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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> C.B. & anor v The adoption Authority of Ireland [2019] IEHC 779 (10 September 2019)
URL: http://www.bailii.org/ie/cases/IEHC/2019/2019_IEHC_779.html
Cite as: [2019] IEHC 779
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THE HIGH COURT
[2019] IEHC 779
[2018 No. 392 MCA]
IN THE MATTER OF SECTION 92 OF THE ADOPTION ACT,
2010 AND IN THE MATTER OF J.B. (A MINOR) AND K.B. (A MINOR)
BETWEEN
C. B.
AND
P. B.
APPLICANTS
AND
THE ADOPTION AUTHORITY OF IRELAND
RESPONDENT
AND
THE ATTORNEY GENERAL
AND
THE CHILD AND FAMILY AGENCY
NOTICE PARTIES
JUDGMENT of Ms. Justice Faherty delivered on the 10th day of September 2019.
1. This matter comes before the Court by way of originating notice of motion dated 12th
October, 2018 wherein the applicants seek, inter alia,
•
A declaration pursuant to s. 92 of the Adoption Act, 2010 (“hereinafter the 2010
Act”) that an entry should be made in the Register of Intercountry Adoptions
(hereafter “the Register”) in respect of the adoption of the said J.B. and K.B. by the
second applicant in Country A;
•
An order pursuant to s. 92 of the 2010 Act directing the Adoption Authority of
Ireland (“the Authority”) to procure the making of the said entry in the register;
and
•
An Order that the authority shall issue to the second applicant pursuant to s. 91(1)
a certified copy of the said entry on payment to the Authority of the specified fee.
The application is resisted by the Authority and the Attorney General. The position of the
Authority is set out in an affidavit sworn on 22nd October, 2018 by Tara Downes, who is
the Authority’s Director of Operations. Her affidavit was sworn in response to the
grounding affidavit sworn by the first applicant on 12th October, 2018. As the dispute
between the parties is set in the judgment by reference to all parties’ submissions to the
Court, I did not find it necessary to otherwise recite the contents of the aforesaid
affidavits. Additionally, the Court has heard the oral evidence of the first and second
applicants. As will become clear in the course of this judgment, the adoptions in issue in
the within application already have a considerable litigation history in this jurisdiction.
Background
2. The applicants are a married couple who were married in the UK in August, 2008. They
have resided in this jurisdiction since October, 2006 and December, 2007 respectively.
The first applicant holds citizenship of both the UK and Ireland, becoming an Irish citizen
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in March, 2013. The second applicant holds citizenship of Country A and Ireland, having
obtained Irish citizenship in October, 2013.
3. The children, J.B. and K.B., were born in Country A and resided there until April 2012.
4. The first applicant is a business executive holding the position of group company
secretary in an international company. Previously, he worked as group company
secretary for a financial institution that operates extensively across a continent. It was
while in Country A in the course of his work that he met the second applicant who at the
time was working in Country A’s capital city having completed a university degree.
5. K.B. and J.B. are the niece and nephew of the second applicant by virtue of their natural
father being her brother. The natural father is not married to the children’s birth mother.
6. In November, 2006, the second applicant left her then employment and moved back to
her home province in Country A to work with her aunt in the family business. For this
(and other purposes) she bought a house in her home province. J.B. was born to the
second applicant’s brother and his partner on 24th November, 2006. The first applicant
stated that he first met the infant J.B. in December, 2006 when she was one month old.
At that time the second applicant’s mother, nephew (a son of the second applicant’s
deceased brother), brother and his partner (i.e. the natural parents of J.B. and K.B.) were
living and sleeping in a market where the second applicant’s mother was working. He
testified that he was shocked and concerned about the way the family were living and
was thus relieved when in January, 2007 the family unit (including the natural parents of
J.B.) moved to the house that the second applicant had purchased.
7. The second applicant remained living and working in her home province in Country A until
she moved to Ireland in December, 2007. While living in her home province, the second
applicant assisted her family financially, as did the first applicant. They both testified that
they continued to assist the family financially after the second applicant moved to Ireland
in 2007. They also stated that this assistance was not given to procure an adoption but
was rather to help the family, as is the norm in the culture of Country A.
8. K.B. was born to the second applicant’s brother and his partner on 30th September,
2008.
9. Following the second applicant’s move to Ireland in December, 2007, she and the first
applicant travelled regularly to Country A to visit her family.
10. The evidence before the Court is that in or about 2009/2010, difficulties arose in the
relationship between the second applicant’s brother and his partner. In early 2011, J.B.
and K.B.’s birth mother left the family unit in Country A, leaving behind her partner and
their children. It appears that by this time she had begun relationship with someone else.
11. The Court heard evidence from the applicants about their attempts, following their
marriage, to start a family. The first applicant already had three children from a previous
marriage. Following the birth of these children he had a vasectomy which he
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subsequently successfully reversed. Despite this, the second applicant did not become
pregnant.
12. The applicants then began a series of fertility treatments. IVF treatments in January,
2011 and May, 2011 were not successful. The couple were advised that it was unlikely
that the second applicant would be able to conceive. It is the case that the second
applicant has since given birth to a baby who was born in 2017.
13. To return however to the events of 2011. The applicants testified that the second
applicant’s mother was aware of the non-success of the IVF treatments. The first
applicant told the Court that by the time J.B. and K.B.’s natural mother left the family unit
in January, 2011 their natural father’s circumstances were that he was essentially long
term unemployed and reliant on the financial assistance which the applicants were
providing. He testified that both the children’s grandmother and natural father were
struggling to look after them by 2011. By this time both children were in school, the
younger in pre-school. Their grandmother’s daily work at the market necessitated the
children spending their post school time with her at the market which meant that it was
midnight before they could leave that place. This was the type of “desperate” situation
the children were in.
14. According to the applicants, the suggestion that they adopt JB and KB emanated from the
second applicant’s mother in or about May, 2011.
15. Subsequent to the second applicant’s mother having raised the issue of the adoption, the
applicants made the decision to adopt the children. They did so because they were
worried about the children’s safety and health, particularly in circumstances where their
parents were adolescents. The second applicant spoke to her brother who in turn spoke
to the natural mother. The evidence given by the applicants was that both natural parents
were receptive to the idea of the children being adopted. The first applicant testified that
by 2011 both he and the second applicant had an already established bond with the
children. I accept this to be the case.
The steps taken by the applicants to adopt the children
16. The first applicant testified that he made contact with an adoption group connected to
Country A which he had come across on the internet. He was duly referred to the
Adoption Authority of Ireland (hereinafter “the Authority”). His first contact with the
Authority was on 16th June, 2011 by email under the subject heading “intercountry
adoption guidance please”.
17. The email summarised J.B.’s and K.B.’s then circumstances and the applicants’ desire to
adopt them. He advised the Authority that he and the second applicant were resident in
Ireland since October, 2006 and December, 2007, respectively.
18. Specifically, the email stated:
“My wife has a 4 year old niece and a 3 year old nephew (brother and sister) in
[Country A] who are available for adoption. Her brother’s 20 year old girlfriend
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(mother of the children; they were not married) has left him and has left the
children with him. Unfortunately, he is long-term unemployed and so is finding it
very difficult to provide for the children and also to look after them in the absence
of their mother. He is helped by my wife’s mother at the moment but she is in her
late 50s and is herself not in good health and is also working in a market and
looking after another 13 year old grandson at the same time (another of my wife’s
brothers died in his late 20s a few years ago and the mother of the 13 year old boy
is away working and so his care is undertaken by his grandmother, my wife’s
mother. My wife’s father also died a few years ago at the same time as their son.
I have 3 sons…from my previous marriage who live with my ex-wife in England,
which we have regular contact with through visits to the UK and them visiting us in
Ireland.
With my wife being the Auntie of the two children, it would be very straightforward
for us to adopt them in [Country A] but obviously this is complicated by our living
in Ireland.”
19. The email concluded as follows: “we would appreciate any advice you can give on the
inter-country adoption process and whether it can be fast-tracked in any way, given that
the children are family members and my wife’s brother and her mother are really
struggling to cope looking after them, given their circumstances.”
20. The Authority’s response to the first applicant on 16th June, 2011 was in the following
terms:
“In order to adopt, prospective adoptive parent(s) must first be assessed by the
local HSE/Adoption Society and must be resident in Ireland legally for at least one
year. They would have information on the assessment process, costs and
timescales involved. Please contact your local HSE adoption service. If you are
living in Dublin the number for your nearest HSE adoption service is 01-6201100.
They will invite you to a meeting to explain the adoption process
I enclose some leaflets on intercountry adoption for your information. Please note
that these information leaflets contain some information which is NOT up to date,
therefore you should contact the HSE or the Adoption Board with any specific
queries you might have regarding the content).”
21. The first applicant’s immediate reply to this email was to query whether it was the same
process for an adoption by relatives, to which the Authority replied that it was and that
the first applicant should contact his local HSE.
22. Questioned by counsel for the Authority about the contents of the 16th June, 2011 email,
the first applicant reiterated that at the time he wrote the email he had not taken advice
from anyone and had spoken only to an adoption group from Country A (sourced on the
internet) who had referred him to the Authority. He denied that the reference in the
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email to the straightforwardness of an adoption of the children in Country A encapsulated
that his and the second applicant’s intention from the outset was to effect a domestic
adoption in Country A. He stated that if they wanted all along to adopt the children in
Country A they would simply have gone to Country A without having made contact with
the Authority. However, they had from the outset made contact with the Authority who
duly referred them to the HSE from whom, it is alleged, they received misleading advice.
23. The evidence before the Court is that upon receipt of the Authority’s email the first
applicant commenced immediately to contact the HSE on the contact number he had been
given. His evidence was that all calls made went to voicemail. His first call back from the
HSE was on 5th July, 2011. He testified that prior to this call, on or about 25th June,
2011, he had made preliminary enquiries of lawyers and adoption agencies in Country A
which he sourced from the internet. He stated that he did this in order to understand a
little more about how one went about embarking on an intercountry adoption in
circumstances where the Authority’s website was out of date and where the HSE were not
replying to his calls.
24. Ultimately, on 5th July, 2011 the HSE made contact. The first applicant testified that the
advice he received on that date from a named official in the HSE official was to the effect
that in his and the second applicant’s particular circumstances they could not do an
intercountry adoption as this process was designed for “not known children”. He was also
advised that there was no means by which the HSE could establish his and the second
applicant’s eligibility in the context of “known children”, as opposed to children in an
orphanage. I note that the evidence given by the first applicant in this regard is
consistent with evidence given by him on affidavit in the Case Stated proceedings in 2016
(referred to more particularly later in this judgment) In his affidavit sworn 29th April,
2016, he avers that the official had advised that it was not possible to approve the
adoption of specific children. According to the first applicant, the information received
from the official was that the HSE had no way of assessing whether the children were
available for adoption or if adoption was in their best interests because the HSE could not
confirm the suitability of the children for adoption given they were resident in Country A.
The first applicant testified that in light of the advices given by the HSE official, the
applicants did not therefore apply to the HSE to be assessed.
25. In the course of his oral testimony in the within proceeding, the first applicant, stated that
the HSE official suggested two alternative routes to him; the first was to bring the
children into Ireland (perhaps for education purposes) and then for the applicants to
apply to adopt them in Ireland. The second alternative was for both applicants, or the
second applicant solely, to adopt the children in Country A and then bring them back to
Ireland. As there were immigration issues regarding the latter option, the HSE official
advised the first applicant to speak to a lawyer.
26. As to whether he had asked if the Country A adoption would be recognised in Ireland, the
first applicant testified: “I did clarify [with the HSE official], I said, if we adopted in
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[Country A] would the adoption be recognised in Ireland, and I was told categorically,
yes, it would because [Country A] is also a Hague country”.
27. It is common case that the applicants embarked on the second of the two options advised
by the HSE official. Questioned as to why he had not taken the first option suggested by
the HSE, the first applicant testified that in the course of discussions with lawyers (the
solicitor acting for him in the within proceedings and an Irish immigration lawyer) in this
jurisdiction in regard to option two, the first option had been discussed. He stated,
however, that the advice received was that in the absence of an adoption order, any
attempt by him and the second applicant to bring children who were not theirs into the
country “wasn’t a runner”.
28. The first applicant testified that when in Country A for the purposes of the Country A
adoption he had looked into the possibility of establishing some kind of guardianship
relationship with the children but the advice from lawyers in Country A was that it was not
possible for persons to be appointed a guardian in Country A while the children’s natural
parents were still alive.
29. Under cross-examination by counsel for the Authority, the first applicant acknowledged
that the HSE official to whom he spoke had advised him to get a good lawyer. While
immediately after that call he spoke to his Irish solicitor, he did not, however, seek advice
in relation what had been said to him by the HSE official. Albeit that he had made initial
enquiries of his solicitor in July, 2011, the first applicant did not formally engage him until
December, 2011. This was in circumstances where he had no reason to question what he
had been told by the HSE official: he assumed that the HSE had knowledge of adoption
law given their role in dealing with international adoptions.
30. He testified that he understood the HSE official’s advice to get a good lawyer in the sense
of progressing the options which the HSE official had advised him to pursue. As far as he
was concerned, the HSE official was the expert to whom he had been referred by the
Authority.
31. The first applicant categorically rejected any suggestion that he had engaged a lawyer in
July, 2011 in order to seek adoption advice, stating that he had only made initial inquiries
(in the context of pursuing the options advised by the HSE official) of his Irish solicitor in
the course of one meeting and intermittent telephone contact in July 2011. He only
formally instructed his solicitor in late 2011. He reiterated that the issue of seeking an
opinion in July, 2011 as to whether the HSE’s advice was correct did not arise. Thus,
albeit that he consulted two sets of lawyers in Ireland in or about July, 2011, these
consultations were informal and were for the purpose putting the advice given to him by
the HSE into effect. This was the extent of the conversations he had with lawyers in
Ireland at that time. He stated that the first written advice he received from his Irish
lawyers was in September, 2012, by which time the children were in Ireland following
completion of their adoption in Country A and when he and the second applicant were
seeking advice as to how to progress a joint adoption in Ireland.
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32. Asked whether, in mid-2011, the issue of the provincial adoption authority with whom the
applicants proposed dealing not being the Central Authority in Country A had been raised
with either of his Irish lawyers, the first applicant stated that that issue had not come up
as he and the second applicant were dealing with the provincial authorities in Country A in
the context of a domestic adoption.
33. Following the interaction with his Irish solicitor in July, 2011, the first applicant did not
make contact again with the HSE official prior to embarking on the Country A adoption
process. He explained that he did not do so in circumstances where the HSE, to which he
had been referred by the Authority, had told him the way to proceed. Questioned as to
why, given the initial slowness of the HSE to respond to his queries in June, 2011 he had
not gone back to the Authority, the first applicant stated that ultimately the HSE had
responded to him and gave him advice upon which he acted, albeit that it had taken some
three weeks before his first contact with the HSE had been responded to. Given that the
children were in “a desperate situation” he proceeded on foot of the direction given by
“the State body”. In the view of the first applicant, he had been given a direction by the
State body to which he had been referred by the Authority. The advice from the HSE he
“thought reasonably, to be correct advice” and he “had no reason to question it”.
34. The first applicant testified that if the advice from the HSE had been to proceed with an
intercountry adoption he would have been happy to do that, stating: “there is no reason
why we wouldn’t have done that, that is what we wanted to do … we wouldn’t have been
in and out of court for the last four years if we had gone for an intercountry adoption”.
35. In the course of re-examination by his counsel, the first applicant reiterated that in July,
2011, the advice given to him by the HSE official was (1) to either bring the children into
Ireland and attempt a domestic adoption or (2) go to Country A and commence an
adoption there. To his mind, the HSE social worker was perfectly clear in July, 2011 that
he and the second applicant could not commence an intercountry adoption under The
Hague Convention. This information was duly conveyed by the first applicant to his Irish
solicitor shortly thereafter, the HSE official having told him to go to a lawyer. He duly
advised his solicitor that he wished to proceed on foot of the advice given by the HSE. In
that regard, his Irish solicitor advised him to instruct lawyers in Country A which he duly
did.
36. He reiterated that he and the second applicant would have preferred to go down the
intercountry adoption route. At no point had they set their minds against this route. He
had not ignored any advice given or sought to circumvent the 2011 Act or the
Convention.
37. In the course of her evidence, the second applicant confirmed that she herself did not
speak to anyone in the HSE or to any lawyer in Country A: all that was left to the first
applicant.
The commencement of the Country A adoption process
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38. The first applicant testified that upon taking up the second option (adopting in Country A)
as suggested to him by the HSE, he duly communicated with two legal firms in Country A
and ultimately appointed one of them at the end of July, 2011 to commence the process
of adopting the children in Country A.
39. He stated that his Country A lawyers explained the adoption process and the significant
amount of documentation that was required. The lawyers spoke to the relevant provincial
adoption authority.
40. The first applicant testified that he and the second applicant had to produce, inter alia,
bank records, deeds to properties, a record of their assets, evidence of his employment,
letters of reference and medical records. His evidence was that although the authorities
in the province where the adoption was being processed would have preferred that he and
the second applicant adopt the children jointly, that proved not to be possible because the
provincial authorities wanted proof in advance of immigration clearance once the children
were adopted. In essence, the provincial adoption authority wanted proof of immigration
clearance for the children in Ireland in advance of the adoption process in Country A.
Proof of immigration clearance would have required the first applicant to be assessed in
Ireland. However, he had already been informed by the HSE that that was not possible as
the HSE had advised that an inter country adoption was not open to himself and the
second applicant. as the children were “known children”. He stated that albeit that he
was not to be an adopter of the children in Country A, he was nevertheless required to
furnish his consent to the second applicant’s application to adopt, as her spouse.
Obtaining the consent of the birth parents
41. According to the first applicant, his Country A lawyers arranged for him and the second
applicant to attend on 7th September, 2011 at the City Hall in the relevant province of
Country A to apply for the adoption of the children. In attendance on that day also were
the natural parents, the children and some referees for the second applicant. According to
the second applicant’s evidence, the referees were her two aunts. The natural parents’
respective consents were obtained on 7th September, 2011. The first applicant’s
evidence was that the natural parents met independently and separately with the social
workers dealing with the case in order to provide their respective consents to the
adoptions. In the first applicant’s opinion, those consents were freely given. In the
course of his evidence he emphasised on a number of occasions that no inducement was
given or threat made to the natural parents to procure their consents.
42. The first applicant explained that neither he nor the second applicant were present when
the natural parents gave their consents. Nor were they present for the discussions which
took place between the Country A social workers and the natural parents, which were
conducted in private. The first applicant stated that he had no knowledge of what had
been discussed.
43. The first applicant was questioned as to why the consents which were obtained from the
natural parents in 2011 made no mention of the second applicant’s Irish address. He
stated that this was because the adoption was a domestic adoption in Country A. As
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advised by her Country A lawyers, the second applicant used her Country A address for
the adoption application. The first applicant accepted that the Letter of Consent and
Letter of Approval, respectively, from the birth mother and birth father referred to
consent being given for J.B. and K.B. to be the adopted children of the second applicant
residing at her Country A home. The first applicant explained that the reason the consent
documents had listed the first applicant’s Country A address was because every citizen of
Country A had to have a house registration document and had to be registered at a
property. Therefore, as the natural parents’ consents documents were official documents
they had to include the address to which the second applicant was linked in Country A.
44. Asked whether he and the second applicant had canvassed with their Country A lawyers
the issue of habitual residence in Country A as a necessary requirement for the adoption,
the first applicant stated: “We specifically asked the question does a [Country A] citizen
have to be resident in [Country A] to adopt under a domestic adoption in [Country A] and
we were told no.”
45. It was put to the first applicant by counsel for the Attorney General that nowhere in the
Letter of Consent signed by the natural mother on 7th September, 2011 is there any
indication given of the knowledge or information which was imparted to the natural
mother for the purposes of obtaining her consent to the adoptions. His response was that
the natural mother was always clear as to what she was consenting to. She had known
the applicants for many years and knew they lived in Ireland. Both birth parents knew
the applicants’ circumstances as of 2011.
46. The second applicant’s evidence was that she was present at the office of the provincial
adoption Authority on the day on which the natural parents’ consents were obtained but
was not in the room where the consent process was undertaken. She was informed by her
mother that consent to the adoptions had been given. She was satisfied that the natural
parents had given their consents freely and that they understood what was happening.
She stated that she did not make any promise or threat before they gave their respective
consents. Nor did she offer the natural parents any money or financial reward.
47. It is the second applicant’s belief that the provincial adoption authority’s social workers
interviewed her brother and his former partner on 7th September, 2011 about the
proposed adoption. She had witnessed the natural parents in the company of some social
workers. However, she was not allowed into the room where the discussions took place.
48. It is put to the second applicant by counsel for the Authority that given that she was a
national of Country A, it would have been natural and expected that she would be the
person liaising with the lawyers in Country A in relation to the adoption. The second
applicant explained that in 2011 she herself had no discussions with lawyers in Country A
and that the first applicant had taken care of everything. This was despite the fact that he
did not speak the language of Country A.
49. Cross-examined by counsel for the Attorney General, the second applicant accepted that
the residential address given by her in the 2011 Country A adoption process was her
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house in her home province in Country A. She did not list her Irish address because she
had an address in Country A, having purchased her house there. That fact
notwithstanding, she had advised the Country A officials that she was living in Ireland.
She stated that the officials had put her Country A address on the consent documents as
that was her address according to her Country A identity card. The officials, however,
were fully aware that she was resident in Ireland.
50. The Court heard evidence that over a seven-month period from September, 2011 until
April, 2012 when the children came to Ireland, the applicants visited Country A for
extended periods, with the second applicant staying for longer periods than the first
applicant. The assessment of the second applicant by the Country A social workers took
place in this period.
51. The first applicant testified that social workers in Country A visited the second applicant at
her Country A home. He reiterated however that the Country A officials were not of the
impression that the children were to be raised by the second applicant in her home
province in Country A. He stated that the officials were aware from the documentation
which had been furnished to them that the second applicant was resident in Ireland.
52. The second applicant confirmed that she was interviewed by social workers in Country A,
both when they visited her house in her home province and via Skype when she was back
in Ireland. The purpose of the interviews was to see whether she could take care of the
children. To this end, they checked her financial affairs and did medical and psychological
checks also. They knew she was living in Ireland and were happy with that arrangement.
The whole process had taken six months. For half of that time period, she was resident in
Country A.
53. The adoption by the second applicant of the children was approved by the provincial
adoption committee in Country A on 25th January, 2012. This was confirmed by letter
dated 6th February, 2012 which advised that the second applicant had six months to
register the adoption in Country A. The adoption was registered on 21st February, 2012
and required the first applicant’s consent as the spouse of the adopter. On 23rd
February, 2012, the children’s change of family name was registered in Country A and
passports were issued to them in their new surnames. On 28th February, 2012, the
applicants applied to the Irish Consulate in Country A for visas for the children for the
purpose of bringing them to Ireland.
54. The Visa Office of the Irish National Immigration Service (INIS) granted entry visas for
the children on the basis that they were dependants of the first applicant, a British
national, and, therefore, “permitted family members” in accordance with the EC “Free
Movement of Persons” Regulations 2006 and 2008. In this regard the first applicant
testified: -
“Interestingly… at the time, [INIS] didn’t grant the visas on the basis of the
children being [the second applicant’s] children, they granted the visas on the basis
of the children being my dependants.
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55. The children arrived in Ireland on 25th April, 2012. Since that time they have lived with in
Ireland with the applicants as a family unit. They have obtained Irish PPS numbers, and
also residency permits and re-entry visas under EU Treaty Rights.
56. The children’s residency in this jurisdiction has never received adverse attention from the
authorities. In 2017 they were granted permanent (ten year) residence cards.
57. The testimony of the applicants was that that children know they have birth parents. The
first applicant explained to the Court that the children know they have been adopted by
the second applicant and the reasons why this came to pass. Since their adoption the
children have travelled in the company of the applicants on a number of occasions to visit
their family (including their birth parents) in Country A. The children have a connection
with their birth parents. According to the first applicant, since 2012 the children have
travelled between five and ten times to Country A (where the applicants have a holiday
home). On each occasion they have met their birth father and grandmother. They have
also met with their birth mother on some of these occasions. He stated that the children
love these interactions. However, they regard Ireland as their home.
58. The second applicant advised the Court that the birth mother had sent her pictures of her
new baby for J.B. and K.B. to see. Moreover, the second applicant had given the natural
mother clothes for her new baby which she had brought with her when last visiting
Country A. The second applicant also testified that the natural mother is aware of the
present proceedings and has wished the second applicant “good luck”, albeit that she
does not understand the applicants’ present difficulties given her understanding that the
children have been adopted by the applicants. The second applicant also testified that,
equally, her brother, the children’s natural father, continues to be happy that the children
have been adopted. He knows that the children are loved. He gave his consent to the
adoptions freely as he wanted the children to have a future. The second applicant told the
Court that the children are happy. They know that they have two sets of parents and that
their natural parents could not take of them but that they love them.
Events subsequent to the children’s arrival in Ireland on 25th April, 2012
59. On 12th November, 2012, the first applicant wrote to the Authority advising that the
children had arrived in Ireland in April, 2012, having been legally adopted by the second
applicant in Country A on 21st February, 2012. The first applicant indicated his and the
second applicant’s intention to apply for a joint domestic adoption in Ireland. The letter
was copied to the HSE. He testified that the indication given in the letter was consistent
with the advice he had received from the HSE official in July, 2011.
60. The Authority acknowledged the letter on 14th November, 2012 noting its contents. The
first applicant was in telephone and email communication with the HSE on 13th
November, 2012. The first applicant testified to a number of emails and calls from him to
the HSE some of which were either not returned or were late being responded to.
61. By the time of this correspondence to the Authority and the HSE, the first applicant had
been told by his Irish solicitor (in September, 2012) that the advice he had received from
Page 12 ⇓
the HSE in July, 2011 (namely that an intercountry adoption of “known children” could
not be effected) was wrong. He testified that his solicitor’s advice as of September, 2012
was that there were still two options available to himself and the second applicant,
namely to apply for a domestic adoption of the children in Ireland once they were resident
in the country for twelve months, or to try to register the Country A adoption in Ireland.
He was advised that the best course of action was to go down the domestic adoption
route. He further stated that although his solicitor had informed him in September, 2012
that the advice received from the HSE in July, 2011 was wrong, the Authority and the
HSE did not raise this with him until 2016.
62. On 10th April, 2013, the first applicant apprised the HSE that he and the second applicant
were anxious to commence the process of a domestic adoption. On 3rd May, 2013, a HSE
official advised the first applicant that he could make an application to
adoption.service@hse.ie.
63. Further to the communication with the HSE, the applicants were assigned a social worker
in and around the end of May 2013 or the start of June 2013. Over the months of June to
August 2013, there were numerous phone calls and emails passing between the first
applicant and the social worker for the purpose of providing background information,
including confirmation from the applicants’ Country A lawyers of the circumstances of the
Country A adoption and the provision of a certified copy of the consents of the natural
parents. On 13th June, 2013, the applicants met with the social worker in their home.
The social worker took copies of relevant documentation and advised that he would
submit a report to the Authority.
64. Ultimately, the first applicant became aware of certain communications from the Authority
to the HSE which suggested that a domestic adoption of the children could not proceed.
The applicants learned of this via a letter of 23rd August, 2013 from their HSE-appointed
social worker who advised that the Authority’s position was that “the children do not meet
the criteria [set out in s.23 of the 2010 Act] and are therefore not eligible to be adopted”
and that the applicants “cannot make an application for the adoption of the children under
current legislation”.
65. There followed a series of correspondence between the applicants’ solicitor and the
Authority. As of 2nd January, 2014, the Authority was advising that it was of the opinion
that s.45 of the 2010 Act, together with s.23 thereof, rendered the children ineligible to
be adopted. By letter of 3rd January, 2014, the applicants’ solicitor requested clarification
as to which part of s.23 of the 2010 Act debarred the children from being eligible for
adoption and why they did not comply with the s.23 criteria. In its reply of 8th January,
2014, the Authority’s position was that as the second applicant had already adopted the
children they could not be re-adopted.
66. It is common case that the Authority’s correspondence of January, 2014 contained a
series of factual errors. In March, 2014, the applicants commenced judicial review
proceedings against the Authority (High Court ref. no. 2014/196 J.R.). Leave was
granted on 31st March, 2014. The CFA, as the now statutory successor to the HSE, was a
Page 13 ⇓
notice party to those proceedings. Ultimately, the judicial review proceedings were
compromised. The terms of settlement included the Authority agreeing to withdraw its
prior correspondence of 13th December, 2013 and 8th January, 2014 and agreeing that
the applicants’ adoption application “will be considered and processed by the Authority in
the normal way once the assessment of the Child and Family Agency is complete”.
67. The CFA duly carried out the required assessment. On 16th March, 2015, the applicants
received a Declaration of Eligibility and Suitability from the Authority, valid for twenty-
four months, pursuant to s.40 of the 2010 Act. The first applicant testified that
throughout this assessment process, there was no suggestion from any State body that
either he or the second applicant had acted improperly at any stage.
The Case Stated to the High Court
68. On 25th May, 2015, the applicants were advised by the Authority that it had decided to
refer a Case Stated to the High Court pursuant to s.49 of the 2010 Act, to determine as a
matter of law whether it was possible for the Authority to make a domestic adoption order
in respect of J.B. and K.B. in circumstances where the second applicant had previously
adopted the children in Country A.
69. By reason of the Authority appearing to waver in relation to the Case Stated, by letter
dated 24th September, 2015 the applicants’ solicitor called on the Authority to refer the
matter to the High Court pursuant to s.49(2) of the 2010 Act, which it did.
70. In the Case Stated the Authority asked the High Court to answer five questions. The High
Court delivered its judgment on 25th November, 2016. (C.B & Anor v. Udaras Uchtala na
hEireann & anor [2016] IEHC 73)
In summary, the questions stated and the answers given by the High Court were: -
(a) Whether the Country A adoption was recognisable in Ireland under Part 8 of
the 2010 Act or the common law. To this, the High Court Judge responded
“no”.
(b) Whether, on the facts disclosed, the Authority had jurisdiction to make an
adoption order in respect of the children having regard to the pre-existing
Country A adoption, s.45 of the Adoption Act, 2010, and any other relevant
provision? The High Court judge answered “yes”.
(c) Whether, following the passage of the Act of 2010, and specifically the
incorporation of The Hague Convention into Irish Law, the common law
jurisdiction of the High Court, as identified in M.F. v. An Bord Uchtála
[1991] I.L.R.M. 339 remained? In light of her previous answers, the High Court
judge considered it unnecessary to answer this question.
(d) Whether, on the basis that M.F. remained good law, and on the facts
disclosed in the Case Stated, and assuming that the Country A adoption was
not recognised in Ireland, did the original status of the children remain? To
this, the High Court Judge answered “yes”.
Page 14 ⇓
(e) Finally, whether the children were eligible for adoption under s.23 of the Act
of 2010, having regard to s.9 and s.45 of the Act of 2010? To this High Court
Judge answered “yes”.
71. The High Court judgment was the subject of a “leap frog” appeal by the Authority to the
Supreme Court. The Supreme Court’s consideration of the matter is addressed below.
Events prior to the delivery of judgment by the Supreme Court on 12th July, 2018
72. On 15th August, 2017, the Authority wrote to the applicants advising, without prejudice
to its position in its appeal to the Supreme Court (and in the context where the Authority
was, without prejudice, progressing the applicants’ application for a domestic adoption in
Ireland), that it was attempting to address the issue of the natural parents’ consents to
the Country A adoption. For these purposes, the Authority sought the address of the
birth mother. The applicants were advised that the Authority proposed to appoint an
authorised person to oversee the signing of the consent by the birth mother.
73. On 25th August, 2017, the first applicant provided the Authority with the contact details
for the birth mother. On 7th September, 2017, the Authority advised that it had written
to the Central Authority (under The Hague Convention) in Country A seeking its
assistance in getting consent from the birth mother and notifying/consulting the children’s
birth father.
74. On 11th October, 2017, the applicants provided the Authority with updated contact
numbers for the birth mother. On 8th March, 2018, their solicitor wrote to the Authority’s
solicitor requesting an update on progress in obtaining the consent, in particular as to
whether the Authority had been able to locate and contact the birth parents. The
Authority was advised that the applicants would be in Country A in the Spring of 2018 and
that they were willing to assist with the regard to the consents. The Authority was also
advised that the Declaration of Eligibility and Suitability previously obtained by the
applicants was about to expire and that a new Declaration was now necessary. The letter
continued:
“We are aware that in view of the history of this case, going on now for 7 years that
AAI have been keen to do all they can to fast track matters in the event the
applications for adoptions orders can proceed. Can AAI assure our clients that in
the event of a favourable outcome on the appeal that AAI will intervene on their
behalf with TUSLA to carry out the necessary work with a view to the issue [of] a
fresh declaration, as soon as a judgement is delivered by the Supreme Court.”
75. On 29th March, 2018, the applicants’ solicitor was advised that the Authority was liaising
with the Central Authority in Country A and that it had written to the CFA to enquire what
steps were necessary to obtain a fresh Declaration. On 9th April, 2018, Country A’s
Central Authority sought the Country A adoption registration papers (in Country A’s
language) as a perusal of Country A’s Central Authority records had failed to yield any
such record. The requested documents were duly provided by the Authority. On 25th
May, 2018, the applicants were advised that the Authority was continuing to liaise with
the Country A Central Authority with regard to the consents, and with the CFA with regard
Page 15 ⇓
to the Declaration of Eligibility and Suitability. The Authority’s solicitor enclosed a copy of
the correspondence which had been sent to the Central Authority in Country A. After
setting out the history of the matter, the letter read as follows:
“[The applicants] have now applied to jointly adopt [the children] under Irish law.
In order to do so Irish Adoption Legislation requires that the following steps must
be completed before any adoption application can be processed;
1. The consent of the birth mother to the adoption must be given;
2. The giving and taking of the consent of the birth mother must be overseen by
an independent person; and
3. The birth father must be notified and consulted with regard to the proposed
adoption.
Accordingly, I am writing to request your assistance in obtaining the birth mother’s
consent, appointing an independent person to supervise the giving of that consent,
ensuring that the birth mother fully understands what she is consenting to and that
it is freely given and to notify and consult with the birth father in relation to the
proposed adoption of the children. I enclose contact details for the birth mother
and father if you require any further information please do not hesitate to contact
me …”.
The judgment of the Supreme Court in the Case Stated
76. In the Case Stated proceedings before the High Court, and in their submissions to the
Supreme Court, the applicants and the Attorney General argued that it was possible
under the 2010 Act and The Hague Convention for the children to be adopted by way of
an Irish domestic adoption. The Authority disagreed with this proposition. The Supreme
Court delivered four judgments on 12th July, 2018. (C.B. and P.B. v. The Attorney
General [2018] IESC 30) The Supreme Court unanimously concluded that a domestic
adoption was not possible in this case.
77. The Supreme Court was also unanimous in holding that the adoption of the children in
Country A was not amenable to recognition under Part 8 of the 2010 Act, or at common
law. With regard to the Convention, McKechnie J. (at paras. 45 and 51) and MacMenamin
J. (at paras. 50-51 and 75) both emphasised that the facts of the case were clearly
captured by the Convention and that there was no compliance therewith. At para. 2 of his
judgment, McKechnie J. stated:
“… the terms of the Convention had not been complied with … In fact the
applicants, who seek only a domestic adoption order in respect of the children
concerned, and not the recognition of an intercountry adoption, engaged with the
Convention in their submissions solely for the purposes of indicating how and why,
in their view, it should be disregarded”.
78. He referred to “myriad ways” in which the mandatory requirements for an intercountry
adoption had not been made out and stated:
Page 16 ⇓
“this is not a case of mere non-compliance with a technical aspect of the
Convention regime; … it is common case that there has been practically no
engagement with the Convention scheme at all. Accordingly, each and every one
of the safeguards which ought to apply has effectively been stood down”. (at para.
47)
79. McKechnie J. found total non-compliance with Article 4 of the Convention in that the
competent authorities in Country A did not went on to state:
“48. Accordingly there was total non-compliance with articles 4 and 5 of the Convention,
in that the competent authorities of Country A did not:
-
Establish that the child is adoptable (Article 4(a));
-
Determine, after possibilities for placement of the child within Country A had
been given due consideration, that an intercountry adoption is in the
children’s best interests (Article 4(b)) (it being remembered that a foreign
adoption is not the preferred means of safeguarding a child’s welfare – such
is very much a subsidiary option (see Article 21(b) of the CRC and para. 120
of the Explanatory Report);
-
Ensure that:
.
the persons, institutions and authorities whose consent is necessary for
adoption had been counselled as may be necessary and duly informed
of the effects of their consent, in particular whether or not an adoption
will result in the termination of the legal relationship between the
children and their family of origin (Article 4(c)(1));
.
such persons, institutions and authorities had given their consent
freely, in the required legal form, and expressed or evidenced in
writing (Article 4(c)(2));
.
the consents had not been induced by payment or compensation of any
kind and had not been withdrawn (Article 4(c)(3));
-
Ensure, having regard to the age and degree of maturity of the children,
that:
.
They had been counselled and duly informed of the effects of the
adoption and of their consent to the adoption, where such consent is
required (Article 4(d)(1));
.
Consideration had been given to the children’s wishes and opinions
(Article 4(d)(2));
.
The children’s consent to the adoption, if required, had been given
freely, in the required legal form, and expressed or evidenced in
writing (Article 4(d)(3)); and
.
Such consent had not been induced by payment or compensation of
any kind (Article 4(d)(4)).
Page 17 ⇓
49. Similarly, the competent authorities in Ireland did not:
-
Determine that the prospective adoptive parents are eligible and suited to
adopt (Article 5(a));
-
Ensure that the prospective adoptive parents had been counselled as may be
necessary (Article 5(b)); or
-
Determine that the child is or will be authorised to enter and reside
permanently in the State (Article 5(c)).
50. Moreover, as a consequence on the non-involvement of the competent authorities
there was a failure to comply with many of the procedural requirements for an
intercountry adoption as contained in Chapter IV.”
80. That a common law jurisdiction regarding the recognition of adoptions no longer subsists
in this jurisdiction was also the unanimous conclusion of the Supreme Court. That was
made clear by MacMenamin J. at para. 137 of his judgment:
“The position is now entirely altered as a consequence of the enactment by the
State of the 2010 Act. While strictly speaking the issue may not arise for
consideration, it is not possible to conceive of a situation where it could be held that
a common law power of adoption continues to subsist, in light of the existence and
content of that Act. Insofar as there was some form of legislative “vacuum” it has
been filled”.
81. This view was echoed by McKechnie J. (at para. 144 of his judgment).
82. It was also the unanimous view of the Supreme Court that M.F. v. An Bord Uchtála did
not represent the law upon the enactment of the 2010 Act and, therefore, the Country A
adoption itself was not rendered a nullity.
83. In its written submissions to the Supreme Court entitled “next steps”, it had been
suggested by the Authority that the plight of the children might be remedied by either:
(1) An agreement between the Country A and Irish Central Authorities to
retrospectively perform their functions with a view to the Country A Central
Authority issuing an Article 23 certificate in respect of the Country A adoptions; or
(2) An application to the High Court under s. 92 of the 2010 Act for entry of the
Country A adoptions on the Register.
84. These “next steps” were addressed by the Supreme Court. With regard to the first option,
the preference of all of the judges in the Supreme Court was that an attempt should be
made to effect the type of adoption envisaged under the Convention, in that an effort
should be made to procure an Article 23 certificate of compliance with the Convention.
Such an approach is contemplated in the Explanatory Report prepared by G. Parra-
Page 18 ⇓
Aranguren in relation to the Convention (“the Explanatory Report”) in situations where
there is non-compliance.
85. In their respective judgments, MacMenamin J. and McKechnie J. agreed that if it were in
fact possible, a retrospective solution engineered between the two Central Authorities
would be the optimal solution. However, both judges expressed significant doubts and
concerns as to the feasibility of such “reverse engineering”.
86. In correspondence between the parties following the Supreme Court judgments, it was
acknowledged by the Authority that any such process was fraught with difficulties and
unlikely to resolve the situation.
87. By letter of 16th July, 2018 the applicants’ solicitor advised the Authority that the
attempted engagement with Country A’s Central Authority would not assist the matters
and indicated the applicants’ intention to pursue an application under s. 92 of the 2010
Act. In a response of 19th July, 2018, the Authority noted the position with regard to the
s. 92 application. The Supreme Court were notified of the non-success of the “reverse
engineering” approach.
88. Effectively, the within s. 92 application comes before the Court on foot of the Majority
View of the Supreme Court that in “a truly exceptional” case, s. 92(1) of the 2010 Act
may afford a mechanism whereby an intercountry adoption, albeit that it is not in
compliance with the Convention and the 2010 Act, might be recognised and entered on
the Register.
The relevant statutory definitions and provisions
89. Before I embark on a consideration of s.92 issue, and the status of the Majority View in
the Supreme Court (in issue in these proceedings) it is apposite at this juncture to set out
the relevant statutory definitions and provisions which informed the varying views of the
Supreme Court on the interpretation s. 92(1) and as to whether s.92(1)(a) can be utilised
by the High Court to direct the Authority to enter the within adoptions on the Register.
The interpretation and application of s.92(1)(a) to the within adoptions is the crux of the
present case.
90. In s.3 of the 2010 Act, “intercountry adoption” is defined as:
“the adoption of a child habitually resident in a state (the “state of origin”), whether a
contracting state or non-contracting state, who has been, is being, or is to be transferred
into another state (“the receiving state”) –
(a) after the child’s adoption in the state of origin, by a person or persons habitually
resident in the receiving state; or
(b) for the purposes of an adoption, in either the receiving state or the state of origin
by a person habitually resident in the receiving state.”
91. “Intercountry adoption effected outside the State” is defined as:
Page 19 ⇓
“(a) an adoption of a child effected outside the State at any time before the establishment day
that, at that time, conformed to the definition of “foreign adoption” in section 1 of the
Adoption Act 1991,
(b) an adoption, other than an intercountry adoption, of a child effected outside the State at
any time on or after the establishment day that conforms to the definition of “foreign
adoption” in section 1 of the Adoption Act 1991 as it read on 30 May 1991, or
(c) an intercountry adoption of a child effected outside the State at any time on or after the
establishment day that, at that time, is in compliance with the applicable provisions of
this Act and The Hague Convention.”
92. Section 1 of the Adoption Act 1991 defines “foreign adoption” as:
“an adoption of a child who at the date on which the adoption was effected was …
under the age of 18 years, which was effected outside the State by a person or
persons under and in accordance with the law of the place where it was effected
and in relation to which the following conditions are satisfied:
(a) the consent to the adoption of every person whose consent to the adoption
was, under the law of the place where the adoption was effected, required to
be obtained or dispensed with was obtained or dispensed with under that
law,
(b) the adoption has essentially the same legal effect as respects the termination
and creation of parental rights and duties with respect to the child in the
place where it was effected as an adoption effected by an adoption order,
(c) the law of the place where the adoption was effected required an enquiry to
be carried out, as far as was practicable, into the adopters, the child and the
parents or guardian,
(d) the law of the place where the adoption was effected required the court or
other authority or person by whom the adoption was effected, before doing
so, to give due consideration to the interests and welfare of the child,
(e) the adopters have not received, made or given or caused to be made or
given any payment or other reward (other than any payment reasonably and
properly made in connection with the making of the arrangements for the
adoption) in consideration of the adoption or agreed to do so,”.
93. Section 49 of the 2010 Act provides:
“(1) The Authority may refer any question of law arising on an application for an adoption
order or the recognition of an intercountry adoption effected outside the State to the High
Court for determination.
(2) Notwithstanding subsection (1), the Authority, unless it considers a question of law
arising on an application for an adoption order or the recognition of an intercountry
adoption effected outside the State to be frivolous, shall refer the question of law to the
High Court for determination if requested to do so by—
Page 20 ⇓
(a) an applicant for the order or the recognition of the intercountry adoption effected
outside the State,
(b) the mother or guardian of the child, or
(c) any person having charge of or control over the child.
94. Section 90 of the 2010 Act provides:
“90.— (1) In this section, “competent authority” includes a person serving in another
state in the capacity of a competent authority for the purposes of a bilateral
agreement or an arrangement referred to in section 81.
(2) The Register of Foreign Adoptions maintained until the establishment day under
section 6 of the Adoption Act 1991 by An Bord Uchtála shall, notwithstanding the
repeal of that section by section 7 (1), continue in being under this Act and, on and
after the establishment day, shall be—
(a) known as the register of intercountry adoptions, and
(b) kept and maintained under this Act by the Authority.
(3) The following persons may apply to the Authority to enter particulars of an
intercountry adoption effected outside the State in the register of intercountry
adoptions:
(a) the adopted person;
(b) a person by whom the adopted person was adopted;
(c) any other person having an interest in the matter.
(4) Not later than 3 months after the date when a child first enters the State after his
or her intercountry adoption in another state by parents habitually resident in the
State, the adopters shall ensure that an application to the Authority is made under
subsection (3) to enter particulars of the adoption in the register of intercountry
adoptions.
(5) If any of the persons referred to in subsection (3) apply in accordance with this
section to enter in the register of intercountry adoptions particulars of an adoption
referred to in subsection (4)—
(a) where the applicant is a person mentioned in paragraph (a) or (c) of
subsection (3), the application relieves both of the adopters of the duty under
subsection (4), or
(b) where the applicant is one of the adopters, the application relieves the other
adopter of the duty under subsection (4).
(6) An application under subsection (3) shall be accompanied by the certificate referred
to in section 57 issued by the competent authority of the state of adoption.
Page 21 ⇓
(7) If the Authority is satisfied that the adoption is an intercountry adoption effected
outside the State that complies with the requirements of this Act in relation to such
an adoption, the Authority shall enter particulars of the adoption in the register of
intercountry adoptions, together with a copy of the certificate referred to in section
57 concerned.
(8) If the High Court so directs under section 92 (1), an entry shall be made in the
register of intercountry adoptions concerning a specified intercountry adoption
effected outside the State.
(9) An entry in the register of intercountry adoptions shall be in such form and contain
such particulars as may be prescribed by regulations made under section 152.
(10) A person making an application to the Authority under subsection (3) is required to
furnish the Authority with such information as the Authority may reasonably require
and the information shall be in such form (if any) as may be specified by the
Authority.
(11) An error in an entry in the register of intercountry adoptions may be corrected and,
if the High Court so directs, a specified correction shall be made in the register.”
95. Section 92 provides:
“(1) If, on application to the High Court in that behalf by a person who may make an
application to the Authority under section 90 (3), the High Court is satisfied that an
entry with respect to an adoption in the register of intercountry adoptions should be
made, cancelled or corrected, the High Court may by order, as appropriate—
(a) direct the Authority to procure the making of a specified entry in the register of
intercountry adoptions,
(b) subject to subsection (2), direct the Authority to procure the cancellation of the
entry concerned in the register of intercountry adoptions, or
(c) direct the Authority to make a specified correction in the register of intercountry
adoptions.
(2) Unless satisfied that it would be in the best interests of the adopted person to do
so, the High Court shall not give a direction under subsection (1) (b) based solely
on the fact that, under the law of the state in which an adoption was effected, the
adoption has been set aside, revoked, terminated, annulled or otherwise rendered
void.
(3) Where the High Court gives a direction under subsection (1) (b), it may make
orders in respect of the adopted person that appear to the High Court—
(a) to be necessary in the circumstances, and
Page 22 ⇓
(b) to be in the best interests of the person,
including orders relating to the guardianship, custody, maintenance and citizenship
of the person.
(4) An order under subsection (3), notwithstanding anything in any other Act, applies
and shall be carried out to the extent necessary to give effect to the order.
(5) If the High Court—
(a) refuses to give a direction under subsection (1)(a), or
(b) gives a direction under subsection (1)(b),
the intercountry adoption effected outside the State shall not be recognised under
this Act.
(6) The High Court—
(a) may direct that notice of an application under subsection (1) shall be given
by the person making the application to such other persons (including the
Attorney General and the Authority) as the High Court may determine, and
(b) of its own motion or on application to it by the person concerned or a party to
the application proceedings, may add any person as a party to the
proceedings.
(7) The Attorney General—
(a) of his or her own motion, or
(b) if so requested by the High Court,
may make submissions to the High Court in relation to the application, without
being added as party to the application proceedings.
(8) If the High Court so determines, proceedings under this section shall be heard in
private.”
The differing views of the Supreme Court as to whether s.92(1)(a) could be employed
by the High Court to direct the registration of the adoptions.
of opinion on the meaning of s. 92 of the 2010 Act. The view of the majority (hereinafter
“the Majority View”) was elaborated by MacMenamin J. (Dunne, J. and O’Malley, J.
agreeing.) in the following terms:
“105. Consideration of a second “fall-back”, or alternative, approach begins with ss. 90
and 92 of the Act. Section 90 is contained in Part 10, Chapter 2 of the Act, which is
headed “Register of Intercountry Adoptions”. This particular chapter deals with the
powers and functions of the Authority regarding the Register of Foreign Adoptions.
Generally, it sets out that, once the Authority is satisfied with compliance with the
Convention, it shall enter particulars of the adoption in the Register of Foreign
Adoptions concerning a specified adoption effected outside the State. Section 90(8)
Page 23 ⇓
of the Act provides that, if the High Court so directs under s.92(1), an entry shall
be made in the register of inter-country adoptions concerning a specified inter-
country adoption effected outside the State. I interpret this as referring to a
specified inter-country adoption which has been effected outside the State, which
may have been referred to the High Court under the case stated procedure set out
in s.49(2) of the Act.”
97. After citing the provisions of s.92 of the 2010 Act and noting that the section was
contained in Part 10, Chapter 3 of the 2010 Act, which refers to “Directions of High Court
in relation to the Register of Inter-Country Adoptions”, MacMenamin J. went on to opine:
“107. One may then proceed to the definition of “inter-country adoption effected outside
the State”, contained in s.3, the “definitions” section of the 2010 Act. Included in
those definitions is to be found the following:
“(b) An adoption, other than an inter-country adoption, of a child effected outside
the State at any time on or after the establishment day that conforms to the
definition of “foreign adoption” in section 1 of the Adoption Act, 1991 as it
read on the 30th May, 1991 …”. (Emphasis added)
108. In s.3 of the 2010 Act, “inter-country adoption” is defined as:
“the adoption of a child habitually resident in a State (the “state of origin”),
whether a contracting State or non-contracting State, who has been, is
being, or is to be transferred into another State (“the receiving state”) –
(a) after the child’s adoption in the State of Origin by a person or persons
habitually resident in the Receiving State: or
(b) for the purpose of an adoption in either the receiving state or the state
of origin by a person habitually resident in the receiving state.”
(Emphasis added)
109. It is self-evident that the present situation can no longer be properly defined as a
classical “inter-country adoption”, in the sense that the children are now habitually
resident in the receiving state, Ireland. But, the question arises as to whether it can
be said that the procedure actually adopted in Country A does correspond with the
definition of a “foreign adoption” contained in the Adoption Act, 1991.
…
There is no doubt that Country A is a “place” which comes within that definition.
110. On the basis of the evidence, it would appear, therefore, that the requirements of a
foreign adoption, as set out at s.1 of the Act of 1991, might be complied with. The
children are prima facie eligible to be made the subject of an order under s.92 of
the 2010 Act. That being so, can an order be made under s.92(1) of the Act, it
Page 24 ⇓
being accepted that the adoption procedure in Country A was in accordance with
the laws of that country?
111. I would interpret s.92(1) as vesting in the High Court a slightly different and
broader power from that to be found in s.90. But this power is to be operated in
accordance with the objects of the Act, as informed by the Explanatory Report. In
fact, s.92(1) does not make reference to “an inter-country adoption effected
outside the State”, as in the case of s.90(8). Were the section to refer only to
“inter-country adoptions effected outside the State”, its scope would be more
narrow. In fact, it refers simply to “the Register of Intercountry Adoptions”. One
may conclude then, that s.92 imparts a slightly wider power to the High Court than
that vested in the Authority. This is, in my view, illustrated by the fact that, under
s.92(2), the court shall not give a direction to procure the cancellation of an entry
based solely on the fact that, under the law of the State in which an adoption was
effected, that adoption has been set aside, revoked, terminated, annulled, or
otherwise, and is void. This is a power the Authority itself does not have. The intent
of that sub-section is, plainly, to protect the safety and best interests of children
who have been the subject matter of previous adoption orders. That same intent is,
in my view, illustrated by s.93(3), which allows a court to make such orders as may
be necessary in the circumstances, which are in the best interests of the person,
and relating to the status of the child, including guardianship, custody,
maintenance, and citizenship. Undoubtedly, s.92(5) provides that if the High Court
refuses to give a direction under sub-section 1(a), or gives a direction under sub-
section 1(b), the inter-country adoption effected outside the State shall not be
recognised under the Act. However, I do not believe this prevents an order being
made in the event that the High Court determines that a “positive” order may be
granted, to the effect that an entry with respect to “an adoption” in the Register,
“may be made”. It seems to me that the intent of the legislature can hardly have
been that, in circumstances such as this, children, in the position of JB and KB,
should be left in a position where they are denied legal certainty as to their status.”
…
114. …on the facts of this exceptional case, informed by the provisions of Article 42A of
the Constitution, set out later, I would take the view that, all other things
remaining equal, and the other legal tests and requirements being satisfied, the
High Court, if itself “satisfied” that an entry should be made, might, exceptionally,
direct the Authority to procure the making of specified entries in the RICA regarding
these two children. This would do no violence to the best interests test. It would be
consistent with what I conceive to be the spirit of the Convention in dealing with
exceptional cases such as this one. The resolution would be in accordance with
internal law of the State. The recognition would be outside the Convention, but in
accord with the type of situation envisaged in the Report, to which this Court should
have regard.”
Page 25 ⇓
98. In expressing their agreement with the view taken by MacMenamin J. as to the potential
availability of s.92(1) to the applicants, Dunne J. and O’Malley J. stated:
“…if innocent mistakes or misunderstandings by either the applicants or State
officials result in an invalid adoption, it is incumbent on the authorities to explore
the possibility of official rectification. If that is simply impossible, the question is
whether the courts of this State have any mechanism available under which they
can vindicate the rights of the children without breach of the Act and Convention.
In our view, for the reasons stated by MacMenamin J. the procedure authorised
under s. 92 of the Act is capable of meeting this objective.” (at paras. 3-4)
99. The Majority View that the “slightly wider power” of the High Court under s.92(1) could be
employed in the present case was arrived at based on certain interpretive principles
derived from Article 42A of the Constitution, the Explanatory Report and the Guide to
Good Practice. These matters are discussed more fully later in this judgment.
100. Writing for the minority, McKechnie J. concluded that s. 92 did not confer a power on the
High Court that was wider than the power of the Authority under s.90. O’Donnell J.
agreed with McKechnie J., as a matter of statutory interpretation. (The views of
McKechnie J. and O’Donnell J. on s.92(1) will hereafter be referred to as “the Minority
View”).
101. When looking at the provisions of the 2010 Act, McKechnie J found the most critical
provision dealing with the power of the High Court to direct an entry in the Register to be
s.92(1)(a). He found subsections (2), (3) and (4) to be consequential measures “but only
on the Court directing the cancellation of an existing entry under subsection (1)(b).” With
regard to the comparison made by MacMenamin J. between s.92(1) and s.90(8) of 2010
Act for the purpose of concluding that s.92(1) conferred on the High Court a “broader” or
“slightly wider” power than that vested in the Authority, it was not clear to McKechine J.
that section 92(1) could be read independently of 90(8) so as to create a comparison
between the breadth of the respective powers of the High Court, on the one hand, and
the Authority, on the other. He took the view that a proper construction of the sections
was that they should be read together. He stated:
“Section 90(8) opens by providing that “[i]f the High Court so directs under section
92(1)”, an entry shall be made in the register concerning a specified intercountry
adoption effected outside the State. Accordingly, when section 92(1) (and section
92(1)(a), in particular) refers to the Court directing the Authority to procure the
making of a specified “entry” in the register, this can only relate back to the entry
“concerning a specified intercountry adoption effected outside the State” referred to
in section 90(8). Rather than containing differing powers, the two sections are in
fact opposite sides of the same coin; the High Court directs the making of an entry
under section 92(1), but that entry takes effect pursuant to section 90(8), which
refers only to “specified intercountry adoption[s] effected outside the State”. Thus it
is not clear to me that the power of the Court to order the making of entry on the
Page 26 ⇓
register is any wider than that of the Authority. Either way, it is only an
intercountry adoption effected outside the State, as so defined in the Act, that can
be entered on the register using these provisions”. (at para. 125)
102. He went on to opine that even if he agreed (which he did not) with MacMenamin J.’s view
that definition (b) of “intercountry adoption effected outside the State” under section 3
was made out, the High Court would be able to make an order directing an entry of the
adoptions on the Register on the narrower construction of ss.90(8) and s.92(1) which he
himself advocated.
103. McKechnie J. next turned to definition (b) of an “intercountry adoption effected outside
the State” as found in s.3 of the 2010 Act. He found the second element of definition (b),
namely, that the adoption was effected outside the State on or after the establishment
day, was clearly satisfied. For the third element, the five requirements of a “foreign
adoption” as defined under section 1 of the 1991 Act which must be satisfied, he thought
it “highly uncertain” whether the evidence in the case definitively establishes that these
criteria were met. He opined that even if they were met there was “a more fundamental”
difficulty with [MacMenamin J’s] reasoning, which centres on the first element of the
definition (b) of an intercountry adoption effected outside the State, which requires that it
must be “an adoption, other than an intercountry adoption”. In McKechnie J.’s view,
having regard to this definition of “intercountry adoption” and the wording of Article 2(1)
of the Convention which the definition replicates, the adoptions in question could not be
conceived of as other than an “intercountry adoption” under the 2010 Act, and thus as
being governed by the Convention. He went on to state:
“128 …Whichever view one takes of the facts of this case, it is clear that here the
children were habitually resident in Country A and were transferred to Ireland
either (i) after their adoption in Country A by Mrs. B, a person habitually resident in
Ireland, or (ii) for the purposes of an adoption in Ireland by Mrs. B. (On the facts it
seems that (i) is the better description of what occurred, but in the event that the
Country A adoption were to be disregarded, (ii) would kick into play and therefore
any subsequent adoption in Ireland would, in my view, still clearly be an
“intercountry adoption”).
129. Thus to my mind it is an inescapable conclusion that what has occurred in this case
can only be described as an “intercountry adoption” for the purposes of the Act; I
do not believe that any other consideration, such as the passage of time or the
children’s current habitual residence, can change this position. It follows that,
because this is an “intercountry adoption”, as defined in section 3, it cannot be an
“intercountry adoption effected outside the State” as also defined in that section.
Accordingly, I am of the view that no entry in respect thereof can be made under
section 90(8) or, based on the above, section 92(1)(a).”
104. At paras.99-113 and para.135 of his judgment, McKechnie J. expressly disagreed with the
Majority View that in exceptional cases Article 42A of the Constitution, the Explanatory
Report and the Guide to Good Practice could be used as interpretative aids in construing
Page 27 ⇓
the extent of the power of the High Court under s.92(1)(a) of the 2010 Act. The reasons
given by the learned McKechnie J. for his disagreement with the Majority View are
considered later in this judgment.
Considerations
How is s.92 of the 2010 Act to be interpreted?
105. As observed in the Supreme Court, the present case “from the outset always has been an
intercountry adoption situation: a Hague Convention case”. (McKechnie J. at para. 94)
The principal question which therefore arise for determination is whether, as a matter of
statutory interpretation, s. 92(1)(a) of the 2010 Act imparts what the Majority View in the
Supreme Court described as “a slightly wider power to the High Court than that vested in
the Authority” such that in a “truly exceptional case” the High Court may direct that “an
adoption” be entered on the Register even though it was not made in accordance with the
requirements of the Convention. If the Court does have such a power under s. 92(1),
then the question that arises is whether the applicants have discharged the onus of
satisfying the Court of the exceptionality of their circumstances such that an order
pursuant to s.92(1)(a) should be made.
The status of the Majority View
106. The first issue to be determined is the status of the Majority View.
107. It is the applicants’ submission, contrary to the submissions of the Authority and the
Attorney General, that as a matter of law, the majority in the Supreme Court held that
there is a slightly wider power in the High Court under s.92(1) than that of the Authority
under s.90 the exercise of which in respect to non-compliance with the Convention is
compatible with the objects of the Convention and the 2010 Act in “exceptional” cases.
108. The applicants contend that there are several indicia in the judgments of the Supreme
Court which would count against the Majority View being obiter. Counsel submits that the
“actual decision” of the Supreme Court was the answering of the five questions posed in
the Case Stated. That cannot be regarded as obiter, counsel submits, albeit that with
respect to some of the answers, the majority and minority view disagreed as to the
answers which should be given. It is submitted that the answers given to the five
questions are conspicuously the defining manner of the resolution of the issues that were
before the Supreme Court. It is thus for the Court here to find what was necessary and
essential in the Majority View of the Supreme Court as expressed by MacMenamin J.,
Dunne J. and O’Malley J.
109. It is submitted that particular support for the applicants’ position is found in the answers
given by both MacMenamin J. and McKechnie J. to question (a) of the Case Stated. This
question asked whether the Country A adoptions were recognisable in Ireland under Part
8 of the 2010 Act or common law. The applicants submit that it follows that it was
“essential and necessary” in deciding that issue that the Court determine whether or not
the Country A adoption can be entered on the Register by a direction of the High Court
Page 28 ⇓
under s. 92. They contend that this is plain from the answer given to the first question by
MacMenamin J.:
“Answer: the “country A adoption” may, in the first instance, be recognisable on
foot of decisions arising from the timely conclusion of remedial measures between
the Adoption Authority and Central Authority of Country A. Subject to the outcome
of those contacts, are, necessary, otherwise the High Court may alternatively, if
satisfied, on the evidence and the law, direct the Authority to register the
Adoptions, pursuant to s. 92 of the Act. The High Court may, on the basis of the
evidence before it, then, consider what order best gives effect to the provisions of
the law generally, s. 92 of the Act, the Explanatory Report, the Guide and in light of
the requirements of Article 42 of the Constitution. Only if the conditions of s. 92(1)
are in the opinion of the High Court satisfied a then direct the adoption be
registered pursuant to s. 92.” (at para. 138)
110. The answer given to the first question by the minority was: “No, the Country A adoption
is not recognisable”.
111. It is submitted that it is impossible to conclude from these two answers that the question
of a proper interpretation of s. 92 was not “essential and necessary” for the “actual
decision” by the Supreme Court in the Case Stated. Citing Talbot J. (at p. 154) in Flower
v. Ebbw Vale Steel, Iron & Coal Company [1934] 2 KB 132, counsel contends that it is
manifest from the judgment of MacMenamin J. that his “deliberate pronouncements” on s.
92 were “all made expressly as reasons” – in conjunction with other arguments –for the
decision to which the majority came to in respect of the questions posed in the Case
Stated.
112. The applicants contend that the references in para. 138 of MacMenamin J.’s judgment to
s.92 of the 2010 Act cannot be viewed as ancillary observations. Albeit that question (a)
of the Case Stated was not actually appealed by the Authority, the Authority’s own
written submissions to the Supreme Court proposed s. 92 as an alternative to a domestic
adoption. Thus, the issue of s.92 as a mechanism was before the Supreme Court. It is
thus argued that the Supreme Court, as guardians of the Constitution, had the issue of
s.92 before them in the context of what should happen to the children if a domestic
adoption was not available. Furthermore, what was before the Supreme Court was not an
ordinary lis inter partes but rather a Case Stated. In this context, given that the
individuals whose rights were most affected were not represented, it cannot be that the
fact that the Authority did not appeal question (a) could hamstring the Supreme Court
from considering the children’s rights.
113. It is acknowledged by counsel that both McKechnie J. and O’Donnell J. described the
Majority View on s. 92 as obiter and that MacMenamin J. may also have thought this
himself. It is the applicants’ contention, however, that MacMenamin J.’s comments on the
issue are not entirely consistent.
Page 29 ⇓
114. The applicants further contend that even if the Majority View’s comments regarding s.92
are obiter the Court should express its view on Majority View. It is submitted that
whatever way the views of the majority of the Supreme Court are to be interpreted, they
must of necessity carry great significance and weight. Accordingly, the Court cannot be
uninfluenced by the Majority View on s. 92 even when considering the matter afresh.
Counsel contends that even if their judgments in this regard are obiter, they constitute at
the very least the sort of “considered ancillary observations” which “have been accepted
subsequently as anticipating developments in the law and expressing principals of value”.
(per Clarke J. in M. v. Minister for Justice, Equality & Law Reform at para. [2018] IESC
14. (ar para. 10.25)
115. It is the submission of both the Authority and the Attorney General that the views
expressed in the judgments of the Supreme Court as to how s.92 is to be interpreted are
obiter.
116. Counsel for the Attorney General submits that it is important to note that it was only in
the context of the five questions in the Case Stated that the Attorney General made
submissions to the Supreme Court.
117. Counsel places emphasis on the fact that there was no appeal to the Supreme Court on
the answer given by the High Court to question (a) of the Case Stated. Nor was the
Supreme Court asked to rephrase the questions in the Case Stated. The Authority’s
notice of appeal referred to the mandatory nature of the Convention, the question of
consent and issues referable to the eligibility for domestic adoptions, with the remaining
grounds of appeal referring to the Authority’s jurisdiction. The notice of appeal did not
refer to either s. 90 or s. 92. Nor was there a reference to those provisions in the
Attorney General’s submissions in the Supreme Court or indeed the applicants’ response
to the appeal. It is accepted however that the Authority’s submissions made reference to
s. 90 and s. 92 in the context of appropriate “next steps” for the applicants.
118. In all the circumstances, therefore, it is the Attorney General’s position that the
interpretation of s. 90 and s. 92 was not teased out by the Supreme Court.
119. Albeit that MacMenamin J. went on to consider ss. 90 and 92 of the 2010 Act there was
no analysis by him as to why those provisions had a bearing on questions (b) and (d) of
the Case Stated. Moreover, his pronouncement in para. 81 would suggest that he had
already answered questions (b) and (d) of the Case Stated.
120. It is the Attorney General’s contention that ss. 90 and 92 do not have any bearing on
questions (b) and (d) of the Case Stated. Those questions as framed were solely in the
context as to whether the Authority had jurisdiction to make an adoption order. There
were no properly framed questions before the High Court or the Supreme Court as to how
the children’s position was to be regularised by the application of Irish law. As a further
basis for the submission that the comments of the Supreme Court with regard to s. 92
were obiter, counsel for the Authority referred the Court to the judgment of Simons J. in
A Foster Child v. CFA [2018] IEHC 762.
Page 30 ⇓
Discussion
121. It is common case that both the majority and minority judgments of the Supreme Court
engaged at length with the merits and demerits of the competing views of s. 92.
122. Although there are references in three of the judgments to the subject matter of the
disagreement between the majority and minority being obiter, that is not determinative
for this Court as to whether the observations made on s.92 are in truth obiter. As per
courts to determine what portion of the judgment meets [the test of being] essential and
necessary for the actual decision in the case”. (at para. 10.24.)
123. Bearing in mind the legal test, it is my view, from a consideration of the issues that were
before the Supreme Court, and the judgments delivered by the Court, that a number of
factors lead to the conclusion that the views expressed both by the majority and the
minority on s.92 of the 2010 Act were obiter.
124. Albeit that it was not the decisive factor having regard to the test set out in M. v. Minister
for Justice, I note the Supreme Court itself opined that its comments on s. 92 were obiter.
In this regard I note para. 81 of the judgment of MacMenamin J.:
“The High Court appears to have accepted the submission that the children were
eligible for a domestic adoption under s. 23 of the Act. The judge was persuaded
that it was permissible to adopt a ‘flexible’ approach to interpretation of the statute,
consistent with the broad and generous approach permissible in respect of a
remedial statute, such as the Act of 2010. But there are limitations to such an
approach. Even a broad and generous interpretation of a remedial Act cannot
proceed beyond the objects of that Act. I do not think the answers to the case
stated given by the High Court can stand in law. They do not sufficiently have
regard to the true intent of the Act or the Convention, nor do they sufficiently
address the problem that what happened here might permit circumvention of the
Act and the Convention elsewhere. I would set aside the order of the High Court,
and substitute the responses to the case stated set out later in this judgment, at
para. 138, bearing in mind the obiter dicta observations made here.”
125. At para. 86 of his judgment, there is further recognition on MacMenamin J.’s part that his
views on s.92 were obiter:
“I preface what follows with a recognition that certain observations as to the
interpretation and application of ss. 90 and 92 of the Act, and other legislation
referred to below, are, to an extent, obiter dicta, insofar as, to a degree, they go
beyond the issues falling for determination here. What is said in this section of the
judgment, however, does have a bearing on a response to questions (b) and (d) in
the case stated.
Page 31 ⇓
126. In aid of his submission that the Majority View was not obiter, counsel for the applicants
asked the Court to note in particular the words “to an extent” and “to a degree” as appear
in para. 86. I do not find, however, that those qualifications are sufficient to transform
MacMenamin J.’s comments on s.92 into part of the ratio of the decision of the Supreme
Court. This is in light of the learned judge’s acknowledgement that his observations as to
the interpretation and application of ss. 90 and 92 of the 2010 Act “go beyond the issues
falling for determination [in the appeal]” (at para. 86)
127. I agree with the submission of counsel for the Authority that if MacMenamin J. intended
his remarks on s. 92 to be binding he would have said so. I also note that Dunne and
O’Malley J.J. (who agreed with MacMenamin J. on the remit of s. 92) did not demur in
relation to MacMenamin J.’s comments that his views on s. 90 and s. 92 were obiter.
128. It is also of note that McKechnie J. (writing for the minority) stated that there was no
substantive legal argument before the Supreme Court on the meaning of s. 92. He
states, at para. 118:
“Even though the discussions had on sections 90 and 92 is rightfully said by
MacMenamin J. to be obiter (para. 86), a view with which I fully concur, given that
no submissions were made on these provisions, nonetheless I feel I should make
some observations on the issue, if only to contribute to the ensuing debate.”
129. Moreover, O’Donnell J., in the course of his judgment, observed that “all members of the
Supreme Court agreed on the answers on the questions posed in the Case Stated” and
noted that the divergence in the Court centred on the “residual” issue of s.92, the
discussion of which, he noted, was accepted by all to be obiter. (at para. 2)
130. A more fundamental issue to which this Court has regard is that none of the questions in
the Case Stated asked if s. 92 was available to the applicants.
131. In summary, the questions posed were:
(a) Whether the Country A adoption was recognisable under Part 8 of the 2010 Act,
which all of the members of the Supreme Court effectively held should be answered
in in the negative, given the non-compliance with the Convention. While I note that
the answer given by the majority of the Supreme Court to question (a) was framed
solely in terms of options that may be available by way of retrospective compliance
with the Convention, or alternatively an application under s. 92, that does not, to
my mind, detract from the fact that all members of the Supreme Court agreed that
the adoptions were not recognisable under Part 8 of the 2010 Act. Moreover, in the
answer given by the majority to question (a) of the Case Stated, I note that it was
for the High Court, if satisfied “on the evidence, and the law”, (emphasis added) to
direct the Authority to enter the adoptions on the Register. (See MacMenamin J. at
para.138) To my mind, this is further evidence that the majority considered their
observations on s.92 to be obiter;
Page 32 ⇓
(b) Whether on the facts disclosed the Authority had jurisdiction to make an adoption
order in respect of the children, a question which the members of the Supreme
Court in the respective judgments answered in the negative;
(c) Whether the common law jurisdiction of the High Court to recognise the adoptions
survived the passing of the 2010 Act, a question also answered by the Supreme
Court in the negative;
(d) Whether, on the basis of a continuing common law jurisdiction and on the basis
that of the facts disclosed in the Case Stated, and assuming that the Country A
adoption was not recognised in Ireland, the original status of the children remained,
a question also answered in the negative by the Supreme Court; and
(e) Whether the children could be the subject of a domestic adoption based on their
habitual residence in this jurisdiction at the time of the applicants’ application to the
Authority, which the Supreme Court in the various judgments also answered in the
negative on the basis that at the critical time the children’s’ situation was captured
by the Convention and thus the Convention and the 2010 Act could not be
circumvented on the basis of any habitual residence established after they came
into the State;
133. I acknowledge the references to s. 92 of the 2010 Act as appear in the answers given by
MacMenamin J. to question (a), (b), (d) and (e). Indeed, I note that in his answer to
question (e), MacMenamin J. describes the “main issue” in the Case Stated as “whether
an order may be made under s.92(1) of the Act by the High Court”. However,
notwithstanding the manner in which the answers given by the Majority are framed, to
my mind, a consideration of s. 92 of the 2010 Act was neither “essential” nor “necessary”
in order to answer the questions posed in the Case Stated. Accordingly, for the reasons
set out above, I find that the views expressed by the majority on s.92 are obiter.
Section 92(1)(a) of the 2010 Act
134. I turn now to the critical issue in this case-whether the High Court is vested under
s.92(1) of the Act with jurisdiction to direct the Authority to enter the within adoptions on
the Register in circumstances such as present in this case. As envisaged by both the
Majority and Minority Views, this issue necessitates, inter alia, a consideration of
s.92(1)(a) and other provisions of the 2010 Act. In effect, this Court must address what
s. 92(1)(a) “properly means” (as opined by McKechnie J. writing for the minority in the
Supreme Court).
135. The 2010 Act is a piece of remedial social legislation; therefore, it can be interpreted
purposefully, in the manner described by McGuinness J. in NWHB v. An Bord Uchtála
[2002] 4 IR 252, at p. 267:
Page 33 ⇓
“It is clear that the Act of 1998 is a remedial, social statute designed to permit the
adoption of children who had previously been denied the benefits of adoption. A
purposive approach should be applied to the interpretation of such a statute”.
136. In G. v. An Bord Uchtála [1980] I.R. 32, O’Higgins C.J. held that “the purpose of these
[Adoption] Acts that give to these children the opportunity to become members of a
family would have the status and protection which such membership entails.”
137. Thus, the 2010 Act falls to be interpreted, in the words of Walsh J. in Bank of Ireland v.
Purcell [1989] I.R. 327, “as widely and liberally as can be fairly be done.”
138. This Court also understands that it was the Attorney General’s submission to the Supreme
Court in the Case Stated that the 2010 Act is a socially remedial statute that should be
interpreted in a purposive way.
139. At para. 84 of his judgment in the Case Stated, MacMenamin J. opined that “a court may
legitimately adopt a flexible approach in a remedial statute such as [the 2010 Act].
However, he also stated: “even a court may only do so within the scope of the Act, as set
out in the long title.” The long title to the 2010 Act states, inter alia, that it is an Act “to
provide for matters relating to the adoption of children”, “to give the force of law to [The
Hague Convention]” and “to provide for the recognition of certain adoptions effected
outside the State”.
140. Prior to being addressed by the Majority and Minority Views in the Case Stated, s.92(1)(a)
had already been the subject of judicial interpretative comment. In M.O’C v. Udarás
less defined wording of the power of the High Court to enter a name on the Register on
Intercountry Adoptions”. He stated that from the Convention itself and from the
Explanatory Report to the Convention, it was “clear that in relation to ensuring the broad
objectives and fundamental principles of the Convention, co-operation and flexibility may
be required”. He concluded that “the more open-wording of the provision relating to the
power of the High Court to enter a name on the Register more fitting to allow for these
possibilities so as to allow the High Court to be a second guarantor of the interests of the
child and the proper administration of the Act in relation to intercountry adoptions, which
the general, standard, automatic registrations effected the Authority would not
encompass”.
findings of Abbott J. in M.O’C. and concluded that they were not applicable because M.O’C
was distinguishable on its facts.
142. J.M. arose out of an application by the applicant (J.M.) and his wife to the Authority to
enter an adoption in the Register of an adoption effected in a third country which was
signatory to Convention at the time of the adoption. The application was refused
recognition by the Authority on the basis that it was not compliant with Convention and
this decision was upheld by Reynolds J.
Page 34 ⇓
143. Refusing the application under s. 92, Reynolds J. stated:
“The final issue for the Court to determine is whether or not the adoption is
substantially compliant with The Hague Convention such that would afford the
Court some degree of flexibility or discretion to direct the registration pursuant to
Section 92 of the Act. The wording of the 2010 Act is unclear as to whether the
powers of the Court under Section 92 are broader than the powers of the Authority
under Section 90. The respondent contends that Section 92 could not be
interpreted so as to confer a power to dispense with The Hague Convention
requirements unless such power was stated in very clear terms.
In the case of (MO’C and BO’C v. Udaras Uchtála na hEireann [2014] IEHC 580,
also known as the Mexico case, Unreported 30 May 2014), Abbott J. made an order
under Section 92 in relation to an adoption that did not comply with all the
necessary of The Hague Convention. This decision related to an adoption in Mexico
where the adopters had engaged with the Authority and had received the
appropriate declaration of eligibility and suitability before travelling to Mexico to
adopt a child. The child was placed with the adopters prior to 1st November 2010
but the adoption was not legalised until some months later when the law had
changed and The Hague Convention had been adopted into Irish law.
In determining the issue, Abbott J. concluded that some flexibility could be adopted
with a view to addressing technical issues but only if the adoption sought to be
recognised fulfilled the broad objectives and fundamental principles of the
Convention
…
Abbott J. directed the registration of the adoption under Section 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 compiled 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. In the circumstances, it is simple
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
Section 90(2) of the Act.
The applicant’s tenacity in pursuing this application is to be commended but for the
forgoing reasons, the Court must refuse the application.”
Page 35 ⇓
144. While MacMenamin J. in his comments in the Majority View distinguished the facts of J.M.
from those then known to the Supreme Court regarding the present situation, he took the
view that certain statements of the judgment of Abbott J. in M.O.C. “cast the net far too
widely”.
145. Before embarking on an analysis of the meaning of s. 92(1) there are some general
observations that can be made regarding the Convention and the statutory scheme for
the making of adoption orders (including intercountry adoptions) and the entry of
adoptions on the Register.
146. Section 9 of the 2010 Act provides that “The Hague Convention has the force of law in
the State”. Article 2(1) of the Convention is unequivocal in that the Convention must
apply in circumstances of an intercountry adoption. It states:
“The Convention shall apply where a child habitually resident in one Contracting
State (“the State of origin”) has been, is being, or is to be moved to another
Contracting State (“the receiving State”) either after his or her adoption in the
State of origin by spouses or a person habitually resident in the receiving State, or
for the purposes of such adoption in the receiving State or in the State of origin.”
147. The Convention reflects best practice in the area of intercountry adoptions.
148. I do not consider it necessary to recite the relevant Articles of the Convention such as
applied to the within adoptions. I have already cited McKechnie J. in this regard. I also
note and adopt paras. 18-35 of the judgment of MacMenamin J.
149. As regards the 2010 Act and entries of intercountry adoptions onto the Register, the first
thing to be observed is that it is the Authority who records such entries. To the degree
that the High Court (whatever the extent of its powers) grants relief under s. 92 it is in
the form of a direction to the Authority to make an adoption order or not, or to make an
entry in the Register or not, or to make such amendment as may be required.
150. The legislature has designated the Authority as an entity with specialist knowledge and
expertise to carry out the functions created by the 2010 Act in the context of adoptions
and intercountry adoptions, with the High Court carrying out a designated statutory role.
There is no jurisdiction vested in the High Court itself to make an adoption order or to
make an entry in the Register. In both cases, it must direct the Authority to do so.
151. It is trite law to state that as a creature of statute conferred with express powers the
Authority cannot operate beyond the provisions of 2010 Act. The central question posed
in the present application is whether there exists a greater discretion vested in the High
Court when called upon, in the context of an application under s. 92, to direct that an
entry be made in the Register where the Authority itself is not enabled to make such an
entry based on the provisions of the 2010 Act.
The submission of the Authority and the Attorney General on the meaning of ss.90
and 92 of the 2010 Act
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152. In their submissions in the present case, the Authority and the Attorney General both
agree that there is some jurisdiction in the High Court under s.92(1) beyond that
conferred on the Authority under s.90. There is however a difference in emphasis on their
part. The Authority accepts that there is case law support for the proposition that s. 92(1)
confers a slightly wider jurisdiction on the High Court than that conferred on the Authority
under s.90.
153. In the view of the Authority, this power is confined to technical or minor substantive non-
compliance with the Convention which the Authority itself cannot excuse, such as for
example using s. 92 for a breach of time deadlines or confined to a minor breach of a
substantive matter. It endorses the view of Reynolds J. that the power under s. 92(1) is
one which can be utilised where “technical issues” arise but where “the broad
requirements of The Hague Convention have been met”. Counsel submits that it is for
the Court to say whether the level of non-compliance in the present case was significant
or whether it was more the nature of a technical or minor breach. The Authority’s primary
submission is that the Oireachtas could not have intended that s. 92 would be used the
circumvent the Convention or excuse major non-compliance with it. Albeit that any
finding as to the nature of the breach in the present case is for the Court, it is the
Authority’s submission that the non-compliance as occurred here does not come within
the realm of a technical or minor breach or a minor substantive breach.
154. Regarding the Authority’s position, counsel for the applicants contends that there is
nothing in the 2010 Act regarding non-compliance, be it technical or minor substantive
non-compliance.
155. The distinction drawn by the Authority between technical/minor substantive non-
compliance and major non-compliance crystallises the difference between the Authority’s
and the Attorney General’s respective positions. The Attorney General’s position is that
s.92 does not admit of any degree of non-compliance with the substance of the
Convention. It is contended by the Attorney General that insofar as non-compliance can
be excused it can only relate to the process in the State domestically and not any non-
compliance with the Convention. The Attorney General’s position is that the Convention
itself has no wriggle room or escape clause. I will return to the above arguments in due
course.
156. The CFA’s submission is that s.92(1) admits of a slightly wider power than that vested in
the Authority. As support for this contention, counsel points to the wording of s.92(1)
which refers only to "adoption" and "the register of inter-country adoptions".
157. With reference to the actual text of s. 92(1), the Attorney General’s position can be
summarised as follows. There is nothing expressly set out in s.92(1) to suggest that the
High Court has a jurisdiction over and above that which is vested in the Authority under
s.90 in respect of entries on the Register. It is submitted that had there been such intent
on the part of the Oireachtas to confer such jurisdiction, either expressly or by
implication, same would have been made subject to conditions set out s.91(1), which has
not been done. By way of comparison, counsel points to the provisions of s. 92(2) and
Page 37 ⇓
(3) where conditions attach to the powers given to the High Court. With regard to s.
92(1) there are no conditions put in place to explain the basis upon which the High Court
might exercise any residual jurisdiction. It is submitted that the silence in this regard
suggests that it was not intended that the High Court would have any implied jurisdictions
such as the applicants contend for.
158. It is thus submitted that the jurisdiction vested in the High Court can be no greater than
that contained in the Act, without an express provision to that effect.
159. It is also contended on the part of the Attorney General that for the purpose of
understanding the parameters of ss. 90 and 91 of the 2010 Act, it is necessary to have
regard to the provisions of s.57(1) and (2) of the 2010 Act, in particular s.57(2)(b)(i) and
(ii).
160. Section 57 provides:
“(1) In this section, “competent authority” includes a person serving in another state in
the capacity of a competent authority for the purposes of an intercountry adoption
effected outside the State.
(2) Subject to subsections (3) and (4), an intercountry adoption effected outside the
State that—
(a) if effected at any time before the establishment day—
(i) is an adoption that, at that time, conformed to the definition of
“foreign adoption” in section 1 of the Adoption Act 1991, and
(ii) has been certified under a certificate issued by the competent
authority of the state of the adoption as having been effected
under and in accordance with the law of that state, or
(b) if effected on or after the establishment day, has been certified under a
certificate issued by the competent authority of the state of the adoption—
(i) in the case of an adoption referred to in paragraph (b) of the
definition of “intercountry adoption effected outside the State” in
section 3 (1), as having been effected by an adopter or adopters
who were habitually resident in that state at the time of the
adoption under and in accordance with the law of that state, and
(ii) in any other case, as having been effected in accordance with
the Hague Convention or with a bilateral agreement or with an
arrangement referred to in section 81, as the case may be,
unless contrary to public policy, is hereby recognised, and is deemed to have been
effected by a valid adoption order made on the later of the following:
(I)
the date of the adoption;
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(II) the date on which, under section 90, the Authority enters particulars of the
adoption in the register of intercountry adoptions.”
161. As can be seen, for the purpose of s.57(2) of the Act and the power of the Authority to
give recognition to intercountry adoptions effected outside the State, adoptions comprise
three categories. First are what can be called “legacy adoptions” which predate the
establishment day of the 2010 Act, and which must conform with the legal definition of a
foreign adoption under the 1991 Act. (Section 57(2)(a)) It is accepted that s. 57(2)(a)
has no applicability to the present case given that the adoptions were made after the
establishment day.
162. The second category of recognisable adoptions are those effected on or after the
establishment day which, as per s.57(2)(b)(i) of the 2010 Act, occur in another country
and which must also conform with the 1991 Act definition of “foreign adoption” and which
relate to situations where the adopting parties were habitually resident in that country at
the time of the adoption and where the adoption was made in accordance with the law of
that country. The definition of this category is achieved by identifying what it is not,
which is to say that it is not an adoption covered by the definition of “intercountry
adoption”. An “intercountry adoption” is defined in s. 3 of the 2010 Act by reference to
the fact that the child and the adopting parents habitually reside in different countries.
163. The third category of recognisable adoptions are those under s.57(2)(b)(ii), namely
Hague Convention compliant adoptions or adoptions explicitly provided for in the Act such
as those based on a bilateral agreement or with reference to a specific child as provided
for in s. 81 – to which Hague Convention standards must also apply.
164. Counsel for the Attorney General submits that for the purposes of the Court making an
order under s. 92(1)(a), the applicants must establish that the adoptions in question
come within s. 57(2)(b)(i) or (ii) of the 2010 Act. He states that s. 57(2)(b)(i) can be
excluded from consideration as it is not suggested that the second applicant was
habitually resident in Country A at the time of the adoptions.
165. Section 57(2)(b)(ii) provides that in order for the adoptions in the present case to be
recognised they must be in accordance with the Convention or the bilateral agreement or
an arrangement referred to in s. 81 of the 2010 Act. As Country A is a contracting State
for Hague Convention purposes, the bilateral agreement or the s. 81 arrangement cannot
apply here. Again, all concerned acknowledge that the applicants cannot satisfy s.
57(2)(b)(ii) as the adoptions did not comply with the Convention requirements. Counsel
thus submits that in the absence of the applicants being able to satisfy the requirements
of s. 57(2)(b)(i) or (ii) of the 2010 Act, the relief under s.92(1)(a) is not open to them.
166. The Attorney General’s principal argument is that there is no power to dispense with the
requirements of s. 57 of the Act, whether on the part of the Authority or on the part of
the High Court. It is the Attorney’s contention that a plain reading of the provisions of ss.
90 and 92 of the 2010 Act bear out this argument.
Page 39 ⇓
167. Certain provisions of s. 90 of the 2010 Act are crucial to the position being adopted by the
Attorney General as to how s.92(1)(a) is to be interpreted. Section 90(3) and (4) provide:
“(3) The following persons may apply to the Authority to enter particulars of an
intercountry adoption effected outside the State in the register of intercountry
adoptions:
(a) the adopted person;
(b) a person by whom the adopted person was adopted;
(c) any other person having an interest in the matter.
(4) Not later than 3 months after the date when a child first enters the State after his
or her intercountry adoption in another state by parents habitually resident in the
State, the adopters shall ensure that an application to the Authority is made under
subsection (3) to enter particulars of the adoption in the register of intercountry
adoptions.”
168. It is contended by the Attorney General that s. 90(3) and s. 92(1) must be read in
conjunction with each other. Section 90(3) identifies the scope of persons who may apply
to register intercountry adoption effected outside the State. Section 92(1) provides that
those persons who are entitled to apply under s. 90(3) may also apply for a direction
from the High Court. As to what s. 92(1) is directed towards, counsel cites, by way of an
example, a circumstance where the adopters do not apply to the Authority within the time
limit provided for in s.90(4) and where the Authority refuses to consider the application.
It is suggested that pursuant to s.92(1)(a), the High Court could in effect extend the time
by directing an entry in the Register, assuming all proofs are in order. Counsel draws a
distinction between major and minor contraventions of the adoption requirements. A
minor contravention could be logistical, such as missing the aforementioned three-month
deadline, in particular if it was unavoidable or inadvertent. It is also suggested that a
further example of a minor contravention in respect of which the High Court could direct
an entry would be if the adopters provided the required information but not in the form
required. A major contravention would be that the adoption itself did not comply with
Hague standards or other requirements under the 2010 Act which, it is submitted, cannot
be the subject of an order under s.92(1)(a).
169. It is further contended that the words “… a person who may make an application to the
Authority under s. 90(3)” as contained in s.92(1) refer to the list or category of persons
who are eligible to make an application under s. 90(3); thus, the words are descriptive
rather than temporal in nature. I note that counsel for the applicants agrees that the
words in question are descriptive.
170. It is also submitted on the part of the Attorney General that the words “should be made,
cancelled or corrected” as set out in s. 92(1) suggests that the import s. 92(1) is that it
encompasses a supervisory jurisdiction in the High Court over the Authority and the
Register. It is argued that the provision does not say anything about the issue of the
jurisdiction of the High Court as against that of the Authority. It is contended that the
Page 40 ⇓
High Court jurisdiction in s.92(1) is “supervisory” and that such jurisdiction is not “extra-
statutory”.
171. Counsel contends that the supervisory jurisdiction of the High Court is underscored by the
provisions of s. 92(2) and (3) such that in the event that the Authority was directed to
procure the cancellation of the entry in the Register, the High Court could in the exercise
of an express statutory power make necessary provision in the best interest of the child
concerned relating but not limited to the identified items.
172. Based on the contention that the range of persons who may apply under s. 92(1) are the
persons listed in s. 90(3), it is the further contention of the Attorney General that the
power of the High Court under s. 92(1) is to direct the entry on the Register of an
“intercountry adoption effected outside the State”. It is submitted this is what a cohesive
reading of the law means.
173. Counsel points to s. 20(2) of the 2010 Act which provides that the Authority is
empowered to make an adoption order for a child who has been “adopted in an
intercountry adoption effected outside the State” and that once satisfied as to the
relevant certification from the State of adoption the Authority may recognise such
adoption and register same. Thus the Authority’s power to recognise an intercountry
adoption is confined only to intercountry adoptions effected outside the State. It is
argued that the list of persons who may apply to the Authority under s. 90(3) to enter
particulars on the Register is inextricably tied to an application based on an “intercountry
adoption effected outside the State”.
174. It is submitted that it is of significance that the High Court’s power to entertain an
application to direct the Authority to make an entry on the Register pursuant to s. 92(1)
is by reference back to the list of persons in s. 90(3). Counsel suggests that reference to
the range of persons who may apply under s. 92(1) must refer to the list or category of
persons who are eligible to make an application under s. 90(3).
175. The Attorney General’s contention is that the necessary implication of this is that no such
application to the High Court pursuant to s.92(1) is available to that list of persons if
applying in respect of “intercountry adoptions”.
176. He asserts that in order for the applicants to avail of the jurisdiction of the High Court
under s. 92(1) to direct the Authority to make an entry in the Register, the adoptions
must first of all come within the classification to which s. 90(3) relates.
177. In further support of his argument that the powers of the Authority and High Court are
coterminous, counsel refers to s. 90(7) and (8) of the 2010 Act. With regard to s. 90(7)
(which empowers the Authority to enter an intercountry adoption effected outside the
State on the Register once satisfied that it complies with the 2010 Act), counsel posits
that the need for the power vested in the High Court under s. 92(1) could be if for
example the Authority was not satisfied to direct an entry into the Register. Thus a
Page 41 ⇓
person dissatisfied with that decision may seek an order from the High Court under s.
92(1) directing the Authority to enter the adoption on the Register.
178. It is thus contended that the power of the High Court under s. 92 is a corrective/advisory
jurisdiction and is not a broader/wider power than that of the Authority. It is
acknowledged that the description of the High Court’s powers as suggested by the
Attorney General are more akin to an appeal jurisdiction, which is not provided for in the
2010 Act
The applicants’ submissions
179. The applicants’ position can be summarised as follows: they acknowledge that there is an
interpretative question for the Court to answer with regard to s.92. It is accepted that
s.92 is not so self-explanatory and obvious that it alleviates the necessity for
interpretation of the section. They urge the Court to adopt the Majority View of the
Supreme Court as to how s.92(1)(a) is to be interpreted. They contend that the High
Court’s remit under s.92(1) is not just to duplicate or mirror the powers of the Authority
under s.90.
180. They also argue that the jurisdiction conferred on the Court under s.92(1) is not an
appellate one. Nor is it there to correct the Authority in circumstances where judicial
review would be the more appropriate remedy. They further submit that insofar as the
Attorney General concedes a wider jurisdiction for the High Court under s.92(1) than that
afforded to the Authority under s.90 but argues that such jurisdiction is confined to
instances of minor non-compliance in respect of procedural matters in the 2010 Act, that
approach creates its own difficulties. Counsel for the applicants poses the question as to
where does one draw the line between major and minor non-compliance?
181. While the Attorney General places much emphasis on the language used in s.92(1) as to
who may apply under the subsection, it is the applicants’ contention that the reference in
s.92(1) to the list of persons who can apply under s.90(3) is there only to circumscribe
the list of people who may apply under s.92(1). Clearly, the applicants fall within the
range of persons permitted to make such an application. Counsel argues that there is no
requirement under s.92(1) that the applicants also be people who are applying to the
Authority to register an inter-country adoption effected outside the State.
182. Notably, the phrase “an intercountry adoption effected outside the State” is not used in
either s. 92(1) or s. 92(2) of the 2010 Act. This is in contrast to its repeated use in s. 90
and in s. 92(5). Counsel for the applicants also point out that ss. 92(1) and 92(2) speak
only of “an adoption” rather than “intercountry adoption effected outside the State”, an
observation also made by MacMeniman J. in the Majority View. It is thus submitted on
behalf of the applicants that, in effect, s. 92(1) allows for a foreign adoption as defined by
the Adoption Act, 1991 to be entered on the Register on the direction of the High Court.
183. Counsel contends that the reason for and legal significance of the omission of the phrase
“an intercountry adoption effected outside the State” from s. 92(1) is neither clear nor
Page 42 ⇓
obvious. It requires an exercise in statutory interpretation. Such an exercise has been
carried out, with divergent outcomes, by the learned judges of the Supreme Court. The
Majority View is that there is a slightly wider power granted to the High Court under s.
92(1) than is granted to the Authority under s. 90. It is argued that no similar power to
that granted to the High Court under s. 92(1) has been granted to the Authority under
the 2010 Act.
184. In aid of his submission as to the wider remit given to the High Court under s.92 as
opposed to that of the Authority under s. 90, counsel points to s. 92(2) which provides
that the High Court (in the best interests of the children) has the power to leave on the
Register an adoption that has been annulled, terminated or revoked in another country.
Importantly, this is a wide power which the Authority does not have.
185. The applicants dispute the Attorney General’s assertion that in order for the within
adoptions to be able to be entered on the Register they must conform to s.57(2)(b)(i) or
(ii) of the 2010 Act. It is not the applicants’ case in the within proceedings that the
adoptions fall within the definition of an inter-country adoption effected outside the State.
If the adoptions fell within s.57(2)(b) (i) or (ii), then there would be no need for an
application under s.92(1); the applicants would merely have to apply to the Authority
under s.90(3) to have the adoptions entered on the Register.
186. With regard to the provisions of s.90(8) of the 2010 Act, counsel urges the Court not to
accept the view expressed by McKechnie J. in the Supreme Court, and submits that if ss.
92(1) and 90(8) are to be read “as opposite sides of the same coin” then the question
must be asked as to why the High Court was given a power at all under s. 92(1)?
187. It is submitted that the three paragraphs in s. 92(1) conferring powers on the High Court
cannot be read as merely correlative (or mirror provisions) to the subsections which
confer duties on the Authority or otherwise qualify the powers of the Authority as set out
in ss. 90(8), 90(11) and 92(5) of the 2010 Act. The applicants contend that that if s.
92(1) was intended to be merely a correlative provision then one would expect to find a
related provision in s. 90 expressly authorising or requiring the Authority to cancel an
entry on the Register. However, no such provision exists save as directed by the High
Court.
188. Counsel queries the point of s.92(1) of the 2010 Act if not to permit scope for the
Authority to be directed by the High Court to register the adoptions in issue here in the
particular exceptional circumstances in which the applicants find themselves.
Discussion
189. With regard to the statutory provisions in issue in this case, in the first instance, I agree
with counsel for the applicants’ submission that a plain reading of s. 90(3) and s.92(1) of
the 2010 Act does not lend support to the Attorney General’s argument that an applicant
under s.92(1) has to establish that the adoption in respect of which the application is
made is an “intercountry adoption effected outside the State”. What s.90(3) does is to
identify the persons entitled to apply to the Authority seeking the exercise by the
Page 43 ⇓
Authority of its powers under s.90(7). Insofar as s.92(1) refers to s.90(3), to my mind it
does so for the purpose only of identifying the range of persons who may make an
application to the High Court under s.92(1). I do not find, therefore, a basis solely upon a
comparison of s.90(3) and s.92(1) by which it can be concluded that the powers of the
Authority and the High Court regarding entries on the Register are coterminous.
190. I turn now to a comparison of provisions of s.90(7) and (8) with s.92(1).
191. In the Supreme Court’s judgment in the Case Stated, McKechnie J. (the Minority View)
opined (at para. 125) that s.92(1) and s.90(8) of the 2010 Act must be read together.
This is also the submission of the Attorney General in the present proceedings.
192. It seems to me that the basic premise of the learned McKechnie J.’s analysis (his being
satisfied that the adoptions in issue were “intercountry adoptions”) is that as s.92(1)(a)
and s.90(8) are “opposite sides of the same coin” the power of the High Court under
s.92(1)(a) is restricted to what is prescribed in s.90(8) of the 2010 Act, namely that the
High Court is vested with the power to direct the Authority with regard to an entry in the
Register “concerning a specified intercountry adoption effected outside the State”, which
McKechnie J. found could not be satisfied in this case given his finding that the adoptions
in issue conformed to the definition of “intercountry adoptions”.
193. I do not believe, however, that the fact that McKechnie J. classified the adoptions in issue
here as “intercountry adoptions” or that he identified the scope of s. 90(8) as confined to
the High Court directing the Authority to register a specified intercountry adoption
effected outside the State necessarily defines the scope of s.92(1) of the 2010 Act.
Clearly, s.90(8) has to be read in light of s.90(7), the section which empowers the
Authority to register intercountry adoptions effected outside the State.
194. The Authority has an express statutory obligation under s. 90(7) to enter on the Register
“an intercountry adoption effected outside the State”, once satisfied that it complies with
the requirements of the 2010 Act. To my mind, the direction provided for in s.90(8)
harkens back to the Authority’s statutory power as set out in s.90(7).
195. Thus, the rationale for the High Court to have a power under s. 92(1)(a) to direct the
making of an entry on the Register in respect of “an adoption” would be unclear, and the
power redundant, if that power was confined to directing the entry of only an intercountry
adoption effected outside the State made with full compliance with the Act. To my mind,
counsel for the applicants’ query as why there would be a need for such a power in the
High Court when such power exists within the Authority is well made. The 2010 Act
provides that if the requirements of s. 90(7) are satisfied then the Authority is already
obliged to make the entry before and without any direction from the High Court.
196. I agree with the interpretation put on s.90(8) by MacMenamin J., namely that s.90(8)
may refer to a specified intercountry adoption effected outside the State which may have
been referred to the High Court under the case stated procedure set out in s. 49(2) of the
2010 Act. I will return to such further meaning as s.90(8) may have in due course.
Page 44 ⇓
197. To my mind, the salient element of the remit of the powers of the High Court under
s.92(1), compared to those of the Authority under s.90, has to be the manner in which
the provision is framed. As observed by MacMenamin J., s.92 is found in a different
chapter of Part 10 of the 2010 Act to that which provides for the Authority’s power to
make entries on the Register. Unlike s. 90(8), s.92(1) does not make reference to
“intercountry adoptions effected outside the State”. As was the case with MacMenamin J.,
I accept that were s.92(1) to refer only to “intercountry adoptions effected outside the
State” its scope would be much more narrow. However, s.92(1) refers only to an entry of
“an adoption” in the “register of intercountry adoptions”.
198. The phrase “intercountry adoption effected outside the State” is a somewhat cumbersome
one. Counsel for the applicants submits that its use wherever it appears in the 2010 Act is
clearly deliberate. I find merit in the applicants’ submission in this regard. In my view, in
circumstances where the 2010 Act is replete with references to the phrase “intercountry
adoption effected outside the State”, where this phrase is omitted in the 2010 Act, or a
different phrase is used, that has to be plainly construed as the deliberate intent of the
legislation. I also consider it noteworthy that the powers of the High Court under s.92(1)
equate to those which the Court had under s.7(1) of the 1991 Act. I note that the
Oireachtas did not see fit to alter the provisions of s.92(1) in any way consequent on
adopting the Convention into Irish law.
199. At para. 111 of his judgment (already quoted herein), MacMenamin J. found support for
the slightly wider power of the High Court regarding entries in the Register than that
vested in the Authority by looking to s.92(2) and (3) of the 2010 Act. He noted the
reference therein that any directions given by the High Court must have regard to the
best interests of the adopted person. While I note that McKechnie J. found no basis in
ss.92(2) or (3) to support a freestanding power in the High Court under s.92(1) to direct
an entry in the Register, and found the omission of any reference to best interests in
s.92(1) “highly surprising”, I nevertheless agree with the observations of the learned
MacMenamin J. with regard to these provisions.
200. In Part 4 of the 2010 Act, entitled “Domestic Adoptions and Intercountry Adoptions”, s.
19(1) provides that in “any matter, application or proceeding” under the 2010 Act “the
Authority or the court, as the case may be, shall regard the best interests of the child as
the paramount consideration in the resolution of such matter application or proceedings”.
Section 19(2) sets out the relevant factors or circumstances to be considered, including,
inter alia, “the child’s views on his or her proposed adoption”. Noting that s. 19 is
applicable to any order the High Court might make under s.92(1)(a), I do not regard the
observation of the learned McKechnie J. with regard to the omission of “best interests”
from s.92(1) as a necessarily persuasive factor when construing the breadth of the
subsection.
201. I also adopt the view of the learned MacMenamin J. as expressed in para. 111 of his
judgment in relation to s.92(5) of the 2010 Act. Section 92(5) provides that if the High
Court refuses to give a direction under s. 92(1)(a), or gives a direction under s.92(1)(b),
Page 45 ⇓
the intercountry adoption effected outside the State shall not be recognised under the
Act. The learned judge opined that this did not prevent an order being made under
s.92(1)(a) “in the event the High Court determines that a “positive” order may be
granted, to the effect that an entry with respect to ‘an adoption’ in the Register ‘may be
made’”. To my mind, from the interpretation perspective, the learned judge’s conclusion
in this regard logically follows from his observation that s. 92(1) of the 2010 Act speaks
only of “an adoption” and not “an intercountry adoption effected outside the State”.
202. I also accept the applicants’ submission that if the Oireachtas intended merely to grant
applicants a right of appeal under s.92(1) against the Authority where “an intercountry
adoption effected outside the State” should have been registered by the Authority under
s. 90(7) but it erroneously fails to do so, then that would have expressly been set out.
However, s. 92(1) is not framed as a power of appeal from a failure by the Authority to
satisfy its obligation under s. 90(7); it is formulated as a stand-alone power to direct an
entry on the Register – and one which makes no mention of “an intercountry adoption
effected outside the State” but speaks rather of “an adoption”.
203. Moreover, I am also satisfied that the purpose of s.92(1)(a) cannot be for the purpose of
corrections since s.92(1)(c) expressly provides the High Court with such power.
204. I now turn to the view expressed by MacMenamin J. (at para. 110 of his judgment) that if
the requirements of a “foreign adoption” as defined in s.1 of the 1991 Act were found to
complied with as regards the adoptions in issue here, the children are prima facie eligible
to be made the subject of an order under s. 92 of the 2010 Act.
205. Counsel for the Attorney General contends that the learned judge’s view in this regard
was based on an incomplete assessment of the relevant provisions of the 2010 Act.
206. A “foreign adoption” as defined in s.1 of the 1991 Act means an adoption where the child
is under eighteen and the adoption is in accordance with the laws of the place where it is
effected in relation to which a number of conditions are required to be satisfied, as set out
in the definition. All of the proofs therein contained are mandatory. It is the Attorney
General’s submission that the sine qua non, according to the requirements under s.
57(2)(b)(i) of the 2010 Act, is that as well as each of the requirements of the definition of
“foreign adoption” having to be complied with, it must also be established that the
adopter or adopters were habitually resident in the State granting the adoption at the
time the adoption order was made, that the adoption order accorded with the law of that
State and that that State certifies the adopters’ habitual residence. As acknowledged, the
applicants cannot satisfy the requirements of s.57(2)(b)(i) as the second applicant was
not habitually resident in Country A at the time of the adoptions. Accordingly, the
Attorney General’s position is that the applicants cannot rely on the concept of “foreign
adoption” as defined in s. 1 of the 1991 Act without also satisfying the habitual residence
requirement of s.57(2)(b)(i), which they cannot satisfy. Counsel submits that there is no
power either in the Authority or the High Court to dispense with the requirements of s.
57(2) of the 2010 Act. In essence, it is contended on behalf of the Attorney General that,
in the absence of the applicants being able to satisfy the habitual residence requirement
Page 46 ⇓
of s. 57(2)(b)(i), MacMenamin J.’s conclusion that the children are prima facie eligible to
be made the subject of an order under s.92 if the adoptions conform to the definition of
“foreign adoption” as it stood in 1991 cannot be considered as a correct interpretation of
the relevant statutory provisions.
207. I accept counsel for the Attorney General’s submissions on this issue insofar as they
relate to the power of the Authority under s.57(2) to recognise intercountry adoptions
effected outside the State. It is clear from a reading s.57(2)(b)(i), in conjunction with s.
20(2), s. 90(7) and s.90(8) of the 2010 Act, that the Authority cannot recognise or enter
on the Register the particular intercountry adoption effected outside the State which
s.57(2)(b)(i) provides for unless all of the requirements of the latter subsection are met,
including habitual residence in the State of the adoption.
208. Do these strictures necessarily prevent the High Court (on the assumption, for the
purposes of the present argument, that the adoptions in issue here come within the
definition of s.1 of the 1991 Act) from making an order under s.92(1)(a)? In my view this
question has to be answered in the negative. To my mind, the Attorney General’s
argument is predicated on the High Court’s power under s.92(1)(a) being coterminous
with the powers of the Authority under s. 90. This Court, for the reasons already stated,
has found this not to be the case. Accordingly, from a perusal of the relevant provisions, I
do not find, on a plain reading of the Act, the type of interaction between s.92(1) and
s.57(2) of the 2010 Act as contended for by the Attorney General in his submissions.
209. I am satisfied that a plain reading of the relevant provisions of ss.90 and 92 do not
suggest that the power granted to the High Court in s.92(1)(a) is coterminous with the
powers of the Authority under s.90 (3), (7) or (8) and/or s.57(2), or that the power of the
High Court under s.92(1) is otherwise curtailed or constrained by those provisions.
210. I am also of the view that the learned MacMenamin J.’s reliance on the concept of a
“foreign adoption” as it read on 30th May, 1991 does not equate to a finding by the
learned judge that the definition of “intercountry adoption effected outside the State” is
made out in this case. If an “intercountry adoption effected outside the State” was made
out, then there would be no need to consider, for the purposes of this case, whether there
was a wider power in the High Court under s.92 than that vested in the Authority as the
applicants could apply to the Authority for recognition and registration of the adoptions,
or in the event of a refusal of recognition concerning a specified intercountry adoption
effected outside the state, invoke s.92(1) for the High Court to direct the Authority to
enter the adoptions on the Register in accordance with the Authority’s obligation to do so
under s.90(7) of the 2010 Act.
211. If the High Court so directs, then the Authority must enter the intercountry adoption
effected outside the State on the Register. (Section 90(8) refers)
212. To my mind, in the knowledge that any recognition of the adoptions in question would be
“outside the Convention” the basis of the learned MacMenamin J.’s focus on the definition
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of “foreign adoption” as it read as of 30th May, 1991 was to ascertain if a prima facie
basis for the within adoptions to be considered under s.92 could be established.
213. For all of the reasons set out above, upon a plain reading of the relevant provisions, I am
in agreement with, and find more persuasive, the Majority View (albeit obiter dicta) that
s.92(1) admits of “a slightly wider” power with regard to the entry of adoptions on the
Register than that vested in the Authority under s.90 of the 2010 Act.
Is this “slightly wider” power of the High Court under s.92(1)(a) capable of being used in
this case without doing violence to the objects of the 2010 Act or the Convention?
214. The essential question which now arises in this case is whether in light of the overall
objective of the 2010 Act (the incorporation of the Convention into Irish law), the slightly
wider power vested in the High Court under s.92(1)(a) can be construed so as to allow
s.92(1)(a) be utilised to direct the Authority to enter the within adoptions on the Register
notwithstanding the wholesale non-compliance with the Convention evident in this case.
The Majority View of the Supreme Court was that if the High Court was itself satisfied that
an entry should be made, pursuant to s.92(1)(a) it could “exceptionally” direct the
Authority to procure an entry of the adoptions in the Register.
215. Albeit that the varying views of the Supreme Court in the Case Stated on the interpretive
tools available to a court when construing s.92(1)(a) were obiter dicta, this Court takes as
its starting point those views as they encompass the issues with which this Court must
grapple in considering whether the slightly wider power which I have found the High
Court has, as compared to the Authority, allows for the utilisation of s.92(1)(a) in the
present case.
216. The Majority View of the Supreme Court (in reliance on HI v. MG (Child Abduction):
Wrongful removal [1999] IESC 89) was that the proper starting point in ascertaining
whether s.92(1) could be utilised in an exceptional case was that the Court should
interpret the 2010 Act in a manner informed by the Convention and the Explanatory
Report, bearing in mind the need to protect “the spirit and wording of the Convention.”
(MacMenamin J. at paras. 88, 98) While MacMenamin J. noted the Authority’s
submission that the Oireachtas had laid down that all children’s best interests rights
should be vindicated through the 2010 Act and the Convention, the learned Judge did not
believe that this meant that the 2010 Act or the Convention “is a legally self-contained, or
ring fenced, area of law, immune from constitutional interpretation or analysis.” This was
because the Convention “has the status of domestic statutory law enacted under Art. 29.6
of the Constitution” and was “subordinate to the Constitution”. (at para. 88)
217. Thus, the Convention “could not be elevated to a quasi-constitutional status”. (at para.
88) This being so, in the view of MacMenamin J., Article 42A of the Constitution came into
play and “the courts are bound to observe the best interests test for children in adoption
cases.” He accepted however that any process of constitutional interpretation had to be
conducted in harmony with the Convention so as to ensure that “it does not run the risk
Page 48 ⇓
of defeating the object of the legislation, which is itself intended to protect the best
interests of children.” (at para. 88)
218. Noting the provisions of s.10 of the 2010 Act which provides that “judicial notice shall be
taken of the Explanatory Report”, MacMenamin J. first considered this instrument in his
quest to find harmony between a constitutional interpretation of s.92(1) and the
mandatory nature of the Convention to which pursuant to Article 40 thereof no
reservation is permitted. In the first instance, he noted that the Explanatory Report was
replete with references to “best interests”, citing in particular paras. 63 and 64 of the
Report. Para. 63 states that one of the main objects of the Convention is “the
establishment of safeguards to ensure the best interests of the child and the respect for
his or her fundamental rights, as recognised by international law” (found in the Preamble
to the Convention). MacMenamin J. also cited para. 65 of the Explanatory Report which
recognised that “the Convention does not pretend to solve all the problems related to
children’s intercountry adoption, in particular, to determine the law applicable to the
granting of the adoption, or its effects.”
219. The learned Judge found para. 411 of the Explanatory Report “directly relevant”. It
states:
“411 The Convention does not specifically answer the question as to whether an adoption
granted in a Contracting State and falling within its scope of application, but not in
accordance with the Convention’s rules, could be recognised by another Contracting
State whose internal laws permit such recognition. Undoubtedly, in such a case,
the Contracting State granting the adoption is violating the Convention, because its
provisions are mandatory such conduct may give rise the complaint permitted by
Article 33, [the reporting function of the Authority in cases of breaches of the
Convention] but the question of the recognition would be outside of the Convention
and the answer should depend on the law applicable in the recognising State,
always taking into account the best interests of the child.”
220. MacMenamin J. noted the contents of para. 412, where the Explanatory Report describes
a concrete case where in a situation of non-compliance with the Convention denial of
recognition of an intercountry adoption might not be in the best interests of the child.
221. Para. 412 states:
“412 Working document No 104, submitted by Spain when discussing Article 22,
suggested to add a new paragraph prescribing: “Equally, any Contracting State
may declare to the depository of this Convention that child adoptions will not be
recognised in that State unless the functions conferred on the Central Authorities
have been carried out in conformity with the first paragraph of this Article”. The
idea behind the proposal was the guarantee that has to be made by the State of
the habitual residence granting the adoption, to prevent the risks of fraud.
However, it was observed that such denial of recognition may not be in the best
interests of the child, as is exemplified by Canada with the case of a Spanish
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professor habitually resident in the United States who obtains a legally valid
intercountry adoption without the intervention of the Central Authorities, continues
to reside there for ten years or more only afterwards returns to Spain, and the
proposal failed. Undoubtedly, it would be very difficult to accept the denial of
recognition of the adoption, just because the Central Authorities did not intervene.’”
222. MacMenamin J. understood the observation in para. 412 that it “would be very difficult to
accept the denial of recognition of the adoption” as “giving effect to the best interests test
in a truly exceptional case”. (emphasis added)
223. MacMenamin J. next considered whether the Guide to Good Practice, albeit that that
instrument is not referred to in the 2010 Act, could be a “helpful ‘signpost’” as to the
approach to be adopted by a court when, as in the present case, there is non- compliance
with the Convention. He noted the contents of para. 531-533 of the Guide, which consider
what might be done when mistakes are made, for example where courts in a receiving
country “perhaps because of unfamiliarity with the Convention” have made national
adoption orders where the Convention procedures and safeguards should have applied
(para. 531) thus leading to a circumvention of the safeguards in the Convention (para.
532).
224. Para. 533 of the Guide states:
“533. Can the situation be rectified? It would be in the spirit of the Convention, and of
the Convention on the Rights of the Child as well as in the best interests of the child
concerned, for the two countries involved to try to find a pragmatic solution. They
might wish to consider “healing” the defects which occurred by trying to do what
should have been done, had the provisions of the Convention been respected. If it
were possible for the Authorities of the country of origin to make the
determinations required by Article 4 of the Convention, and those of the receiving
country to verify if the provisions of Article 5, in particular Article 5 a) and b), have
been respected, and if the two authorities could agree to an exchange of the
required reports under Articles 15 and 16, then the two countries might agree that
the requirement of Article 17c) has been satisfied retrospectively, that the
appropriate authorities would be in a position to make out the certificate referred to
in Article 23(1) of the Convention.”
225. As already referred to, the pragmatic approach referred to in the Guide to Good Practice
was attempted in this case in the aftermath of the Supreme Court judgments, without
success.
226. While MacMenamin J. accepted the Authority’s argument that a constitutional
interpretation of the 2010 Act cannot be utilised to defeat the Act’s clear legislative intent
(i.e.to give effect to the Convention) especially where the Act is itself “informed by the
best interests test”, he was of the view that the facts of the within case could be viewed
from the perspective of para. 411 of the Explanatory Report and paras. 531-533 of the
Guide to Good Practice. He considered that had the provisions of the Convention been
Page 50 ⇓
adverted to by the HSE, and the Authority, when contact was first made in June 2011,
then the applicants could have been assessed as to their eligibility and suitability. He
opined that at that time there was “clearly” unfamiliarity with the Convention, in the
manner articulated by para. 411 of the Explanatory Report and paras. 531-533 of the
Guide to Good Practice. On the basis of the affidavit evidence then before the Supreme
Court, MacMenamin J. opined that there was nothing to suggest had the Convention
procedure been adverted to, that declarations would not have been made in the usual
way and that, thereafter, the applicants’ application to jointly adopt the children “could,
on the face of things, have been dealt with by the Authority and the Country A Central
Authority.” (at para. 97)
227. MacMenamin J. went on to state:
“There are certain consequences which must be acknowledged. If there is to be
some legal recognition of this adoption, it would be, ‘outside the Convention’. In my
view, it would also necessarily take place against the background of an
acknowledgement of a constitutional duty imposed on this Court under Article 42A
of the Constitution, described below. It would recognise that, to paraphrase para.
412 of the Report, the continued denial of recognition of the adoption of these two
children would not be in their best interests. It would take place in an area where
the framers of the Convention have actually chosen to remain silent. Any judicial
resolution of the issues, if it can be done, must, insofar as possible, protect the
‘spirit and the wording’ of the Convention. The questions in the case stated must be
answered both as issues of law, having broader application, but also in the concrete
circumstances of this case. The question, therefore, comes down to whether the Act
of 2010, properly interpreted and applied, provides a route forward which
guarantees the future status and wellbeing of the children, in accordance with the
Constitution? In my opinion, it can. I consider the way forward involves a number
of steps, each having regard to the legislation, the Report, the Guide to Good
Practice, and the overarching requirements of the Constitution. I do not conceive
these objectives as being divergent.” (at para. 98)
228. As earlier referred to, at para. 111 of his judgment, MacMenamin J. opined that the
“slightly different and broader power” of the High Court from that found in s. 90 “is to be
operated in accordance with the object of the [2010 Act], as informed by the Explanatory
Report.”
229. As is also clear from his judgment, MacMenamin J.’s support for the proposition that the
powers of the High Court under s.92(1)(a) could be applied to meet the exigencies of the
present case was informed by Article 42A of the Constitution. He stated:
“122. An article of the Constitution, such as Article 42A, cannot be “stood-down” or
placed at naught by a statute simply because the statute translates an international
agreement into part of domestic law. The Act cannot circumscribe, or derogate
from, the Constitution, or any part of it. Nor can this statute “free” the Oireachtas
from the constraints of the Constitution, or any part of it. (See the statements to
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this effect in the judgments of Walsh and Henchy JJ. in Crotty v. An Taoiseach
[1987] IESC 4, [1987] IR 713, as approved and applied by this Court in Pringle v.
Government of Ireland [2012] IESC 47, [2013] 3 I.R. 1). It is the function of the
courts to interpret and apply the Constitution and the law, including this Act, which
has no connection with measures necessitated by membership of the European
Union. If it had been the intention to elevate the Convention to a constitutional
status, this would have required a decision of the People. It is, therefore, to my
mind, entirely constitutionally proper that the Constitution should at least be an
interpretative point of reference. As such, one cannot, I consider, set to one side
the explicit provisions of Article 42A, which not only recognise and affirm the
natural and imprescriptible rights of all children, but guarantee that the State will,
so far as practicable, by its laws, protect and vindicate those rights in the resolution
of all proceedings of this type. (Article 42A.1). Nor can one ignore the wording of
Article 42A.4.1º, which provides that:
“Provision shall be made by law that in the resolution of all proceedings -
…
ii
concerning the adoption, guardianship or custody of, or access to, any
child,
the best interests of the child shall be the paramount consideration.”
(Emphasis added)
The emphasised words speak for themselves, and require no explanation.
123. The provisions of Article 42A.4.2º must also be borne in mind:
“Provision shall be made by law for securing, as far as practicable, that in all
proceedings referred to in subsection 1° of this section in respect of any child
who is capable of forming his or her own views, the views of the child shall be
ascertained and given due weight having regard to the age and maturity of
the child.” (Emphasis added)
124. This case does concern “adoption”. The Act, and Article 42A, refer to the paramount
consideration of “best interests”; the Constitution refers to the child, as an
individual, not in the collective sense of children as a category of person. The duty
is in my view specific to each case. Even though the children were not separately
represented, there is no controversy as to what their views are. These views are to
be given “due weight”, having regard to their ages. The jurisprudence of the courts
makes clear that considerable weight should be given to the views of children of
their ages, absent any indication of some other countervailing factor.
125. The Act makes extensive reference to the “best interests” principle. I do not, in
fact, accept that there should be a conflict between the Constitution and the
principles set out in the Act, and in the Convention when interpreted in light of the
Report and its Guide. Even if there were such a conflict, the provisions of the
Page 52 ⇓
Constitution should be seen as informing the interpretation of the Act. The
question, as it arises, is not, I think, one of some absolute, interpretative,
“exclusionary principle”, but rather whether Article 42A speaks to the interpretation
of this adoption statute in this adoption case? Of course, as the corollary to that, a
court must engage in a harmonious interpretation of the Constitution.”
228. I turn now to the Minority View, firstly as expressed by McKechnie J.
229. As with MacMenamin J., McKechnie J. opined that the question of statutory interpretation
involved was one which must be seen “through the prism of its international context”. (at
para. 42) With regard to the MacMenamin J.’s focus on the Explanatory Report,
McKechnie J. saw no reason for reliance thereon and opined that both the Convention and
the 2010 Act of and by themselves recognised the best interests of the child.
230. Furthermore, McKechnie J. did not believe that it was necessary to have regard to Article
42A of the Constitution as an “external source” for the protection of the best interests of
the child. In his view, the Convention and the 2010 Act “provide the framework through
which the best interests of the child are to be protected in a given case”. (at para. 107)
Thus, he found the constitutional obligation contained in Article 42A.4.1 and Article
42A.4.2 had been discharged. He went on to state:
“109. Furthermore, I do not believe that it is appropriate, for interpretive purposes, to
import a totally free-standing concept of “the best interests of the child” from an
external source, even from the Constitution itself. To permit this single
consideration to stand removed from the system put in place by the Act and
Convention, with the capacity to supersede all of the other requirements contained
in those instruments, would be to open the entire regime up to abuse. “Paramount”
consideration cannot mean “sole” consideration. As the Authority has stressed,
allowing the best interests of the children to become the only consideration in a
given case runs the risk of setting at nought the protections of the Convention and
of encouraging non-compliance therewith by adopters who feel that their actions
will not be met by adverse consequences. This would have the capacity to
jeopardise the entire structure of the Convention. Although the bona fides of C.B.
and P.B. are not in doubt, the Court must be vigilant not to decide these
proceedings in a way which rewards, even encourages, inappropriate conduct on
future occasions, or which undermines the Convention. Accordingly, whilst ever
mindful of the best interests of the children, meaning these children specifically, I
am of the view that the same must nonetheless be achieved within the ambit of the
Convention and Act, insofar as it is possible to do so.
110. These observations do not, in my view, stand down Article 42A of the Constitution.
That Article cannot, of course, be rendered obsolete, nor would I endeavour to do
so. Neither can it be subjugated to the requirements of either the Convention of the
Act. It retains its place at the top of our legal hierarchy. Rather, the point is that
what the Constitution commands has in fact been complied with: laws have been
put in place to secure the best interests of the child, and to ascertain the views of
Page 53 ⇓
the child, in all adoption proceedings. The relevant provisions of the Constitution
require no more than that. The duty so imposed having been discharged, I believe
that the focus must remain on the Act, which gives effect to this obligation and
which governs adoption law in this country. By this I mean that as the legislation
faithfully corresponds to the constitutional requirement, it is not necessary to
consider Article 42A as an additional layer or further test to be navigated. To
otherwise characterise my views on Article 42A, as MacMenamin J. has, is to
completely misunderstand them.”
231. With regard to paras. 63 and 64 of the Explanatory Report and the reference therein to
“best interests”, he did not accept “any suggestion of a free standing right over and above
the Convention or the 2010 Act by which the situation of these children can be
determined on the basis of their best interests”. (at para.113)
232. On the question of a purposive approach to s.92(1), McKechnie J. opined:
“130. Even with a purposive approach, the High Court, before it can exercise the powers
under subsection (1)(a) of section 92, must be “satisfied that an entry with respect
to an adoption in the register of intercountry adoptions should be made” (emphasis
added). The most obvious question is how and on what basis it can be so satisfied
in the circumstances of this case. This Court unanimously agrees that the making of
a domestic adoption order is foreclosed upon: it is not an option. It is therefore the
recognition of an intercountry adoption, or nothing. There must be real uncertainty,
at least, as to how the High Court can in practice be “satisfied that an entry …
should be made”. The section is silent as to what factors the Court must take into
account. How would it approach the evaluation required under the section? Indeed,
what is the evaluation required? Would it be necessary to make any further findings
or will the situation be assessed as is? Unlike sections 92(2) and 92(3), section
92(1) makes no specific reference to the best interests of the adopted person, so is
the Court to be primarily guided by that criterion alone or do other considerations
come into play? As stated, there is, at best, serious ambiguity as to how the High
Court is to carry out the function entrusted to it under section 92(1).”
233. The learned Judge went on to state that s.92(1)(a) should operate “in a manner which
reflects the general aims and objectives of the 2010 Act as a whole”. He found no scope
to operate its provisions in a manner “which would be likely to undermine the scheme of
the Convention”.
234. Like McKechnie J., O’Donnell J. did not believe that the invocation of Article 42A.4.1 could
usefully be called in aid in the case. He agreed with McKechnie J. that the obligation
contained in that Article had been complied with by the 2010 Act. He went on to opine:
“6. …The best interests test involves both broad societal judgments and individualised
determinations in a particular case. In the context of a statute, it does not
authorise the court to exceed the statutory limitations of the decision making
process: rather, it means that, within the area in which a court has to make a
Page 54 ⇓
decision, where there is a discretion, the decision should be made on the basis that
the paramount consideration should be the best interests of the child, rather than
the interests of parents, relatives, or the State itself. Article 42A.4.1° now
underpins that. However, the area for decision making in which those
considerations apply is defined by the statute.
7. If it were otherwise, then the effect of Article 42A.4.1°, far from being modest,
would be dramatic, since it would mean that in the area of adoption, guardianship,
custody and access, the legislation could be reduced to a simple provision that
orders may be made or refused whenever it would be in the best interests of the
child to do so, in the view of a court. This would be undesirable at a practical level,
and also at the level of principle, since it would remove the Oireachtas almost
entirely from the area.”
235. He further opined that he did not understand the Majority View to give support to such an
approach and went on to state:
“The fact that the Court has expressed differing views on the question of the
breadth of the jurisdiction under s. 92 should not obscure the fact that all
judgments conceive of such jurisdiction as narrow, and as not extending to
permitting the Court to make an order recognising a foreign adoption which does
not comply with the requirements of the Convention and the Act, simply on the
basis that the Court considers it would be in the interests of the children to do so. If
so, it does not appear to me that Article 42A.4.1° is a necessary or, indeed, a
useful guide on the interpretative issue.” (at para. 8)
The applicants’ submissions
236. Counsel for the applicants submits that as the 2010 Act enjoys a presumption of
constitutionality. It must thus be presumed that all proceedings, procedures, questions
and adjudications permitted or prescribed by the 2010 Act are intended to be conducted
in accordance with the principles of constitutional justice. First and foremost, where there
are two interpretations of s. 92(1), the one consistent with the Constitution is to be
preferred, especially in the context of the vindication of the best interests of children. It
is submitted that the best interests of the child principle is the constitutionally paramount
position, as is reflected also in the 2010 Act.
237. It is submitted that the above interpretative rules must be borne in mind when the Court
weighs the merits of the competing views of the Supreme Court regarding the
interpretation of s. 92(1) and, in particular, the very different outcomes which they have
for the vindication of the best interests and rights of the children in this case.
238. The applicants urge the Court to adopt the view of the majority in Supreme Court that
s.92(1)(a) when construed against Article 42A, the Explanatory Report and the Guide to
Good Practice, allows the Court to make the order sought in the present case, if satisfied
that the applicants’ case is exceptional. By following the Majority View the Court does not
Page 55 ⇓
derogate from The Hague Convention as it is posited by the Majority View that given the
exceptional circumstances of the present case, an order under s. 92(1)(a) would protect
the wording and spirit of the Convention and would be consistent with the spirit of the
Convention in dealing with exceptional cases.
239. It is submitted that while the Convention is silent on the issue of the consequences of
non-certification, on the facts of the within case, that does not bar the remedy which the
applicants seek. This is clear from the Explanatory Report, to which the Court must have
regard when interpreting the Convention, pursuant to s.10 of the 2010 Act.
240. Counsel points to para. 410 of the Explanatory Report which states that Article 23 of the
Convention does not provide for automatic recognition of a decision to refuse recognition
of the adoption. It was considered that such a ruling would diverge too far from the
objectives of the Convention.
241. By virtue of what is contained in paras. 411 and 412 of the Explanatory Report, the Court
is not precluded by the Convention from adopting the Majority View. Equally, the Court is
not required by the Convention to adopt the Minority View. As put by MacMenamin J.,
recognition of the Country A adoption by way of an Order under s. 92 would be done
“outside of the Convention but in accord with the type of situation envisaged in the
[Explanatory Report] to which this Court should have regard”. (at para. 114)
242. It is thus the applicants’ contention that s. 92(1) provides the Court with ample scope to
direct the entry of the Country A adoptions on the Register as s. 92(1) is the provision
that applies where the adoption is not in accordance with the Convention. As stated in the
Explanatory Report, such situations are a matter for the domestic law of the Contracting
State in question. This is in circumstances where the Explanatory Report states that a
denial of recognition even where the functions conferred on the Central Authorities had
not been carried out may not be in the best interests of the children in question.
243. Counsel also points to para. 529 of the Guide to Good Practice which states: -
“Non-recognition of the adoption would be an extreme sanction for very exceptional
cases, for example, where there has been a violation of fundamental rights of the
natural family. Recognition may be refused, under Article 24, only if the adoption is
manifestly contrary to public policy, taking into account the best interests of the
child.”
244. As stated in the Supreme Court, the Guide to Good Practice can be looked to as a helpful
“signpost” as to the approach to be adopted by a court where there is non-compliance
with the Convention.
245. It is the applicants’ contention that the Majority View of the Supreme Court does not
breach Article A 40 of the Convention. Article 40 does not debar a “purposive and flexible
construction” of the Convention. It is submitted that support for this argument is found in
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the dictum of Keane C.J. in H.I. v. M.G. (Child Abduction – Wrongful Removal) [2000] 1
I.R. 110 at p. 132 where the objects of the Convention are therein set out to be:
“(a) to establish safeguards to ensure that intercountry adoptions take place in the best
interests of the child and with respect for his or her fundamental rights as
recognised in international law; (b) to establish a system of co-operation amongst
Contracting States to ensure that those safeguards are respected and thereby
prevent the abduction, the sale of, or traffic in children; (c) to secure the
recognition in Contracting States of adoptions made in accordance with the
Convention”.
246. Given the objects of the Convention, Article 40 cannot be invoked to exclude the
possibility of a purposive construction of the Convention’s silence on the question of
recognition of non-compliant intercountry adoptions. The interpretation of s. 92(1) as
advocated by the applicants would ensure that the Convention is given effect in
accordance with its objects and not in a way that would undermine them, for example, by
needlessly prejudicing the interests or rights of the particular children affected in an
exceptional case such as the present.
247. It is further submitted that the Court in interpreting s. 92(1) must take into account not
only 42A of the Constitution but also Articles 40, 41 and 42. Article 42A.1 requires a court
to prefer where possible an interpretation of s.92(1)(a) that will at least permit some
scope in exceptional cases for consideration of the best interests and constitutional rights
of children over an interpretation which will preclude such protection and/or severely
prejudice such children. Counsel emphasises that he is not advocating a question of
results – driven jurisprudence whereby Article 42A.1 obliges the Court to interpret s.
92(1) contra legem, rather the approach advocated is that in a choice between two
possible interpretations of the statutory text, the question that must be asked is that
whether it could ever have been the intention of the Oireachtas that the Court would be
left without a mechanism to address an exceptional case.
248. As endorsed by the Majority View in the Supreme Court, Article 42A.1 is not “a free-
standing concept”. Thus, s. 19 of the 2010 Act, which the Court must take account of in
adoption cases, must vindicate the natural and imprescriptible rights of the children. It is
submitted that if the Court finds that it cannot direct the Authority to make an entry in
the Register with regard to this case under s. 92(1) this means that s. 19 of the 2010 Act
has failed to observe the constitutional requirements of Article 42A.1. It is submitted
however that s. 19 has to be read consistent with Article 42A.1, as the Majority View in
the Supreme Court requires the Court to do.
249. In interpreting and applying s. 92(1), regard must be had, inter alia, to the rights of J.B
and K.B. under Article 8 of the European Convention on Human Rights (ECHR). In this
regard counsel refers to s. 2(1) of the European Convention on Human Rights Act, 2003.
250. In aid of his Article 8 argument, counsel cites the decision of the UK High Court in S. v. S.
(No. 3) (Foreign Adoption Order: Recognition) [2017] 2 WLR 887.
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251. Albeit that it is not concerned with adoption, reliance is also placed on Mennesson v.
France (65192/11) 26th June, 2014 where the European Court of Human Rights (ECtHR)
stated:
“The Court can accept that France may wish to deter its nationals when going
abroad to take advantage of methods of assisted reproduction that are prohibited
on its own territory … having regard to the foregoing, however, the effects of non-
recognition in French law the legal parent – child relationship between children thus
conceived the intended parents are not limited to the parents alone, but chosen a
particular method of assisted reproduction prohibited the French authorities. They
also affect the children themselves, his right to respect for their private life – which
implies that everyone must be able to establish the substance of his or her identity,
including the legal – parent child relationship – is substantially affected.
Accordingly, a serious question arises as to the compatibility of that situation with
the children’s best interest, in respect for which must guide any decision in their
regard.” (at para. 25)
252. It is submitted that there are echoes of the foregoing reasoning the judgment of
MacMenamin J. where he states, at para. 21:
“The applicants did not comply with the Act or the Convention. The agencies on the
face of things have not performed as they might have. But, having regard to the
philosophy and intention of the 2010 Act: whose rights are now most affected by
the outcome of this case? I think this allows for one answer, the children’s rights,
even taking into account, as one must the actions of the applicants.”
253. It is also the applicants’ contention that the Majority View is consonant with English case
law on the recognition of non-compliant intercountry adoptions. In this regard, reliance is
(foreign adoption order) [2012] EWHC 3353 (Fam).
The Attorney General’s submissions
254. Counsel for the Attorney General contends that allowing the applicants to use the 2010
Act when they are outside the Convention would constitute a backhanded and collateral
slap in the face to the integrity of Convention and the Contracting States. This is in the
context of Article 40 of the Convention which admits of no reservation.
255. Insofar as the applicants seek to rely on Article 42A of the Constitution, and the best
interests of the children, it is submitted that such reliance would run counter to the spirit
of Ireland having entered into and signed up to the Convention. It would set at nought
the establishment of the Convention and the Convention adoption architecture put in
place by the 2010 Act. Any deviation from this would have significant repercussions for
the reciprocity that forms the bedrock of the Convention system internationally.
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256. It is noted that the applicants urge upon the Court that it is unfair that the children in this
case, and their circumstances, are not covered by the legislation. While that may be a
difficult for the applicants to accept, that is in fact the case. What the applicants are
contend for is that if the High Court is satisfied that the adoptions in question are broadly
in terms of domestic legislation and broadly in terms of the Convention, and that their
circumstances are exceptional, then the High Court should direct the Authority to enter
the adoptions on the Register. It is submitted, however, there is no such “catchall”
provision in the legislation which permits such a direction by the Court.
The Authority’s submissions
257. As already referred to, the Authority’s core submission is that on no view of s. 92 can it
be said that the Oireachtas intended that s. 92 would be used to circumvent or override
the Convention. It is submitted that the elaborate scheme for the regulating of
recognition of adoptions as set out in the 2010 Act is inconsistent with a remedial power
in the High Court to excuse a fundamental departure from compliance. Counsel submits
that if indeed such a power exists, the question to be asked is what are the limits and
conditions of such power?
258. It is submitted that there are alternative rights mechanisms available to the applicants
and the children in this case, not least the provisions of the Guardianship of Infants Act,
1964 as amended by the 2015 Act, and the Succession Act 1966, as observed by
O’Donnell J. in the Supreme Court.
The CFA’s submissions
259. In reliance on the dictum of MacMenamin J. (para. 98), counsel for the CFA submits that
there can be compliance with the spirit and wording of the Convention by the application
of s. 92 of the 2010 Act. It is submitted that the purpose of s.92 is to cure difficulties
that may have arisen, bearing in mind the obligation to look at the best interests of the
children as the paramount consideration. The Court can take account of the 2010 Act, the
Explanatory Report, the Guide to Good Practice and the overarching requirements of the
Constitution, in conjunction with the best interests of the children in granting the relief
sought in this very particular case. This route has been set out for the Court by the
Majority View of the Supreme Court.
260. It is accepted by the CFA that the interpretation and application of s. 92 of the 2010 Act
must be in line with the Convention and with the Explanatory Report and with the Guide
to Good Practice.
261. Counsel further submits that the provisions of Article 42A of the Constitution enhance the
argument that the best interests of the children should be the focus in this case, all other
matters being equal and provided that other legal tests and requirements have been
satisfied such that the Court could then exceptionally direct the Authority to procure the
making of a specific entry in the Register regarding the children.
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Discussion
262. Having given due consideration to the obiter views expressed by the Supreme Court in
the Case Stated, and the submissions of the parties in these proceedings, overall, I find
the Majority View, that in a “truly exceptional case” s.92(1) of the 2010 Act is capable of
being invoked for the purposes of recognition of an intercountry adoption which is not in
compliance with the Convention, to be more persuasive that the view expressed by the
minority, or indeed the submissions made by the Authority and the Attorney General in
this case. My reasons for so finding are set out hereunder.
263. I am in agreement with the Majority View that the Explanatory Report and the Guide to
Good Practice provide assistance in interpreting the scope of s.92(1) for recognition
purposes where there is, in the words of MacMenamin J., a “truly exceptional case”.
264. As noted by MacMenamin J., paras. 65 and 66 of the Explanatory Report, together with
paras. 531-533 of the Guide to Good Practice, acknowledge that the Convention is not the
answer to all issues that may arise in intercountry adoptions. To my mind, contrary to the
view expressed by the learned McKechnie J., the focus of the Majority View was not just
on the best interests references in these instruments, but, more fundamentally, on the
recognition by the authors of the Explanatory Report that the Convention itself is silent on
the question as to whether an adoption granted in a Contracting State and falling within
the scope of the Convention (but not in compliance therewith) could be recognised by
another Contracting State “whose internal laws permit such recognition”. (emphasis
added) As noted by MacMenamin J. (and indeed at para. 411 of the Explanatory Report),
any recognition given by a court in a Contracting State would be “outside the
Convention”. It would thus constitute a resolution in accordance with the internal law of
the receiving State.
265. For the reasons already set out in this judgment, I have found from a reading of the
relevant provisions of the 2010 Act that “an adoption” other than “an intercountry
adoption effected outside the State” is capable of being the subject of an order under
s.92(1)(a). Thus, the type of recognition envisaged by the Explanatory Report for
exceptional cases is not foreclosed on by the manner in which the 2010 Act is framed.
Applying a purposive approach to s.92(1), and bearing in mind the provisions of s. 10 of
the 2010 Act, it seems to be that the framers of the 2010 Act left in place a mechanism
available in the domestic law of the State capable of giving effect to recognition of a non-
Hague compliant adoption, which recognition would be, in the words of the Explanatory
Report, “outside of the Convention” and “always taking into account the best interests of
the child”. It bears repeating, however, given the objects of the Convention and the 2010
Act, that s.92(1) must be construed narrowly, hence the formulation by the Majority View
of the “a truly exceptional case” test, which this Court endorses.
266. Any domestic resolution of a “truly exceptional case” must thus ensure that, in the words
of MacMenamin J., “it does not run the risk of defeating the object of the legislation”. As I
read his judgment, the learned judge took the repeated references to the best interests’
principle in the Explanatory Report as an indication that the objects of the Convention
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(including Article 40), or the legislation, would not be defeated if recognition “outside the
Convention” of a non-compliant intercountry adoption was to be afforded to “a truly
exceptional case”.
267. There is no suggestion in MacMenamin J’s judgment that the best interests principle
trumps every other consideration. Were that the case, I would have to respectfully
disagree with the obiter comments of the learned judge in order to ensure the efficacy of
the Convention system in cases of intercountry adoptions; but that is not the case, as
indeed noted by O’Donnell J. in his judgment where he opines that he does not
understand the Majority View as promulgating a best interests trumps all approach.
268. Clearly, MacMenamin J.’s invocation of the best interest principle is predicated on there
being exceptional circumstances of a very high order surrounding the adoptions in
question against which a court, in considering what is to be done, will, inter alia, weigh
the best interests of the child or children concerned. This being my understanding of the
approach of the majority in the Supreme Court, I am satisfied to adopt such an approach
in interpreting s. 92(1) of the 2010 Act as capable of being utilised in the present case,
subject to the Court being satisfied that the circumstances surrounding the adoptions of
the children concerned meet the truly exceptional test demanded by the Majority View.
269. There was much debate in the Supreme Court on the invoking of Article 42A of the
Constitution as an interpretative aid when construing s.92(1) of the 2010 Act. The
Minority View observed that the obligations contained in Article 42A.4.1 and Article
42A.4.2 have been given legislative effect in the 2010 Act (via ss.19 and 24(2) of the
2010 Act), and that it was thus not necessary to refer back to Article 42A (McKechnie J.
at para. 106). However, I am minded to agree with the Majority View that Article 42A
cannot be “stood- down or placed at nought” by a statute, even one that implements an
international instrument. (MacMenamin J. at para. 122)
270. While I accept that the provisions of Article 42A.4.1 and Article 42A.4.2 have been
enacted in legislation, it is nevertheless the case that MacMenamin J. also placed reliance
on “the explicit provisions of Article 42A, which not only recognise and affirm the natural
and imprescriptible rights of all children, but guarantee that the State will, so far as
practible, by its laws, protect and vindicate those rights in the resolution of all
proceedings of this type.” (at para. 122)
271. I agree with the learned MacMenamin J. that the word “all” in Article 42A includes the
children in this case. The circumstances of these children is that their status as the
adopted children of the second applicant is not capable of recognition under the
Convention because the adoption was properly one to which the Convention applied and
where all agree there was no compliance with the Convention. By the same token, the
non-compliance with the Convention did not render the Country A adoption a nullity, as
found by the Supreme Court. The consequences are that the legal relationship between
the second applicant and the children remains in limbo for the purposes of recognition in
this jurisdiction (short of an entry of the adoptions on the Register). The first applicant as
the spouse of the second applicant cannot apply to the Authority to adopt the children of
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foot the present adoptive relationship between the second applicant and the children
because the Authority, in the words of MacMenamin J., is bound to give “faithful
adherence” to the Convention in cases of intercountry adoptions.
272. Noting the constitutional promise that “the State will, in so far as practicable, by its laws,
protect and vindicate [the natural and imprescriptible rights of all children] in the
resolution of all proceedings”, (emphasis added) to my mind, there is a constitutional
imperative on the Court when construing the limits of its residual discretion under
s.92(1)(a) to have regard to the welfare principle that permeates Article 42A of the
Constitution. I so find given that the applicants and the children are living as a family unit
in the context of an adoption the consequences of which, as found by the Supreme Court,
are that the children’s pre-adoption status no longer remains, and where no one doubts
but that the children now view the applicants as their parents.
273. I am, however, conscious of the duty on this Court to construe s.92(1) in a manner that
will not “stand-down” or “place at nought” an international Convention to which the State
has given the force of law and which permits of no reservation. As already stated, the
powers of the High Court under s.92(1) must be construed narrowly, ensuring that any
interpretation or application of such powers is not to interpret the 2010 Act “contra-
legem”. To my mind this can be achieved by setting a “high bar” for the applicants to
overcome in seeking to establish that their case is “truly exceptional”, as envisaged by
MacMenamin J. at para.113 of his judgment. Assuming the aforesaid conditions are met,
and the Court itself being satisfied that an entry should be made, it is, I believe, also
noteworthy that any recognition given in this case would not be a Convention recognition
but one rather in accordance with the laws of the State, as indeed envisaged by the
Explanatory Report. To my mind, this approach would ensure harmony with the objects of
the Convention.
274. I am satisfied that any concern (such as that expressed by McKechnie J.in the Case
Stated proceedings) as to how the Court is to carry out an assessment of this case for the
purposes of considering making an order under s. 92(1)(a) is alleviated by the guidance
found in the Joint Judgment of Dunne and O’Malley J.J., and in the respective judgments
of MacMenamin J. and O’Donnell J. The respective judgments outline the factors to which
the Court should have regard for the purpose of establishing whether the within case is “a
truly exceptional case” such as might allow the Court to direct an entry of the adoptions
on the Register without fear of impugning the integrity of the Convention system.
275. Drawing on that guidance, I am satisfied that the applicants (who, in the words of Dunne
and O’Malley J.J., “bear the onus of satisfying the court that an order should be made”)
must discharge the onus of satisfying the Court:
(i) That they are suitable to be adoptive parents;
(ii) That there was no intentional circumvention of the law and that the mistakes
made were completely unintentional. A “rigorous” approach to these issues is
required. (If the above requirements are not satisfied then the Court should
refuse to make any order).
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Furthermore, the Court must have regard to the following matters:
(iii) The circumstances surrounding the breaches of the statutory requirements;
(iv) The role of official error on the part of a State Agency in potentially
contributing to the mistaken approach of the applicant;
(v) The applicants’ bona fides;
(vi) he general excusability of the deviation from what was contemplated by
Convention and the Act;
(vii) How exactly the children came to be in this jurisdiction;
(viii) The relationship of the children to the applicants;
(ix) Whether the adoption satisfies the requirements of a foreign adoption under
the Adoption Act, 1991;
(x) The views of the children affected; and
(xi) The best interests of the children affected and their constitutional rights.
276. I now turn to a consideration of the evidence in this case, against the backdrop of the
foregoing factors and bearing in mind that, pursuant to s.92(1), the Court must itself be
satisfied that an entry be made in the register.
Factor (i) The eligibility and suitability of the applicants
277. The criteria for determining eligibility and suitability to adopt are set out in s.34 of the
2010 Act. There is no dispute but that the second applicant (the sole adopter in Country
A) and the first applicant were deemed eligible and suitable by the Authority in 2015 to
adopt the children. They underwent an assessment under the 2010 Act following which
they were issued with a Declaration of Eligibility and Suitability dated 16th March, 2015.
This Declaration was renewed for the maximum time permitted under the Act. It expired
on 16th March, 2018. It is common case that the applicants have applied for a fresh
assessment. As I understand matters, the CFA have deferred the continuation of that
assessment until the outcome of the within proceedings. Without trespassing on the
statutory functions of the CFA, on the basis of the evidence before the Court there is
nothing to suggest that the applicants would not again meet the criteria set out in s.34.
Factors (ii), (iii), (iv) and (v) Can the Court be satisfied that the circumvention of the
Convention in this case was completely unintentional?
278. The first and most fundamental question with regard to factors (ii), (iii), (iv) and (v) is
whether the Court can be satisfied as a matter of high probability that there was no
intentional circumvention of the law, and that the mistakes which were made in this case
were completely unintentional.
279. Both applicants have testified that they had no intention or reason to seek to circumvent
the requirements of the Convention or the 2010 Act. I accept this to be the case. First
and foremost, I have had regard to the fact that within a short time after deciding to
adopt the children the first applicant advised the Authority of this intention. Accordingly, it
cannot be said that the applicants as prospective adopters sought to evade the relevant
Irish authorities. The Court is also satisfied that there is no question that the applicants
were involved in any of the activities which it is an expressly stated object to prevent,
namely, “the abduction, the sale of, or the traffic in children.”
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280. Moreover, the first applicant’s email of 16th June, 2011 to the Authority is headed
“intercountry adoption guidance please”. He sought advice from the Authority on the
intercountry adoption process. The contents of the email suggest that the applicants’
focus was on the correct process for an intercountry adoption. Quite properly, after doing
some general internet enquiries, the first applicant’s first port of call was the Authority.
281. Albeit that by return email of 16th June, 2011, the Authority properly directed the first
applicant to the HSE, I note that at the same time it also suggested that the applicants
consult an Adoption Agency, advice that was not correct. This would appear to be the first
of a series of errors made by officials in State authorities in this case. It is also the case
that websites to which the first applicant was referred by the Authority were out of date.
In fairness, this was brought to the first applicant’s attention by the Authority and he was
advised to contact the HSE or the Authority if he had any queries in this regard. It would
certainly appear to be the case that the message being given to the first applicant vis a
vis the HSE was that the HSE would have the answers to any queries the applicants had
about the adoption process upon which they were about to embark.
282. It is not in dispute but that having been directed to the HSE, the first applicant
immediately made contact with this Agency. When he finally got to speak to a HSE official
on 5th July, 2011, he was advised that he and the second applicant could not adopt
“known” children who were resident in another Hague Convention country (Country A
being such a country). Accordingly, the applicants were advised by the HSE official that
they could not be assessed by the HSE. It is accepted by all concerned that the HSE
official’s advice that the applicants could not adopt “known” children within the
Convention framework was wrong. The evidence given by the first applicant as to what
the HSE official advised in this regard has not been challenged, either in cross-
examination, or by calling the HSE official concerned or any other witness to give
evidence to contradict his testimony.
283. It is clear to me that from the word go, the applicants were set on the wrong path. This
was not, however, the extent of the erroneous advice given to the applicants by the HSE
official on 5th July, 2011. The first applicant was further advised that two options were
open to him and the second applicant. Firstly, they could bring the children into Ireland,
perhaps for education purposes, and then apply to adopt them in this jurisdiction.
Alternatively, either both applicants, or the second applicant solely, could adopt the
children in Country A and then bring them back to Ireland. As observed by MacMenamin
J. in the Case Stated proceedings, these advices ran expressly counter to the provisions
of the Convention and the 2010 Act. Again, the first applicant’s evidence that he received
such advice has not been challenged, either in cross-examination or by the calling of
evidence to counteract his version of events. Accordingly, I am satisfied to accept the
evidence which the first applicant has given as to what was advised to him by the HSE
official on 5th July, 2011.
284. I accept that the mistaken advices given by the HSE official occurred at a time when the
2010 Act had only recently commenced (November, 2010). As already noted, much of the
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information available to the public in 2011 was out of date and had not been updated. It
is the case that the Authority’s Country A information pack as recommended by the
Authority to the first applicant was dated 2003.
285. As stated by MacMenamin J., “one might surmise that officials charged with [the Act’s]
administration were not as familiar as they might have been with the meaning and effect
of the new legislation on what was in issue in this case: inter-country adoption.” (at para.
1) To my mind, it is highly unlikely that such mistaken advice as was given to the
applicants would ever again arise. This is so given the time that has elapsed since the
2010 Act was commenced. One can reasonably assume that by this stage, all relevant
State agencies are familiar with the provisions of the Convention and the 2010 Act and
that their websites have been updated accordingly.
286. It is by this stage well-rehearsed in this judgment that the applicants acted upon the
second option advised by the HSE official and thus put themselves on a collision course
with the requirements of the Convention and the 2010 Act, the consequences of which
are that unless this Court is satisfied to grant relief under s.92(1)(a) of the 2010 Act,
recognition of the adoptions will remain in legal limbo.
287. Could the collision course with the Convention to which I have adverted have been
avoided at any time between 5th July, 2011 and the making of the Country A adoption
orders? The first applicant has testified that he was counselled by the HSE official on 5th
July, 2011 to get “a good lawyer”. His evidence was that he understood this advice in the
context of the two options which the HSE official had advised were open to him and the
second applicant.
288. In oral evidence to this Court, the first applicant testified that although he did not
formally engage his current solicitor until December, 2011, he did have some discussion
with his solicitor, and indeed with an immigration lawyer, in July, 2011 in the aftermath of
the advices given by the HSE official on 5th July, 2011. He testified that the discussion
with his solicitor (and the immigration lawyer) concerned how the two options advised by
the HSE official could be progressed. The first applicant testified that he had not asked for
legal advice as to the correctness or otherwise of the advices he had been given by the
HSE official, hence his discussions with his lawyers did not address whether the HSE
official’s advice was mistaken as a matter of law.
289. With regard to the contact he had made with his Irish solicitor in July, 2011, the first
applicant’s testimony was as follows:
“I was referred to my solicitor by one of the adoption agencies and I explained the
direction or the advice I had been given by the HSE. What I was getting advice on,
you know, was basically how we adopt in Ireland after we have gone down the
route that the HSE had proposed to us. His advice to me was that I should instruct
[Country A] lawyers obviously. I would need to get immigration advice, which I
did, and that it should be possible once the children had been resident in Ireland for
12 months to apply for a domestic adoption in Ireland”.
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290. In the course of legal submission, counsel for the applicants conceded that it was highly
regrettable that the HSE official’s errors were not identified in the course of the first
applicant’s meeting with his solicitor in July, 2011. He submits, however, that the first
applicant’s evidence makes it clear that he had no reason to doubt the correctness of
what he had been advised by the HSE official.
291. It is undeniably the case that the first applicant had discussion with his current solicitor
and an immigration lawyer prior to the applicants embarking on the Country A adoptions.
Counsel for the Authority points to para. 49 of MacMenamin J.’s judgment where the
learned judge was clearly of the belief at the time of the judgment that the applicants had
not sought legal advice from a lawyer familiar with adoption law before embarking on the
Country A adoptions. The learned judge opined that this omission was “foolish and
unfortunate”, noting that by his own business experience the first applicant should have
been familiar with the need to take legal advice “in an area of doubt and uncertainty”.
292. Clearly, the learned MacMenamin J.’s belief that the applicants had not consulted lawyers
in this jurisdiction was based on the contents of the affidavit sworn by the first applicant
on 29th April 2016 in the Case Stated proceedings. That affidavit did not specifically set
out that the first applicant had discussions with Irish lawyers in July 2011. Insofar as the
affidavit refers to actions taken by the applicants in the immediate aftermath of the
advices received from the HSE official, it states as follows:
“Following [the HSE official’s] phone call, I looked into the feasibility of bringing JB
and KB to Ireland. I discovered that there would be problems securing immigration
clearance for JB and KB in the absence of an adoption order. That appeared to us to
rule out the first of the options suggested to us by the HSE.
In respect of the second option suggested by the HSE, we corresponded with the
two [Country A] legal firms in which we had the greatest confidence on foot of our
preliminary inquiries…We reported to them the HSE’s representation to us that an
intercountry adoption would not be possible in Ireland in our circumstances. Both
firms confirmed to us that, with my consent as spouse and the consent of the
natural parents, it would still be possible for [the second applicant] solely to adopt
JB and KB in [Country A] in accordance with [Country A] law.” (at paras. 22-23)
293. In light of the first applicant’s oral testimony that he in fact had discussions with lawyers
in this jurisdiction prior to embarking on the adoption process in Country A, this Court
must consider whether its finding that the HSE official’s erroneous advice set the
applicants on a collision course with the Convention should now be tempered in light of
the fact that the first applicant accessed lawyers in this jurisdiction, as he had been
advised to do by the HSE official.
294. Albeit that in July, 2011 there was an opportunity for the applicants to set themselves on
the right path vis a vis the proposed adoptions had they queried with their Irish lawyers
the correctness of the advice given by the HSE official, I am satisfied that the first
applicant has adequately explained why this was not done. I accept his evidence that post
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5th July, 2011, his and the second applicant’s focus was on how to process one or other
of the two options advised to them by the HSE official. To my mind, post 5th July, their
focus was no longer on an intercountry adoption, they having been diverted from that
path by the erroneous advices received from the HSE; rather their attention turned to the
pros and cons of either bringing the children to this country and adopting them here, or
adopting in Country A and then bringing the children into the State. In circumstances
where the first applicant had in the first instance been referred to the HSE (a State
agency) by another State agency (the Authority) and where the Authority had told him
that the HSE would “explain the adoption process” and that the HSE would be able to
address “specific queries he had”, I am not persuaded that the first applicant’s failure to
raise with his Irish lawyers the validity or otherwise of the advice received from the HSE
official is of such magnitude as to detract from the exceptionality of this case, all other
matters, of course, being equal.
295. In arriving at my conclusions, I took into account the fact that the first applicant is a
highly experienced executive used to dealing with corporate lawyers and is someone who
appreciates the role corporate law plays in the discharge of his executive functions. Thus,
it could be said that seeking legal advice in the face of an unfamiliar legal sphere would
be something which would have been in the first applicant’s contemplation. However, for
the reasons already stated, the first applicant cannot be criticised for the fact that he did
not seek legal advice on the options given to him by the HSE official.
296. In all the circumstances, I am satisfied that official error in this jurisdiction was a
substantial factor in the applicants’ (who had commenced their endeavours by seeking
advice from the Authority and the HSE on intercountry adoptions) non-compliance with
the Convention and the 2010 Act.
297. I am also satisfied that the applicants’ non-compliance was further caused or contributed
to by the willingness of Country A’s authorities to process the adoptions, contrary to the
requirements of the Convention. As a Contracting State, Country A should not have
allowed a domestic adoption in all of the circumstances which were known to them,
including that the adopter, the second applicant, was resident in Ireland at the time of the
adoptions. (I will return to the issue of the second applicant’s residency later in the
judgment) Accordingly, the Country A lawyers and the authorities should have directed
the applicants to the Irish and/or Country A Central Authority, which was not done.
298. It was the first applicant’s belief that the lawyers had in fact spoken to the Central
Authority in Country A. His understanding, however, of the reason for contact with Central
Authority in Country A having been made was that his Country A lawyers wished to get
guidance on the issue of whether, although the children’s birth father’s name was on their
birth certificates, it was necessary for the birth father to be legally registered as their
father. While the provincial adoption authority was of the view that the birth father had to
be legally registered (and had stated that this registration process would take a number
of months) the applicants’ lawyers were of the view that Country A’s Central Authority
took a more liberal view of this requirement.
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299. Having regard to the first applicant’s testimony, on balance, I am satisfied insofar as
contact with Country A’s Central Authority might have occurred, that it was made in the
course of the domestic Country A adoption then underway and in the context of an
enquiry about a procedural rule regarding the registration of birth fathers in Country A.
Certainly, as of 9th April, 2018, Country A’s Central Authority did not appear to have
record or knowledge of the adoptions, as is clear from email correspondence it sent to the
Authority on that date.
300. It is also the case that the Country A provincial authorities knew that the applicants
wished to adopt jointly. The evidence given by the first applicant is that this would have
involved an assessment of his eligibility and suitability by Irish authorities as part of
immigration clearance requirements of the Country A authorities. He testified that he
considered that assessment process closed to him because of the advice received from
the HSE, namely that the applicants could not be assessed in Ireland in respect of
“known” children resident in Country A. I have already stated that I accept his evidence in
this regard.
301. The evidence from the applicants is that they first became aware that the Country A
adoptions were not Convention compliant in September, 2012, when they received
written advices from their solicitor to this effect. I accept that to be the case.
302. As already referred to earlier in this judgment, in November, 2012, by which time the
children were in this jurisdiction for a number of months, the applicants intimated to the
Authority their intention to apply for a joint domestic adoption of the children, an
application actually commenced by letter of 3rd May, 2013 to the HSE. It is noteworthy
that in the period November, 2012 to June, 2016 the Authority did not raise with the
applicants their non-compliance with the Convention (the Court accepting of course, on
foot of the first applicant’s testimony, that the applicants were advised of the position by
their solicitor in September, 2012). The first mention of non-compliance by the Authority
was in written submissions dated 1st July, 2016 in the Case Stated proceedings.
303. Furthermore, notwithstanding that a domestic adoption was ultimately found by the
Supreme Court not to be open to the applicants, it is again noteworthy that in the
intervening period, the applicants had, it would appear, engaged faithfully with whatever
was being asked of them with regard to the domestic adoption process then ongoing,
including subjecting themselves to the assessment process required by s. 34 of the 2010
Act. I refer to these matters as further evidence of the applicants’ bona fides vis a vis
engagement with State agencies in this jurisdiction.
304. By reason of all of the foregoing, the Court is satisfied that that there was no intentional
circumvention of the law by the applicants and that such mistakes as can be ascribed to
them were unintentional in circumstances where they were expressly pointed towards the
wrong path by the HSE.
305. This was not a case where from the outset the applicants went on a frolic of their own.
Moreover, it is not a case of ignorance of the law on their part. To my mind, ignorance of
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the law per se could not fall under the type of truly exceptional circumstances whereby a
court might be minded to make an order under s. 92(1)(a) of the 2010 Act. As already
stated, the applicants in this case were alert to the concept of an intercountry adoption
from the beginning but were diverted from that route by misguided advice from a State
agency. That is the salient feature in this case for the purpose of considering the
excusability of the circumvention of the Convention which occurred in this case.
Accordingly, to my mind, the applicants’ circumstances can be distinguished from those of
JM v. The Adoption Society of Ireland [2017] IEHC 320, where not only were the
applicants in that case unaware of the Convention, but no engagement with State
agencies took place prior to the adoption.
Factor (vi) The general excusability of what occurred in this case from what is
contemplated in the convention and the 2010 Act
306. In urging upon the Court the general excusability of the myriad ways in which the
Convention was not complied with in this case, counsel for the applicants, in addition to
pointing to the breadth of official error which permeated the circumstances of the within
adoptions, also contended that the circumstances of the within case of themselves
preclude the possibility of any relief granted by the Court presenting a precedent, which,
in the words of McKechnie J. “rewards, even encourages, inappropriate conduct on future
occasions, or which undermines the Convention.” (at para. 109) Having regard to the
applicable test as formulated by the Majority View in the Supreme Court, and the findings
I have made, I am satisfied that this case is unlikely ever to be regarded as a precedent
for judicial acceptance of disregard for the Convention, or the 2010 Act.
307. Counsel also submitted that there is no reason to doubt, had the applicants not been
misdirected by the HSE in July, 2011, and had the HSE processed their request for an
intercountry adoption as it should have done at the time, that the Convention process
would have proceeded without event and the applicants would have been successful in
adopting J.B. and K.B. in accordance with all of the requirements of the Convention and
the 2010 Act. Based on the factual matrix as presents in this case, I am satisfied as a
matter of high probability that had the applicants not been misdirected in the manner
described, the adoptions would have proceeded and been approved under the Convention
system.
Factor (vii) How the children came into the jurisdiction
308. Albeit the adoptions in issue here are not Convention compliant, there is no suggestion
that there was anything underhand in the way the children were brought into the State.
An application for visas for the children was made on foot of the Country A adoptions. I
am thus satisfied that the applicants processed the children’s entry visas applications in
an open and forthright manner, including by the provision of the Country A adoption
documents to the Irish visa authorities.
309. It is common case, however, that the children came into the jurisdiction on the basis that
they were “dependants” of a British EU citizen (the first applicant) and therefore
“permitted family members” in accordance with the European Communities (Free
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Movement of Persons) (no. 2) Regulations 2006 and 2008 (as they then stood). It is the
case that INIS was not satisfied to deem the children “qualifying family members” i.e. “a
direct descendant” of the second applicant notwithstanding she was the spouse of the first
applicant and had produced the Country A adoption orders.
Factor (viii) The relationship of the children to the applicants
310. The second applicant is the children’s natural aunt who has effected a domestic adoption
of the children under Country A law. Prior to their adoption in February, 2012, both
applicants were involved in the children’s lives. The second applicant had provided
housing for the children, their birth parents and other family members. This was done
within a couple of months of J.B.’s birth as a token of familial love and affection. I am
satisfied that adoption of J.B. was not in the contemplation of the applicants at that time.
The applicants provided financial assistance to the second applicant’s family prior to the
question of the adoption of the children ever arising. The second applicant testified that
she had a close bond with her family and wanted to help them. I accept her evidence in
this regard. I also accept that both applicants had developed a close bond with the
children prior to the adoptions. The Court has earlier set out the applicants’ evidence as
to the circumstances in which the question of the adoption of the children first arose. I
accept this evidence.
311. I have also heard the applicants’ evidence in relation to life with the children since their
coming to Ireland. It is patently clear that the applicants love and provide for all of the
needs of the children, including bringing them to Country A for holidays where they meet
with their natural father, their grandmother and their natural mother.
312. Altogether, there is no question but that for the past seven years or so, the children have
a loving home with the applicants where all of their needs, physical, psychological,
emotional, educational and otherwise are being met. The Authority, the Attorney General
and the CFA have not suggested otherwise.
Factor (ix) Whether the Country A adoptions conform to the definition of “foreign
adoption” as contained in s. 1 of the 1991 Act?
313. Pursuant to the guidance given by MacMenamin J., the Court must consider whether the
adoptions effected in Country A satisfy the requirements of a “foreign adoption” as
defined in s. 1 of the 1991 Act. That definition has been set out earlier in the judgment.
314. Counsel for the applicants submits that the Court should regard as persuasive the
approach of the English courts when considering whether Country A’s laws substantially
complied with the requirements of “foreign adoption” as defined in s.1 of the 1991 Act. He
315. In Re.J., the factual position was that an Indian couple living in the UK were unable to
conceive a child of their own. They offered to adopt the husband’s relatives’ new baby
who was born in India. They took part in a religious adoption ceremony, in India, with
the child’s biological parents. Four days later the adoption was registered by deed by the
Registrar in the local court. The child travelled to the UK with the birth parents on a
visitor’s visa and when they returned to India the applicant couple took over the child’s
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care in the UK. They then applied pursuant to the UK court’s inherent jurisdiction for
recognition of the Indian adoption, in order to apply for the child’s indefinite leave to
remain.
316. Moor J. addressed the issue of recognition in the following manner:
“This is a non-Convention adoption but I can recognise it pursuant to the common
law. I must apply the adoption welfare test in s. 1 of the Adoption and Children
Act, 2002 in which AJ’s welfare throughout her life is paramount. As a result of Re
Valentine’s settlement [1965] 1 Ch 831, [1965] 2WLR 1015 I am not entitled to
recognise a foreign adoption order unless the adopting parents were domiciled in
India at the relevant time. Pursuant to the decision of Hedley J. in Re T and M
(Adoption) [2010] EWHC 964 (Fam), [2011] 1FLR 1487, when I have to consider
the question whether to recognise a foreign adoption under the common law, there
are three questions which I must ask myself:
(i)
Was the adoption order obtained wholly lawfully in the foreign jurisdiction;
(ii)
did the concept of adoption in that jurisdiction substantially conform to the
English concept; and
(iii) If so, was there any public policy consideration should mitigate against
recognition?”
317. In the light of a legal opinion which had been provided on the validity of the adoption in
India, Moor J. was satisfied that the concept of adoption in that jurisdiction substantially
conformed to the English concept. He opined that although the Indian adoption did not
exactly conform to the way adoption was done in the English system, he found that
following the Indian adoption, the children were deemed to be children of the adopting
parents and that the legal ties regarding, for example, inheritance rights as between the
birth parents and the children had been severed. (at paras. 13-16)
318. It is the applicants’ contention that the criteria to which Moor J had regard are not unlike
the definition contained in s. 1(a) – (e) of the 1991 Act.
319. McKechnie J., writing for the minority in the Supreme Court in the Case Stated, was not
prepared to rely on Re T or Re J. Having discussed them for some length, he found that
the basis for the decisions had not been fully explained and that the results arrived at in
the cases may have their basis in complicated provisions within the relevant English
legislation “which may well relate to the relationship England has, inter alia, with
“overseas countries”, as understood in English constitutional law…” (at para.58)
320. Counsel for the applicants contended that the views expressed by McKechnie J. have to
be seen in their context, namely the argument made by the applicants to the Supreme
Court that the Country A adoptions could be recognised here by the application of
common law, which was rejected by the Supreme Court. Counsel submits, however, that
the English case law nonetheless provides clear support for the majority view in the
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Supreme Court, namely that recognition of non-Hague compliant country adoptions in
exceptional cases can be permitted under the domestic law of this State, in effect via
s.92(1) of the 2010 Act.
321. Notwithstanding the applicants’ arguments, I consider that it would be unwise to regard
Re T or Re J. as persuasive authority for the purposes of the exercise upon which the
Court is presently embarked. This is so because under the “truly exceptional case” test
formulated by the majority in the Supreme Court, compliance by the Country A domestic
adoption with the requirements of the definition of “foreign adoption” is but one of the
myriad factors to which this Court must have regard in determining whether an order
under s.92(1)(a) should be made.
322. I now turn to the question whether the Country A domestic adoption can be said to meet
the requirements of a “foreign adoption” as defined in s.1 of the 1991 Act. Consistent with
that definition, based on the factual matrix in this case, the task of this Court is to
ascertain:
(a) Whether the consent of every person whose consent to the adoption was,
under the law of Country A, required to be obtained, was obtained;
(b) Has the adoption in Country A essentially the same legal effect as respects
the termination and creation of parental rights and duties as an adoption
order in this State?
(c) Whether Country A’s laws required an inquiry to be carried out into the
adopters, the children and the birth parents;
(d) Whether Country A’s laws required due consideration to be given to the
interests and welfare of the children;
(e) That the adopters have not received, made or caused to be given any
payment or other reward in consideration of the adoption.
323. The applicants have furnished evidence of adoption law in Country A by way of two Legal
Opinions. No application was made by either the Attorney General or the Authority to
cross- examine the author of either Legal Opinion, albeit that certain submissions were
made by the Authority in relation to same, which are referred to below.
The first Legal Opinion
324. The first Legal Opinion is dated 25th October, 2018 and emanates from the Country A
lawyer who acted for the second applicant with regard to the adoptions of J.B and K.B.
This Opinion was furnished in response to four queries posed by the applicants’ Irish
solicitor in a letter dated on 19th October, 2018.
325. Query 1 related to whose consent to the adoptions was required according to the
relevant law in Country A. The Legal Opinion set out that the relevant provisions of the
Civil and Commercial Code (CCC) in Country A required the consents of the natural
parents. It makes reference to what has to occur if either parent is deceased or has had
his or her parental power revoked. It refers also to the powers of a Country A court to
grant approval in circumstances where the natural parents cannot give consent. The
Country A court may also grant approval where there is a refusal to give consent, if the
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court is satisfied that such refusal is unreasonable and detrimental to the health, interest
and welfare of the child. The Opinion went on to state:
“In this matter, the father and mother of the two adopted children…gave their
consent to [the second applicant’s] adoption of them; [the second applicant] is also
the aunt of these two children. The father of the children is the younger brother of
[the second applicant]. Thus, the said adoptions have been completed in
accordance with [Country A] law.”
326. Query 2 asked what was the legal effect of the adoptions as respects the termination of
the parental rights and duties of the natural parents and the creation of parental rights
and duties of the adopter. The Opinion advised that the parental rights and duties of the
natural parents terminated on the date of the adoption and passed to the adopter, in
accordance with the provisions of the CCC.
327. Query 3 asked what, if any, enquiries were required under the laws of Country A relating
to (a) the adopter, (b) the children and (c) the natural parents prior to the adoptions.
328. The Opinion advised that Country A required a prospective adopter to be deemed eligible
and suitable pursuant to the relevant provisions of the CCC. It referred to the criteria
which rendered an adopter qualified to adopt, namely
that the adopter be married, have secure financial status and “live in a good environment
and have time to take care of the adopted child.” The rules also provided for probationary
placement of the child for a period of six months. This requirement could be waived where
the adopter was a family member and that, therefore, this rule had been waived in the
case of the second applicant. The Opinion stated that children over fifteen years of age
were required to give their consent to the adoption. It stated that the law also provided
that before the Child Adoption Committee would consider the adoption application, the
adopter, the children and the natural parents were required to be interviewed by the
Provincial Office of Social Development and Social Security. It is also required that the
relevant officer visit where the child is to be raised by the adopter and interview the
adopter’s neighbours following which a report is submitted to the Child Adoption
Committee, which considers whether to approve the adoption application or not.
329. Query 4 asked whether the applicable laws governing adoptions in Country A required
the courts or other authorised parties to give due consideration to the interests and
welfare of the children. The Opinion stated that only the Department of Social
Development and Welfare can grant approval of an adoption. That department authorises
the Child Adoption Committee of the Office of Social Development to “conduct interviews,
and examine the facts concerning the interests and welfare of the children to determine
whether the child adoption shall be approved”. The Opinion goes on to state:
“In this case, the Child Adoption Committee has approved [the second applicant’s]
adoption application to be the adopter of [J.B. and K.B.].”
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330. In the course of the Authority’s written legal submissions dated 16th November, 2018,
issue was taken with the Legal Opinion. Counsel for the Authority cited McGrath on
Evidence (2nd ed., 2014) that expert evidence “is mandatory in respect of matters of
foreign law” and that “foreign law can only be proven by the evidence of a suitably
qualified lawyer”. Although not taking issue with the qualifications of the author of the
Legal Opinion dated 25th October, 2018, counsel queried the independence of the author
given that the applicants had tendered a Legal Opinion from the lawyer who had acted for
the second applicant in relation to the Country A adoptions. Counsel further submitted
that the Legal Opinion diverted on occasion into giving pure factual evidence rather than
expert opinion. Counsel also noted that the issue of whether Country A law required an
adopter to be habitually resident in order to effect a domestic adoption had not been not
addressed.
The second Legal Opinion
331. On 30th November, 2018, the applicants’ solicitor wrote to a named lawyer in a named
law firm situated in Country A’s capital city, requesting her professional opinion on the
same four queries as previously made of the second applicant’s Country A lawyer. He
further requested that that the Legal Opinion address the legal requirements as regarding
citizenship and/or place of habitual residence that are required to be satisfied by a
prospective adopter in order to avail of a domestic adoption under Country A law. As with
the earlier request, the applicants’ solicitor enclosed the Country A adoption papers
relating to the adoption of the children.
332. The second Legal Opinion is dated 21st December, 2018. In her “Affidavit of Foreign
Law”, the author of the Legal Opinion sets out her professional qualifications and areas of
expertise, which include adoption law. She avers that she is “independent of the parties in
this matter”. She avers that her Legal Opinion constitutes her evidence in the case.
333. By and large, the second Legal Opinion aligned with the first Legal Opinion in its response
to queries 1 and 2 of the applicants’ solicitor’s letter. Accordingly, I am satisfied that
Country A’s laws required the consent of the natural parents to the adoption of the
children in this case. As regards query 2, it is clear that Country A’s laws are in line with
the laws of this State as to the legal effect of an adoption order vis- a-vis the termination
and creation of parental rights and duties on foot of an adoption. Accordingly, I am
satisfied that requirement (b) of the definition of “foreign adoption” as set out in s.1 of
the 1991 Act has been met.
334. In answer to query 3 (whether Country A’s laws required an enquiry to be carried out into
the adopters, the child and the parents), the response set out in the second Legal Opinion
was more expansive than in the first. As regards the adopter, it confirmed that the law
required an examination of the living conditions and suitability of the adoption applicant.
This was to be ascertained by examining the adopter’s family history, living conditions,
career and economic situation, psychological and mental state. A criminal background
check is also required. The ability of the adopter to look after the child and provide him or
her with an education is also to be examined. The Legal Opinion also confirmed the
requirement for a probationary placement of the child with the adopter but confirmed that
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this requirement is not required where the adopter is a relative of the child, for example
an aunt. As regards the natural parents, the Legal Opinion confirmed that upon receipt of
an application for adoption, the relevant officials must enquire into the natural parents’
living circumstances, their ability to give consent and the reasons for giving the child up
for adoption. With regard to the child to be adopted, the Legal Opinion referred to the
requirement for the relevant official to ascertain the history of the natural family, examine
the living conditions of the child and his or her suitability for adoption and ascertain the
views of the child in relation to the proposed adoption.
335. The second Legal Opinion’s response to query 4 (whether Country A’s laws required the
court or the adoption authority to give due consideration to the interests and welfare of
the children) is, to my mind, somewhat opaque. By and large, the response reprises the
law as to who are the relevant decision-making bodies in adoption cases and again
reiterates that enquiries are to be made of and about the adopter, the natural parents
and the child before the adoption is submitted for approval. It is not expressly stated that
the relevant law provides for due consideration to be given to the interests and welfare of
the child before an adoption order is made.
336. However, I note that it is expressly stated in the first Legal Opinion that the Child
Adoption Committee has to “conduct interviews, and examine the facts concerning the
interests and welfare of the children to determine whether the child adoption shall be
approved” (emphasis added). I am satisfied, therefore, that consideration of the best
interests principle is part of Country A’s adoption laws. Therefore, requirement (d) of the
definition of “foreign adoption” as set out in s.1 of the 1991 Act has been met.
337. The second Legal Opinion’s answer to query 5 (whether habitual residence in Country A
was a requirement in order for a prospective adopter to avail of a domestic adoption) was
as follows:
“The laws of [Country A] do not restrict a foreigner or a person whose domicile or
habitual residence is not in [Country A] from adopting a child.
Therefore, an adopter does not have to be a [Country A] citizen or [have] a
domicile in [Country A].”
338. I am satisfied that the evidence before the Court, as given in the second Legal Opinion,
is, therefore, that the second applicant did not have to establish habitual residence in
Country A in order to adopt the children. I note that the first applicant testified on Day 3
of the hearing that he had asked his Country A lawyers whether it was necessary for the
second applicant to show habitual residence in Country A in order to adopt and that his
lawyer’s response was that habitual residence was not required. Thus, the evidence
tendered by the first applicant is consistent with the second legal Opinion.
339. The second Legal Opinion response to query 5 also includes the following:
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“However, some legal requirements and documentations are different for an
adopter who has a domicile in [Country A] and who has a domicile in foreign
country such as required documents and the authority to accept the adoption
application and approval for the probationary placement.
Please note that under Section 5/1 of the Child Adoption Act, a child adoption in
foreign countries, which is a party to [the Convention], in which a competent
authority of that country certifies that the child adoption complies with the
Convention and such child adoption is not conflicted with the law, public order or
good morals, shall be considered as the adoption made in accordance with the Child
Adoption Act of [Country A].”
340. I do not regard the first part of the above extract as germane to the within case since as
the probationary placement requirement did not apply to the second applicant given that
she was the children’s aunt.
341. As regards the latter part of the extract, there, the author of the second Legal Opinion is
clearly outlining that Country A (itself a Hague Convention country) will recognise
Convention compliant adoptions effected outside Country A. It is thus clear that there was
awareness by the author of the second Legal Opinion of the Convention.
342. As is well rehearsed at this stage, the second applicant’s adoption of J.B. and K.B. was
one to which the Convention applied. The evidence given by the applicants to this Court
was that in the course of the adoption process in Country A, neither their Country A
lawyers nor the Country A provincial authority with whom they dealt adverted to the fact
that the adoptions fell within the remit of the Convention. As already indicated, I am
satisfied to accept the applicants’ evidence in this regard. Given their approach at the
outset of the adoption process (which was to immediately seek the advice of the relevant
Irish agencies), I have no reason to not to believe that had they been alerted by their
Country A lawyers or the Country A provincial authority that the adoptions fell within the
Convention that they would not have reverted to the relevant agencies in this jurisdiction,
or gone to Country A’s Central Authority, or at that point sought legal advice as to the
way to proceed.
Were enquiries made and consents obtained in the present case in 2011, in line with
the requirement of Country A’s adoption laws?
343. The Court has heard the evidence of the applicants as to the enquiries made by the
Country A authorities of the second applicant (and indeed of the first applicant) over a
six-month period between September 2011 and March, 2011. The applicants have
outlined the nature of the enquiries made of the second applicant and the documentation
which they both were required to produce. This evidence is set out in detail earlier in this
judgment. I am thus satisfied that the enquiry into the second applicant (and the first
applicant) which Country A’s law required has been completed. I note that these enquiries
included not just financial checks but also checks with the police in this jurisdiction (as
required by Country A’s adoption law) in relation to the second applicant. The enquiries
also included visits to the second applicant at her Country A home. I am also satisfied as
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a matter of probability that the necessary enquiries into the natural parents were
completed. The applicants testified that the natural parents met with the Country A
provincial adoption authorities on 7th September, 2011. I also accept as a matter of
probability that the enquiries carried out by the Country A authorities encapsulated the
children and their particular circumstances as they stood in 2011. Accordingly, I am
satisfied that requirement (c) of the definition of “foreign adoption” as set out in s.1 of
the 1991 Act has been met.
344. The question which next falls to be addressed is whether for the purposes of requirement
(a) of the definition of “foreign adoption” as set out in s.1 of the 1991 Act, the consents of
every person whose consent was required under Country A’s laws was in fact obtained.
The Court must also satisfy itself that such consents were informed consents and fully and
freely given. On this latter issue, I note that the Authority’s written legal submissions
advance the argument that if a natural parent thought they were consenting to a
domestic adoption, but in fact the adoption was an intercountry adoption, such consent
would not be full, free and informed. In fairness to the Authority, it did not argue that
that is what occurred here, rather it left the issue of consent for the Court to consider on
the evidence. For the purposes of the Court’s assessment, however, I took note of the
Authority’s submission. This was in circumstances where consents of the natural parents,
on their face, made reference to the second applicant residing at a named address in her
home province (in fact the house she had purchased in late 2006). However, for reasons
more particularly set out below, I have concluded that the natural parents were not of the
impression that the second applicant intended to reside in Country A with the children
following the adoption.
345. It is of course the case that the domestic adoption effected in Country A on 25th
January, 2012 (and made law on 21st February, 2011 on foot of the registration of the
adoptions) was properly an intercountry adoption that fell to be processed substantively
and procedurally with the Convention, which was not done. That being so, it follows that
the parental consent process mandated by the Convention was not adhered to in this
case. The fact of non-compliance with the Convention does not, however, negate the
efficacy of ascertaining whether there was compliance with Country A laws on the giving
of parental consent in domestic adoptions. It is into this which the Court must enquire,
using the definition of “foreign adoption” as set out in s.1 of the 1991 Act.
346. The applicants’ evidence as to the giving by the natural parents of their respective
consents to the adoptions is set out earlier in this judgment. In essence, they state that
the natural parents’ consents were obtained on 7th September, 2011, an occasion when
they were independently interviewed by the relevant social workers of the provincial
authority that was processing the second applicant’s application. Both applicants testified
that they saw the natural parents in the company of the officials but that the applicants
themselves were not present in the room where the consents were obtained.
347. Counsel for the Authority points to the following exchange which took place between the
first applicant and his counsel on Day 2 of the within hearing:
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“Q. Right. Can you tell me when the question of adoption was raised did you have an
opportunity, or to your knowledge did [the second applicant] have an opportunity
to speak to the natural mother and father about it and the ramifications of it?
A. I understand, and again she will clarify, because obviously I don’t speak [the
language of Country A] …After her mother had raised [the issue of the second
applicant adopting the children] with her I understand that [the second applicant]
spoke to her brother who in turn spoke to the natural mother. Now I don’t know,
you know, if we…when we visit [Country A] if we want to get in contact with the
natural mother normally we have to do that through her mother because that is the
one constant in terms of phone number and things like that. So the natural
mother…changes her phone very regularly. So if we ever wanted to…I don’t know
how [the natural father] contacted the natural mother, but he did, they discussed
it, they were agreeable and understood the ramifications as I understand it and
after that [the second applicant] spoke directly to the natural mother.”
348. Albeit noting the hearsay nature of some of this evidence, overall, I am satisfied as a
matter of high probability that the consents furnished by the natural parents on 7th
September, 2011 were informed consents which were provided willingly. In the first
instance, there is the evidence tendered by the applicants that the natural parents were
agreeable to the second applicant adopting the children. Secondly, the Court has before it
a certificate from the Office of Social Development and Human Security of the relevant
provincial authority which certifies that the natural parents “have signed the Letter of
Consent from the Authorized Person in front of the officer on the 7th of September 2011
willingly, without being threatened, tricked or induced by obtaining wages or
compensation as well as not being forced in any other unlawful practice by [the second
applicant] or any other persons”. As is clear from the Legal Opinions, the consent of the
natural parents is a legal pre-condition for the Country A adoptions unless dispensed with
by court order). Thirdly, the Court has before it certified copies of the natural parents’
respective consents. Having regard to the evidence given in the second Legal Opinion as
to what Country A’s laws required with regard to consent to domestic adoptions, I am
satisfied as a matter of probability that there was compliance with the legal requirements.
349. While I note that it was put to the first applicant in cross-examination by counsel for the
Attorney General that the consent document signed by the natural mother does not give
any indication of the knowledge or information which was imparted to her for the
purposes of obtaining her consent to the adoptions of the children by the second
applicant, I am satisfied on balance of probability, given the involvement of the officials of
the provincial authorities and the nature of the document signed by the natural mother,
that the natural mother knew the import of the document she signed, namely that she
was giving her children up for adoption. I also take into account the applicants’ evidence
as to their periodic ongoing contact with the natural mother and their evidence that she
has never sought to resile from the consent given in 2011.
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350. It is the case that the consent documents signed by the natural parents described the
second applicant as resident in the house in her home province which she had purchased
some years earlier. The consents made no mention of the fact that as September 2011,
the second applicant’s habitual place of residence was Ireland.
351. Both applicants were questioned by counsel for the Attorney General as to why this was
the case. They both testified that the reason for the inclusion of the second applicant’s
Country A address was because pursuant to Country A’s laws, every Country A citizen had
to be registered at an address in Country A. The evidence of the second applicant was
that the officials had put her Country A address on the consent documents as that was
her address according to her Country A identity card. They also testified that at all
relevant times, both the natural parents and the Country A officials knew that they were
resident in Ireland and that the children would be residing in Ireland following the
adoption. I am satisfied to accept the applicants’ testimony in this regard. As a matter of
high probability. I am satisfied that the natural parents were aware since December, 2007
the that second applicant was resident in Ireland. I note in particular the evidence given
by the second applicant that she left her home province for Ireland in December, 2007.
This was a time when the birth parents were residing in the house which the second
applicant had purchased.
352. Moreover, there is evidence that, thereafter, she and the first applicant only returned to
Country A for holidays, a fact that must have been known to the natural mother as well
as the natural father, at least up to early 2011 when the natural mother left that
residence. I am also satisfied that it was the understanding of the Country A officials
dealing with the adoptions that the second applicant was resident in Ireland.
353. The applicants have given uncontroverted evidence regarding the range of
documentation which they were obliged to provide as part of the second applicant’s
assessment process. There can be no doubt but that the officials were aware from this
documentation that she was resident in this State. I also take account of the fact that
during half the assessment process the Country A officials communicated with the second
applicant at her Irish address, via Skype. Furthermore, given that the laws of Country A
do not restrict a person whose domicile or habitual residence is not that of Country A from
adopting a child, I am satisfied that there was no ulterior motive for the inclusion of the
second applicant’s Country A address on the consent documents.
The 2018 Consents
354. In August 2018, the applicants were instrumental in procuring further consents to the
adoptions from the natural parents. The first applicant’s evidence was that this step was
taken in order to assist the Authority in circumstances where the Authority had been
seeking to obtain the consents of the natural parents as part of its efforts to progress the
applicants’ application in this jurisdiction to jointly adopt the children. I accept the first
applicant’s evidence in this regard in so far as it relates to the period prior to the delivery
of the Supreme Court’s judgment in the Case Stated. As set out earlier in this judgment,
the contents of correspondence between the Authority and applicants in the period
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August, 2017 to May, 2018 disclose that the Authority (on a without prejudice basis,
given its appeal of the High Court judgment in the Case Stated) was attempting, for the
purposes of the applicants’ domestic adoption application, to appoint an authorised
person to oversee the signing of the consent by the children’s birth mother. To this end,
in August, 2017 and October, 2017, the applicants provided the Authority with contact
details for the birth mother. In March, 2018, the applicants’ solicitor was told that the
Authority had written to Country A’s Central Authority seeking its assistance in procuring
the birth mother’s consent and notifying and consulting the birth father. The first
applicant testified that the HSE social worker who had been assigned to the applicants
had asked if he and the second applicant could assist with regard to effecting contact
between the Authority and the birth mother. In this regard, the first applicant’s evidence
is unchallenged.
355. It is however the case that post the delivery of the Supreme Court’s judgment on 12th
July, 2018, there was no basis for the Authority to pursue the natural parents’ consents in
the context of a domestic adoption in this jurisdiction, albeit the Authority at that time
was continuing to try and liaise with Country A’s Central Authority for the purpose of the
“reverse engineering” solution which the Authority had suggested to the Supreme Court,
and indeed as contemplated in the Explanatory Report.
356. While the procuring of the August, 2018 consents could on one level be said to be
something of a solo run by the applicants, I accept that the 2018 consents were obtained
against a backdrop whereby the applicants had been requested by the Authority to
provide assistance in this regard in the period October, 2017 to May, 2018 (for the
“without prejudice” domestic adoption process then ongoing).
357. The first applicant told the Court that in August, 2018, he and the second applicant were
in Country A on holiday and accordingly in a position to procure consents from the natural
parents. In the course of his evidence he stated that when first contacted by the HSE
social worker in the context of the domestic adoption application, he had been asked if “it
would be possible to have the [2011] consents redone in the Irish form…” He stated that
the form used in August, 2018 was that which Authority had outlined in its letter of 29th
March, 2018 to Country A’s Central Authority.
358. The consent forms which were provided to the natural parents in August, 2018 by the
first applicant consisted of a document entitled “Form 1 The Adoption Society of Ireland
Affidavit of Consent to Adoption” which the first applicant had endeavoured to translate
into in Country A’s language for the benefit of the natural parents.
359. The “Affidavit of Consent to Adoption” document was signed by the birth mother on 19th
August, 2018 in the presence of a notary. The notary was verified by Country A’s Ministry
of Foreign Affairs. A similar document was signed by the birth father on the same date,
again in the presence of a notary. Both documents included a paragraph that the
respective signatories understood the nature of an adoption order and that they would
lose all parental/guardianship rights upon the adoption. Moreover, the 2018 documents
contained a statement that the birth parents had been informed that their respective
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consents could be withdrawn at any time before the making of the adoption order. These
were caveats which were absent from the “Letter of Consent from the Authorized Person”
which the birth mother had signed on 7th September, 2011.
360. Under cross-examination by counsel for the Attorney General, it was the first applicant’s
belief that notwithstanding the absence of the aforesaid safeguards in the 2011 consent
form which the natural mother as the “Authorised Person” under Country A law had
signed on 7th September, 2011, the consent of the birth mother had been fully and freely
obtained. He stated that this was evidenced by the fact that in August, 2018, both birth
parents could have refused to consent to the adoptions when again requested to do so
but they had not refused. As further proof that the birth mother had freely provided her
consent in 2011, the first applicant referred to a text message which the second applicant
received from the birth mother on 25th October, 2018 thanking the applicants for
everything they have done for the children and sending a video of her new baby for J.B.
and K.B. to view. The second applicant gave similar testimony.
361. In the course of his evidence, the first applicant acknowledged that the consent forms
which were provided to the birth parents in August, 2018 were prospective in nature and
not a ratification of an earlier adoption process. The first applicant explained that he had
used this format in order to follow and emulate the steps which the Authority had outlined
in its letter of 29th March, 2018 to Country A’s Central Authority.
362. Notwithstanding my view that the applicants’ actions in August, 2018 added a further
layer of complication to the adoptions in issue in these proceedings, I am satisfied that
the applicants’ actions were not a retrospective attempt to obtain consents from the
natural parents which should have been obtained in September, 2011. For the reasons
already set out, I am satisfied that the natural parents gave their consent to the
adoptions in September 2011 and that those consents were freely given. I am fortified in
this conclusion by the natural parents’ readiness to assist the applicants in August, 2018.
On balance, I accept the first applicant’s evidence that the 2018 consents were obtained
in an effort by the applicants to emulate what the Authority had previously proposed. The
applicants clearly believed that it would assist if the birth parents signed the consents
again “in the Irish form”. Furthermore, I find no reason to disbelieve the first applicant’s
testimony that the natural mother position in August 2018 was that the children had been
adopted in Country A some seven years previously.
363. In all the circumstances, I am satisfied that requirement (a) of the definition of “foreign
adoption” as set out in s.1 of the 1991 Act has been established in this case.
364. For the purposes of requirement (e) of the definition of “foreign adoption” as set out in
s.1 of the 1991, I should say at this juncture that I am satisfied from the evidence
adduced, that the applicants “have not received, made or given or caused to be given any
payment or other reward…in consideration of the adoption…” of J.B. and K.B.
365. There is one aspect of this case where there is perhaps less factual clarity that might have
been. I note that in the first Legal Opinion it is stated that the adopter, the child and the
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natural parents are required to be interviewed by the Provincial Office of Social
Development and Social Security. It is also required that the relevant officer visit where
the child is to be raised by the adopter and interview the adopter’s neighbours following
which a report is submitted to the Child Adoption Committee, which then considers
whether to approve the adoption application or not. I have already stated that I am
satisfied, on balance, that appropriate enquiries were made of the second applicant and
the birth parents for the purposes of the Country A domestic adoption process. However,
there is no evidence before the Court as to whether the second applicant’s neighbours
were spoken to. This may be because of the fact that they provincial authorities were
aware that the second applicant resided in Ireland. I note, however, her evidence that she
had referees (her two aunts) in attendance on 7th September, 2011. No evidence was
given by the applicants as to whether the provincial authorities interviewed the children,
as appears to be required by Country A law. At the time of the Country A domestic
process, J.B. was five years old and K.B. was three years old. It may be that interviews
with the children were not pursued because of their young ages at the time of the
adoptions. I hasten to add that this is just surmise on my part. In any event. given that
the children have by now lived well more than half their lives with the applicants, the
issue as to whether they were spoken to in 2011 cannot be the determining factor as to
whether the domestic adoption comes within the parameters of “foreign adoption” as
defined in the 1991 Act.
366. In summary, for all the reasons set out above, I am satisfied the Country A domestic
adoption substantially complies with the definition of “foreign adoption” as set out in the
1991 Act.
Factor (x) The children’s views
367. For the purposes of the within application, the Court has heard informally from J.B. and
K.B. about their wishes for the future. They presented as extremely happy, bright and
articulate children whose description of their home, school and social life reflect their view
of themselves as the children of the applicants. They talked about their half-brothers who
are the sons of the first applicant from his first marriage and their baby brother born to
the first and second applicant in 2017. They are aware of and know their birth parents
(their other “mum and dad”) and extended family in Country A whom they visit. They
talked about their birth mother’s new baby, their half-sister. It is clear to the Court,
however, that these children do not see themselves as other than as the children of the
applicants.
Factor (xi) The best interests of the children
368. The Court has heard the evidence of the applicants regarding their life together with the
children since the children’s arrival in this jurisdiction in April, 2012. I have also heard
informally from the children in this regard.
369. The prejudice to the adoptions not being recognised in this jurisdiction was identified by
the majority in the Supreme Court in the following terms:
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“In the absence of a clear identification of their legal status, the children may
encounter difficulties once they are no longer dependent on CB in obtaining
passports, in the area of succession law and possibly their continuing long term
right to residency status. Moreover, a question may arise as to whether, at present,
even PB enjoys a parental relationship with the children which is legally cognisable
as a matter of Irish law. CB has no such status, even after the lapse of five years or
more. The two adults, who see themselves as the children’s parents are not…their
parents in the eyes of the law, or the State generally.” (MacMenamin J. at para.
99)
370. I accept the above dictum as a correct reflexion of the legal dilemma that arises in this
case. It arises, in the first instance, consequent on the fact that the adoptions did not
conform to the Convention rules, as they should have. The dilemma arises also by reason
of the fact that, for all the reasons set out by the Supreme Court, neither a domestic
adoption in this jurisdiction nor a return to the children’s original legal status is possible.
371. Submissions have been made by the Authority to the effect that any present or future
difficulties regarding the children’s status in this jurisdiction could be alleviated by
alternative rights mechanisms such as non-parental guardianship, as provided for in s.6C
of the Guardianship of Infants Act 1964, and by provision being made for the children in
the applicants’ wills. This was also the view of the minority in the Supreme Court. (See
O’Donnell J. at para. 9 and McKechnie J. at para. 148.) I note however that while
O’Donnell J. did not believe that “a humane decision-maker” would determine that the
children leave the country once no longer dependent on the applicants, he acknowledged
that the spectre of the children being required to leave the country when they are no
longer dependent remained “a possibility”.
372. Counsel for the applicants submits that when in 2027 the children’s current residency
permits expire, at that point they will be two adult Country A citizens with no clear legal
relationship with any Irish or EU citizen, save being the natural niece and nephew of the
second applicant.
373. Overall, while I agree with the view expressed by O’Donnell J. that it is neither “desirable”
nor “sensible” to use the law of adoption to solve problems which may or may not occur
regarding the children’s future residency status, what presents here is, to my mind, a
more fundamental issue, namely that, as matters stand, the children’s and the applicants’
recognisable legal status remains “in limbo”. This is so given that a domestic adoption in
this jurisdiction cannot be tolerated and because the Country A domestic adoption (which
should have been treated as an intercountry adoption under the Convention) is not
considered a nullity (by reason of non-compliance with the Convention) and thus remains
extant. This is all in the context where, as stated by MacMenamin J. “the human reality
[is] that the children see the applicants “as their father and mother, based on the bonds
of attachment which have been formed over the last six years.” (at para. 140)
374. In all the circumstances, therefore, I accept as considerably more persuasive the
applicants’ arguments that it would be in the best interests of these children that the
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Country A adoption would be entered on the Register, as opposed to their best interests
being met by means of other legal mechanisms such as guardianship. My reasons for this
conclusion are further set out below. I wish to emphasise that I am not saying that the
best interests principle of itself is sufficient to trump the Convention. In the absence of
truly exceptional circumstances, the best interests of the children of itself could not be a
sufficient basis for an order to be made under s.92(1)(a) where there has been wholesale
or substantial non-compliance with the Convention. This is so in light of the State’s
commitment to implementing the Convention and upholding the integrity of the
intercountry adoption process provided for in the Convention and the 2010 Act. Any
contrary approach would be tantamount to judicial forgiveness of non-compliance, which
the Court cannot countenance.
375. What distinguishes the present case is firstly, the series of unfortunate events which I
have described earlier in this judgment which, I am satisfied, diverted the applicants from
the path they had initially embarked on, namely their invocation of the assistance of
agencies of this State for the purpose of an intercountry adoption of the second
applicant’s niece and nephew. Secondly, the Court is satisfied as to the applicants’ bona
fides at all relevant times. Thirdly, during the entirety of the processes which the
Authority sought to put in place in the period 2012 to 2018 (including a domestic
adoption in this jurisdiction), the applicants co-operated willingly and wholeheartedly.
Moreover, this Court has found that the Country A domestic adoption meets the criteria
for a “foreign adoption” as set out in s.1 of the 1991 Act as it read on 30th May, 1991.
This being so, there is an “adoption” for the purposes of any order the Court might make
under s.92(1)(a) of the 2010 Act. As earlier referred to, pursuant to Article 42A of the
Constitution, the State recognises the natural and imprescriptible rights of all children and
undertakes so far as practicable, by its laws, to protect and vindicate those rights in the
resolution of all proceedings concerning, inter alia, the adoption of a child. Bearing this
constitutional promise in mind, this Court, in considering whether to direct an entry of an
“adoption” in the Register in all the exceptional circumstances of this case, is impelled to
conclude that the vindication of these children’s rights requires some mechanism to give
legal recognition to their status as the adoptive children of the second applicant. Such
mechanism is available to the Court via s.92(1)(a) of the 2010 Act.
Conclusion
376. The Court has considered factors (i) to (xi) above for the purpose of determining whether
the circumstances of the within case meets the test of being, in the words of the Majority
View in the Supreme Court “a truly exceptional case”. In view of the findings of this
Court under the relevant headings, as set out above, I am satisfied that the applicants
have met that test.
377. The Court, therefore, proposes to make an order pursuant to s. 92(1)(a) of the 2010 Act
directing the Authority to enter the adoptions of J.B. and K.B. on the Register. I am
satisfied that such an order will not give rise to any public policy concern. The Court is
cognisant of the public policy criterion. A decision to effect recognition of “an adoption”
which was properly an intercountry adoption to which the Convention was not applied
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raises an issue of public policy. There is public interest into maintaining the State’s
commitment to the Convention. In particular, I note the Attorney General’s submissions
in this regard. I am satisfied however that the order the Court proposes to make can exist
in harmony with both the letter and spirit of the Convention. This is so by virtue of the
careful test formulated by the majority in the Supreme Court which this Court had
adopted in assessing the evidence in this case, in order to ascertain whether the
circumstances met the “truly exceptional” test, and by reason of the guidance set out in
the Explanatory Report.
378. Furthermore, in my consideration of the public policy concern, I also take into account
para. 529 of the Guide to Good Practice which states, inter alia, that “[r]ecognition may
be refused, under Article 24, only if the adoption is manifestly contrary to public policy,
taking into account the best interests of the child.” As is clear from the findings of fact
made by this Court, there is no suggestion in the present case that the children were
trafficked into this jurisdiction or adopted by the second applicant for any nefarious
purpose.
379. I will hear the parties’ submissions on the timing of the proposed order,
given that the applicants’ current application to the HSE for assessment remains on hold
pending the outcome of the within proceedings. I will also hear submissions on the exact
wording to be used for the purpose of entry on the Register, to reflect the “truly
exceptional” nature of this case.
380. By way of postscript, I should acknowledge that in their legal and oral submissions to the
Court, the applicants argued that in interpreting and applying s.92(1)(a) of the 2010 Act,
the Court should have regard to the children’s rights under Article 8 ECHR. Counsel for
the Authority resisted any reliance on Article 8 on the basis that there was no violation of
Article 8 rights given the range of alternative remedies (other than recognition of the
adoptions) available to the applicants.
381. In view of the findings made by this Court with reference to the Constitution, I did not
find it necessary to consider the parties’ respective arguments with regard to Article 8
ECHR.
Result: Applicants granted relief by way of Order under s.92(1)(a) of the Adoption Act 2010.