S30 In the matter of the Adoption Act, 2010, Section 49 (2), and in the matter of JB (a minor) and KB (a minor) [2018] IESC 30 (16 July 2018)












Judgment of Mr. Justice John MacMenamin dated the 12th day of July, 2018


Introduction
1. The 1993 Hague Convention on the Protection of Children and Co-operation in respect of Inter-Country Adoptions (“the Convention”) became part of domestic Irish law by virtue of the Adoption Act, 2010 (“the Act”). Inevitably, when complex legislation such as the 2010 Act is brought into effect, as it was on the 1st November of that year, there may be initial problems. The series of events described in this judgment were set in motion within six months of the Act becoming law. In hindsight, one might surmise that officials charged with its 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. These events, now more than six years ago, culminated in the present appeal against a High Court judgment delivered in this matter by O’Hanlon J. on the 25th November, 2016 ([2016] IEHC 738), and the consequent order perfected on the 13th January, 2017.

Proceedings
2. The Adoption Authority (“the Authority”) brought this case stated to the High Court on issues of law, pursuant to s.49(2) of the Act. Those proceedings, and this appeal, concern the manner in which CB and PB, a married couple, engaged in adoption procedures relating to two children, JB and KB, who were born in a different country. The precise questions raised are to be found under the heading “The Questions in the Case Stated”, at para. 77 of this judgment. The Authority, concerned as to the potential consequences of the answers given by the High Court, applied for leave to appeal directly to this Court under Article 34.5.4 of the Constitution. In a determination issued on the 10th March, 2017 ([2017] IESC DET 25, Clarke J., MacMenamin J., Laffoy J.), this Court acceded to that application.

3. While it was the Authority that “applied” to the High Court under s.49(2) of the Act, CB and PB will, although notice parties, for ease of reference be referred to as “the applicants”, as it was they who applied to the Authority for an order registering the adoption of JB and KB.

The Attorney General
4. Prior to the High Court hearing, the Attorney General was joined as a Notice Party to these proceedings, which concern the proper application and interpretation of the Act of 2010 to this case.

Redaction
5. At this appeal, counsel for the applicants applied to this Court for parts of this judgment to be redacted. Thus, the judgment neither identifies the names of the children, nor their country of origin, which is referred to as “Country A”.

The Children
6. This case is centred around the legal status of two children: JB, now an 11-year-old girl, and KB, her younger brother, aged 9. They were born in Country A. They have now been living with the applicants in Ireland for over six years. The children are settled in their home and school environments. Their wish is to remain with the applicants, whom they now see as parent-figures. No party to these proceedings is proposing that the “adoption process”, described in this judgment, should now be entirely reversed, or that the children should be sent back to Country A. Insofar as the evidence in this case involves consideration of the conduct of the applicants, I take the view it should also take into account the actions and decisions of the State agencies concerned.

7. As described later, PB went through an adoption procedure for both children in Country A. The Authority does not recognise that procedure as a valid adoption, and, as matters stand, CB cannot legally adopt them either. There is an impasse. The reasons for this are complex, as are the legal issues arising from them.

The Factual Background in Summary
8. CB, the first named applicant is a business executive. He was born in the United Kingdom. His work involves regulatory and legal compliance. He was married previously, and has grown up children from that marriage. In 2006, his work brought him to Ireland. He began a relationship with PB, who was born in Country A. She came to live in Ireland in 2007, and the couple married in the United Kingdom in 2008. They have lived here since then. CB now holds citizenship of the United Kingdom and Ireland. PB now holds citizenship of Country A and Ireland. After the marriage in 2008, the couple unsuccessfully tried to have a family. Later, they chose to explore the possibility of adoption.

9. JX, PB’s brother, was born, and continued to live, in Country A after his sister left. He had been involved in an informal relationship, which ended. JB and KB were the two children of that relationship. The break-up of their natural parents’ relationship left the children in an uncertain situation. CB and PB thought they could adopt the children and give them a good life and stable home in Ireland. What followed has been a very lengthy legal dispute. This time constitutes a protracted period in these children’s lives. As of now, many years after they were brought to Ireland, their legal status still remains unresolved.

The Scope of this Appeal
10. In general, a case stated to the High Court is often brought on agreed facts or findings of fact by a judge. In this instance, however, there was extensive correspondence and disagreement between the Authority’s solicitors and those now acting for the applicants. The Authority’s lawyers considered a narrative of the facts touching more directly on the legal issues raised in the case stated was sufficient. The applicants and their advisors, on the other hand, thought that it was necessary for the High Court to have a fuller understanding of what had transpired in the engagement between the applicants, the HSE, and the Authority in Ireland, and what happened in Country A.

11. At one level, the Authority was, of course, correct: what is at issue here is indeed simply a question of statutory interpretation. But the questions here are neither simple in themselves, nor simply abstract legal propositions: they have a concrete application in the case of these children. This is a truly exceptional case, and as a result, this judgment addresses the legal issues as to interpretation of the Act and the Convention in the context of these two children, and these two children alone. There may be other cases of a similar type. I emphasise that this judgment is confined to the specific facts of the instant case. This means that whether this ruling comes to influence other cases will turn solely on the facts arising in those circumstances.

12. Due to the impasse between the solicitors, CB swore an affidavit in the proceedings giving an account of the couple’s various actions in trying to adopt the children. The then Director of Operations, now Chief Executive of the Authority, swore a replying affidavit. This highly relevant evidence in both applications is considered later. It forms an important part of the background, and the approach proposed in this judgment.

An Underlying Issue: The Question of Bona Fides
13. The Authority does not contend in this appeal that these applicants acted dishonestly. But, it insists the law must be fully complied with in this area. Its particular concern is the possibility that other persons, this time acting mala fides, might use procedures which are the same as, or similar to, those employed by the applicants which would have the effect of circumventing the intent and text of the Act of 2010. This is but one of the reasons why the case has acquired its many ramifications.

Inter-Country Adoption
14. As well as raising difficult legal questions in itself, inter-country adoptions can give rise to complex human situations. Among other things, the 2010 Act was enacted to further regulate such procedures. The applicants contend that the Authority’s earlier refusal to enter the children’s adoption on the register of domestic adoptions resulted from an approach which was at once indecisive, dilatory and over-rigid. This domestic register is one of two operated by the Authority. The second register concerns inter-country adoptions. For its part, the Authority maintains that it is duty-bound rigorously to uphold each of the precautionary pre-adoption procedures laid down in the Act of 2010, which give expression to the Convention rules, described later. The Authority argues that what occurred in this case cannot be seen as a domestic adoption, but rather as a flawed inter-country adoption which cannot be registered. It contends further that failure to maintain the integrity of the process of registration, would, itself, result in a breach of the Convention, with potentially serious consequences. The Authority’s concerns are understandable. But no matter how difficult the legal issues may be, the passage of time is an inherent and undeniably significant factor in decisions regarding the fleeting nature of childhood. Time spent in deliberation and litigation must be measured against the inevitability that young children will form bonds of attachment during early stages of development.

The Adoption Experience in Ireland
15. One need not delve too far into Irish social history to identify the necessity of further legal regulation regarding the international aspects of this issue. In the last two decades, serious questions emerged as to how a significant number of young Irish children were, in the past, regularly sent abroad for adoption. (See Milotte, M., Banished Babies: The Secret History of Ireland’s Baby Export Business (Updated and Expanded Edition, New Island 2012. See also McCaughren, S. and Powell, F., “The Fate of the “Illegitimate” Child: An Analysis of Irish Social Policy 1750-1952” in Howlin, N. and Costello, K. (eds), Law and the Family in Ireland 1800-1950 (Palgrave 2017)). It might be said the initiators of these schemes were motivated by what they felt were good intentions, but what happened then can only be understood in light of the secretive and conservative mores of yesterday’s Ireland. From today’s perspective however, what occurred is not only now seen as morally and legally questionable, but raises issues regarding the legal and constitutional rights of both the mothers and children. Full consent to adoption, and the right to know one’s birth-identity, are two of the various questions which arose in many of those sad cases. This was not the only problem. On at least one other occasion, a breakdown in an “inter-country adoption” registered in Ireland created legal issues in this State. (Dowse v An Bord Uchtála [2006] IEHC 64, [2006] 2 IR 507).

International Context
16. It is common knowledge that the number of foreign children adopted by Irish people has radically declined since 2010. This reflects international trends. (Selman, P., ‘The Global Decline of Intercountry Adoption: What Lies Ahead?’ Social Policy and Society, 11(3), July 2012, 381-397). Since 2010, foreign or “inter-country” adoptions are only permitted to take place in this State with other “Contracting States” as identified under the Convention, which, since its inception, has attracted widespread praise, though occasional criticism. Its many supporters make the persuasive case that, by its very rigour and universality, the Convention acts as a deterrent to the exploitation and abuse of children adopted in one country and then brought to another. A minority of scholars contend, however, that because of the Convention’s rigidity and all-encompassing framework, thousands of children are consigned to live in institutions, orphanages, and on the streets in economically disadvantaged countries, and, as a result, denied the human right to a caring home and stable family upbringing. (See, by way of illustration of this view, Dillon, S., ‘Making Legal Regimes for Intercountry Adoption Reflect Human Rights Principles: Transforming the United Nations Convention on the Rights of the Child with the Hague Convention on Intercountry Adoption’ 21 B.U. Int'l L.J., 2003, 179-258).


The Hague Convention

Reasons for a New Convention
17. The Convention is an international instrument, promulgated by the Hague Conference on Private Internal Law. An earlier Convention seeking to address the issue on jurisdiction and adoption was promulgated in 1965 (Convention on Jurisdiction, Applicable Law and Recognition of Decrees relating to Adoptions, 1965). But, by the late 1980s, this instrument was seen as no longer addressing the global dimension of the issues. The complexion had entirely changed, particularly as a result of the increased placement of children from less well-off countries with families in industrialised countries. On one authoritative estimate, approximately 20,000 children were at one stage being moved annually, largely from developing countries to Western Europe, North America, Israel and Australia. While this change undoubtedly opened up new vistas of permanent care for many of those children, it would, if it had remained unregulated, have increased the risk of ill-prepared adoptions or of potential abuse of the system. (See Van Loon, J. H., ‘Hague Convention of 29th May 1993 on Protection of Children and Cooperation in Respect of Intercountry Adoption’ 3 Int'l J. Child. Rts., 1995, 463-468).

The Objects of the 1993 Convention
18. The philosophy of the Convention is immediately apparent from its Preamble. The signatory-states recognised that, for the full and harmonious development of his or her personality, a child should grow up in a family environment and in an atmosphere of happiness, love and understanding. As a matter of priority, each State-signatory pledged to take appropriate measures to enable the child to remain in the care of his or her family of origin. The framers recognised however, that, for some children, inter-country adoption might offer the advantage of a permanent family to a child for whom a suitable family could not be found in his or her state of origin. The contracting states acknowledged the necessity of taking measures to ensure that inter-country adoptions are made in the best interests of the child, in a manner respecting his or her fundamental rights, and with the aim of preventing the abduction, sale or trafficking of children. The United Nations Convention on the Rights of the Child, 1989, underpins this thinking. The Authority’s stance in this case must be understood as being actuated by the national and international aspects of its statutory remit, where it has a monitoring function in this State, and which it argues requires faithful adherence to the spirit and word of the Convention. The drafting of the Convention involved lengthy international negotiations in which the Irish legal representative, W. R. Duncan, played a leading role.

19. The task facing the initiators of the Convention was to create a legal instrument which would span a variety of legal systems. The earlier Hague Convention on Child Abduction formed a useful template. (Hague Convention of the 25th October, 1980, on the Civil Aspects of International Child Abduction). Just as in the Child Abduction Convention, the authors of this Adoption Convention decided that a new system of judicial and administrative co-operation could best be achieved through “Central Authorities” to be designated within each state. The negotiations involved almost 70 states and 20 international organisations. The Convention did not pretend to unify the rules of conflict of jurisdiction, or the applicable law amongst contracting states. Rather, its intention was to provide a procedure for the recognition of adoptions which were effected in accordance with its principles. (cf. Van Loon, op.cit Int'l J. Child. Rts. 463-468 (1995)). It goes without saying that the Convention should not be undermined by an ill-considered process of creating a series of individual exceptions to its rules.

20. The text of the Act of 2010, among other things, sets out focused national procedural requirements in more detail than the Convention, the latter’s principles understandably being phrased in more general terms. The issues in this case are more easily understood by reference to those general Convention principles. Article 2 and Article 4 of the Convention are key provisions.

Article 2
21. Article 2 sets out the document’s scope. The Convention is to 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 where a child is moved for the purposes of such an adoption, to be effected either in the receiving state, or the state of origin. The Convention only covers adoptions which create a permanent parent-child relationship.

22. The term “habitual residence” may be understood as being the place where a child has his or her close family and social and cultural interactions. A system of welfare-safeguards is to operate on a reciprocal basis between the Central Authority of an applicant’s habitual residence and the Central Authority of the child’s country of origin. In the first instance, applications are generally to move from one national authority to the other. In the case of JB and KB, therefore, the initial application should have been made to the Adoption Authority in Ireland. Neither the Irish nor the Country A authorities processed this inter-country adoption. The couple’s explanation is set out in the section of this judgment entitled “The Narrative”.

Article 4
23. Article 4 sets out the preconditions of a child’s eligibility for adoption. Prior to consideration of a placement, there must be a determination in the state of origin that inter-county adoption is in the child’s best interests. There must be counselling of the natural parents, both parents must freely consent, and the natural mother’s consent must be given after the birth of the child. Article 4 lays down requirements for counselling of the child, and for the child’s consent, having regard to his or her age. Finally, any financial inducement to the natural parents is prohibited. It cannot be said with certainty that these principles were fully observed either.

Article 5
24. Article 5 sets out mirror compliance requirements to Article 4 for potential adopters to be applied by the Central Authority of the receiving state. This includes an assessment which must consider how the inter-country adoption will protect the child’s best interests.

Articles 6 to 13
25. Articles 6 to 13 set out the functions and duties of the Central Authorities. These bodies are to monitor, regulate, collect and preserve information and accreditation of bodies within a state by the competent Central Authority. Central Authorities may recognise other “accredited bodies” within their State, which may themselves engage in inter-country adoptions. The designated Central Authorities and other accredited bodies are to be registered with the Permanent Bureau of the Hague Convention on Private International Law (“the Permanent Bureau”).

Article 14
26. Article 14, in Chapter IV, provides that persons wishing to engage in inter-country adoption must apply to the Central Authority of their state of habitual residence. The intention behind this Article was, so far as possible, to eliminate the exploitative practices of some international “adoption agencies” which financially benefited from directly arranging such adoptions with vulnerable natural parents in another state.

Articles 15 to 22 Generally
27. Articles 15 to 22 deal with the duties of the receiving-state Central Authority. That Authority is primarily responsible for determining that the prospective adopters are eligible and suited to adopt, and that they have been appropriately counselled. The Authority is also charged with ensuring that the child will be allowed to enter and reside permanently in that State. The Convention deals next with two documents which are particularly important.

Article 17 Placement Approval Notices
28. Article 17 provides that a child may only be removed from a country of origin to a receiving state when there is agreement or consent from the adopters, when the receiving state (through the Central Authority) has approved the decision, and once eligibility has been determined. Thereafter, the Authority may issue a document called a “Placement Approval Notice”.

Article 23 Certificate
29. Chapter V of the Convention deals with recognition by operation of law by the Central Authority of a certificate of adoption. An “Article 23 adoption”, certified by the competent authority of the state of adoption as having been made in accordance with the Convention, shall be recognised by all other contracting states. This “certification” must specify when, and by whom, the agreements under Article 17 were given. This is, in effect, a form of international “licence” that the adoption may proceed, and must be recognised in all other contracting states.

Article 24: Exceptions
30. Exceptions are dealt with in Article 24. These may arise, for example, were it to be found that a mother had been induced to give consent by fraud, duress or financial gain. The system hinges, therefore, on a system of mutual and reciprocal recognition of certification.

Article 29: Evasion
31. In order to avoid circumvention of the Convention, Article 29 contains a general prohibition on contact between prospective adoptive parents and the child’s natural parents before it is decided that the child is free to be adopted and that the applicants are eligible and suited to adopt. The intention here is to thwart the activities of local adoption “brokers”. There is, however, an exclusion to this rule in the case of intra-family adoptions, in circumstances such as those pertaining to this case, where PB is the sister of the children’s father.

Article 32
32. Under Article 32, the country of origin is obliged to maintain information regarding the child’s origin, identity and medical history.

Article 35: A Duty of Expedition
33. Article 35, mentioned earlier, falls to be considered later in this judgment. It requires that competent authorities of contracting states act “expeditiously” in the process of an adoption. The importance of this provision to the authorities concerned should be self-evident. Delays can themselves be a form of passive “decision-making”, giving rise to consequences. Such delays are unfair to all parties, but especially the children involved.

Article 40
34. Importantly, Article 40 provides that “no reservation to the Convention shall be permitted”.

Relevance of Convention Provisions
35. The applicants did not comply with many of these rules, and should have done so. The exact failures that arose on the facts will be set out under the heading of “The Narrative”.


The 2010 Act

Long Title
36. After the Convention text, the relevant provisions of the 2010 Act fall next to be analysed. Among other things, the long title identifies its purpose as being to give the force of law to the Convention. It is also to provide for the making and recognition of inter-country adoptions in accordance with bilateral agreements or other arrangements.

Section 3
37. Section 3 distinguishes between two categories only: “domestic adoptions” and “inter-country adoptions”. In s.3, the former is defined as the adoption of a child who is habitually resident in this State before his or her adoption by a person or persons habitually resident in the State. By contrast, and by reference to other definitions contained in the same section, an “inter-country adoption” means the adoption of a child, habitually resident in the “state of origin”, who is to be transferred into the “receiving state” by a person or persons habitually resident in that state. An “inter-country adoption effected outside the State”, is one which is, by necessary implication, in compliance with the provisions of the Convention.

38. There can be no doubt that what was in contemplation in this case was, from the very outset, an inter-country adoption. The applicants in Ireland were seeking to adopt the children from Country A and bring them to this State. This procedure could never have been a “domestic adoption”. The Act and the Convention cannot be circumvented by bringing a child to a “receiving state”, establishing the child’s habitual residence there, and then seeking to have the application treated as a domestic adoption. This would defeat the entire object of the Convention.

Sections 9 and 10
39. Section 9 of the Act provides that the Convention has “the force of law” in the State. It is, therefore, directly applicable as part of national law. The consequences of this fact are considered later. Section 10 of the Act provides that when interpreting any provision of the Convention, a court, or the Authority, as the case may be, “shall pay due regard to” the explanatory report prepared by G. Parra-Aranguren in relation to the Convention. This, too, is an important element in the equation.

Section 19
40. The Act recognises that the welfare of the child is paramount in any question relating to the arrangements for the adoption of a child, for the making of an adoption order, or for the recognition of an inter-country adoption effected outside the State. (s.19). The duty of observing this broad and vital principle is imposed on the Authority and on any court dealing with such questions.

Section 20
41. By s.20 of the Act, the Authority is empowered to make an adoption order for a child who has been “adopted in an inter-country adoption effected outside the state”. It is in those circumstances that the Authority may recognise such an adoption, and, once accompanied by a certificate issued by the competent authority of the “state of adoption”, identified by s.57 of the Act, the Authority may register an inter-country adoption effected outside this State that complies with the requirements of the Act in relation to such adoption. (s.90(7)).

42. Section 20 sets out qualifying criteria for eligibility to adopt. The applicants are a “married couple” and, therefore, comply in that regard with s.20(2). However, a real difficulty arises with the remainder of that section. Section 20(4) provides that, in making an adoption order, the Authority is required to take into account relevant assessment reports prepared under s.37 (that is, as to eligibility). There were no such reports. The Authority is also required to take into account relevant declaration(s) of eligibility and suitability if these have been issued under s.40 of the Act. These relate to a declaration of eligibility and suitability of prospective adopters. There were no such declarations. The effect of these is that the Authority can only recognise an inter-country adoption, which, inter alia, is compliant with Article 17 and Article 23 of the Convention.

Sections 23, 24 and 45
43. It will be helpful here to refer in detail to ss. 23, 24 and 45 of the Act as the Authority later sought to rely on these provisions as grounds for non-recognition of the adoption. Section 23(1) provides:

Next, s.24(1) states that: Finally, s.45 of the Act sets out the following: These provisions are considered in a later section of the judgment: “The Narrative”.

Section 57
44. The Act sets out the means of recognition of inter-country adoptions (s.57). In respect of the question of interpretation and application, s.57(2)(b)(ii) of the Act empowers the Authority to recognise an adoption “as having been effected in accordance with the Hague Convention …” unless “contrary to public policy”. An inter-country adoption, effected outside the State, is recognised and deemed effected by a valid adoption order which has the result of terminating a pre-existing parent/child relationship. (s.57(3)). As will be seen, there may be a question mark as to whether the procedure in Country A, described below, did, in fact, have that effect. In any event, this is not directly relevant to the steps later proposed in this judgment in answer to the questions raised.

Other Provisions of Note
45. The Authority is identified as the “Central Authority”. (s.64). The Authority holds non-delegable functions as to declarations of eligibility. (s.66(3)). The Act gives statutory effect to Article 14 of the Convention (s.67), and sets out, in legislative form, the Convention’s requirements of a receiving state. (s.68). An adoption which does not have the effect of terminating a parent/child relationship may be converted to a full adoption if the requirements of Article 4 are complied with. (s.69). The Act requires that adopters shall inform the Authority within three months of bringing an adopted child into the State. (s.82). It sets up a register of inter-country adoptions to be maintained by the Authority, on presentation of a certificate pursuant to s.57 of the Act and Article 23 of the Convention. (s.90). Other sections, especially s.92, are considered later, insofar as they touch on interpretation.


The Narrative

First Contact
46. What follows next must be described as being a “narrative”. It is necessary to emphasise very clearly that the evidence in this case has never been tested in court. As will be seen, the Authority does not challenge the veracity of what is deposed to by CB in his affidavit. The case stated in the High Court proceeded by hearing on affidavit and legal submissions. What follows is drawn from the affidavits sworn for the High Court. From these, it can be said that the first contact between the applicants and the Adoption Authority took place on the 16th June, 2011. In an email, CB asked the Authority for information regarding inter-country adoption. He briefly summarised the position regarding JB and KB, and the applicants’ desire to adopt the children. In response, an official of the Authority informed CB that the couple would have to be assessed by a local HSE adoption assessment body, and made clear that the applicants must have been resident in Ireland for one year. CB confirmed compliance with the legal residence requirement, and enquired whether the same “inter-country” adoption procedure should be used despite his wife being a blood-relative of the children. The official of the Authority indicated that the same procedure should be used, and that the couple should contact their local HSE social services.

47. What is said to have occurred from then on in 2011 may, perhaps, best be explained in the context of officials and social work professionals faced with new legislation with which they may not have then been entirely familiar. The applicants knew and were acquainted with the children, and informed the HSE social worker of this fact. But on the 5th July, 2011, CB deposes the social worker gave erroneous advice to the applicants, to the effect that, under the 2010 Act, the couple could not adopt an identified or known child who was resident in another Hague Convention country. If given, this advice was incorrect in the applicants’ case, as what they proposed was an intra-family adoption, which as outlined above is an exception to the general rule of Article 29.

48. Unfortunately, this was apparently followed by further incorrect advice. The HSE advised the applicants that they should either adopt the children in Country A and then bring them to Ireland, or alternatively, bring the children to Ireland and then apply to have them adopted here. Such advice would have run directly counter to the Act and Convention, which, in fact, required the applicants to apply to the Authority in Ireland as the first step.

49. There is evidence that the applicants were counselled by the HSE to seek legal advice from a lawyer familiar with adoption law. There is no evidence that they did. This omission was foolish and unfortunate. By his own business experience, CB should have been familiar with the need to take legal advice in an area of doubt or uncertainty. On CB’s account, the couple wished to move quickly. CB says that, acting on the erroneous advice received from the HSE, the applicants thereafter went to Country A and there obtained legal advice from a reputable legal firm. It is said this information was yet again incorrect. At variance with the Convention, the applicants did not establish contact with the Central Authority in Country A. Instead, they went to the Social Protection Authority in PB’s own native province of Country A. The authorities there were apparently aware that the applicants wished to adopt jointly. They specifically asked for CB to get an assessment of his eligibility and suitability from Ireland. However, because the HSE refused to give an assessment (presumably for the reasons outlined earlier), it is said PB then proceeded to herself adopt the children on her own. As a consequence, the evidence shows that the applicants were not only set on the wrong track in Ireland, but also in Country A, where they did not engage with the Central Authority. None of this evidence has been controverted.

Procedures Not Complied With
50. The step-by-step procedures outlined in the Convention and the Act were not followed. The couple should have been assessed in Ireland. The children should have been assessed in Country A, and consideration given to an inter-country adoption. An Article 17 “placement approval notice” should have been issued by the Irish Central Authority. Once satisfied that all the procedures as to assessment and consents had been completed, the Country A Central Authority could then have issued an Article 23 Certificate recognisable by the Adoption Authority in this State. Thereafter, the adoption could have been registered as an inter-country adoption. None of these steps were complied with, but there is no evidence to indicate that the adoption could not have gone ahead if these procedures had been followed.

51. According to CB, the Country A “provincial” application was processed on the 7th September, 2011. The evidence before the Court is that the children’s natural mother and father attended at the provincial office, met with the Country A social worker dealing with the case, and freely gave their consents. CB says he attended the office along with the lawyers from Country A, who had been retained, together with PB’s referees, who gave references in person to the social worker. Other documents were filed, including records of financial means. Thereafter, between September, 2011, and January, 2012, the relevant Provincial Office completed an assessment of PB’s suitability to adopt, apparently including a visit to her Country A home, at which the children and CB were present. The adoption was approved by the Provincial Adoption Committee on the 25th January, 2012. This was confirmed by a letter dated the 6th February, 2012, which advised the applicants that they had six months to register the adoption in Country A. That adoption was registered on the 21st February, 2012, and required CB’s written consent as spouse of the adopter. On the 23rd February, 2012, the children’s change of family name was registered in Country A and passports were issued to them in their new names. Soon after, on 28th February, 2012, the couple made an application to the Irish Consulate in Country A for visas for the children.

Legal Advisers in Ireland
52. The applicants’ case is that, in fact, they only retained a firm of solicitors in Ireland in or about December, 2011, which was after the application for adoption had been made. CB says that he did this for the purpose of receiving advice in Ireland as to the steps to take once the adoption process had been complete. The legal firm then retained, only acted in that immigration process. Subsequently, the couple retained a different law firm for this litigation.

53. CB explains that the couple did not jointly adopt the children, because the Country A authorities required him to be assessed in Ireland in order for him to be eligible to adopt, but that he had previously been advised that the HSE would not assess him as the children were known children and therefore could not be adopted under the provisions of the Convention. CB deposes that, as he was a non-Country A national, the Country A authorities would have needed confirmation of the immigration clearance of the children to enter Ireland. This was not possible to secure in advance of the adoption process, which, in turn, could not commence on his part without the assessment. He deposes that he was caught in what he termed a “Catch-22” situation, and that, upon this basis, the couple decided it would be best for PB to adopt the children on her own.

54. The evidence is that the applicants’ then solicitor was informed by letter dated the 30th March, 2012, that the Visa Office of the Irish Naturalisation & Immigration Service has granted entry visas to the children on the basis that they were dependants of CB, a British national, and therefore, were “permitted family members” in accordance with the European Communities (Free Movement of Persons) Regulations, 2006 and 2008.

Arrival in Ireland
55. On the 25th April, 2012, CB and PB arrived in Ireland with JB and KB. Since that time they have lived together. The evidence indicates that, even prior to 2012, the two children knew PB as she had looked after them from time to time in Country A, and that they had become accustomed to her as a carer in that time.

56. The children now refer to PB as their mother, and to CB as their father. They call their natural, Country A father, by his first name. It is said that they have visited Country A on a number of occasions, and have met their natural mother there. The children have obtained Irish PPS numbers, and obtained residency permits and re-entry visas under EU Treaty rights. They have obtained residence cards from the Irish Immigration Authorities which were contingent on their dependency and connection with CB.

Contact with the Authority and the HSE
57. CB states that, by letter dated the 12th November, 2012, he notified the Authority of the Country A adoption, the arrival of the children into Ireland, and of the couple’s intention to apply jointly for a domestic adoption. He set out also that his wife had adopted her niece and nephew via domestic adoption on the 21st February 2012, and that the children had come to live with them in Ireland on the 25th April, 2012. The letter went on to state that it had “now” been brought to their attention that it was necessary to notify the Authority that the children had entered the State, and that it was proposed to apply for a joint domestic adoption in Ireland. A copy of this letter was sent to the HSE. The Authority acknowledged receipt of this correspondence by letter dated the 14th November, 2012. This reply came from an official of the Domestic Adoption section. There was also telephone contact with the HSE.

58. The applicants’ case is that they were advised by their new Irish solicitor in September, 2012, that JB and KB would not be eligible to be the subject of a domestic adoption order until they had resided in Ireland for a period of at least twelve months from their arrival in the State. However, this would have been correct only if the children were eligible for a domestic adoption in the first place.

59. From November, 2012 to May, 2013, there were inconclusive contacts between the applicants and the HSE. It is unnecessary to set out this correspondence in detail. Suffice it to say that the initiatives appear to have largely, if not entirely, come from the applicants.

60. By email dated the 3rd May, 2013, CB and PB, made a joint application to the Authority for a domestic adoption. CB states that all the relevant details were provided, and that they received an acknowledgement on the same day. Thereafter, a further series of contacts regarding adoption procedures took place between CB and the HSE. The couple were invited to attend information meetings on adoption. It is said this invitation was subsequently withdrawn on the basis that these procedures were not suitable in their case. It appears that the HSE wished, at that stage, to process the application as a “step-family adoption”, and that the envisaged timescale was of nine to twelve months. In the background, there would appear to have been some overlap, and perhaps uncertainty, concerning roles between the HSE, The Child and Family Agency, and the Adoption Authority.

61. A social worker employed by the HSE and, thereafter by the HSE’s statutory successor in this context, the Child and Family Agency, was assigned to the applicants in or about the end of May, or start of June, 2013. The social worker informed the applicants that they were unable to commence an assessment of suitability to adopt without the agreement of the Authority. Ultimately, the applicants were advised that they could not adopt. Shortly after the 6th August, 2013, the social worker received a letter from an official of the Domestic Adoption Unit within the Authority. The Authority noted that the children had been adopted by PB as a sole applicant, although she was married at the time. The letter referred to ss.23 and 24 of the Act of 2010, quoted earlier, with s.23 by inference, one presumes, dealing with residence, age and parental status requirements. How these matters were a problem is unclear.

62. The letter concluded: “The children in this case do not meet the criteria, and are therefore not eligible to be adopted.” There was no mention, at that stage, of the Hague Convention. In hindsight, if, instead of s.23 of the Act, the letter had referred to Article 23 of the Convention, which deals with adoption certificates, it might have been more to the point. Possibly there was some internal miscommunication. The social worker was asked to inform the applicants that they could not make an application for adoption under current legislation. The applicants say that they were unable to understand this letter. On their understanding, they satisfied all the conditions specified in s.23. They say they were “dumbfounded”, and had met a dead end. Thereafter, their solicitor took up direct correspondence with the Authority.

63. Subsequent correspondence indicates that an official of the Authority did indeed appear to have misunderstood the factual situation. The official erroneously wrote in another letter that PB had adopted the children “prior to her marriage”. That letter then said that, if the children were already adopted, they could not be re-adopted until the death of their adopted parent, or parents. The official referred to s.45 of the Act, quoted earlier in this judgment, which deals with the possibility of adoption where a child’s adopters have died.

64. How these misconceptions arose is not clear, in that, however incorrect procedurally and legally, the applicants had made it plain that the application was for a domestic adoption of children who were related to PB, who was, in turn, married to CB. It is doubtful how s.45 could have been relevant. Again, with the benefit of hindsight, it seems the Authority was in a quandary in deciding whether or not to treat the children as having been validly adopted in Country A. In later correspondence, the applicants’ solicitor inquired why s.45 of the Act might be relevant, and why it was said the applicants did not comply with s.23 of the Act. The Authority accepted that it had been incorrect to say the children had been adopted prior to the couple’s marriage. However, its stance remained to the effect that the children were already adopted and could not be re-adopted. It is hard to see how this particular position complied with the spirit, still less the word, of the Convention, which should surely have militated against any recognition of the Country A provincial adoption by a non-recognised body. It is, perhaps, possible to draw a distinction between a “recognisable” adoption, and a legally valid adoption, but this is a thin and very indistinct line.

65. The correspondence reflects further misunderstandings. In one letter, the Authority official referred to an entirely different country than Country A as being the children’s state of origin. One has the sense, perhaps wrongly, that the officials found the overall position confusing and had not quite found the root of the problem; which was, in fact, non-compliance with the fundamental requirements of the Convention itself, beginning with, but not confined to, Articles 2 to 5.

The Information Brochure
66. The Authority may be taken as having been aware of the general background to this case as and from the 12th November, 2012, when CB first applied for adoption. Among the exhibits to the present appeal is an information leaflet published by the Authority which was accessed by CB on the 24th March, 2013. The brochure made these six points. First, that prospective Irish adopters should satisfy themselves that persons acting on their behalf in Country A were duly authorised by the appropriate national Central Authority. Second, that such prospective adopters should seek independent legal advice prior to effecting an adoption abroad. Third, that these adopters should not take custody of a child, or accept a placement, prior to the Authority issuing an Article 17 placement approval notice. Fourth, that when a child enters the State for the first time after adoption, the adopters must notify the HSE and the Authority as soon as practicable, and, in any event, not later than three months after the date of entry, with failure to so notify being a criminal offence. Fifth, that not later than three months after the date when a child first entered the State, the adopters must apply to the Authority to have the particulars of the adoption entered into the Register of Inter-Country Adoptions (RICA), and that failure to do so was a criminal offence. Finally, insofar as relevant, applications for entry to the State were to be accompanied by an Article 23 certificate issued by a Central Authority, or by an accredited body duly authorised to do so by the Central Authority. It is unclear when this information was published, but its contents tend to indicate that, by then, the Authority was alive to the issues raised in this case.

Further Correspondence
67. In subsequent correspondence on the 30th January, 2014, the Authority’s solicitors made the following observations. First, that there was then no application before the Authority to effect an adoption in Ireland. Second, that there had been no application by PB to have the children’s adoption recognised and entered on the RICA. One might interpret this letter as conveying that the applicants had not made any application at all to the Authority, but this would be incorrect. Undoubtedly, the applicants had applied, but for a domestic adoption. The solicitors acting for the Authority also stated that PB had committed an offence under s.147(4) of the Act, that offence being that she had failed to comply with s.90(4) of the Act to ensure that an application to enter the particulars of an inter-country adoption be made within three months of entering the State with the children. Section 48 lays down significant penalties for breach of the Act, either by an “accredited body” or an individual.

68. In later letters, the Authority’s solicitors repeated that it had not received any application in respect of the two children, despite the applicants having lodged an application for assessment as to their suitability and eligibility to adopt with the HSE, a function by then devolved to the Child and Family Agency. Perhaps this was the distinction the Authority’s solicitors had sought to make in its earlier letter. Nonetheless, the Authority’s solicitors correctly maintained there was no application for entry onto the RICA, the inter-country register, before the Authority. This remained the Authority’s legal position.


Litigation

The Judicial Review Proceedings
69. The applicants were entitled to be at least concerned by the errors in the Authority’s letters regarding the children’s country of origin and PB’s matrimonial status. They “brought” a judicial review challenge against the Authority (High Court Reference No. 2014/196 JR). Leave was granted by the High Court on the 31st March, 2014. The Child and Family Agency, as statutory successor of the HSE, was a notice party to those proceedings, but, as is obvious, were not notice parties to the present case. There were subsequently “without prejudice” discussions between counsel and the matter was compromised, as expressed in agreed terms of settlement, signed, dated, and filed in court on the 27th June, 2014. The Authority confirmed by letter that the erroneous letters which had been sent by one of its officials would not be relied on, or form part of, its future consideration. The letter went on to state that “[y]our clients (sic) adoption application will be considered and processed by the Authority in the normal way once the assessment of the Child & Family Agency is complete.” (Emphasis added). Unfortunately, this did not resolve matters. Things did not proceed “normally”. A Child and Family Agency social worker had carried out further assessments of the couple. These were favourable. By the 5th January, 2015, CB wrote to the Domestic Adoption Section of the Authority enquiring about the application. He says he received no acknowledgment to this letter. Then the Authority indicated that the recommendation forms had been found to be incomplete. Ultimately, by letter dated the 16th March, 2015, the Authority indicated that the Declaration of Eligibility and Suitability to Adopt had been approved according to s.40 of the Act of 2010. There was then correspondence about errors contained in that declaration, which are not relevant.

The Case Stated to the High Court
70. But on the 25th May, 2015, the Authority indicated that it had decided to state a case to the High Court, pursuant to s.49 of the 2010 Act. It can hardly be said that this step, at this time, was, in any sense, processing the application in “the normal way”. The purpose of this procedure was to determine whether, as a matter of law, it was possible to make domestic adoption orders in respect of the two children in circumstances where PB had previously adopted the children in Country A. The case stated was not mentioned before the High Court until the 8th April, 2016, following further lengthy correspondence regarding the scope of issues to be canvassed. At one point, on or about the 19th August, 2015, the Authority appeared unsure whether it would, ultimately, follow the case stated procedure. By letter of the 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 Act, which it did.

Assessment of the Affidavits
71. It is necessary to re-emphasise that the course of action proposed later in this judgment depends on the courts remaining satisfied as to the applicants’ bona fides. While in his replying affidavit, Mr. Ciaran Gildea, then Director of Operations and Corporate Services of the Authority, disagreed with CB’s characterisation of certain of the events, he accepted that, broadly speaking, the first applicant’s affidavit appeared to be a true and accurate record of the adoption processes to date. However, Mr. Gildea contested that much of the material was relevant. The question is, then, what is relevant for the proper resolution of these issues? It may very well be that what is said is not “relevant” in a case stated on a matter of law. But there is a real risk of too narrow a focus. However, Mr. Gildea’s general acceptance of what happened can only be seen as having been made after due deliberation and research, and having had access to the best legal advice.

72. A number of points emerge from that affidavit. First, the Authority’s position was that, in the context of an inter-country adoption, no application had been made to recognise or enter the adoptions in Country A in the RICA. Next, Mr. Gildea deposed that the applicants have never applied for recognition of the Country A adoption, nor had the Authority been invited to determine that issue. This was a matter to be determined in the case stated. One must again assume this is to be seen in the context of the fact that the applicants sought to avail of the domestic adoption procedure. Mr. Gildea deposed that the Authority was a stranger to any representation which might have been made to the applicants by the HSE, or by their Country A lawyers, or by the Country A authorities. He stated that any representations which had been made by the HSE were made without any engagement with, or involvement on the part of, the Authority. One may again be sure that the Authority’s position, as just set out, was on the basis of due deliberation and having taken the best legal advice. Specifically, one notes the Authority has not challenged the evidence regarding the HSE’s erroneous advice to the applicants. There was no cross-examination on the applicants’ affidavit in the High Court.

73. Next, while accepting that the applicants had been informed by the Authority that applications for assessment had to be made to the HSE in the first instance, Mr. Gildea confined himself to disputing that the applicants had acted in reliance on any “direction” by the Authority in taking their decision not to submit an application for assessment prior to, and in seeking to process, the Country A “adoption”. While accepting that the letters which formed the subject matter of the judicial review proceedings had been sent, Mr. Gildea contested the proposition that these were “decisions” which had been judicially reviewable, and contended that those proceedings had been premature. This is now water under the bridge. Mr. Gildea emphasised that the terms of settlement had not given any assurance to the applicants as to the substantive outcome of their adoption application, or the Authority’s ultimate view regarding the “adoptability” of the children. Finally, Mr. Gildea disputed an assertion by CB that the questions raised in the case stated would have been addressed in the judicial review proceedings had it proceeded to trial. He denied that the Authority was guilty of any unacceptable or unnecessary delay in the preparation of the case stated.

Non-Compliance
74. A number of broad legal questions arise. What is the consequence of the significant non-compliance with the Convention for these applicants, and for these children? Are the children to face an uncertain future legally? But a further question flows from those two. It is whether there may come a point when, even in the case of significant non-compliance, and absent evidence of deliberate conscious breach of the Act, or culpable recklessness as to compliance with its provisions, the best interests of an individual child, or children, may require some kind of formal legal decision, in circumstances where the paramountcy or best interests principle may become a real factor, and even where statutory non-compliance might normally be a bar to registration of an adoption? The Authority strongly submits that, whatever the applicants’ reason or motivation, the potential legal consideration of evasion or circumvention in other cases could have serious “downstream” consequences. The various courses of action they suggest to vindicate the best interests of these children are set out later in this judgment.

75. Inescapably, the unfortunate facts are that there was a clear want of compliance with a range of Convention procedures in this case. Article 40 of the Convention prohibits any reservations, for the good reason that exceptions may be exploited. By way of illustration, the fundamental requirements of Articles 2 to 4 were not complied with. None of the preliminary steps were properly complied with in accordance with the Convention and the Act. The Central Authorities in Ireland and Country A played no role in these proceedings prior to the Country A adoption. The Central Authorities did not determine the eligibility, consent or any of the other essential requirements laid down by the Convention, and which form part of the law of the State.

Balancing Considerations
76. On the other hand, the children have been with the applicants for many years and see them as their parents. What was in contemplation was an intra-family adoption. There is no evidence of financial inducement or lack of consent. There is no indication that the adoption would not have been registered if it had been processed in accordance with the Act. It is not in issue here that on a number of occasions, in Ireland and in Country A, the couple were given incorrect advice, and that there were a number of administrative errors. A great deal of time has passed. There has been much litigation. Can one ignore the broader picture, and the apparent wrong advices and delays which have occurred in this unfortunate and concerning case?


The High Court Decision under Appeal

The Questions in the Case Stated
77. In the case stated, the Authority asked the High Court to answer a number of questions. The text of these questions has been slightly modified and redacted without altering their meaning. By way of explanation, the third question below, that is (c), relates to a judgment of the High Court, MF v. An Bord Uchtála [1991] ILRM 399, which the Authority considers, might provide authority for the proposition that the courts retain a jurisdiction to make adoption orders under the common law. The issue is dealt with toward the conclusion of this judgment. The questions raised in the case stated were, in summary: The Reasoning in the High Court Judgment
78. While one can understand and sympathise with the motivation and thinking behind the High Court judgment, that is to create certainty for the children, I must respectfully disagree with the approach adopted there, and especially, perhaps, with regard to the response to question (b). The Authority is properly concerned as to the “downstream”, and possibly open-ended, effects of the answers. The concern must be that there could be circumvention of the Act by others, as described earlier.

79. The High Court judgment proceeds on the basis that it was accepted as common case that the Country A adoption was not recognisable in this jurisdiction, as the various requirements of the Convention had not been met. The High Court appears to have accepted the proposition that what occurred could not be a “re-adoption” prohibited under s.45, because there had never been an “adoption order” within the meaning of the 2010 Act.

80. The judgment records that counsel for the applicants, and counsel for the Attorney General, both submitted that the Country A adoption should not be recognised here, and, thus, the children’s present status was to be understood as being that which pertained prior to the foreign adoption. Accordingly, the judge held the children were to be regarded as the un-adopted children of unmarried natural parents, and who were consenting to the adoption.

81. 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.

Submissions in the Appeal before this Court
82. The submissions to this Court identify one area of common ground: that what occurred in Country A falls within the definition of an “inter-country adoption”, whether or not that “adoption” was lawful and Convention compliant. Thus, if it were to be registered at all, this should properly have been processed in accordance with the “inter-country adoptions” requirements of the Convention, as provided for in the 2010 Act. The applicants say that they were prevented from availing of this procedure by advices given by the HSE on legally incorrect grounds. They accept that the Country A “provincial adoption”, although obtained in good faith, falls outside the Act’s definition of an “inter-country adoption effected outside the State”. (s.3(1)).

The Authority’s Case
83. The Authority’s headline-concerns are succinctly summarised in the application for leave to appeal directly to this Court. It submits the High Court judgment is incompatible with the mandatory nature of its duties, and those of the State, under the Hague Convention. If applied more generally, it is said, the approach would create an “ad hoc” parallel adoption regime, whereby, in countries which had signed the Convention, prospective adopters could adopt children otherwise than in accordance with the Convention itself, repatriate the children to their home country and then adopt the children domestically on the basis of habitual residence. In that scenario, the Authority submits that, notwithstanding its statutory role as a Central Authority in Ireland under the Convention, it would be compelled to make adoption orders in breach of the very terms and purpose of the Convention itself. It contends that this is a matter of both national and international importance, and that the decision of the High Court might constrain it to process adoptions which fall four-square within the scope of the Convention as being de facto domestic adoptions without any of the Convention’s procedural safeguards. The Authority emphasises that the Convention has the force of law in the State under s.9 of the 2010 Act; and that Article 2 and Article 4 of the Convention apply in this case. It submits that the High Court’s finding that “some latitude” is compatible with the Hague Convention is impossible to reconcile with Article 40 of the Convention, which provides that “[n]o reservation to the Convention shall be permitted”. Further, it is said that the judgment would give rise to “real world” difficulties, by requiring the Authority to process adoptions outside the Convention procedures, and where natural parents were domiciled in another Hague Convention state. There would be logistical difficulties in obtaining consents from overseas, as well as ensuring that such consents were free and informed. Equally, it is said, it might be impossible to reach the requirements for consultation with the natural father. The Authority submits that an unstated assumption in the High Court judgment was that there were valid parental consents in place in respect of the minors, but that this appeared to be based on a recital in the Country A adoption order, which that court had found could not be recognised under Irish law. The Authority argues that there is an inconsistency in this. Finally, it is said the High Court judge erred in, effectively, following MF v. An Bord Uchtála, notwithstanding the passage of the 2010 Act, which, by implication, no longer remains good law.

Submissions by Counsel for the Applicants and Counsel for the Attorney General
84. Counsel on behalf of the applicants, and counsel for the Attorney General, both respectively submit to this Court that this situation is now met by the children’s present “habitual residence”, and that they are now eligible thereby for a domestic adoption. The former submission reflects the applicants’ desire to progress things almost on the basis of the original wrong advice received from the HSE. The latter submission indicates an entirely understandable wish, on the part of the Attorney General representing the State, to bring some certainty, and for there to be a resolution of the status of these children. I am unable to accept this submission. The Authority was duty bound to deal with the situation as being a non-compliant inter-country adoption. To ask the Authority to apply such a “flexibility” would, in effect, be to ask it to ignore the basis of the Convention and to act outside the terms of its governing statute. The Authority cannot be asked to proceed ultra vires. While a court may legitimately adopt a flexible approach in a remedial statute, such as this, even a court may only do so within the scope of the Act, as set out in the long title. As a creature of statute, the Authority must operate within the terms of the Act of 2010. To allow an “inter-country adoption” to be re-characterised as a “domestic adoption” simply by dint of establishing habitual residence in this country, would be to defeat the intent of the Oireachtas, and the clear terms of the Convention. It was precisely that type of “mischief” or wrongdoing, which the Act and the Convention were designed to prevent.

A Question of Interpretation
85. The process of legal analysis and interpretation of the Act and Convention must start with the nature of the procedure which was actually used by the applicants. The intent of the Act and the Convention is to avoid circumvention. The most obvious form of circumvention would be to ‘morph’ the factual context of an “inter-country adoption” into a “domestic adoption” simply by the act of establishing habitual residence. But this would entirely defeat the Act’s purpose.

Obiter Dicta
86. 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. Thus far, the judgment has considered the Authority’s statutory remit. It is necessary, in my view, bearing in mind all the available evidence, on matters before the Court, to consider what a court can do, and whether the powers of the Court are coterminous with the Authority?

87. The appropriate principles of interpretation to apply in respect of an international convention, incorporated by statute into Irish law, were considered by this Court in HI v. MG (Child Abduction): Wrongful removal [1999] IESC 89, [2000] 1 I.R. 110. The Court should interpret the statute in a manner informed by the Convention, and the explanatory report therein referred to. But I do not think this is a legally self-contained, or ring-fenced, area of law, immune from constitutional interpretation or analysis.

88. But the Convention has the status of domestic statutory law enacted under Art. 29.6 of the Constitution of Ireland. Therefore, I consider it to be subordinate to the Constitution. The Court must, of course, have regard to legislative intent, but the Convention cannot itself be elevated to a quasi-constitutional status. The situation here, consequently, is in contrast with the manner in which European Union law is incorporated at a constitutional level by virtue of Article 29(4) of the Constitution. Under Article 42A of the Constitution, referred to and quoted later, the courts are bound to observe the best interests test for children in adoption cases. But, in so saying, I accept it is necessary that any process of constitutional interpretation be conducted harmoniously, ensuring that it does not run the risk of defeating the object of the legislation, which is itself intended to protect the best interests of children.

89. However, the question of where the best interests of these children lie is not in dispute in this case. The Authority itself does not appear to query that, setting legal considerations to one side, it is now in the best interests of JB and KB to have their family life in this State with the applicants. But the Authority says that, by the Act of 2010, the Oireachtas has laid down how, defined collectively, all children’s best interests rights should be vindicated: that is, through the Act and the Convention.

The Explanatory Report
90. A question which then arises is as to whether the Explanatory Report, or some other source, can provide interpretative assistance in this truly exceptional case? As provided for in s.10, the Explanatory Report may inform interpretation of the Act. That Report is replete with references to the best interests principle. At para. 63, it makes clear that: “one of the main objects of the Convention, that is, the establishment of safeguards to ensure the best interests of the child, and the respect of his or her fundamental rights, as recognised by international law.” The same concept is also included in the fourth paragraph of the Preamble to the Convention, and, consequently, “the best interests of the child” shall be understood as a paramount consideration, i.e. taking into account the rights of other persons involved in the adoption. (See also Article 21, United Nations Convention on Rights of the Child, 1989). Paragraph 64 of the Report expresses a similar philosophy.

91. At para. 65, however, the Report recognises that the Convention “does not pretend to solve all problems related to children’s inter-country adoption, in particular, to determine the law applicable to the granting of the adoption or to its effects”. The author accepts that, nevertheless, some jurisdictional problems are dealt with indirectly, e.g. by making a distribution of responsibilities between the state of origin and the receiving state. Subsequent paragraphs reaffirm the Convention’s mandatory nature (paras. 70, 76, 111 and 173). Paragraph 289 accepts that the formal requirements of the application are to be set by the law of the adopters’ habitual place of residence.

92. Paragraph 411 of the Report is, however, directly relevant. The expert author acknowledges an area where the Convention text remains silent. The reference to “Article 33” in the passage now to be quoted concerns the reporting function of the Authority in cases of breach of the Convention:

93. In the following paragraph, the Report addresses the hypothetical situation where the “habitual residence” might otherwise have militated against recognition. The author describes a concrete case where denial of recognition may not be in the best interests of the child, that is: This observation can only be understood in the context of giving effect to the best interests test in a truly exceptional case.

The Guide to Good Practice
94. In the year 2008, the Hague Conference on Private International Law issued “The Implementation and Operation of the 1993 Intercountry Adoption Convention: Guide to Good Practice”. While the Guide is not specifically referred to in the Act as a point of reference for interpretation, based on the experience of administering the Convention, it may act nonetheless as a helpful “signpost” as to the approach which might be adopted by a court when, as here, there is non-compliance with the Convention. It states:

But the Guide continues: Referring to the Hague Convention and the United Nations Convention on the Rights of the Child, the Guide then poses the question: Application of the Explanatory Report and the Guide to Good Practice
95. Is there, then, a potential route whereby, in accordance with Article 42A of the Constitution, the best interests of children might be vindicated in a manner which is in close accord with the spirit of the Convention, albeit not coming within its ambit? I pause to observe that the issues in this appeal bear some similarities to, but also procedural and other distinctions from, the issues considered by this Court in M.R. & Anor. v. An tArd Chláraitheoir [2014] IESC 60, [2014] 3 IR 533. It should be said that, by contrast to M.R., arguments based on the Constitution were largely confined to Article 42A of the Constitution. No significant reliance was placed on any other Article of the Constitution in the context of rights-vindication.

96. Both Article 42A of the Constitution, and the Convention itself, reflect and seek to give effect to the best interests test. (See also the ECHR case of Neulinger and Shuruk v. Switzerland, App. No. 41615/07, [2010] ECHR 1053 (6 July 2010), on the question of “best interests” in the context of the Child Abduction Convention). In this appeal, counsel for the Adoption Authority has urged that the best interests test is protected by giving full effect to the provisions of the Convention, as reflected in the Act. It is submitted by the Authority that such an approach is the explicit legislative intention, as only such interpretation prevents a circumvention of the Act. I accept this argument, insofar as it conveys that a constitutional interpretation of the Act cannot be utilised to defeat the Act’s clear legislative intendment, especially where, as here, the legislation is itself informed by the best interests test.

97. But one can, in my view, nonetheless usefully view the facts here, first, from the perspective of para. 411 of the Report, and paras. 531-533 of the Guide. One may proceed on the basis that, if the provisions of the Hague Convention had been adverted to by the HSE, and the Authority, when contact was first made in June and July, 2011, then an assessment of the applicants could have taken place. There was, at the time, clearly, as articulated at para. 411 of the Report, and paras. 531–533 of the Guide, “unfamiliarity” with the Convention. There is nothing, at present, to indicate that declarations would not have been made in the usual way. Thereafter, the couple’s application jointly to adopt the children could, on the face of things, have been dealt with by the Authority and the Country A Central Authority. The resolution of these issues, the “healing of the defects”, to use the phrase at para. 533 of the Guide, would, of course, provide the most obvious route to allow the children a stable family background, and legal certainty, to which they are entitled.

98. 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.

An Uncertain Future?
99. Before going further, it is useful to consider first the possible alternative, and the consequences of giving a more confined answer to the questions in the case stated. 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 elapse of five years or more. The two adults, who see themselves as the children’s parents, are not be their parents in the eyes of the law, or the State generally.

Potential Remedies: The Authority’s Proposed Solution
100. Counsel for the Authority has very responsibly put before the Court a number of proposals which might, potentially, remediate the children’s situation. It is suggested that there might be further engagement with the Central Authority of Country A, so as to allow for retrospective recognition of the adoption by the Central Authority of Country A, thereby allowing recognition in Ireland. Counsel indicated that some preliminary contact has taken place between the Authority and the Central Authority of Country A. It is unclear how far this has gone. If this can succeed, it is by far the optimal path. It is, in any case, a necessary first step. So, too, is informing the Permanent Bureau. But, as is pointed out by my colleague, McKechnie J., in his judgment, it is strange that this was not done before now.

101. Counsel for the applicants, in turn, makes the point that the question of the Authority engaging with its Country A counterpart so as to secure the issue of an Article 23 certificate by that Country A Authority, only first arose by way of legal submission delivered on the 10th June, 2016, after proceedings in the High Court had finally commenced. Counsel raises the question as to why the Authority did not address this issue beforehand, that is, in the period of more than a year which elapsed between the Authority’s declaration regarding the applicants’ eligibility and suitability to adopt the children, and the subsequent delivery of the Authority’s High Court submissions? There is also, perhaps, a question mark as to whether such “remedial healing measures” came to fruition in other cases, or came to nothing?

102. In truth, there are intractable obstacles and hazards to every possible remedy. Addressing the Authority’s proposals, even if they were to be progressed in the way suggested, questions would be raised as to precisely how that “healing” might be effected? Would it now be necessary for the children to be reassessed for adoptability by the Country A Central Authority? Would they now be required to return to Country A and, potentially, even again resume habitual residence in that country, if that could be established? Would the Country A Central Authority even be in a position to certify the children as adoptable, for the purposes of an inter-country adoption, in circumstances where they already are the subjects of an adoption order that is said to be valid as a matter of Country A law, if not Irish law?

103. Accepting the bona fides of the Authority’s proposals without hesitation, there must, at minimum, still be a question of whether any of the remedies which are presently proposed – and what might be entailed by them – would, at this stage, necessarily be in the children’s best interests? What is to be hoped for is, of course, that the process could be completed simply by way of exchanging declarations and certificates on a retrospective basis. Two things, to my mind, are clear: it can safely be concluded that, in the long term, uncertainty cannot be in these children’s best interests. Additionally, there must now be an early resolution of this very long running case. Accepting, as one must, that the matter can only proceed as an inter-country adoption, is the legislation quite as rigid, and “monolithic”, as is submitted in this truly exceptional case?

A Preliminary Step
104. I would propose, therefore, that as a preliminary step, the Authority should correspond with the Central Authority of Country A, with a view to identifying whether or not, within a reasonable, set period of time, the necessary procedures, by way of “healing” the defect in the procedure here can be complied with. But there must now be a time limit. Article 35 of the Convention requires inter-country adoption decisions to be made “expeditiously”. The children have been in this State now for many years. It is questionable whether the facts have changed much since the year 2013. This, in itself, begs a question to which I revert later: how, in law, can this be done? If this course of action fails, I now seek to outline another route forward.


An Alternative Approach

Section 90 of the Act
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) 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.

Section 92 of the Act
106. Section 92, however, is contained in a separate chapter, Part 10, Chapter 3. This refers to “Directions of High Court in relation to the Register of Inter-Country Adoptions”. It is necessary to refer to the provision in some detail. It provides:

Can a court make an order under s.92(1)(a) in this case? This is addressed below. First, it is necessary to consider the rest of the section.

Sub-section 2 goes on to state:

Sub-section 3 provides: Sub-section 4 states: Sub-section 5 provides: Sub-section 6 provides: Sub-section 7 provides: 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: 108. In s.3 of the 2010 Act, “inter-country adoption” is defined as: 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, “foreign adoption” is defined in s.1 as meaning: 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 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.

112. Having regard to the interpretative principles applicable, does this allow for an area of residual discretion in an exceptional case? The question of the ambit of that provision arose in a High Court action, M.O’C and B.O’C, applicants, v. Udaras Uchtála na hÉireann, delivered on the 30th May, 2014, [2014] IEHC 580, [2015] 2 I.R. 94 (See, inter alia, pp. 110-112, 121-125 and 129).

113. The facts of MO’C and BO’C are distinct from those in the instant case, and do not require recitation. It is sufficient to say that, there, the High Court appears to have accepted the proposition, at p. 125, para. 33, that, in very exceptional cases, s.92 may express a somewhat broader jurisdiction than that held by the Authority. Abbott J. seems to have concluded that any broader power, exercised by the High Court, might be employed with regard to the Constitution, and without “invidious discrimination” (At pp. 128-129, paras. 35-36). Such a broad statement would cast the net far too widely. The section must be interpreted narrowly, and with great care. No interpretation can be relied on to, as it were, interpret the Act “contra legem”, or contrary to its clear purposes. On one reading, the judgment in MO’C might be understood as saying that s.92 could be interpreted having regard to Article 40.1 considerations, such as invidious discrimination between categories of person. Such a wide-reaching proposition is too broad. The best-interests guarantee contained in Article 42A is not to be seen as some form of interpretative Trojan horse which can undermine the intent of the Act. The Act effectively sets a very high bar against any categories of persons who seek to circumvent the adoption process. The requirement is to protect the welfare interests of all children who may be involved in inter-country adoptions.

114. But 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.

115. I would, therefore, propose the Court should hear submissions from counsel as to whether, if necessary, the subsequent steps envisaged here, first, as to “healing”, and, if necessary, second, by Court proceedings, can lawfully be taken within the framework of this case stated, or whether, rather, as seems more likely, new High Court proceedings would now be necessary in light of the fact that this Court may be confined to questions asked in the case stated? It is to be hoped the matter can, ultimately, be determined with finality, so as to accord with the requirements of the Convention on expedition in decision-making.

A Different View
116. There are, therefore, aspects of this case where I regret that I differ from the observations contained in the judgment to be delivered by my colleague, McKechnie J., where he sets out in clear terms his reasons for his disagreement. The areas of difference arise both at the level of principle and on the evidence. As the questions in this case may not, unfortunately, be finally determined by this appeal, a brief response is appropriate. The following observations are made with great respect, and with due regard to my colleague’s entirely legitimate concerns as to maintaining the integrity of the 2010 Act. I deal with the significant issues he raises sequentially and, I hope, without any decontextualising.

Pragmatic Solution
117. It is true that this judgment makes mention of the words “pragmatic solution”. Lest it be misunderstood, that term is, in fact, the one used in the explanatory report to the Convention, considered earlier. What is proposed here is not, I suggest, “pragmatic”, but is actually to be seen at the level of real principle, including a consideration of what is said in Article 42A of the Constitution.

118. What is offered in this judgment sets a high bar, and regrettably may require further litigation. I do not share the view that this would jeopardise the structure and legal certainty of the Convention. This is not a question of finding a resolution to the uncertain situation for the children “at any cost”. It is, rather, an attempt to arrive at an interpretation of the Act itself by reference to the Report, its Guide and the Constitution, which pays due regard to its aims, and seeks to vindicate the children’s constitutional rights by paying due regard to their welfare and interests, and which recognises the fact that, in this case, the children concerned have not been well served by what has happened. Undoubtedly, the applicants must shoulder their part of the responsibility, but what occurred both before and after the children were brought from Country A must give rise to concerns. I go no further because there has not been a full plenary proceeding where perhaps a broader range of constitutional considerations might become part of the framework of reference, as well as an identification of what precisely occurred during the applicants’ interactions with the state agencies involved. I think it is fair to say that, in brief, what is needed is a sharper focus and a broader lens. As I conceive it, these exceptional circumstances together give rise to a particular duty on the Court. There is now, in my view, a duty to vindicate these children’s rights as far as is “practicable”.

Article 42A of the Constitution
119. In essence, I think it is fair to say, my colleague expresses the view that the Court should not have regard to the provisions of Article 42A of the Constitution as an “external source”, capable of nuancing the interpretation of the Convention or the Act away from what it would otherwise be, or, at the other end, of overruling the requirements of the Convention and/or the Act entirely; and that what is proposed introduces a totally “free-standing” concept of the best interests of the child. (c.f. paras. 107-109 of McKechnie J.’s judgment).

120. The Convention has the “force of law in the State”. (c.f. ss. 8 and 9 of the Act and Article 29.6 of the Constitution). Under s.19, the Court is placed under a duty to ensure that in “any matter” relating to the arrangements for the adoption of a child, for the making of an order, or for the recognition of an inter-country adoption, the Court, in deciding the question, shall have regard to the interests of the child as the first and paramount consideration.

121. But the areas of difference, in part, I think go back to how this case may properly be characterised. I briefly mention some of the problems. First, much depends on perspective, and the breadth of the material to be considered. It might be said that this case stated procedure, without fact finding or a thorough consideration of all the constitutional rights which may be engaged, is very inapt one for a proper assessment of the entire canvass presented to the Court. Second, should the courts place greater weight on a more retrospective analysis of the applicants’ actions and failures, or, rather, a more prospective approach, at once taking into account the broader picture, but laying greater weight on the children’s future legal status? In my view, the latter analysis is now to be preferred in law. Third, the difference in our two approaches may best be defined, in my view, by posing a rhetorical question based on duties and rights. 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 only allows for one answer, the children’s rights, even taking into account, as one must the actions of the applicants. It is in my view at least unfortunate that the children were not joined as notice parties to the proceedings at the outset, that no guardian ad litem was appointed and that the views of the children were not fully and directly ascertained and presented to the High Court.

122. For the reasons now set out, I am unable to agree that the Constitution should be regarded as an “external source” in the interpretation of this statute, nor do I consider that the application of Article 42A is a “free standing” concept. The Convention may be seen as an international agreement, which became part of the law of the State, as determined by the Oireachtas pursuant to Article 29.6 of the Constitution. It was, in my view, thereby taken from the realm of foreign relations and, by Act of the Oireachtas, rendered as part of domestic law. 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 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:

The emphasised words speak for themselves, and require no explanation.

123. The provisions of Article 42A.4.2º must also be borne in mind:

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 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.

126. The invocation of Article 42A of the Constitution in this judgment is neither without limits, nor open-ended in its effect. What is envisaged can only take place under the supervision of the courts. It derives essentially from the Guide referred to earlier in this judgment, acknowledging, as one must, that the situation here is factually different and more extreme than that described there. But, do these differences, in fact, alter the principle that, in some circumstances, remediation, or “healing” is legally permissible? If this is permissible in principle, why should it be precluded in this case, based on the experiences of the Guide and having regard to what the great United States judge Oliver Wendell Holmes pointed out more than a century ago, “[t]he life of the law has not been logic; it has been experience”. He went on to point out that the law “cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics”. It is difficult to see that, as a matter of statutory interpretation and application, there would be any true distinction in principle, between the “healing process”, such as that envisaged in the Guide, and that which is proposed in this judgment. This is addressed later.

127. I, too, would entirely deprecate a reliance in isolation on one Article of the Constitution, when, as is well-established, a harmonious interpretation of all the provisions is necessary. But the word “all” in Article 42A would include this individual case. I take the view that this places an obligation on the Court to have particular regard to the welfare principle in this case, without it becoming a means of defeating the objective of the Act.

128. What is proposed, as the “second alternative” in this judgment, therefore, is simply a route whereby, applying certain principles of interpretation, in this exceptional case, questions may be determined in law which can, ultimately, protect and vindicate the rights of the two children, insofar as is “practicable”. The children, the persons most affected by the present situation did nothing wrong, but have been entrapped in what can best be described as an administrative and legal web for the past six years. The Report, referred to earlier, itself envisages that there are exceptional circumstances where the denial of recognition of an adoption would not be in the best interests of a child.

The Totality of the Evidence
129. Looking to the evidence, and the material before the Court, a relevant question, surely, is what is to be done – now? On the one side, as must be acknowledged, the applicants took a series of steps which were non-compliant with the Convention, and the Act. On the other side, one might begin by posing the question, why did this process begin this way? Undoubtedly, one can say the applicants were precipitate and should have sought legal advice. Some might think that the applicants’ description of what happened was “all too convenient”, but this is not the Authority’s case to this Court. There is evidence, so far uncontroverted, that the adoption process was set in motion after incorrect advice from the HSE. There is the broad consideration that this issue has, as described earlier, been before the Authority, in one form or another now, for more than half a decade. Does there not come a point in time where, as well as having regard to the duty of expedition expressed in Article 35 of the Convention, the balance is tipped, and the courts should now lean toward the interests of these children in this case? Obviously, there may be evidential issues still to be resolved. But, subject to that proviso, in my view, the answer to this rhetorical question should be that the law, and the courts, should address the full realities of this situation, having regard to the broader picture, which of course includes protecting the integrity of the Convention.

Reverse Engineering
130. At para. 114 of his judgment, McKechnie J. acknowledges that, were it now possible to obtain the co-operation of the Country A authorities, and so fashion afresh a Convention compliant inter-country adoption, then it would be the best outcome that could be achieved for CB and PB, and the children, in this most unsatisfactory situation. But I think this begs a question.

131. There is no doubt that some form of “reverse engineering” was proposed, or at least suggested, by the Adoption Authority, in the course of argument. But can it be said such a resolution would itself be in strict and faithful compliance with the Convention and the Act? Would the adoption of such an approach not, arguably, in itself, be a form of “pragmatic resolution”, potentially raising the question as to how such a process might be achieved under the Act? Could it be that this itself could only be brought about by an application under s.92 of the Act, where the High Court might direct that the “inter-country adoption” be registered? Would this now necessitate a court engaging in a “flexible” interpretation of the Act, again in the interests of the children? I am very conscious of, and respect, the issues my colleague properly emphasises, but perhaps then the differences between our judgments are ones of degree rather than of firm and rigid principle.

The Distinctions between this case and JM v. The Adoption Authority
132. Two other briefer observations may be made. The first of these relates to the judgment of Reynolds J. in the High Court in JM v. The Adoption Authority of Ireland [2017] IEHC 320, where she declined to register an adoption under s.92 of the Act of 2010. It is quite true that there are similarities between JM and the instant case. But there are other distinctions which are, to my mind, important. Nowhere in JM is there to be found any of the unfortunate series of errors in advice and delays which, on the face of things, occurred in this case, and which, inter alia, render it so truly exceptional. The applicants in JM were not even aware of the Hague Convention. They did not engage with any State Agencies, as the applicants did here. There is no evidence that the applicants in JM sought legal or other advice, either in the place where they were habitually resident, Northern Ireland, or in the Philippines. One must be guarded, because of the state of the evidence, but even based on what is not in dispute, there are indications that these children have been let down in the statutory process. It is this these deficiencies which, all other things being equal, in my view create a reciprocal duty to these children to now redress what occurred, in circumstances where, if proper procedures had been correctly followed, the outcome might have been so very different.


The Law in the United Kingdom
133. My colleague draws attention to the applicants’ citation of authority from the courts of England and Wales. What appears to be the case is that, in fact, the United Kingdom has, by choice, not directly incorporated the Convention into domestic law. (See Cabeza, R. and others, International Adoption (Family Law (Jordan Publishing Ltd) 2012). Instead, the United Kingdom, rather, has regard to obligations created under the Hague Convention, which are set out in domestic legislation. Moreover, the United Kingdom, while remaining a contracting party to the Convention operates what are called two “parallel” legal processes for the purpose of inter-country adoptions. As that textbook points out, “[o]ne system governs the movement of children in and out of the U.K., where either the child or the adopters are actually resident in a Convention country, and another governs non-Convention countries”. (Cabeza, para. 2.3). While the textbook deals comprehensively with the Hague Convention, it also devotes an entire chapter (Chapter 7) to the subject of “adoptions from non-Hague Convention countries: legal recognition”. The text describes a situation where the United Kingdom courts continue to operate a significant jurisdiction regarding the registration of such non-Convention adoptions. The hitherto common law jurisdiction of those courts is now recognised by statute, but continues to subsist. (See Chapter 7, and the extensive discussion therein of Re Goodman’s Trusts [1881] 17 Chancery 266, and Re Valentine’s Settlement [1965] Chancery 831, as well as In Re T and M (Adoption) 2011, 1 FLR 1487). The book sets out a range of decisions, where the facts are of considerable complexity, and which deal with concerns for recognition of adoptions from non-Convention countries to the United Kingdom. While some of this situation may, indeed, exist for historical reasons, the range of adoptions discussed and considered by the U.K. courts, are not confined to countries within the British Commonwealth, or other states which have had some close historical relationship with the United Kingdom. The United Kingdom is, and remains, a signatory to, and operates, the Convention in the manner outlined. I turn, finally, to a matter arising more immediately for consideration in the case stated.

MF v. An Bord Uchtála [1991] ILRM 399
134. The Court is asked to give consideration to the judgment of the High Court in MF v. An Bord Uchtála [1991] ILRM 399. For completeness, it is necessary to consider that judgment in a little detail. To an extent, the issue bears on whether the issue of adoption is now definitively and entirely addressed by this Act, and amending legislation. It may be summarised in accordance with the headnote.

135. The case of MF was brought to the High Court by way of case stated. MF, the mother of the child to whom the application related, became pregnant and moved to England in March, 1973, although she had lived in Ireland up to that time. She intended, at all material times, to return and live in Ireland. The child was born in England on the 7th August, 1973, and was given the name of the natural father, to whom MF was not married, but with whom she then had a stable relationship. Subsequently, after the birth of the child, the relationship came to an end, and MF applied for an adoption order in England in respect of the child. An adoption order was made by the Manchester Crown Court in October, 1974. In the meantime, in or about February, 1974, MF returned to live in Ireland. In August, 1977, MF was married. In February, 1980, she and her husband, who was not the father of the child, applied to the Adoption Board for an adoption order in respect of the child. The effect of the then law (s.10 of the Adoption Act, 1952), was that an adoption order should not be made unless the child to whom the application related resided in the State, and was illegitimate or an orphan. Due to the fact that the adoption order in respect of the child had been made in England, the Board concluded it was unable to make an order. It, therefore, stated a case to the High Court, on the question of whether it had jurisdiction to make an order in respect of the child, having regard to the adoption order made in England in October, 1974, and whether, in the absence of any statutory provisions contained in the then legislation dealing with the recognition of foreign adoptions, the Board had jurisdiction to determine whether the order would be recognised in Irish law as constituting the infant in question as the adopted child of MF.

136. It was in these circumstances that the High Court (MacKenzie J.) explained that there were, then, no statutory rules providing for the recognition of adoption orders made in foreign jurisdictions ([1991] ILRM 399, 402), and that the common law rules on recognition must apply. The common law position was that a valid adoption made in another jurisdiction and according to its law, would be recognised in the State, if at the time of the adoption the adopter was domiciled in the foreign jurisdiction. The judge held that there had been no intention on the part of MF to reside permanently in England, and she was, therefore, to be regarded as having at all times retained her domicile of origin. As a consequence of this, the adoption order made in England in October, 1974, was not recognisable in Irish law as at the time of the adoption the adopter was not domiciled in that jurisdiction. As a consequence, the Adoption Board had the jurisdiction to make an adoption order in respect of the child.

137. 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.

Answers to the Questions raised in the Case Stated
138. I would, therefore, answer the questions posed in the following manner:

Conclusion
139. I recognise that, absent a satisfactory response from Country A, even what is proposed as the second alternative in this judgment, may well itself involve a further application to court under s.92(1) of the Act. It would necessitate yet one more legal step in what, for the applicants, must be a nightmare of interminable litigation. But the rights of this case are not all on one side, as this judgment, and that of my colleague, make clear. The applicants should not, in my view, be exposed to further legal costs, unless some new facts emerge which undermine the evidential basis on which this judgment is based. As explained in this judgment, the more fundamental issue is if, and if so, how, these children’s rights can now be vindicated?

140. This judgment does not ascribe personal “blame”. It is not useful to personally blame officials or social work professionals who were trying to do their job, and endeavouring to advise on a new and unfamiliar Act. But what seems to have occurred and the sheer time span of this process must give rise to concern. What is proposed is subject to a number of steps, and the courts being satisfied on compliance with these. There is now, I think, a particular responsibility or obligation to these children. While I consider it is possible to take another view on the interpretation of the Act, and the evidence, there is the real risk, if not inevitability, that such an approach will have the effect of indefinitely rendering the status of the children uncertain, even though they were not at fault. I do not think this could have been the intent of the framers of the Convention, or of the Oireachtas. I do not consider that, in principle, it would be an injustice for the law to now provide what the Constitution calls a “vindication”; that is, a way to recognise, in substance, and in legal form, the human reality that the children see these applicants as their father and mother, based on the bonds of attachment which have been formed over the last six years. Subject to the strong conditions and reservations expressed in this judgment, I would allow the appeal, set aside the judgment and order of the High Court, and answer the questions in the form contained in this judgment.



JUDGMENT of Ms. Justice Dunne and Ms. Justice O’Malley delivered on the 12th day of July, 2018.

1. As O’Donnell J. has pointed out, there is a large measure of agreement between the members of the Court on the issues in this case. However, while we acknowledge the validity and strength of the concerns expressed by McKechnie J., and accept that the area of disagreement relates only to the analysis and potential availability of s.92 of the Act, we wish to express agreement with the judgment of MacMenamin J. and the order he proposes.

2. This Court is tasked with implementing a constitutional and legislative regime aimed at promoting the welfare of children. In particular, it must be borne in mind that the legislation under consideration is intended to prevent the exploitation of children and their natural parents, in the context of inter-country adoptions. However, the Court is also obliged to protect, insofar as it can, the interests of the particular children involved in this case. There are clear reasons for concern in this case, arising from the uncertainty as to the legal relationship between the children and the applicants, and what their status may be when they are no longer dependent children. It may be that, on the facts of any given case, there is nothing that can be done. However, the Court must do its best to achieve a lawful solution, with the tools available to it, that achieves the purpose of protection while not jeopardising the principles and legal enforceability of the Convention.

3. The problem here is, of course, that neither the Convention nor the Act prescribe any procedure to be followed where there has been what might be termed “innocent” or mistaken non-compliance. We agree with MacMenamin J. that if innocent mistakes or misunderstandings by either 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.

4. In our view, for the reasons identified by MacMenamin J., the procedure authorised under s. 92 of the Act is capable of meeting this objective. However, we wish to make the following observations as to how that procedure ought to be operated by the High Court, should the parties in this case decide to make the appropriate application.

5. In such proceedings, the applicants would bear the onus of satisfying the court that the order should be made. In discharging that onus, they would have to satisfy the court that there was no intentional circumvention of the law. For that purpose, we would envisage that there must be evidence that satisfies the court, not only as to the suitability of the applicants as adoptive parents, but as to how exactly the children came to be in this jurisdiction. The relationship of the children toPBwould be a factor which may have to be borne in mind in this context.

6. The decision of this Court has been based on the largely uncontested evidence of the applicants, in circumstances where the Authority was hardly in a position to contradict it and the HSE was not a party or notice party, and it may well be that the High Court would require further evidential material relating to the events in the country of origin. It would not be appropriate to treat any evidential issue dealt with in these proceedings asres judicata.

7. It would be necessary for the High Court to give particularly careful consideration to the circumstances surrounding the breaches of the statutory requirements. Should the court not be satisfied that the mistakes made were completely unintentional, or should it for any other reason not be satisfied as to the suitability of the applicants, it should in our view refuse to make the order sought. The role of official error on the part of a State agency in potentially contributing to the mistaken approach of the applicants would have to be considered. A rigorous approach on all of these issues is essential in order to avoid any perception that this is a method of avoiding the strict application of the statutory requirements. The Convention is, and must be implemented as, the fundamental instrument in the safeguarding of children who may be the subject of inter-country adoption.