficulty which now arises is the apparent non-compliance with the 2010

Act insofar as the Article 23 certificate requirement is concerned. Nor can it be ignored

that both children travelled with their adoptive parents to Ireland with both children

having the benefit of Mexican passports issued to them and the permission to enter and

reside in Ireland as they have done since entry.

The Vested Rights Argument

56. Section 27 of the Interpretation Act 2005 provides:

“(1) Where an enactment is repealed, the repeal does not—

(a) revive anything not in force or not existing immediately before the repeal,

(b) affect the previous operation of the enactment or anything duly done or

suffered under the enactment,

under the enactment,

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence

against or contravention of the enactment which was committed before the

repeal, or

Page 17 ⇓

(e) prejudice or affect any legal proceedings (civil or criminal) pending at the

time of the repeal in respect of any such right, privilege, obligation, liability,

offence or contravention.

(2) Where an enactment is repealed, any legal proceedings (civil or criminal) in respect

of a right, privilege, obligation or liability acquired, accrued or incurred under, or an

offence against or contravention of, the enactment may be instituted, continued or

enforced, and any penalty, forfeiture or punishment in respect of such offence or

contravention may be imposed and carried out, as if the enactment had not been

repealed.”

57. The precise meaning of this section of the Interpretation Act has been considered in

several cases.

58. In O’Sullivan v. Superintendent in Charge of Togher Garda Station [2008] I.R. 212 the

issue arose for consideration because of a change in the Road Traffic Legislation. On 5th

March 2007 s. 7 of the Road Traffic Act 2006, which provided for a substituted provision

for s. 29 of the Road Traffic Act 1961, was commenced. The previous s. 29 of the 1961

Act provided that a person who received a consequential disqualification order of not less

than two years on conviction for a road traffic offence was entitled to apply for its removal

after the expiration of nine months. The substituted s. 29 of the 1961 Act, as substituted

by s. 7 of the 2006 of provides, inter alia, as follows: -

“(1) This section applies to a person in respect of whom a disqualification order has

been made, whether before or after the commencement of s. 7 of the Road Traffic

Act 2006, disqualifying the person from holding a licence during a period of more

than 2 years, and which is the first such order made in respect of that person

within a period of 10 years.

(2) A person to whom this section applies may, at any time following the completion of

one-half of the period specified in the disqualification order, apply to the court

which made the order, for the removal of the disqualification.”

59. Both applicants in O’Sullivan were disqualified from driving for two years on conviction by

the District Court prior to the substitution of s. 29 of the 196 by s. 7 of the 2006 Act. In

November and December 2007 respectively, both applicants applied to the District Court

for the restoration of their driving licences.

60. The District Court, by way of consultative cases stated, sought the opinion of the High

Court as to whether the jurisdiction to remove disqualifications in s. 29 of the Act of 1961

was affected by the substitution of the provisions by s. 7 of the Act of 2006, so as to

deprive the District Court of its discretion to remove a disqualification order for two years

that was imposed prior to the commencement of the section.

61. The applicants submitted to the High Court, inter alia, that by virtue of s. 27, the repeal

of the former s. 29 of the Act of 1961 did not and could not affect the previous operation

of the enactment or anything duly done or suffered under the enactment and did not or

Page 18 ⇓

could not affect any right, privilege, obligation or liability acquired, accrued or incurred

under the Act.

62. The High Court in answering the cases stated found: -

(1) that notwithstanding the repeal of the old s. 29 of the Act of 1961, the applicants’

rights to apply for the restoration of their driving licences once a period of nine

months had elapsed had not been removed and the applicants were entitled to

apply to the District Court for restoration.

(2) That the legislature, in enacting s. 27(1) (c) and s. 27(2) of the Interpretation Act,

2005 clearly saw a distinction between a right acquired and a right accrued. The

applicants acquired the right to apply for the restoration of their driving licences on

their conviction and consequent disqualification and the right then accrued after the

passage of nine months. Although the applicants right to apply for restoration

accrued after the repeal of the old s. 29 of the Act of 1961, they acquired the right

to apply prior to its repeal and therefore maintained their entitlement to apply to

the District Court for the restoration of their driving licences.

63. It is worth quoting an extract from the judgment of Dunne J., at p. 222 in this regard: -

“Counsel for the respondent placed considerably emphasis on the provision of s.

27(1)(c) of the Interpretation Act 2005 and in particular on the use of the word

“accrued” in that subsection. This is not surprising in the context of the second

question in the case of the second named applicant. I do not disagree with the

contention that the right to apply to the District Court under the old s. 29 does not

accrue until after the period of nine months has elapsed. However, I think that this

ignores the other words in s. 27(1)(c) which refers to ‘any right, privilege,

obligation or liability acquired, accrued or incurred under the enactment’. It seems

to me that following their conviction, the applicants in these cases, having suffered

the consequential disqualification, acquired the right to bring an application for the

restoration of the driving licence. In the course of his written submissions, Counsel

for the respondent made the comment “there is a clear distinction to be made

between the mere possession of a right or privilege and the possession of a right or

privilege that has actually accrued”. However, it seems to me that, whilst there is

such a distinction, the wording of s. 27(1) (c) of the Interpretation Act 2005

provides for that distinction by the use of the word ‘acquired’. The word ‘acquire’ is

defined, in the Concise Oxford dictionary as meaning ‘come into possession of’. I

am of the view that the applicants acquired the right or came into possession of the

right to apply for the restoration of their driving licences on their conviction and

consequential disqualification. The Legislature in enacting s. 27(1)(c) and also s.

27(2) clearly saw a distinction between a right acquired and a right accrued. I

accept the argument of the applicants that the right to apply arose following

conviction and that the right then accrued after the elapse of nine months.

Page 19 ⇓

As I have indicated, Counsel for the respondent has submitted that the relevant

section of the Interpretation Act 2005 in the context of these cases is s. 27(1)(c). If

Counsel for the respondent was correct in his submissions to the effect that s.

27(1)(c) was the relevant provision then, that seems to me to set at nought the

provisions of s. 27(1)(b) which provides that the repeal does not affect the previous

operation of the enactment. If Counsel for the respondent was correct in his

contentions then clearly the effect of s. 7 of the Road Traffic Act, 2006 in repealing

the old s. 29 is that it does affect the previous operation of the enactment. If that

were the intention of the legislature one would have expected that to be done in

clear and express terms. The previous operation of the enactment permitted those

convicted of an offence and who suffered a consequential disqualification to apply

for the restoration of their licences. The application could not be made before the

expiration of the period of nine months but it was an entitlement that existed

following conviction. I am therefore satisfied that the provisions of s. 27(1)(b) and

64. The High Court decision of Costello J. in J. Wood & Company Limited v. Wicklow Co.

Council [1995] 1 I.L.R.M. 51 is another case where the issue of acquired rights arose in

the context of the then relevant section of the Interpretation Act 1937. Section 21(1)(c)

of the 1937 Act provided that when the Oireachtas repealed a portion of a previous

statute then, unless the contrary intention appeared, such repeal would not affect any

right acquired under the portion of the statute so repealed.

65. Part 6 of the Local Government (Planning and Development) Act 1963 was repealed by s.

3 of the Local Government (Planning and Development) Act 1990. New provisions for

determining the right to and the amount of compensation payable when a decision to

refuse permission to develop was delivered were introduced in the 1990 Act. The new Act

came into operation on 10th June 1990 and any decision made after that date refusing

permission to develop was to be subject to the new compensation provisions of 1990 Act.

This was to be so whether the application to which the decision related had been made

before or after the new Act had come into force, the relevant law being the law in force

when the decision was made. No statutory right to compensation could arise until a

decision was made. The applicants in the Wood case had on 10th June 1990 applied for

development permission. However, no decision was made on that application by that

date and they had therefore acquired on that date no right to compensation under 1963

Act. The right to compensation only arose when the decision to refuse permission was

made at which time Part 6 of the 1963 Act was repealed and the 1990 Act was in force.

The situation in that case is easily distinguished from the situation which arose in

O’Sullivan v. Superintendent in Charge of Togher Garda Station and indeed from the

circumstances of this case. This issue was also considered in the case of Minister for

Justice, Equality & Law Reform v. Tobin [2012] 4 I.R. 148. In that case the respondent

was convicted in his absence in Hungary of “the misdemeanour of violation of the rules of

public road by negligence causing death”. The Hungarian authorities issued a European

Arrest Warrant for the arrest and surrender of the respondent who had returned to

Ireland prior to his trial in Hungary. The applicant sought an order surrendering the

Page 20 ⇓

respondent to the Hungarian authorities. The High Court (per Peart J.) refused to grant

the order of surrender on the grounds that the respondent had not “fled” Hungary and

therefore did not come within the terms of s. 10 of the Act of 2003 as it was then

enacted, and that decision was upheld on appeal to the Supreme Court.

66. Section 10 of the 2003 Act was subsequently amended by s. 6 of the 2009 Act, inter alia,

in order to remove the requirement that a person the subject of a surrender application

have “fled” the issuing State. A new European Arrest Warrant was subsequently issued in

respect of the respondent and the applicant applied again for an order of surrender. The

respondent objected to the application for his surrender on several grounds. One of the

grounds was that s. 27(1)(b) of the Interpretation Act 2005 meant that s. 10 of the 2003

Act, as amended, could not be interpreted in a way that permitted the applicant to undo

what had already been decided under the previous provision by way of re-litigation under

the amended section. He further submitted that he had acquired the right or privilege to

finality of the application for surrender and that the repeal of the “fled” requirement could

not, under s. 27(1)(c) of the 2005 Act affect that right or privilege retrospectively.

67. The respondent was unsuccessful in the High Court and it (Peart J.) ordered his

surrender. However, the Court did certify that its decision involved points of law of

exceptional public importance, on which it was desirable in the public interest that an

appeal should be taken.

68. A majority of the Supreme Court held in favour of the respondent on a number of

grounds. Amongst the findings of the Supreme Court, in allowing the appeal, was the

finding that while the dismissal of an application for extradition on technical grounds did

not constitute a res judicata so as to prevent a second application, the second application

might still be refused on the ground that it amounted to an abuse of process or an

infringement of a right acquired under s. 27(1)(c) of the Interpretation Act 2005.

69. On this point, the following extract of the judgment of Hardiman J. in Tobin is worth

noting at p. 305:-

“It was agreed that this issue turned on the interpretation of s. 27 of the

Interpretation Act 2005. Insofar as relevant to this provision it states-

(1) Where an enactment is repealed, the repeal does not - …

incurred under the enactment, …

(2) Where an enactment is repealed, any legal proceedings (civil or criminal) in

respect of a right, privilege, obligation or liability acquired, accrued or

incurred under, or an offence against or contravention of, the enactment …”

But s. 4 of the same Act provides: -

Page 21 ⇓

“(1) A provision of this Act applies to an enactment except insofar as the contrary

intention appears in this Act, in the enactment itself or, where relevant in the

Act under which the enactment is made.”

“In the present case, I agree that it can properly be said that the outcome of the

Minister for Justice, Equality & Law Reform v. Tobin [2007] IEHC 15 and

[2008] IESC 3, [2008] 4 IR 42 proceedings was to confer or create a right, being a right

not to be extradited or surrender to Hungary so long as Irish law retained the “fled”

provision that was a right, as opposed to a privilege or immunity. It is quite

different from a right never to be forcibly rendered to Hungary, despite changes in

the law: the contrary was not contended. I have read the ample discussion on this

point contained in the judgment of O’Donnell J. and I agree with it.

Once the effect of the Minister for Justice, Equality & Law Reform v. Tobin

[2007] IEHC 15 and [2008] IESC 3, [2008] 4.I.R. 42 is established as having been to

create a right, however limited or transitory, the provisions of the Act of 2005 are

of decisive importance. There is no doubt that the effect of the Act of 2009 is to

permit, in a future case, even a person who has not ‘fled’ to be sent back to a

jurisdiction in the position of Hungary in this case. But in relation to the appellant,

who had, prior to the Act of 2009 acquired a right of the sort specified above, s.

27(1)(c) of the Act of 2005 provides a presumption that the right is not interfered

with by new legislation.

In the course of argument on this appeal it became clear that s. 6(c) (ii) of the Act

of 2009 was a specific response to the judgment of this Court in Minister for Justice,

Equality & Law Reform v. Tobin [2007] IEHC 15 & [2008] IESC 3, [2008] 4.I.R. 42.

Counsel for the Central Authority was specifically asked whether the amendment

was targeted at the appellant and he rejected that proposition. Accordingly, the

provision is of general application in both wording and intent so that the section

mentioned does not contain any clear expression of intention to remove the specific

right acquired by the appellant. But that is what it would have to do in order to

disapply the presumption contained in s. 27 of the Act of 2005 on the basis of the

general provisions of s. 4 of that Act.

Accordingly, I consider that the Act of 2009 amending the Act of 2003 does not

have the effect of removing the right vested in the appellant as a result of the

decision in Minister for Justice v. Tobin [2007] IEHC 15 & [2008] IESC 3,

[2008] 4.I.R. 42.

70. In the same decision O’Donnell J. had the following to say in relation to s. 27 of the

Interpretation Act 2005: -

The third and related basis upon which it was argued that the decision in Minister

for Justice v. Tobin [2007] IEHC 15 & [2008] IESC 3, [2008] 4.I.R. 42 had the

effect of preventing his surrender under the amended provisions of the Act of 2003,

was by reference to s.27 of the Interpretation Act 2005 which provides that:-

Page 22 ⇓

‘(1) Where an enactment is repealed, the repeal does not –

…

the enactment’

This provision does not stand alone. It must be read alongside the provisions of s.4

of the Act of 2005 which make it clear that the presumptions and rules set out

under that Act apply to any enactment “except insofar as the contrary intention

appears in this Act, in the enactment itself, or relevant in the Act under which the

enactment is made”. Accordingly, s.27(1)(c) of the Act of 2005 creates a

presumption against the removal of any right, privilege, obligation or liability, which

presumption can be rebutted by demonstrating that the Oireachtas did indeed

intend to remove the right, privilege or obligation in question.

71. In the Supreme Court decision in Minister for Justice v. Bailey [2012] 4 IR 1, O’Donnell

J. at p. 121 although in part dissenting from the judgment, had the following to say in

relation to s. 27 of the Interpretation Act 2005:-

“In classic common law theory a person can be said to have a right to do that which

is not specifically prohibited by law. Accordingly since most Acts of the Oireachtas

change the legal position, they will necessarily interfere with existing rights (in that

sense) and that indeed is their purpose. The presumption contained in s. 27(1)(c)

of the Interpretation Act 2005 is not a presumption against such effect: rather it is

a presumption against interference with “right … acquired, accrued or incurred” or

what, in the language of the cases can be said to be “vested rights”. Thus Bennion

on Statutory Interpretation (4th ed., Butterworths Lexis Nexis, 2002) explains at p.

259 the identical provisions of s. 16(1)(c) of the Interpretation Act 1978, as

follows:- “The right etc. must have become in some way vested by the date of

repeal, i.e. it must not have been a mere right to take advantage of the enactment

now repealed.” The same point is made in Craies On Legislation (9th ed., Sweet

and Maxwell, 2008), at para. 14.4.12, p. 585:- ‘The notion of a right accrued in

s.16(1)(c) requires a little exposition. In particular, the saving does not apply to a

mere right to take advantage of a repealed enactment (clearly, since that would

deprive the notion of a repeal of much of its obvious significance). Something must

have been done or have occurred to cause a particular right to accrue under a

repealed enactment’. Accordingly, in order to succeed in this argument, the

appellant must show two things: first, his entitlement after the 1st January, 2004,

to have a court refuse to surrender him on the grounds set out in s. 42(c) of the

Act of 2003 was a “vested right” or a right which could be said to be “acquired,

accrued” at the time of the repeal of s. 42(c); and second, that the Oireachtas has

not used clear words to rebut the presumption. The question in any given case of

what constitutes a vested right for the purposes of this section is often a difficult

one. As Lord Rodger points out at paras. 195 and 196 of his speech in Wilson v.

First County Trust Ltd (No. 2) [2003] UKHL 40, [2004] 1 AC 816, the presumption

Page 23 ⇓

normally falls to be considered in relation to legislation which alters rights only for

the future. Since, as he says at para. 195, p. 880, it is more likely that “parliament

intended to alter vested rights in this way than that it intended to make a

retroactive change, in practice the presumption against legislation altering vested

rights is regarded as weaker than the presumption against legislation having

retroactive affect”. At para. 196, p. 880 Lord Rodger observes that “[t]he courts

have tried, without conspicuous success, to define what is meant by ‘vested rights’

for this purpose”. It is apparent from his discussion of the concept, and that

contained in the helpful decision of the Court of Appeal of England and Wales in

Chief Adjudication Officer v. Maguire [1999] 1 WLR 1778 that the decisions in the

reported cases are not all easy to reconcile. Lord Rodger observed that this might

lend weight to the criticism that the reasoning in such cases was essentially

circular: courts are inclined to attach the label ‘vested’ to those rights which they

conclude should be protected from the effect of the new legislation. In essence it

appears that there is a dual inquiry: does it appear that at the time the right was

granted that it was intended that it should be permanent; and the closely related

inquiry as to whether it is unfair now to remove it, even for future events. In some

cases these may be difficult concepts to apply with precision.”

72. Ultimately, when looking at what is or is not a “vested right” it seems to me that a

preliminary enquiry to be made is to identify whether something of substance is being

claimed as a vested right. One is not speaking of vague or speculative or aspirational

rights but rather something clearly identifiable and meaningful. It does not seem to me

that the word “permanent” when used in relation to vested rights should be interpreted as

meaning that all vested rights must amount to something that will last forever. It may be

that some such rights fall into that category and that some such rights will be of indefinite

duration. It may also be that some such rights are of finite duration but nonetheless

rights of substance and meaning and value. After all the right may only be required for a

specific and finite purpose. In the passage quoted earlier Hardiman J. refers to ‘a right

however limited or transitory….’

73. A useful illustration of this point is to be found in the judgment of Buckley L.J. in the

Supreme Court Judicature Court of Appeal (Chancery Division) on appeal from the High

Court of Justice Chancery Division (Patents Court) delivered in the Royal Courts of Justice

on Wednesday the 23rd April, 1980 in the case entitled: In the Matter of the Patents Act,

1949 and 1977 and In the Matter of the Application of Convey Limited for the Restoration

of Letters Patent No. 1.314,012. The case concerned the Patents Act 1949 and the

Patents Act 1977. The relevant provisions of the 1977 Act came into force on the 1st

June, 1978. Both Acts provided for the restoration of a lapsed patent provided certain

criteria were met. The criteria under the 1977 Act were more stringent than those under

the 1949 Act. Under the 1949 Act the application for restoration could be made at any

time within three years from the patent lapsing. The Patent in question lapsed in April

1978. Under the 1977 Act the application had to be made within one year after the

patent lapsing. The patents in this case lapsed in April 1978. In addition, the criteria to

be satisfied in order to entitle the applicant to have the patent restored were different in

Page 24 ⇓

the two Acts. Under the 1949 Act what the applicant had to show was that the failure to

pay the renewal fee was unintentional and that there had been no undue delay in making

the application for restoration. If the applicant satisfied the controller in those two

respects, then he was entitled to have his patent restored as the language in the relevant

section of the Act was mandatory. The patentee, upon realising that the patent had

lapsed, made an application for its restoration which was framed as an application under

the 1977 Act. The new provision had come into force on 1st June 1978.

74. Under s. 28 of the 1977 Act the different criteria required the controller of patents to be

satisfied that the proprietor of the patent took reasonable care to see that any renewal

fee was paid within the prescribed period and that the fees were not so paid because of

circumstances beyond the control of the applicant. Thus, it was a matter of considerable

importance to the applicant whether the application fell to be entertained under s. 27 of

the 1949 Act or under s. 28 of the 1977 Act. The controller heard and determined the

case on the footing that the Act of 1977 was the appropriate Act under which to entertain

the application. On appeal, Whitford J. held that that view was mistaken and that the

application fell to be dealt with under the 1949 Act. That decision of Whitford J. was

appealed and the judgment of Buckley L.J. is the decision on that appeal.

75. The question on appeal centred principally upon the construction and effect of the

transitional provisions contained in the 1977 Act.

The following extract from the judgment of Buckley L.J., at p. 7 shows this ; -

“Section 16(1) of the Interpretation Act of 1978 provides that without prejudice to

Section 15- where an Act repeals an enactment the repeal does not, unless the

contrary intention appears… “(c) affect any right, privilege obligation or liability

acquired, accrued or incurred under that enactment… (e) affect any investigation,

legal proceeding or remedy in respect of any such right, privilege, obligation,

liability, penalty, forfeiture or punishment; any such investigation, legal proceeding

or remedy may be instituted, continued or enforced, and any such penalty,

forfeiture or punishment may be imposed as if the repealing act had not been

passed”.

76. Then, having discussed the cases of Director of Public Works v. Ho Po Sang & Ors.

[1961] AC 901 and Free Lanka Insurance Company Limited v. Ranasinghe [1964] A.C. 541,

Lord Justice Buckley went on to say at p. 12; -

“……those two cases draw the distinction between what can be called an accrued

right and what is no more than the hope of obtaining some discretionary remedy.

In the present case it seems to me that the right of the applicants to require their

patent to be restored, provided that they made their application within the three

years limited by the 1949 Act, and established that the failure to make the payment

of the renewal fee had been unintentional and that there had been no undue delay

in their making their application, was a right which should be recognised as a right

which had accrued to them in law before the commencement of the 1977 Act.

Page 25 ⇓

Accordingly, it seems to me that this is a case to which Section 16 of the

Interpretation Act of 1978 applies, unless it can be said that the contrary intention

appears in the Act of 1977.

For the reasons which I have already given, it seems to me that no such contrary

intention does appear in the Act; accordingly, I think that the learned Judge

reached the right conclusion in holding that this was a case which was proper to be

dealt with under the provisions of the 1949 Act, and not a case which should be

dealt with under the provisions of the 1977 Act. For these reasons, I would dismiss

this appeal.”

77. The advice of the Privy Council in the Free Lanka Insurance Company Limited v.

Ranasinghe [1964] A.C. 541 case, at p. 552 is also worth noting. The case arose from a

road traffic accident in Ceylon where a lorry driver collided with the respondent’s car. It

was beyond doubt that the accident was a result of the negligence of the lorry driver and

the Supreme Court of Ceylon accordingly awarded damages. ‘At that time the law in

Ceylon provided that the user of a motor vehicle must be insured as regards injuries

resulting to third parties from accidents of the kind which occurred in this case – what are

generally called third party risks’. Under the legislation in Ceylon at the time, a third party

was given the right to claim payment of damages. The point, of relevance to the case at

issue, was the repeal of the relevant Ceylon legislation in force at the time of the collision

but before the decrees that had been made in favour of the respondent in the relevant

courts and the effect of this on liability in the case. This essentially concerned a transition

between the 1938 Motor Car Ordinance and the Motor Traffic Act 1951. At p. 552, the

Privy Council said: -

“The distinction between what is and what is not ‘a right’ must often be one of

great fineness….The respondent had against the appellants something more than a

mere hope or expectation…he had in truth a right, within the contemplation of

s.6(3)(b) of the Interpretation Ordinance, under s.133 of the Ordinance of 1938

although that right might fairly be called inchoate or contingent”.

78. On any view of the facts here it does seem right to acknowledge the force of the

argument that the vested rights were inchoate until a date after the commencement of

the 2010 Act. That does not however impact upon the existence of the vested rights and

the entitlement of both couples to have those vested rights recognised in law and given

effect, in the absence of anything in the legislation to show an intention to remove those

vested rights.

79. Let us turn then to the timeline or chronology here.

PP/YY

04/2006

Application for assessment of eligibility and suitability

02/08/2006

Application acknowledged by the Authority’s predecessor

24/11/2009

Adoption assessment

Page 26 ⇓

24/02/2010

21/03/2010

02/08/2010

06 & 19/08/2010

20/08/2010

29/09/2010

01/10/2010

12/10/2010

15/10/2010

25/10/2010

31/10/2010

01/11/2010

02/11/2010

03/11/2010

17/11/2010

22/11/2010

12/2010

06/12/2010

28/12/2010

01/01/2011

04/01/2011

11/01/2011

Declaration of eligibility and suitability (“DES”)

First contact with Mexican lawyer

Signed letter of acceptance

Letters to PACT advising of intention to travel and requesting

documents

Letter from Authority headed “to whom it may concern”

Email to Authority requesting documents for Mexican dossier

Letter from Authority headed “to whom it may concern”

Email to Authority requesting clarification on the law changing

Letter to HSE requesting documents for Mexican dossier

Reply to email of 12/10/2010 and phone call

Letters to PACT advising of intention to travel and requesting

documents

Adoption Act 2010 commenced

Agreement to post-placement assessments

Letter to Authority advising of intention to travel to Mexico and

seeking DES renewal

Travel to Mexico

Child placed with YY/PP

Mexican statutory declaration sworn

Granted status of “temporary residents”

Email to Authority stating “in Mexico completing our adoption”

and chasing renewal of DES

Letter giving immigration clearance

Letter from Mexican lawyer to Authority

Email from Authority

Page 27 ⇓

08/02/2011

09/02/2011

15/02/2011

17/02/2011

21/02/2011

14/03/2011

10/05/2011

13/05/2011

05/2011

29/05/2011

02/06/2011

05/06/2011

15/09/2011

28/03/2012

16/09/2012

26/02/2013

28/03/2013

26/02/2015

ZW/XM

20/02/2007

18/06/2007

02/2009

17/04/2009

01/05/2009

Second DES

Letter from Authority headed “to whom it may concern”

Email from Authority

Letter from giving immigration clearance

Application for adoption permit to Interior Ministry

Psychological assessments

Birth mother consents in court

Mexican adoption

Letter received from Desarrollo Integral de La Familia

Paediatric assessment for passport

Adoption decree received and child’s birth certificate issued

Child’s passport issued

Arrival in Ireland

Application for entry on the Register of Intercountry Adoptions

(“the Register”)

Post-placement report

Post-placement report (erroneously dated 2010)

Post-placement report

Authority refuses to enter adoption

Post-placement report

Letter from Authority refusing entry after O’C judgment

Application for assessment of eligibility and suitability

Application acknowledged by the Authority’s predecessor

Preliminary application to Mexican adoption agency

Sent dossier to Mexico

Adoption assessment

Page 28 ⇓

26/05/2009

23/02/2010

02/03/2010

07/2010

9 & 16/08/2010

01/11/2010

01/2011

16/01/2011

25/01/2011

27/01/2011

13/02/2011

23/02/2011

24/03/2011

01/04/2011

17/05/2011

02/06/2011

17/06/2011

24/06/2011

28/06/2011

06/07/2011

27/08/2011

11/10/2011

DES

Application for extension of DES and response requesting

affidavit

Statutory Declaration confirming application to adopt a child

from Mexico

First match with birth mother

Agreement to post-placement assessments

Adoption Act 2010 commenced

Second match with birth mother

Letter to Authority advising of intention to travel and request for

immigration clearance

Renewed DES collected stated to be pursuant to Section 63 of

the Adoption Act, 2010

Letter from Authority headed “to whom it may concern”

Travel to Mexico

Child placed with XM/ZW

Birth mother consents in court

Interview by Mexican authorities

Mexican adoption

Article 23 certificate issued

Paediatric assessment

Adoption decree received and child’s birth certificate issued

Child’s passport issued

Letter providing immigration clearance

Arrival in Ireland

Application for entry on Register

Post-placement visit – report dated 25/10/2011

Page 29 ⇓

27/01/2012

Response from Authority about application for entry

15/05/2012

Post-placement visit – report dated 20/06/2012

28/02/2013

Authority refuses to enter adoption

15/04/2013

Post-placement visit – report dated 01/05/2013

21/10/2013

Post-placement visit – report dated 04/12/2013

23/04/2015

Letter from Authority refusing entry after O.C.

80. The declaration of eligibility and suitability along with the extensions are exhibited in

respect of both couples. The declaration in respect of the first couple is dated the 24th

February 2010 and the declaration in respect of the second couple is dated the 26th May

2009. Both are in a similar format. The declaration is provided on an official embossed

style A4 page with the “Harp” at the top – and reads as follows: -

“DECLARATION

AN BORD UCHTÁLA – THE ADOPTION BOARD

Application number …….

Adopters: ……

Address:

Co.

An Bord Uchtála (the Adoption Board) having received an application from … and …

(his wife) for a declaration as to their eligibility and suitability to effect an adoption

outside the state and having had regard to a report, carried out by the pursuant

to s. 8 of the Adoption Act 1991 and dated……………, 2009, a copy of which is

attached, hereby declares pursuant to Section 5 (1)(iii)(ii) of the Adoption Act 1991

that it is satisfied: -

(1) That they are eligible to adopt by virtue of Section 10 of the Adoption Act, 1991,

and

(2) That they are suitable to adopt by virtue of Section 13 of the Adoption Act, 1952.

This declaration shall only apply in relation to an adoption effected during a period

of 12 months from the date hereof.

Dated:

day of

200

Given under the official seal of the Board.

Page 30 ⇓

_______________

Kiernan Gildea

Registrar.”

81. In the case of PP and YY the letter giving immigration clearance dated 1st January 2011 is

worth quoting in full: -

“I refer to the case of JM and BL (his wife) of

Co.

who have been

issued with a declaration by An Bord Uchtála (the Adoption Board) dated the 24th

of February 2010 as to their suitability and eligibility and stating:

(1) That they are eligible to adopt one child only by virtue of Section 10 of the Adoption

Act, 1991, and

(2) that they are suitable to adopt one child only by virtue of Section 13 of the

Adoption Act, 1952.

The above mentioned declaration shall only apply in relation to an adoption effected

during a period 12 months from the date on which the declaration was issued.

This is to confirm that the Irish immigration authorities will permit the entry into

the state of one child legally adopted under Mexican law, during the period for

which the declaration is valid. A separate entry visa for the child will not be

required by the Irish authorities. Under an Adoption Order being made by the

Adoption Board, in a case in which the adopter(s) are Irish citizen(s) the child, if

not already an Irish citizen, shall be an Irish citizen and can remain in the state

indefinitely thereafter.

Permission to enter the state is subject to the child being in the company of an

adoptive parent and that such parent is in possession of the adoption papers and

passport in respect of the child, for presentation to the immigration authorities at

the port of entry.

This document is to be surrendered to an Immigration Officer on arrival at an Irish

port of entry.

_____________

Marie Madigan

Foreign Adoption Unit, Immigration Services Section 1st January 2011.”

82. It is true that the similar immigration clearance letter which issued and was dated 17th

February 2011 did refer to s. 33 and s. 34 of the Adoption Act 2010.

83. Insofar as the second couple is concerned the immigration clearance “To whom it may

concern” letter reads as follows:

Page 31 ⇓

“I refer to the case of Z.W. and X.M. of

in the County

, who have

been issued with a declaration by Údarás Uchtála Na hÉireann – (the Adoption

Authority of Ireland) to expire on the 31st day of October, 2012 as to their

suitability and eligibility and stating:

That they are eligible to adopt one child only by virtue of s. 33 of the Adoption Act,

2010,

That they are suitable to adopt one child only by virtue of s. 34 of the Adoption Act,

2010.

The above mentioned declaration shall only apply in relation to an adoption effected

during a period of 24 months from the date set out and the declaration issued on

the 25th January, 2011.

This is to confirm that the Irish immigration authorities will permit the entry into

the State of one child legally adopted under Mexican law, during the period for

which the declaration is valid. A separate entry visa for the child will not be

required by the Irish authorities. Under an adoption order being made by the

adoption authority of Ireland, in a case in which the adopter(s) are Irish citizen(s),

the child, if not already an Irish citizen, shall be an Irish citizen and can remain in

the State indefinitely thereafter.

Permission to enter the State is subject to the child being in the company of

adoptive parent and such parent is in possession of the adoption papers and

passport in respect of the child, for presentation to the immigration authorities at

the port of entry.

This document is to be surrendered to an immigration officer on arrival at an Irish

port of entry.

___________________

Sean Ryan

Foreign Adoption Unit

Immigration Services Section

28th January, 2010”

84. It will be noted that this letter is dated the 28th January 2010 and refers to the Adoption

Act 2010 which did not come into force until the 1st November, 2010. The only

explanation for this is a typographical error and that the 28th January 2010 should read

the 28th January 2011 – which ties in with the actual chronology of the events as they

transpired.

Page 32 ⇓

85. There is another letter from the Adoption Authority of Ireland which is dated the 27th

January 2011 and this is exhibited at “ZW 16”. This letter is entitled “To whom it may

concern” and reads as follows:

“Údarás Uchtála Na hÉireann – the Adoption Authority of Ireland is a statutory

independent body appointed by the government of Ireland. It is the central

authority in Ireland for the administration of the Irish legal adoption system. The

authority has the power to make adoption orders on the application of a person or

persons who wish to adopt a child. Under s. 40 and 63 of the Adoption Act, 2010,

the Irish Adoption Authority has the legal authority to grant declarations of

eligibility and suitability to persons intending to adopt. The aforementioned

declaration is the official document which indicates that the bearer(s) is/are suitable

and eligible to adopt abroad.

I confirm that the Health Service Executive is a body entitled to arrange for the

placement of children for adoption and, under s. 37 of the Adoption Act, 2010, to

assess persons as to their suitability to adopt.

I can confirm that in accordance with the above mentioned Act, the Health Service

Executive carried out an assessment as to the suitability of the bearer(s). Having

had regard to the report of the assessment furnished in their case, the Adoption

Authority made a declaration of eligibility and suitability pursuant to the Adoption

Acts, 2010 and the said person(s) is/are eligible and suitable to adopt.

In accordance with the Adoption Act, 2010 the Adoption Authority maintains a

Irish law to a foreign adoption. The bearer(s) is/are entitled to seek an entry in the

Further, in accordance with s. 57 of the Adoption Act, 2010, a foreign adoption

granted to persons ordinarily resident in Ireland is deemed to be effected by a valid

adoption order if the following requirements are satisfied –

1. As having been effected in accordance with The Hague Convention on Intercountry

Adoption (1993) OR

2. The adoption must be a “foreign adoption” as defined in s. 1 of the Adoption Act,

1991 as it read on 30 May, 1991 and therefore satisfy the conditions set out in that

definition and

3. Is not contrary to public policy.

The Board shall exercise its discretion in respect of an entry in the register upon

receipt of an application.

___________________

Adrian Martin

Page 33 ⇓

Adoption Authority of Ireland

27th January, 2011”

86. When I consider the legal authorities and the provisions of the Adoption Act 1991 along

with the provisions of the Adoption Act 2010 I am driven to the conclusion that the

declaration of eligibility and suitability vests clear rights in the bearers of that declaration.

It is a formal official document issued pursuant to statute and it has clear, important and

valuable consequences for the bearers. Indeed, to repeat just one part of the letter just

quoted from the Adoption Authority of Ireland dated the 27th January 2011 concerning

the declaration of eligibility and suitability:-

“The bearer(s) is/are entitled to seek an entry in the register of intercountry

adoptions upon their return to Ireland”.

87. It is not necessary to repeat any other portion of the documents which I have recited in

full but it is an inescapable conclusion and I find that the declaration of eligibility and

suitability which issued to each couple vested in each couple rights which cannot be set at

nought or taken away by the Adoption Act 2010 in the absence of very clear wording –

which is noticeably absent from the 2010 Act. The vested rights are clear and there is

nothing in the 2010 Act to rebut the presumption against an intention to remove these

vested rights.

88. I am entirely satisfied that the declaration of eligibility and suitability vested rights in both

couples once they came into possession of the declarations. The declarations of eligibility

and suitability in question were in effect licences to allow the bearers at the time of issue

to travel abroad to adopt a child abroad and return to Ireland with the child and apply to

have the foreign adoption entered in the register of intercountry adoptions. The date of

birth of the child adopted in Mexico cannot impact on these vested rights. The

declarations are self-contained, clear and legal documents which must be afforded the

recognition and effect which they were intended to have when issued in the absence of

anything in the 2010 Act to say otherwise.

89. Unfortunately, the transition from the old to the new created the confusion and

uncertainty which has led to this litigation and the protracted delay in having the two

children’s adoptions recognised in Ireland. That confusion and uncertainty by reason of

the transition cannot deprive the two couples of the rights which were vested in them

when they received the declarations of eligibility and suitability.

90. There cannot be any doubt but that both couples relied fully on the declarations of

eligibility and suitability which issued to them. They took real steps to avail of the right or

privilege or licence which the Declarations vested in them by proceeding with their plans

to adopt abroad in Mexico.

91. In the O’C case Abbott J. referred to eight separate rights which he said had arisen as a

result of the applicants taking steps to avail of the right and bring it to further states of

Page 34 ⇓

advancement through the process in which they were involved, by seeking to adopt under

the 1991 Act. However, I am satisfied from considering his analysis of the facts and

circumstances that what he has identified as “rights” are properly seen as illustrations of

the existence of the right actually conferred by the Declaration of eligibility and suitability.

It can hardly be denied that some of the events subsequent to the issue of the

Declaration of eligibility and suitability in the O’C case created new or additional rights –

but I find nothing in the O’C. judgment to suggest that vested rights did not come about

once the Declaration of eligibility and suitability issued to the two couples in this case.

92. In my view the bearer or bearers of the declaration of eligibility and suitability had

acquired, on its issue, important rights. It would in my view be unfair to remove those

rights even though the child to whom the declaration of eligibility and suitability was

subsequently related to was not born at the time the declaration issued or at the time the

applicable law concerning inter-country adoption was changed. The removal of the

vested rights could only have been achieved by clear and express wording in the 2010

Act. Such wording is absent from the Act. In written submissions on behalf of the

Adoption Authority it is submitted that “the Oireachtas cannot have intended that vested

rights of the (limited) nature proffered here, would prevail over the requirements of the

Convention”. I do not believe this submission to be well founded. Firstly, I am satisfied

that the vested rights we are speaking of were significant legal rights which were acquired

in accordance with statute and that it is inaccurate to describe them as limited. Secondly,

as stated, if the Oireachtas had intended to remove those vested rights then it ought to

have used clear and express language to do so. It did not. Thirdly, I do wonder how it

can be stated that these vested rights might “prevail over the requirements of the

Convention” in light of the provision in Article 41 of the Convention.

93. Section 63 of the 2010 Act sets out the transitional arrangement in relation to foreign

adoptions in process immediately before the commencement of the Act – and states:-

“63.— (1) In this section, ‘foreign adoption’ means a foreign adoption within the meaning

of section 1 of the Adoption Act 1991 .

(2) If, immediately before the establishment day, a foreign adoption described in the

Adoption Act 1991 is not yet effected but is still in process as provided for under

that Act—

(a) if the persons who applied under the Adoption Act 1991 had been issued with

a declaration of eligibility and suitability before the establishment day, the

adoption may proceed under this Act as if—

(i) it were commenced under this Act and the date of the issue of the

declaration were that day,

(ii) the persons had applied under section 37 of this Act, and

(iii) section 40(1)(b) of this Act read “in another contracting state or a

state that, in the opinion of the Authority, applied standards regarding

Page 35 ⇓

the adoption concerned that accord with those in the Hague

Convention”,

and

(b) in any other case,

the adoption may proceed under this Act as if it were commenced under this Act.”

94. These transitional provisions are somewhat cumbersome and unclear. The written

submissions on behalf of the Attorney General quite properly do acknowledge a lack of

clarity in some respects and acknowledge also that it is a matter for this Court to

determine the effect of the issuing of the declaration of eligibility and suitability under the

1991 Act insofar as the vested rights argument is concerned.

95. It may have been much clearer and easier for all concerned if Article 41 of the Convention

itself had been transposed into Irish law. Article 41 is entitled “Application pursuant to

Article 14 of the Convention in force.” It provides:-

“The Convention shall apply in every case where an application pursuant to Article

14 has been received after the Convention has entered into force in the receiving

state and the state of origin.”

96. It should be noted that Article 14 of the Convention provides for an application for

adoption to the Central Authority and provides:-

“Persons habitually resident in a contracting state, who wish to adopt a child

habitually resident in another contracting state, shall apply to the central authority

in the state of their habitual residence.”

97. The explanatory report on the Convention which was drawn up by G. Parra-Aranguren

details the position in relation to Article 41 at paras. 579, 580 and 583 and they are worth

quoting in full;-

“579 Article 41 was discussed on the basis of the proposal submitted by the permanent

bureau in working document no. 100, to the effect that “the Convention shall apply

as between contracting states only to adoptions made after its entry into force in

these States”. Although agreeing on the substance, Switzerland observed that the

adoption may have been granted after the Convention enters into force, but

prepared not according to the Convention’s rules but rather according to the

internal law of the State. Therefore, it was considered more appropriate to take

into consideration the moment when the proceedings start, an idea that was

accepted.

580. Working document no. 180, submitted by the drafting committee, specified the

moment when the proceedings are to be considered to start, and suggested the

following formulation: “the Convention shall apply, as between a receiving state

and a state of origin, in every case where an application pursuant to Article 14 has

Page 36 ⇓

been received after the Convention has entered into force in both states”. The

Italian delegate observed the ambiguity of the proposal, but it became the final text

after some linguistic adjustments.

583. Article 41 does not answer the question of the entering into force of the Convention

in general, solved by Article 46, but its application to a particular case, assuming

that the Convention is already in force in the state of origin and in the receiving

state.”

98. In the case of both children the subject matter of these proceedings, and their adoptive

parents, it is abundantly clear that the adoption process commenced long before the 2010

Act came into force. The chronology in respect of both couples is set out above. The first

couple made their application in April 2006 and the second couple made their application

in February 2007.

99. Given the clear wording of the Convention and its objectives it is difficult to see why both

couples have ended up where they are today. An analysis of the evidence before this

Court in relation to Baby K and Baby F leads me to the conclusion that recognition of their

adoptions in Ireland is in keeping with the spirit and objectives of The Hague Convention

– and appears not to offend the wording of the Convention itself if due regard is paid to

Article 41.

100. International treaties have the force of law in Ireland as a result of the passing of an act

of the Oireachtas. The function of the court is to interpret the act itself. In that regard

the normal rules of statutory interpretation should be applied. Having said that, the

normal rules are qualified by the requirement that the enactment be interpreted in a way

which is in accordance with the treaty in question. A court is permitted at common law,

when interpreting statutes, which give effect to international treaties, to interpret the

statute in question in light of the meaning of the relevant provisions of the treaty, as well

as earlier drafts of the treaty, committee reports and other preparatory material. This is

covered in Dodd & Cush, Statutory Interpretation in Ireland (Tottel Publishing, 2008)

where the authors point to the case of H.I. v. M.G. [2000] 1 I.R. 110 concerning an issue

which arose involving the Hague Convention on the Civil Aspects of International Child

Abduction and its national enactment, the Child Abduction and Enforcement of Custody

Order Act 1991. In that case Keane C.J. stated the general approach in the following

terms, at p. 124:-

“….since the Convention has the force of law in this State solely by virtue of the

1991 Act and not by virtue of its being an international treaty, the first task of the

court must be to ascertain the meaning of the Convention, as enacted, in

accordance with normal rules of statutory construction and, accordingly, to

ascertain the intention of the legislature as expressed in the statute, considering it

as a whole and in its context. To that general principle there are two qualifications.

First, the Convention, being an international treaty to which the State is a party,

should, if possible, be given a construction which accords with its expressed

objectives and, secondly, the travaux preparatories which accompanied its adoption

Page 37 ⇓

may legitimately be used as an aid to its construction. (See the decision of this

court in Bourke v. Attorney General [1972] I.R. 36).”

101. Thus, it is my view legitimate, if not necessary, to have regard to the wording of the

Convention itself and to look at the explanatory report which I have referred to.

Furthermore, s. 10 of the Adoption Act 2010 provides:-

‘10.— (1) Judicial notice shall be taken of the explanatory report prepared by G. Parra-

Aranguren in relation to the Hague Convention, a copy of which has been placed in

the Oireachtas Library.

(2) When interpreting any provision of the Hague Convention, a court or the Authority,

as the case may be, shall pay due regard to that explanatory report.’

102. The Hague Convention and the Adoption Act 2010 are dealt with in comprehensive

judgments of the Supreme Court in the case of CB & PB v. The Attorney General

[2018] IESC 30 in which judgment was delivered on the 12th July 2018.

103. Although touching on many of the issues visited in this case it is important to point out

that the factual circumstances of that particular adoption case were very different to

those prevailing here. In his judgment Mac Menamin J. was careful at para. 11 to

“emphasise that this judgment is confined to the specific facts of the instant case”. It was

an inter-country adoption for Convention and statutory purposes and in circumstances

where there was no engagement whatsoever with the Convention. What was attempted

was to morph the facts into a domestic adoption simply by proof of habitual residence.

The case in terms of the factual situation bears no resemblance to the facts here.

104. The High Court in J.M. v. Adoption Authority of Ireland [2017] IEHC 320 was asked to

J. declined to do so. In that particular case the child in question was the niece of the

proposed adoptive mother, she being the sister of the natural mother. Secondly, for

many years there existed a close and loving relationship between the child and the aunt.

Thirdly, it was a Hague Convention case. Fourthly, the adoption obtained was purely a

domestic one from the country of origin. Fifth, there was non-compliance with the

Convention. Sixth, there was no certification by the competent authority of the foreign

state and, finally, there was no suggestion of deliberate non-compliance of mala fides on

the part of the applicants. The situation arose through simple ignorance of the

requirements of the Convention.

105. It is useful to set out the facts as Reynolds J. did at para. 6 of her judgment:-

“6. A.M. was born on the 4th April 1995 and is now twenty-two years of age. A.M. is

the niece of the adoptive mother in this case in circumstances where she and the

birth mother were sisters. It is clear that A.M. and her adoptive mother formed a

very close and loving relationship during A.M.’s tender years. In later years, after

the applicants had married, they proceeded to lawfully adopt A.M. in the

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Philippines. Whilst it is clear that the application was properly processed through

the Family Courts in the Philippines, the applicants appear to have been unaware of

the necessity to liaise with the relevant Hague Convention Office with responsibility

for intercountry adoption. In the circumstances, the respondent contends that the

adoption is not one which is compliant with the procedures required for intercountry

adoption in accordance with the Hague Convention.

7. The application form completed by the applicant for an entry of the adoption into

the “Register” refers to the date of the adoption order as being the 9th November

2009. On that basis, the applicant contends that the adoption should be registered

pursuant to Section 90(2) of the Adoption Act, as it had been completed prior to

the 1st November 2010, (the establishment day for the purposes of the 2010 Act

which incorporates the Hague Convention into Irish law). The relevance of that date

is that an adoption which was effected prior to the said date is eligible to be

registered on the Register under Section 57(2)(a) of the Act, even if it had not been

effected in compliance with the Hague Convention.’

8. However, it is clear from the documents submitted by the applicants that the initial

decision of the Philippine Court issued on the 28th March 2011 was followed by a

Certificate of Finality dated the 1st July 2011”

106. In considering her decision, Reynolds J. contrasted the facts of the case before her with

those existing in the O’C case (Abbott J.). In that case Abbott J. – as McKechnie J. puts it

in the C.B. case (at para. 141) had expressed the need for flexibility where technical

problems arise within the ambit of the Convention. Reynolds J. reconciled the O’C case

and the case before her as follows: -

“34. Abbott J. directed the registration of the adoption under s.92 on the basis of vested

rights under the law as it was before adoption of The Hague Convention and in

circumstances where the applicants had complied in all respects with the

requirements of a foreign adoption and had secured a declaration of eligibility and

suitability before travelling to Mexico to adopt the child.

The approach adopted by Abbott J. recognised that some flexibility could be

adopted by the court in situations where the requirements of The Hague

Convention are broadly met.

However, clearly the facts of that case must be distinguished from the facts in the

instant case in circumstances where the applicants had no prior engagement with

the Authority and where no declaration of eligibility and suitability had been

obtained.”

107. Reynolds J. went on to conclude, at para. 36 that “it is simply untenable to suggest that

the broad requirements of The Hague Convention have been met or indeed that the court

could properly direct the registration pursuant to s.92 of the Act”. In considering the

latter decision in the CB case, McKechnie J., at para. 142, states: -

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“Even though it is true that some contact was made with the Authority in the within

case, unlike in JM, nonetheless the end point is identical: Total non-compliance with

the Convention. Accordingly, I am satisfied that the instant situation approximates

the facts of JM far more so than it does M O’C, where there was substantial

compliance by any measure.”

108. It is worth reiterating that in the CB case the Supreme Court was not dealing with a case

which rested significantly on the transitional provisions of the 2010 Act as was the

situation in the O’C case decided by Abbott J. This point is worth reiterating as it is the

same transitional provisions of the 2010 Act which is the focus of attention in this case.

109. In terms of the timeline involved in the CB case the first contact between the applicants

and the Adoption Authority took place on the 16th June 2011 when, in an email, CB asked

the Authority for information regarding inter-country adoption. Ultimately, the “provincial

adoption” was approved by the Provincial Adoption Committee in Country A on the 25th

January 2012 and the adoption was registered on the 21st February 2012. On the 23rd

February 2012 the children’s change of family name was registered in Country A and

passports were issued in respect of the children. On the 28th February 2012 the adopting

couple made an application to the Irish Consulate in country A for visas for the children.

Thus, all of the relevant events took place well after the commencement of the 2010 Act.

110. As an aside, the CB case subsequently returned to the High Court with an application

pursuant to s.92 of the 2010 Act. In a judgment delivered on the 10th September 2019,

Faherty J. made an Order pursuant to s. 92(1)(a) of the 2010 Act directing the Authority

to enter the adoptions of JB and KB on the Register. Following a rigorous scrutiny of the

facts and a careful examination of the legal position and legislation, Faherty J. was

satisfied that she was dealing with, in the words of the majority view in the Supreme

Court, “a truly exceptional case”.

111. This review of the background and of the legal position is in my view necessary in order

to put the case stated and my response in context. It is also worthwhile I believe setting

out the text of the case stated which is as follows: -

“Background

(1) By two letters dated 20th June 2017, solicitors for the parents wrote to the

Chairman of Údarás Uchtála na hÉireann (hereinafter the ‘Authority’) on behalf of

PP and YY (in respect of the application to adopt K) and on behalf of ZW and XM (in

respect of the application to adopt F). This followed meetings on 13th June 2017

between the Authority and both sets of applicants, as well as prior correspondence.

(2) The Authority had previously determined that the principles and the judgment of

Mr. Justice Abbott in MO’C and BO’C v. Údaras Uchtála na hÉireann [2015] 2IR 94

(the ‘O’C judgment’) did not extend so far as to permit it to register the adoptions

of, inter alios, the two foregoing minors on the Register of Inter-Country Adoptions

(“the Register”) in particular because the minors were born after the date of

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commencement of the Adoption Act, 2010 (the Act) on 1 November 2010, in

distinction from the situation which applied in the O’C judgment.

(3) The said letters of 20th June 2017 requested the Authority to state a case to this

honourable court under s.49 of the Adoption Act, 2010 (‘the Act’). The letters

submitted that the issues arising were as follows: -

“1. Whether the aforementioned adoption should be recognised and/or registered

in Ireland on the basis that rights had vested in the Respondents prior to the

commencement of the Adoption Act, 2010?

2. Whether in all the circumstances of the aforementioned adoption the High

Court is satisfied that an entry with respect to same should be made in the

whether ancillary to and/or arising from the recognition thereof pursuant to

Paragraph 1 hereof or otherwise.”

(4) The Authority has considered that additional questions ought to be stated other

than those sought, and accordingly the Case Stated herein is brought pursuant to

Section 49(1) of the Act as well as Section 49(2) thereof.

Relevant dates in respect of key events

(5) YY and PP were issued with a declaration of eligibility and suitability (‘DES’) in

respect of K (a minor) on 24 February 2010. K was born [in] November 2010, and

K’s mother consented to adoption on 14 March 2011. A Mexican Adoption order

issued on 29 April 2011.

(6) XM and ZW were issued with a DES on 26 May 2009 in respect of F (a minor)

which was renewed on 25 January 2011. F was born [in] January 2011, and F’s

mother consented to adoption on 24 March 2011. A Mexican Adoption Order issued

on 27 May 2011.

Vested Rights and the O’C judgment

(7) The concept of vested rights, referred to in the letters of 20 June 2017 requesting a

case stated, would appear to emanate from the O’C judgment. In that judgment,

Abbott J noted at paragraph 1 of the judgment that ‘The child was born on 22

October 2010, and was placed in the applicant’s care on the 26th of October 2010,

following which a Mexican Court made an Adoption Order on 24 March 2011.’

(8) He noted at paragraph 7 that the applicants in that case had received a DES from

An Bord Uchtála, the pre-cursor to the Authority, applicable ‘during a period of 12

months from 20 October, 2009’ which period was subsequently extended. He

continued at paragraph 8: -

‘An Bord Uchtála then issued a letter signed on their behalf dated 29 June,

2010, headed ‘To whom it may Concern’, which may be regarded as a letter

of introduction of the applicants to the authorities in Mexico from which they

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might seek adoption arrangements. The applicants made an agreement in

July, 2010 in relation to post placement assessments of the child in Ireland

when they returned to Ireland…’

(9) He continued at paragraph 34: -

‘In dealing with the provisions of Section 63 of the Act of 2010 dealing with

transition, it is accepted, as suggested by counsel for the Attorney General,

that there should be a two legged test to examine whether under Section 27

of the Interpretation Act 2005 pre-existing rights to adoption of the

applicants survived the Act of 2010. The first such leg is to determine

whether, on the criteria of the case as set out in the judgment of O’Donnell J.

in Minister for Justice v. Bailey [2012] IESC16, 2012 4 IR 1, such a right

arose, and the applicants took real steps to avail of it, and to bring it to

further states of advancement through the process in which they were

involved, by seeking to adopt under the Act of 1991. I conclude that on this

leg the following rights have arisen: -

1. the Declaration of eligibility not only of the applicants but also in

relation to the process of seeking a child not older than six months;

2. the furnishing of a letter reflecting such Declaration of eligibility from

the Authority which gave the applicants a right to travel abroad, in this

case to Mexico, can seek out a child….the possession of a letter backed

by the official and solemn authority of a State Adoption agency is, in

itself, a right and important step towards the advancement and

absolute securing of that right….;

3. the consent of the birth mother to place the child with the applicants is

a very real and dramatic right…this consent, although perhaps not

enforceable by action, nevertheless gave rise to a number of real

expectations and calls for actions by way of preparation to receive the

child on both sides of the consent;

4. Placing of the child in custody and guardianship,…was a right which the

applicants had which was enforceable against all the world, except for

the fact that the consent could still be withdrawn, and left the right to

feasible or conditional to that extent….;

5. the right of the child when in the custody and guardianship of the

applicants pending the full adoption hearing to develop physically and

emotionally by getting food, shelter and parental nurturing so that the

beginnings of the child parent bond could emerge, and that the basis

for establishing a sound sense of identity of the child could be

established even if these aspects could only be realistically or

significantly developed from the applicants’ side, in the first instance;

‘6. the applicants with custody of the child with a properly contained

consent armed with a Declaration of eligibility and letter of introduction

from the Irish Adoption Authorities, had a right and duty to apply to

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the Mexican Court, which on the basis of its satisfaction as to the

probity of actions taken to date on the provision of reports indicating

the positive qualities and possibilities of the proposed adoption, would

grant the adoption;

7. the right of the applicants and of the child (who, by now, after the

Mexican Order, was in the custody and guardianship of the applicants

by reason of a consent which had become absolute by the reason of

the Mexican Adoption Order) to apply to the Adoption Board under the

Act of 1991 to have the Mexican adoption recognised and the adoption

registered so as to be deemed an Irish adoption….;

8. It should be noted that the enumeration of such rights are taken

together, which presents an almost irreversible situation in fact,…’

(10) At paragraph 35, Abbott J made further observations with respect to the DES,

including that: - “The court is obliged to construe the legislation in accordance with

the principles of the Constitution and to allow for an interpretation of the provisions

allowing the continuing use of Declarations of eligibility which avoids outcomes such

as invidious discrimination against persons in the applicants’ position.”

Approach of the Authority following the O’C judgment

(11). Following the O’C judgment, a portion of the applications for entry on the register

were granted by the authority. All of these applications related to adoptions of

children from Mexico.

(12). A number of applications were not granted by the authority, in particular on the

basis that the children were not born until after 1 November 2010 when the Act

was commenced. These included both sets of applicants who, through their

solicitors, have sought cases to be stated.

Alternative routes suggested by the Authority and interactions with the Child

and Family Agency

(13) The solicitors for the authority stated in correspondence dated 3 February 2016 to

solicitors for the parents that the Authority was willing to consider applications

under Part VII of the Act and, accordingly, suggested that the relevant applicants

contact the Child and Family Agency (the ‘CFA’) to start the relevant process. This

suggestion was repeated in further correspondence on behalf of the authority to

include letters dated 4 May 2016, 20 May 2016, 14 June 2016, 11 July 2016 and 8

March 2017.

(14) It appears that the applicants to adopt F (a minor) have engaged with the CFA.

However, obstacles have been encountered in advancing matters. By letters dated

20th April, 2017 from the CFA to the authority in respect of these applicants, the

CFA stated inter alia:

“… the agency will not be in a position to commence its assessment until such

time as the child’s eligibility to be adopted has been confirmed in compliance

with Article 4 of the Hague Convention.”

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(* It became apparent in the course of the case, as indicated earlier, that the

parents of K also endeavoured to avail of the Part VII procedure but came up

against similar obstacles.)

(15) In subsequent correspondence with the CFA, the Authority has disputed the

correctness, as a matter of law, of this approach by the CFA by letters dated 29

May and 23 June 2017.

(16) Legal representatives on behalf of both sets of applicants have taken the position

that the applicants could have rights vested for the purpose of the Adoption Act,

1991 (the ‘1991 Act’) even if the children so to be adopted were born after the

repeal of the 1991 Act through the commencement of the Act on 1st November,

2010. For the purposes of s. 49(2) of the Act, the authority has determined that

such a legal position is not frivolous. In addition, the authority has determined that

related questions of law arise in respect of which it is appropriate to state a case

under s. 49(1).

Questions Stated

(17) The Authority therefore STATES A CASE to this Honourable Court pursuant to both

s. 49(1) and s. 49(2) of the Act, as follows:-

(1) for the purposes of s. 27(1) (c) of the Interpretation Act 2005 are “… pre-

existing rights to adoption [which] survived the Act of 2010” (as per

paragraph 34 of the O’C judgment), capable of arising where the minor to be

adopted was born after the commencement of the Adoption Act 2010 on 1

November 2010?

(2) In the event that the answer to question one is “No”, is the Authority entitled

to proceed under Part VII of the Adoption Act 2010 in respect of the

applicants who are notice parties to this case stated, subject to hearing the

persons in section 53(1) (a) of the Act and the other requirements in Part VII

being fulfilled?

(3) Is the Child and Family Agency entitled to insist on confirmation that a child

is eligible for adoption before carrying out an assessment under section 37 of

the Act?”

112. Before answering the questions, it is appropriate for me to say that I am doing so in the

context and against a backdrop of the analysis of the facts and the law which I have set

out earlier in this judgment. It would be inappropriate to answer the questions or deal

with them in a vacuum, not least because the welfare of the two children involved

requires finality and certainty to be achieved insofar as their status is concerned, and as

speedily as is possible. Article 35 of the Hague Convention states “The Competent

Authorities of the Contracting States shall act expeditiously in the process of adoption.” It

is regrettable that half of their childhood has already passed without any resolution to the

predicament caused by they being victims of what the State of origin referred to in the

third party note as “procedural errors which occurred”. It is apparent to me that the

significance and importance of the declarations of eligibility and suitability which were

granted to both couples have not been afforded the recognition which they ought to have

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been afforded. Each of those declarations of eligibility and suitability were hard earned by

those to whom they issued and vested in them as bearer’s important rights which

survived the Act of 2010.

113. I answer the questions as follows:

(i)

Yes.

(ii)

Does not arise in light of the answer to the proceeding question.

(iii)

No.

114. I will hear the parties in relation to the issue of costs and any other matters arising from

this judgment.

Result: Case stated answered as follows:- (i) Yes. (ii) Does not arise in light of the answer to the proceeding question. (iii) No.