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Supreme Court: ‘Pragmatic approach’ to couple’s inter-country adoption favoured by majority

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The Supreme Court has, by a 3:2 majority, held that the adoption of two children by their aunt in their birth country may be recognisable in Ireland if “remedial measures” are taken by the Adoption Authority of Ireland and the Central Authority of the children’s birth country.

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Stating that any interpretation of the Adoption Act 2010 and the Hague Convention which would render the status of the children uncertain could not have been intended by the Oireachtas or by the drafters of the convention, Mr Justice John McMenamin said that the proposals in his leading judgment were not “pragmatic”, but were in fact “an attempt to arrive at an interpretation of the Act itself by reference to the Report, its Guide and the Constitution”.

Background

CB, born in the UK, and PB, born in country A, have lived in Ireland since 2006 and 2007 respectively. CB and PB were married in 2008, and have been Irish citizens since 2013.

The children, JB and KB, are PB’s niece and nephew, who were born in country A. In 2011, CB and PB sought to adopt the children and approached the Adoption Authority of Ireland for advice as to how they could do this, and were told that they would have to be assessed and be legally resident in Ireland for at least one year. Delivering the dissenting opinion of the Court, Mr Justice William McKechnie said that CB and PB “…engaged in a good deal of correspondence with the authorities throughout the adoption process and were given misleading and erroneous advice on a number of occasions, both in Ireland and in Country A”.

One example of this erroneous advice was that, according to CB, in July 2011, a HSE social worker gave erroneous advice, to the effect that, under the Adoption Act 2010, the couple could not adopt an identified or known child who was resident in another Hague Convention country. Justice McMenamin said that this was incorrect “as what they proposed was an intra-family adoption, which … is an exception to the general rule of Article 29” of the Hague Convention.

A further example of incorrect advice was when the HSE advised CB and PB 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. Justice McMenamin said that “such advice would have run directly counter to , which, in fact, required the applicants to apply to the Authority in Ireland as the first step”.

Mr Justice McMenamin noted that the incorrect advice could “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”.

In 2012, the children arrived in Ireland with CB and PB, and lived in their care since that date. They call PB and CB their mother and father, and have obtained Irish PPS numbers, residency permits and re-entry visas under EU treaty rights, and residence cards from the Irish Immigration Authorities which were contingent on their dependency and connection with CB

CB and PB informed the Adoption Authority of the Country A adoption, and of their intention to apply for a joint domestic adoption in Ireland. Correspondence continued between the couple, and the HSE, The Child and Family Agency, and the Adoption Authority; and in August 2013, CB and PB were informed that the children did not “meet the criteria” and were not “eligible to be adopted”.

Justice McMenamin said that the correspondence thereafter reflected “further misunderstandings”, and ultimately the Adoption Authority of Ireland referred the matter to the High Court.

High Court

The Adoption Authority made an application to the High Court on issues of law, pursuant to s.49(2) of the Adoption Act 2010. The Adoption Authority sought a determination on whether 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.

In the High Court, the questions raised were answered accordingly:

(a) Whether the Country A adoption was recognisable in Ireland under Part 8 of the Act of 2010, or the common law.

Answer: “no”.

(b) Whether, on the facts disclosed, the Authority had jurisdiction to make an adoption order in respect of the children having regard to the pre-existing Country A adoption, s.45 of the Adoption Act 2010, and any other relevant provision?

Answer: “yes”.

(c) Whether, following the passage of the Adoption Act 2010, and specifically the incorporation of the Hague Convention into Irish law, that common law jurisdiction, as identified in MF v. An Bord Uchtála ILRM 399, remained?

Answer: unnecessary in light of the previous answers

(d) Whether, on the basis that MF v. An Bord Uchtála remained good law, and on the facts disclosed in the case stated, and assuming that the Country A adoption was not recognised in Ireland, did the original status of the children remain?

Answer: “yes”.

(e) Whether the children were eligible for adoption under s.23 of the Adoption Act 2010, having regard to s.9 and s.45 of the Adoption Act 2010?

To this the High Court judge answered “yes”.

The Authority, concerned as to the potential consequences of the answers given by the High Court, applied for leave to appeal directly to the Supreme Court under Article 34.5.4 of the Constitution.

Supreme Court

Delivering the leading judgment of the Court, Justice McMenamin, with whom Ms Justice Elizabeth Dunne and Ms Justice Iseult O’Malley agreed, said that there was a particular responsibility or obligation to the children involved – and said that his proposed interpretation of the legislation was necessary to avoid the inevitable situation of rendering the status of the children uncertain. Justice McMenamin said that this could not have been the intent of the framers of the Hague Convention, or of the Oireachtas.

As such, Justice McMenamin proposed that the Court should answer the questions in the following terms:

  1. The “Country A adoption” may, in the first instance, be recognisable on foot of decisions arising from the timely conclusion of remedial measures between the Adoption Authority and the Central Authority of Country A. Subject to the outcome of those contacts, or, if necessary, otherwise, the High Court may alternatively, if satisfied, on the evidence and the law, direct the Authority to register the adoptions, pursuant to s.92 of the Act. The High Court may, on the basis of the evidence before it, then, consider what order best gives effect to the provisions of the law generally, s.92 of the Act, the Explanatory Report, the Guide, and in light of the requirements of Article 42 of the Constitution. Only if the conditions of s.92(1) are in the opinion of the High Court satisfied may it then direct the adoption be registered pursuant to s.92.

    1. No. The Authority does not have such a jurisdiction under those sections. It must not be asked to exercise a power contrary to its governing statute. This does not preclude the possibility of a proceeding under s.92 of the Act.

      1. No, not with regard to inter-country adoptions.

        1. MF is no longer good law; but the original status of the children remains, as the adoption in Country A cannot be recognised in Irish law by the Authority. This does not preclude the possibility of a proceeding under s.92 of the Act.

          1. Sections 23 and 45 are not directly relevant to the main issue in the case stated, which is whether an order may be made under s.92(1) of the Act by the High Court. Sections 23 and 24 address qualifying criteria which may be relevant to this process. Section 45 is not at all relevant in this case. Sections 9 and 10 require the court to interpret the Act in accordance with the Report. How it is suggested that this might be done is set out in this judgment.

            2. Dissenting judgment

            Justice McKechnie, with whom Mr Justice Donal O’Donnell agreed, delivered a dissenting judgment hich emphasised the “overall cohesion and integrity” of the Hague Convention as being the most prevalent consideration. Stating that he could not subscribe to the proposed “pragmatic solution” suggested by the majority of the Court, Justice McKechnie said that he was sympathetic to the plight of the family, but said that the majority judgment effectively created an “ad hoc parallel system of intercountry adoption” which disregarded the intention of the Hague Convention and jeopardised “the entire structure and the legal certainty of this international instrument”.

            As such, Justice McKechnie proposed answering the questions posed in the following terms:

            1. No, the Country A adoption is not recognisable;

            2. No, the Authority does not have jurisdiction to make an adoption order in respect of the children;

            3. No, the M.F. case does not remain good law;

            4. Strictly speaking this issue does not arise, but no, the original status does not remain.

            5. No, the Children are not eligible for adoption under section 23 of the 2010 Act, having regard to sections 9 and 45 of the 2010 Act.

              • by Seosamh Gráinséir for Irish Legal News

                • Copyright © Irish Legal News Ltd 2018

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