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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> O'C & Anor -v- Udaras Uchtála na hÉireann [2014] IEHC 580 (30 May 2014) URL: http://www.bailii.org/ie/cases/IEHC/2014/H580.html Cite as: [2014] IEHC 580 |
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Judgment
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Neutral Citation: [2014] IEHC 580 THE HIGH COURT FAMILY LAW [2013 No. 89 MCA] IN THE MATTER OF THE ADOPTION ACT 2010, AND IN THE MATTER OF A.O.B. (FORMERLY T.) A CHILD BETWEEN M. O’C. AND B. O’C. APPLICANTS AND
UDARAS UCHTÁLA NA hÉIREANN RESPONDENT JUDGMENT of Mr. Justice Henry Abbott delivered the 30th day of May 2014 1. This judgment relates to an application by the applicants to have a child, A. O’B. formerly T., adopted by them by having the applicants adoption of the child registered in the Register of Inter Country Adoptions maintained by the respondent pursuant to the Adoption Act 2010. The child was born on the 22nd October, 2010, and was placed in the applicants care on the 26th October, 2010, following which a Mexican court made an adoption order on the 24th March, 2011. 2. Difficulties in having the child’s adoption registered as a foreign adoption in Ireland have arisen by reason of the intervention of the passing and commencement of the Adoption Act 2010, between the commencement by the applicants of a process for a foreign adoption of a child in Ireland and ultimately, a declaration of eligibility of the applicants for such an adoption under the then existing legislation and the time for the registration under the Act of 2010 of the adoption made by the said order of the Mexican court dated the 24th March, 2011. 3. The Adoption Act 2010, commenced on the 1st November, 2010, and Ireland thereby ratified the Hague Convention on Protection of Children and Cooperation in respect of Intercountry Adoption - (hereinafter “the Hague Convention”). Since that date, and pursuant to article 2 of the Convention, all adoptions between Ireland and Mexico are subject to the terms and conditions of The Hague Convention. After the adoption procedure relating to the child in Mexico, and when the child was removed to this country from Mexico, by and in the care of the applicants, the applicants applied to the respondent for an entry in the Register of Inter Country Adoptions pursuant to s. 90 of the Act of 2010 of the adoption of the child. Essence of Dispute
As you know, Ireland ratified “The Hague Convention on Protection of Children and Cooperation in respect of Inter Country Adoption” on 1st November, 2010. Since that time and pursuant to Article 2 of the Convention, all adoptions between Ireland and Mexico are subject to the terms and conditions of The Hague Convention. Since your clients effected an adoption in Mexico after the enactment date, the terms and conditions of The Hague Convention apply to it. Your clients have submitted various documents in support of their application for an entry in the RIA. One of these purported to be an Article 23 Certificate issued by the judiciary of the State of BC Mexico. Article 23 of The Hague Convention states:- ‘Recognition of adoption certified by a competent authority of state of adoption (1) An adoption certified by the competent authority of the State of the adoption as having been made in accordance with the Convention shall be recognised by operation of law in the other Contracting States. The certificate shall specify when and by whom the agreements under Article 17, sub-paragraph (c), were given.’ I am to say that the Adoption Authority of Ireland (AAI) has not yet been requested to approve nor has it approved any placement of a child in Mexico pursuant to Article 17 of the Convention for your clients. Since no Article 17 approval was issued by the AAI to the placement you might address how the Article 23 Certificate can be valid. There is no provision in Irish legislation for the recognition of an inter country adoption from a Hague Convention state that has not been carried out in accordance with the terms and conditions of The Hague Convention.” 5. The applicants are wife and husband respectively, both in their mid forties having married in 1998. Both applicants have at all material times lived and continued to live in Ireland. It was always their desire to have children, but they experienced fertility difficulties and undertook a number of procedures to counteract these difficulties without having the success of the conception of a child. 6. The applicants applied to the respondent’s statutory predecessor for assessment of eligibility and suitability for adoption in or about early 2007, by sending an informal letter stating as follows:- “To whom it may concern,
Thanking you”
(ii) That they are suitable to adopt by virtue of s. 13 of the Adoption Act 1952.” 8. An Bord Uchtála then issued a letter signed on their behalf dated the 29th June, 2010, headed “To whom it may concern”, which may be regarded as a letter of introduction of the applicants to the authorities in Mexico from which they might seek adoption arrangements. The applicants made an agreement in July, 2010, in relation to post placement assessments of the child in Ireland, when they returned to Ireland under the adoption arrangements contemplated for Mexico. Journeys to Mexico and Adoption 10. By application form dated the 12th May, 2011, the applicants applied to the respondent to have the child’s adoption entered in the Register of Foreign Adoptions. The applicants received no correspondence from the respondent relating to any alteration or changes which could have arisen from the Adoption Act 2010, prior to the adoption of the child in Mexico. They had an application to extend their declaration of eligibility and suitability granted on the 22nd June, 2010, and the letter accompanying such extension dated the 23rd June, 2010, did not make any reference to any impending changes in the statutory regime or the requirements relating to Mexican adoptions. 11. However, the respondent, claimed (and it is accepted by the applicants), that a notice was posted on the Adoption Board (Bord Uchtála) website on the 13th October, 2010, stating as follows:-
Persons proposing to adopt abroad should always seek independent legal advice prior to doing so. Persons proposing to adopt abroad from a Hague Convention country AFTER 1st November, 2010, should satisfy themselves:- - that their adoption complies with the terms and conditions of The Hague Convention - that the agent/agency they have engaged as properly accredited by the central authority in the country of origin - that the agent/agency they have engaged can produce valid Article 23 Certificate from a competent authority in the state of origin in respect of that adoption. Details of The Hague Convention and a list of central authorities the accredited bodies and the competent authorities are available on The Hague Convention’s website.” 13. From the date of the application to have the adoption registered in the Register of Foreign Adoptions, the respondent remained in what could, in general terms, be a state of concerned indecision. At one stage by letter dated the 26th September, 2012, the respondent wrote indicating that it intended bringing the matter before the High Court for directions under the Act of 2010. In the meantime, the child was bonding with the applicants having lived with them more or less since he was four days old, and progress reports from post placement reports were already being prepared by HSE staff which indicated, and continue to indicate, positive progress of the child and suitability of the applicants to be his parents. The applicants’ solicitor sent a letter to the respondent dated the 20th February, 2013, requesting the respondent to liaise with the applicants’ barristers with a view to moving matters forward. The applicants complained at this hearing that entirely without warning the applicants’ solicitor received a letter dated the 26th February, 2013, wherein the respondent stated that it was refusing to register the adoption and that it was taking no steps other than to notify the HSE that it was so refusing. The applicants complain that they were taken by surprise by this attitude, but this may not be entirely a fair reflection on the situation as they already had received the more neutral, (if slightly apocryphal), letter already referred to above dated the 22nd July, 2011, from the respondent. 14. The order of the Mexican court was published on the 25th March, 2011. This order, (as appears from the translation of the original Spanish version), is comprehensive, and also shows the detail of consideration of the documents, evidence and reports from third parties, and an assessment of the actions taken by the parties, such that it appears to match the highest standards of care and propriety for an adoption process. I do not propose to set out same in full in this judgment, however, there are two aspects which, in addition to the general probity of the order, are of relevance to the further consideration of this judgment as follows:- 1. Reference to the Hague Convention In Recital VI the order states as follows:-
Therefore, these procedures of adoption aim to comply with its Article 23 of the before mentioned Convention which states that: “(1) A certified adoption as per the Convention, by the relevant authority of the state where this has been taken place, will be fully legally recognised in all other undersigned states. The certificate will specify when and by whom the acceptance (to which Article 17, para. (c) is referred) has been granted. (2) All the undersigning states, at the moment of the signature the ratification, acceptance, approval or excision must notify the depository of the Convention the identity and the role of the authority or authorities that are competent in order to issue the certificate in the mentioned state. They must notify any change in the appointment of these authorities - and therefore, given the circumstances the applicants …….and ……..also known as …….. and …………, fulfilled the requirement stated in Article 387 of the Civil Code and 908 of the Code of Civil Proceedings and likewise they comply with the existent part and applicable to Mexico with regards to the Convention of the Hague. According to the details in the evidence presented as follows.” COMMENT This Recital and the purported certification by the Mexican Judge in the order is an anomalous aspect of this case and some background to it is given by an undated letter sent by the applicants to the individual members of the respondent’s Board after difficulties had emerged in relation to having the adoption of the child registered in the Register of Foreign Adoptions from which it may be inferred, that whereas the applicants did not receive notice of the article 23 certificate requirement of the Convention through the website they had, through their Mexican lawyer, found out about a s. 23 certificate requirement but were assured that the Mexican judge could deal with same. This anomaly becomes more complex when it is realised (as it was drawn to the attention of the court by Ms. Browne S.C. counsel for the applicants), that in 1995 the Mexican Government reported to the Working Committee on The Hague Convention that certain Mexican judges were competent authorities for the purpose of issuing Article 23 Certificates.
“In which it is stated, summarising, that the said consent was freely given, and she was aware of all the consequences that it brings to giving her minor son up for adoption, she also manifests to be aware of the fact that the minor could be adopted by a couple that may reside abroad, and therefore she is informed of the filial bonds that are generating and those that are breaking being above to withdraw her consent before the civil judge of the first instance, given that afterwards her consent will be irrevocable; giving also temporary guardianship of the minor to the intending adopting parents.” 15. Following intense and frequent meetings and correspondence between the Mexican authorities and the respondent in relation to the lack of an article 23 certificate in relation to a number of Irish cases, including that of the applicants and also investigations into alleged irregularities regarding Mexican adoptions generally (but which have not been linked to this case), the Embassy of Mexico issued a third party notice dated the 12th June, 2012, addressing these two issues stating that:-
4. The above comments are made independently of the conclusions that the Attorney General’s office or any other authority could reach on cases in analysis and administrative responsibilities that may distance themselves as a result thereof. 5. The wellbeing of the child must prevail over the multiple considerations. Under the circumstances and given the social acclimatisation and the familiarity of the children, it is not advisable to remove the children and return them to Mexico but to keep them in Ireland. The children are the victims here of procedure errors which occurred. Therefore, if the granting of Irish citizenship is to occur, this will be determined by the Irish authorities, experts in Irish legislation.” 16. The applicants have not, nor do they intend to pursue the possible route suggested by the third party notice of having the adoption process commence again under the Convention. One major reason for not pursuing this route and, in fact, making it wholly unrealistic, is the fact that the Mexican Central Authority have notified to the parties that, subject to certain exceptions for siblings, that children under five years and are not suffering from a disability may not be adopted under the Hague procedure. The problem so dramatically set out in the third party notice from the Mexican Embassy on the general facts of this case (if it has a solution), may only be solved in the context of the proceedings in this Court, rather than in Mexico. Attorney General The Submissions 19. In relation to the construction of the Act of 2010, counsel for the applicants submitted that the applications commenced their adoption procedure under the Adoption Act 1991 and there was no question but that the adoption would have been entitled to recognition by virtue of that legislation. The only reason for non-recognition is the refusal of the respondent to accept the article 23 certificates produced by the applicants. She accepted that s. 7 of the Act of 2010 repeals the entirety of the Adoption Act 1991, but claimed that the provisions of s. 27(1)(c) of the Interpretation Act 2005, states that a repeal does not “affect any right, privilege, obligation or of liability acquired, accrued or incurred under the enactment”. It was clear that in this case the applicants had a vested right or privilege which accrued under the Act of 1991. Apart from vested rights she claimed that the applicants had an entitlement to have their adoption recognised by virtue of s. 20 and/or s. 63. She also urged that it was impossible for the respondent to argue that they could not enter the adoption order in the register, as, on their own admission they had, (on four occasions entered other adoptions) which, if not identical to, then similar in all material respects to this case. This could be considered by the court as an abuse of discretion as is exemplified in HTV Ltd v. Price Commission [1976] I.C.R. 170. She stated that the Hague Convention is clear and that Article 24 states that the only basis for refusal is if the adoption is manifestly contrary to its public policy, taking into account the best interest of the child and that article 24 must be decisive having regard to the fact that whereas the respondents state that only the central authority can issue such a certificate, Mexico’s response to the questionnaire from the Special Commission in 2005 clearly states that a court can also issue such a certificate. 20. For the sake of convenience I shall classify this latter argument as counsel for the applicants’ “estoppel argument”. In this regard, she further referred to the findings of the third meeting of the Special Commission on the practical operations of the Hague Convention on the 17th to 25th June, 2010, wherein it was stated at para. 52:-
22. She stated that the High Court is empowered to make an order provided it is “satisfied” that the entry “should be made” and that there was little guidance as to when the High Court should be satisfied save that the High Court should be satisfied that such entry would be made in “the best interests of the adopted person”. She examined the factors which the court should consider in determining whether or not it is satisfied that such entry should be made as follows:-
B. The implications of non-entry for the children concerned. Under Mexican law the child is a child of the applicants. To refuse recognition is to leave the child stateless, unrelated to his carers and deprived of a constitutional family which he might otherwise have, and that such outcomes fail to have regard to his welfare and best interest. C. The provisions of the European Convention on Human Rights Act 2003, and in particular article 2 thereof (as they relate to interpretation of the Adoption Act 2010) and the right to family life provided for in article 8 of the Convention. D. Public policy issues. E. The history and origin of the powers thus vested in the High Court. 23. Mr. Shane Murphy with Mr. David Barniville S.C. and Ms. O’Neill, counsel for the respondent, having given an overview of the statutory framework and the detail of the relevant provisions of the Act of 2010, went on to deal with the application of the Act of 2010 to the applicants in particular. It was submitted that the respondent does not have any statutory power or discretion to recognise the adoption pursuant to s. 57 of the Act of 2010 or to register the adoption pursuant to s. 90(6) of the Act of 2010. The applicants have not furnished a valid certificate for the purposes of section 57. The applicants rely instead on the adoption order of the R court and it was submitted that there were several deficiencies with this adoption order.
B. Under The Hague Convention the legal power of the Mexican Ministry of Foreign Affairs is the sole competent authority to issue a s. 23 certificate. C. While the order of the R court purports to confirm the adoption had been effected in accordance with the Hague Convention, the R court has no function under the Hague Convention and is not a competent authority for that purpose. D. Likewise, the order of the R Court purports to confirm compliance with article 23 of the Hague Convention, but the R Court has no function. Transitional Provisions
(a) an adoption order, or (b) the recognition of an adoption effected outside the State, before the establishment day that was not determined before that day shall, on that day be deemed to be an application for an adoption or the recognition of an inter country adoption effected outside the State, as the case may be under this Act and this Act shall apply to the application accordingly.” 26. It was submitted that notwithstanding the clear language of s. 63 of the Act of 2010, that it would have been extraordinary and unwarranted (not to mention ultra vires) for the authority to apply the repealed Act of 1991 in the face of clear and unambiguous transitional provisions in the Act of 2010. The respondent noted that notwithstanding this position that the applicants had relied on the “vested rights” argument that at the commencement date of the Act of 2010, i.e. the 1st November, the applicants had a vested right by reason of having had declared a declaration of eligibility and suitability which permitted the applicants to do no more than seek an entry on the Register of Foreign Adoptions on their return to Ireland. It was at all times emphasised that the “Board shall exercise its discretion in respect of an entry in the Register upon receipt of the application”. It was submitted that the applicants had yet to meet the substantive requirements set out at s. 156 of the Act of 1991, and these requirements could only be met after the adoption. The attention of the court was drawn to the judgment of the Supreme Court in Minister for Justice v. Tobin [2012] IESC 37, (Unreported, Supreme Court, 19th June, 2012) and the judgment of O’Donnell J. at para.67 wherein it is stated:-
Power under s. 92 of the Act of 2010
(a) direct the Authority to procure the making of a specified entry in the register of intercountry adoptions, (b) subject to subsection (2), direct the Authority to procure the cancellation of the entry concerned in the register of intercountry adoptions, or (c) direct the Authority to make a specified correction in the register of intercountry adoptions. (2) Unless satisfied that it would be in the best interests of the adopted person to do so, the High Court shall not give a direction under subsection (1) (b) based solely on the fact that, under the law of the state in which an adoption was effected, the adoption has been set aside, revoked, terminated, annulled or otherwise rendered void. (3) Where the High Court gives a direction under subsection (1) (b), it may make orders in respect of the adopted person that appear to the High Court— (a) to be necessary in the circumstances, and (b) to be in the best interests of the person, including orders relating to the guardianship, custody, maintenance and citizenship of the person. (4) An order under subsection (3), notwithstanding anything in any other Act, applies and shall be carried out to the extent necessary to give effect to the order. (5) If the High Court— (a) refuses to give a direction under subsection (1)(a), or (b) gives a direction under subsection (1)(b), the intercountry adoption effected outside the State shall not be recognised under this Act. (6) The High Court— (a) may direct that notice of an application under subsection (1) shall be given by the person making the application to such other persons (including the Attorney General and the Authority) as the High Court may determine, and (b) of its own motion or on application to it by the person concerned or a party to the application proceedings, may add any person as a party to the proceedings. (7) The Attorney General— (a) of his or her own motion, or (b) if so requested by the High Court, may make submissions to the High Court in relation to the application, without being added as party to the application proceedings. (8) If the High Court so determines, proceedings under this section shall be heard in private.” 30. It was submitted that the decisions of the European Court of Human Rights in Wagner v. Luxembourg (Application No. 76240/01, 28th June, 2007 and Neulinger v. Switzerland (2012) 54 EHRR 31 do not provide a basis for dis-applying national law by reference to the paramounty principles, or otherwise. Furthermore, the Act of 2010 is a reflection of the best practice in relation to adoption including inter country adoption, having regard to the rights of all persons potentially involved and it is intended to give effect to The Hague Convention. It would, therefore, be very surprising if the requirements of the Act could be over written and any question of non-compliance resolved by an invocation of s. 19 of the Act (relating to the paramountcy principle). Referring to the case of M.F. v. An Bord Uchtála [1991] I.L.R.M. 399 at 402, (MacKenzie J.), the submission stated that domicile of the parents was the basis for recognition of foreign adoptions under the common law power and that since 1991, the recognition of foreign adoption was put on a statutory footing and was then governed by a clear and exhaustive statutory rules providing for the recognition of adoptions orders made in foreign jurisdictions. In the premise, there was no subsisting jurisdiction to recognise foreign adoptions which do not meet the strict requirements of the Act of 2010, and before that the Act of 1991. The court was referred to the judgments of the High Court and Supreme Court in B & Ors v. An Bord Uchtála ( Unreported, High Court, Flood J., 12th April, 1996) and Murphy J. [1997] 1 I.L.R.M. respectively. In that case, there was no suggestion that the Adoption Board or the court had a jurisdiction in common law to dispense with the statutory requirements set forth in the Act of 1991. In England the common law rule is preserved by statutory provisions and there is no equivalent provision in Irish legislation. It was further submitted that even assuming the court retains some inherent jurisdiction in common law to recognise foreign adoptions the following points bear emphasis:-
B. Secondly, it was submitted that the applicants “cannot use common law recognition to subvert the strict statutory requirement such a loophole would run contrary to the public policy reasons for having such a stringent regime citing Cabeza & Ors, International Adoption at 7.77”. The proposition that an adoption effected in one Hague Convention area could be recognised in another Hague Convention state where the requirements of the Convention are not met as contrary to the no reservations provision set out forth in Article 40 of the Convention where it is stated that “no reservations to the Convention shall be permitted”. C. Thirdly, the applicants adoption falls squarely within the provisions of s. 63 of the Act “not yet effected but still in process”. D. Fourthly, there is no evidence before the court that the other criteria for common law recognition have been met. This can be contrasted with the English cases cited by the applicants, and in D. & Ors v. An Bord Uchtála, all of which featured expert evidence regarding compliance with and the affect of adoption laws in the state of adoption. E. Fifthly and finally, for the avoidance of doubt, it was submitted that the AAI is a creature of statute and has no powers at common law.
So the authority having looked at the situation, having reviewed the legal issues and having consulted with is legal team has adopted the revised position which I am now outlining to the court. It also does so in the context of this case where in addition to the special features that have been mentioned on behalf of the applicant here, I would draw the court’s attention back again to third party notice. It is exhibit M in the first affidavit. Mr. Justice Abbott: Yes, I am very familiar with it. Mr. Murphy: And in particular, judge, if I can just bring your attention again to the phrase at paragraph 5 and this is what the Mexican authority said and I quote: “The wellbeing of the child must prevail over the multiple considerations. Under the circumstances and given the social acclimatisation and familiarity of the children, it is not advisable to remove the children and return them to Mexico but to keep them in Ireland. The children are the victims here of procedural errors which occurred. Therefore, if the granting of Irish citizenship is to occur this will be determined by the Irish authorities, experts in Irish legislation.” So confirming the context of the letter that the relevant authorities in Mexico have indicated first they do not want these children to come back to Mexico. Mr. Justice Abbott: No way, absolutely no way, that is very clear. Whatever else is clear about that third party notice, that is certainly clear. Mr. Murphy: And it is a striking feature but insofar as the court is here as the guardian as it were of the scheme which has been put in place by the Convention and recognised by the State, it is there to ensure that there is nothing in the form of fraud, criminality or side seeping of the obligations which exists. Mr. Justice Abbott: Yes, or any action which runs fundamentally or even suspiciously against the matters for which the scheme was designed to eradicate, trafficking and fraud… Mr. Murphy: Here you have a situation where three and a half years later these young children are acclimatised as the Mexicans have acknowledged and familiarised I presume as their family arrangements have developed over here in relation to each of the individuals and a very unusual circumstance confronts the court. But it is not a situation where in our submission the court is bereft of guidance from the statute and if in that context one applies s. 19 as a guiding principle, that is a factor which could affect and influence the court’s discretion in that regard. Secondly, judge, in relation to s. 92 the authority now accepts that the exercise of discretion by the court and the structure of the Act looking at s. 90 and s. 92, it is our acceptance that the intention of the Oireachtas was to create a power or discretion vested in this Court which could in circumstances exceed that of the authority’s insofar as the discretion of this issue might be necessary to direct the authority to do something which it felt that it could not do or did not want to do but where the court was satisfied that there were countervailing features and in particular the paramountcy principle which directed the need for the court’s discretion to be exercised in that particular way. So on that particular issue in relation to s. 92, it is our submission that the terms of s. 92, the scheme and its structure have to be interpreted as indicating the existence of a discretion and a discretion which can be exercised if the court so directs in this particular case.” 32. Ms. Mary O’Toole S.C. and Mr. Finn, counsel for the Attorney General, submitted that no inherent jurisdiction or jurisdiction at common law for the recognition of foreign adoptions should be applied to the Act of 2010, as the Act specifically stated that under its provisions that The Hague Convention had the force of law. To posit otherwise would be to establish a contrary system whereby the only decisive factor which diverts from the procedural requirements of The Hague Convention would be based on welfare principles and would be entirely inconsistent with the national obligations under The Hague Convention and the intention of having an automatic system of recognition of inter country adoption as provided for in the Act of 2010. She submitted that the transitional provisions in s. 63 were far from clear when compared with other provisions of the Act and that; in any event, the applicants had vested rights by reason of having commenced the adoption process prior to the date of commencement of the Act on the 1st November, 2010. She referred in detail to the judgments of O’Donnell J. in Tobin [2012] IESC 37, (Unreported, Supreme Court, 19th June, 2012) and Bailey [2012] IESC 16, (Unreported, Supreme Court, 1st March, 2012), and submitted that the facts of the present application for adoption take the case far beyond the circumstances of mere passive waiting of an application to continue a process, thus entitling him to any vested rights under the Tobin tests. She pointed to the manner in which the authorities had evolved and the circumstances in which the facts of each case would have to be examined having regard to the complexity and dynamics of the legislation providing for the relief concerned in respect of which vested rights were claimed. She referred to the judgment of Hedigan J. in Commission for Communication Regulation v. An Post [2013] IEHC 149 (Unreported, High Court, Hedigan J., 8th March, 2013) and also to the judgment of Dunne J. in Start Mortgages Ltd. & Ors. v. Gunn & Ors. [2011] IEHC 275 as examples as to how the court should examine the question as to whether vested rights arose by reference to the actual detail and circumstances of the case. CONCLUSIONS Paramountcy Context
“In my judgment, a child centred approach is appropriate to the interpretation of s. 19A(3), not only for consistency with the cases decided in the European Court of Human Rights but, more immediately, to comply with s. 2 of the Act of 1974 which, in its clear terms, obliges the respondent and this court and all other courts when dealing with arrangements for or the making of an adoption, in deciding "that" question to have regard to the welfare of the child as the first and paramount consideration.” In stating the above, O’Neill J. sets out the appropriate balance which this Court should have in relation to having regard to the welfare of the child, but also to seek to implement the Act in its clear terms especially having regard to the dramatically new structure for adoption which the Act introduced moving from the private placing scheme of the Act of 1991 to the competent authority placing by way of procedure surrounding the s. 23 certificate in the sending country. Common Law Recognition Having regard to the fact that movement and settlement of persons from abroad is becoming more and more a feature of Irish life, it must be borne in mind too that while the regimes introduced by the Act of 1991 (now repealed) and the new regimes brought in by the Act of 2010, dealing with foreign adoptions, make provisions for the recognition of foreign adoptions of children brought from the sending country to the receiving country, there may well be persons who arrive in this country as adults and set up residence and business interest who may have an interest in having their foreign adoption recognised for citizenship, succession or taxation reasons. The common law power of the recognition of adoption for these people might well become an important ingredient of our jurisprudence. Notwithstanding my view that such a common law power still exists, it seems to me as regards the recognition of adoptions as foreign adoptions in another Hague country may only be effected under the provisions of the Hague Convention and the Act of 2010 by reason of the no exceptions clause in article 40 of the Convention and the provisions of the Act of 2010 that the Convention shall be part of Irish law. 3. The less defined wording of the power of the High Court to enter a name on the Register of Inter Country Adoptions while allowing flexibility is continued to the scheme of the Act and the Convention, the most essential features of which are that the adoption process had moved from the 1991 private placement, to the central authority driven public placement, effected through the interaction between the article 17 agreement and the provision of a certificate under article 23 by the competent authority. Counsel for the applicants’ argument that O’Halloran’s identification of the possibility of the High Court entering a name on the Register where the adoption had been a simple adoption but had been transformed by reason of the obtaining of the appropriate consents or declarations in the sending country to full adoption, is of no avail in countering this view as this procedure is one which is plainly contemplated by the Act and Convention. Indeed, the sample certificate under article 23 provided with the papers shows that the certificate may at the option of the competent authorities certify either a full or a simple adoption. From the Convention itself (which is a Convention of cooperation rather than of technical and inflexible jurisdiction rules) and from the explanatory memorandum it is clear that in relation to ensuring the broad objectives and fundamental principles of the Convention that cooperation and flexibility may be required. Technical problems may arise within the broad parameters of these activities, and I consider that the more open wording of the provision relating to the power of the High Court to enter a name on the Register is more fitting to allow of these possibilities so as to allow the High Court to be a second guarantor of the interests of the child and the proper administration of the Act in relation to inter country adoptions, which the general, standard, automatic registrations effected by the authority would not encompass. 4. Transitional Provisions
2. The furnishing of a letter reflecting such declaration of eligibility from the authority which gave the applicants a right to travel abroad, in this case Mexico, and seek out a child. In these days of scares about abduction by strangers, human trafficking and similar outrages, the possession of a letter backed by the official and solemn authority of a State Adoption Agency is, in itself, a right and an important step towards the advancement and absolute securing of that right. It is noteworthy that this letter was never countermanded by any other form of letter or “hard copy” of any kind. 3. The consent of the birth mother to place the child with the applicants is a very real and dramatic right (albeit defeasible by withdrawal of the consent, as was possible within the Mexican procedure). This consent, although perhaps not enforceable by action, nevertheless gave rise to a number of real expectations and calls for action by way of preparation to receive the child on both sides of the consent. 4. Placing of the child in custody and guardianship as noted in the order of the Mexican court, (and in this judgment above), was a right which the applicants had which was enforceable against all the world, except for the fact that the consent could still be withdrawn, and left the right defeasible or conditional to that extent. Even the conditionality of that right would or could in many cases be altered or diluted by reason of the fact that circumstances could arise when a court might not order the child to be fully returned to the custody and guardianship of the birth mother if ensuing unfortunate circumstances indicated that the interests of the child might not dictate a full return or might only indicate a qualified return with shared parental care left to the applicants. 5. The right of the child when in the custody and guardianship of the applicants pending the full adoption hearing, to develop physically and emotionally by getting food, shelter and parental nurturing so that the beginnings of the child parent bond could emerge, and that the basis for establishing a sound sense of identity of the child could be established even if these aspects could only be realistically or significantly developed from the applicants side, in the first instance. 6. The applicants with custody of the child with a properly contained consent armed with the declaration of eligibility and letter of introduction from the Irish Adoption Authorities, had a right and duty to apply to the Mexican court, which on the basis of its satisfaction as to the probity of actions taken to date on the provision of reports indicating the positive qualities and possibilities of the proposed adoption, would grant the adoption. 7. The right of the applicants and of the child (who, by now, after the Mexican order, was in the custody and guardianship of the applicants by reason of a consent which had become absolute by the reason of the Mexican adoption order) to apply to the Adoption Board under the Act of 1991 to have the Mexican adoption recognised and the adoption registered so as to be deemed an Irish adoption. It has been argued that this right was within the discretion of the Adoption Board, but on the basis of the facts in this case as Counsel for the Attorney General states, the application would have ticked all the boxes in relation to the further matters which were required to be examined by the Adoption Board on the application for the 1991 adoption. 8. It should be noted that the enumeration of such rights are taken together, which presents an almost irreversible situation in fact, the like of which is contemplated in none of the cases referred to in the judgment of O’Donnell J. in the Tobin case. I agree with Counsel for the Attorney General’s submission that the situations set out in these various (and, perhaps conflicting authorities) generally relate to mere commercial transactions and not the forming of relationships which ultimately are intended to be finalised as full and complex family relationships representing the Irish constitutional family. While she warned against the court using the paramountcy of the interests of the child principle to assist in distinguishing the rights as analysed above from the rights arising in the cases as set out in the authorities analysed in the judgment of O’Donnell J., it nevertheless, must, in the final analysis, be an additional factor to convince the court that it should at least seek to find these distinguishing factors bearing in mind that not only do the interests of the applicant come into play, but increasingly the interest of a third person (a child) must be considered.
(a) known as the register of intercountry adoptions, and (b) kept and maintained under this Act by the Authority.” 36. In view of the provisions of s. 92(2) and the agreement of the parties relating to what course the court should take in the event of a positive finding for the applicants on this issue, I am prepared to make an order under s. 92 that the adoption in this case be entered in the Register of Inter Country Adoptions, and I await further submissions of counsel in relation to the appropriate form of order. The Mexican Certificate |
