Attorney General v Dowse
| Jurisdiction | Ireland |
| Judge | Mr. Justice John MacMenamin |
| Judgment Date | 13 January 2006 |
| Neutral Citation | [2006] IEHC 64 |
| Court | High Court |
| Docket Number | [No. 1855 P/2005] |
| Date | 13 January 2006 |
[2006] IEHC 64
THE HIGH COURT
BETWEEN
AND
AND
BETWEEN
AND
ADOPTION ACT 1991 S7
ADOPTION ACT 1998 S15
CONSTITUTION ART 40.3
CONSTITUTION ART 42.1
ADOPTION ACT 1991 S4
ADOPTION ACT 1991 S4(A)
ADOPTION ACT 1991 S6(7)(a)
ADOPTION ACT 1952 S24
CONSTITUTION ART 42.5
ADOPTION ACT 1991 S7(2)
ADOPTION (NO 2) BILL 1987, IN RE 1989 IR 656
NORTHERN AREA HEALTH BOARD & H (W) & H (P) v BORD UCHTALA & R (P) 2002 4 IR 252 2003 1 ILRM 481
ADOPTION ACT 1991 S7(1A)
ADOPTION ACT 1991 S7(1B)
GUARDIANSHIP OF INFANTS ACT 1964 S6
GUARDIANSHIP OF INFANTS ACT 1964 S10(2)(A)
FAMILY LAW ACT 1995 S16
FAMILY LAW (DIVORCE) ACT 1996 S20
DHARAMAL v LORD HOLM-PATRICK & ORS 1935 IR 760
SUCCESSION ACT 1965 S117
ADOPTION
Foreign adoption
Cancellation - Irish adoptive parent -Failure of adoption - Child returned to orphanage - Child subsequently reunited with natural mother - Orders required -Register of foreign adoptions - Application to cancel entry in register - Powers available to court on directing cancellation -Guardianship, custody, maintenance and citizenship of child - Principles applicable -Calculation of maintenance - Standard of living of adoptive parents or natural mother- Constitutional duties owed to child -Adoption Act 1991 (No 14), ss 4 and 7(1A) and (1B) - Adoption Act 1998 (No 10) -Constitution of Ireland 1937, Article 42.1 and 42.5 - Cancellation of adoption granted and orders for maintenance made (2005/64M & 2005/1855P - MacMenamin J- 13/1/2006) [2006] IEHC 64, [2006] 2 IR 507; [2007] 1 ILRM 81 Dowse v An Bord Uchtála
FOR PUBLICATION ONLY IN ACCORDANCE WITH THE JUDGMENT AND ORDER OF THE HIGH COURT DATED 31ST JANUARY 2006
By way of plenary summons dated 30th May, 2005, the Attorney General commenced proceedings in his constitutional or legal capacity to protect the interests of Tristan Dowse born on 26th June, 2001, who is an Irish citizen. In those proceedings, the plaintiff claimed:
1. Declarations that the defendants had failed in their duty pursuant to Article 42.1 and 40.3 of the Constitution to care and provide for their son Tristan.
2. An order directing the defendants to carry out their constitutional duty pursuant to Article 42.1 and Article 40.3 of the Constitution to care and provide for their son Tristan and in particular
(a) to provide suitable and appropriate accommodation for him.
(b) to provide by periodic payment and/or lump sum for his support and maintenance.
(c) to provide suitable care and facilities so that he receives religious and moral, intellectual, physical and social education appropriate to his needs.
(d) to take such other steps as to this honourable Court might seem fit which would ensure that his needs were met and that his welfare was protected.
In the course of those proceedings the Attorney General sought alternative relief namely an order directing that Tristan Dowse should be brought to Ireland so that accommodation facilities and care appropriate to his needs could be provided for him in this jurisdiction.
By a further set of proceedings initiated on 5th August, 2005, the applicants Joseph N. Dowse and Lala Dowse sought:
1. An order for directions in relation to entries in the register of foreign adoptions
2. Cancellation of an entry of foreign adoptions namely entry number 1913, F139/00SM4 dated 17th day of December, 2001, relating to the adoption of Tristan Dowse in Indonesia on 10th August, 2001, by the defendants.
3. Such further order as to the Court might see fit in the best interest of Tristan Dowse pursuant to s. 7 of the Adoption Act1991 as amended.
4. Such further or other orders relating to the guardianship custody maintenance of citizenship of Tristan Dowse as to this Court might seem fit.
An application to Court in the first set of proceedings, brought by the Attorney General was made on 29th July, 2005. Thereafter cross proceedings were initiated; and interlocutory hearings took place for the purpose of obtaining evidence, filing affidavits and case management. These were heard on 24th August, 29th September, 18th October and 8th November, 2005. These hearings were necessary in order to ensure that the parties, and the Court, had full and up to date information as to Tristan's custody and care and also to obtain evidence from Indonesia as to the circumstances of Tristan's natural mother and her other family members.
Thereafter an oral hearing took place on 9th December and counsel for both parties made legal submissions on 20th December, 2005. Mr. John Rogers SC made submissions on behalf of the applicants; Mr. Gerard Durcan SC on behalf of the Attorney General. The court thanks both counsel for their assistance in this case.
These two sets of proceedings concern the adoption by Joseph Dowse and his wife Lala Dowse ("the applicants") of Tristan Dowse born on 26th June, 2001. The applicants adopted Tristan by order of the South Jakarta District Court on 10th August, 2001 at which time the applicants were residing in Indonesia. In order to set matters in context it is necessary to deal first with the background of the applicants.
The applicants in the second set of proceedings were married in Baku, Azerbaijan on 18th June, 2000. The first named applicant is a native of Ireland. He is an accountant and met his wife while he was working in Baku. Lala Dowse is a native of Azerbaijan. She qualified as a doctor. She had a daughter named T. from a previous marriage.
In September, 1999 the applicants, who were then in a relationship, moved to Indonesia where the first named applicant had obtained employment with a large accountancy firm. He had previously been in employment in Azerbaijan. While there he engaged in voluntary work with orphanages. After the applicants were married in the year 2000 they were, for a time, unfortunately unable to conceive their own child. In the same year the applicants took steps to adopt a child while in Indonesia. The Court has been informed in an affidavit sworn by Joseph Dowse (the 'first named applicant'), that Tristan was adopted by an arrangement made by a J. W., a Christian missionary, stated to be working in Jakarta. Tristan had previously been given a different name, apparently by Ms. W., and medical checks carried out on the young child were completed using this other name.
The Court has not heard evidence from all witnesses as to the precise circumstances surrounding the adoption of Tristan nor as to how the applicants established contact with him or Ms. W. The Court therefore has insufficient evidence to make any adjudication as to the circumstances of the adoption. Suffice it to say that the applicants, having decided to adopt Tristan, brought an application to the South Jakarta District Court. An order was made by that Court in relation to the proposed adoption on 10th August, 2001. Thereafter Tristan was treated as having been properly adopted by the applicants subject to Indonesian law. He resided with them in their family home from August, 2001 until May, 2003.
It is the applicant's case that the adoption of Tristan did not succeed and was frustrated because, unfortunately they contend, very little or no bonding took place. The applicants state that this became clear even one month after the adoption. It is contended that Tristan did not react or bond in a positive way with the applicants, fretted and became aggressive and upset, and became disturbed in the presence of the second named applicant. The applicants say that one of the key reasons for the failure of the adoption was the absence of normal supports which would have existed had the adoption been undertaken in a jurisdiction which might have permitted long periods of time to be spent with the child pre-adoption.
The applicants sought the assistance of a psychologist. They say that the advice was that the long term option of continuing the adoption was not in the best interests of Tristan. Ultimately, the applicants decided that the best option was that he should be re-adopted.
Mr and Mrs Dowse state that they considered a number of options, including fosterage or finding the natural mother and replacing Tristan with her. The idea of fostering in Ireland was not considered either a suitable or a secure answer to the problem. The applicants state they were desirous of finding a more long term and stable solution other than fostering. They took further legal advice at that stage. The view of their Indonesian lawyers was, apparently, that it might be possible to have Tristan re-adopted under Indonesian law and furthermore the applicants were advised that the process would be relatively speedy.
In May 2003, the applicants made a further application to the District Court in South Jakarta for an order relinquishing care of Tristan to nominated third parties. At the time, the applicants had it in mind to leave Indonesia to reside in Azerbaijan. They decided that it would be inappropriate to bring Tristan with them and that a better course of action would be to have him admitted to an orphanage in Indonesia. Arrangements were made whereby Tristan was admitted to the orphanage by the first named applicant and since that time neither the first nor second applicants have seen Tristan or had any contact with him.
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