Member Login

Non-compliant inter-country adoptions might be registered by order of High Court

By: Mark Tottenham BL

or click here to request site subscription to search and view all judgments

Supreme Court, on appeal from a case stated to the High Court by the Adoption Authority concerning an attempt by a couple with Irish citizenship to have their adoption of a niece and nephew recognised, determines: (a) that an adoption in another country (Country A) might be recognisable on foot of decisions arising from the conclusion of remedial measures between the Adoption Authority and the Central Authority of County A; (b) the Adoption Authority did not have jurisdiction to make an adoption order in respect of children, having regard to the pre-existing adoption in Country A, although this did not preclude an order by the High Court to direct the Authority to register the adoptions; and (c) the pre-existing common law position concerning inter-country adoptions did not remain good law following the passing of legislation in 2010.

MacMenamin J (majority decision): Hague Convention on the Protection of Children and Co-operation in respect of Inter-Country Adoptions 1993 - Adoption Act, 2010 - Adoption Authority - case stated to High Court - manner of adoption of two children born in a different country - adoption not recognised as valid by Adoption Authority - children could not be legally adopted by one of the applicants - children born to brother of wife in Country A - attempt by couple with Irish citizenship to adopt them in Ireland - adoption experience in Ireland - consideration of 1993 Convention and 2010 Act - children deemed not eligible to be adopted - judicial review proceedings - case stated to High Court by Adoption Authority - whether Country A adoption was recognisable in Ireland (Part 8 of the Act of 2010) - whether Adoption Authority had jurisdiction to make an adoption order in respect of the children (s.45 of the Adoption Act, 2010) - whether common law jurisdiction remained - whether children were eligible for adoption - best interests of children - preliminary step - alternative approach - directions of High Court in relation to Register of Inter Country Adoptions - s 92 of 2010 Act - pragmatic solution - Article 42A of the Constitution.

"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."

"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."

"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.

Dunne J and O'Malley J (concurring): Whether 'innocent' non-compliance with adoption legislation could be remedied - onus on applicants to satisfy the court that the order should be made.

"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. 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."

O'Donnell J (partially dissenting): Whether Adoption Act 2010 provided a route for the recognition of the adoption of the children.

McKechnie J (partially dissenting): Failure to comply with terms of the Hague Convention - request that Adoption Authority act in contravention both of Convention and domestic legislation - foreign adoptions under earlier legislation - 'best interests of the child' - Attempt to Retrospectively Create a Convention-Compliant Adoption with the Cooperation of the Country A Authorities - nature of obiter regards by Supreme Court.

"The Authority characterises the Convention as “the international gold standard for adoption”, which lays down a common system of protocols in relation to intercountry adoption, requiring the cooperation and active involvement of the competent authorities in the state of origin (in this case, Country A) and in the receiving state (Ireland). As such it is fearful, and rightly so, in my view, that this international regime could be seriously undermined if it is possible to circumvent its terms, which have not been complied with for whatever reason."

"However, even if section 92 is a possibility, surely the High Court, in the first instance, must be free to determine afresh the true meaning and scope of that provision, that is, uninfluenced by any obiter remarks made in this case. The proper interpretation of that section was never even debated before this Court, much less did it form the subject matter of any legal analysis. Therefore, based on whatever evidence may be adduced and having considered what submissions might be advanced by the parties, including the Attorney General, if necessary, the High Court, in my view, must first address what the section properly means and, depending on the outcome, the views of an appellate court may or may not be required thereafter."

"Regrettably, it is most difficult to see a clear way forward in this case. Though each of the parties has suggested a solution, there are some serious obstacles and obvious difficulties to each of them. Perhaps even more regrettably, I cannot offer an inventive or an inspired magic solution of my own."

Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.

Leave a Comment

Your email address will not be published. Required fields are marked *