C.B. v The adoption Authority of Ireland

• Jurisdiction: Ireland
• Judge: Ms. Justice Faherty
• Judgment Date: 10 September 2019
• Neutral Citation: [2019] IEHC 779
• Date: 10 September 2019
• Docket Number: [2018 No. 392 MCA]
• Court: High Court

[2019] IEHC 779

THE HIGH COURT

Justice Faherty

[2018 No. 392 MCA]

IN THE MATTER OF SECTION 92 OF THE ADOPTION ACT, 2010 AND IN THE MATTER OF J.B. (A MINOR) AND K.B. (A MINOR)

BETWEEN

C. B.

AND

P. B.

APPLICANTS

AND

RESPONDENT

AND

THE ATTORNEY GENERAL

AND

THE CHILD AND FAMILY AGENCY

NOTICE PARTIES

Adoption – Register of Intercountry Adoptions – Adoption Act 2010 s. 92 – Applicants seeking an order pursuant to s. 92 of the Adoption Act 2010 directing the respondent to enter adoptions on the Register of Intercountry Adoptions – Whether this case was exceptional

Facts: The applicants, by way of originating notice of motion dated 12th October, 2018, applied to the High Court seeking, inter alia: (i) a declaration pursuant to s. 92 of the Adoption Act 2010 that an entry should be made in the Register of Intercountry Adoptions in respect of the adoption of two children by the second applicant in “Country A”; (ii) an order pursuant to s. 92 of the 2010 Act directing the respondent, the Adoption Authority of Ireland, to procure the making of the said entry in the register; and (iii) an order that the Authority shall issue to the second applicant pursuant to s. 91(1) a certified copy of the said entry on payment to the Authority of the specified fee. The application was resisted by the Authority and the Attorney General.

Held by Faherty J that the applicants needed to discharge the onus of satisfying the Court: (i) that they are suitable to be adoptive parents; and (ii) that there was no intentional circumvention of the law and that the mistakes made were completely unintentional. Furthermore, Faherty J held that the Court needed to have regard to the following matters: (iii) the circumstances surrounding the breaches of the statutory requirements; (iv) the role of official error on the part of a State Agency in potentially contributing to the mistaken approach of the applicant; (v) the applicants’ bona fides; (vi) the general excusability of the deviation from what was contemplated by the Hague Convention and the 2010 Act; (vii) how exactly the children came to be in Ireland’s jurisdiction; (viii) the relationship of the children to the applicants; (ix) whether the adoption satisfies the requirements of a foreign adoption under the Adoption Act 1991; (x) the views of the children affected; and (xi) the best interests of the children affected and their constitutional rights. Having considered the evidence in this case against the backdrop of the foregoing factors, Faherty J was satisfied that the circumstances of the case met the test of being a truly exceptional case.

Faherty J proposed making an order pursuant to s. 92(1)(a) of the 2010 Act directing the Authority to enter the adoptions of the children on the Register.

Relief granted.

JUDGMENT of Ms. Justice Faherty delivered on the 10th day of September 2019.

1 This matter comes before the Court by way of originating notice of motion dated 12th October, 2018 wherein the applicants seek, inter alia,

A declaration pursuant to s. 92 of the Adoption Act, 2010 (“hereinafter the 2010 Act”) that an entry should be made in the Register of Intercountry Adoptions (hereafter “the Register”) in respect of the adoption of the said J.B. and K.B. by the second applicant in Country A;

An order pursuant to s. 92 of the 2010 Act directing the Adoption Authority of Ireland (“the Authority”) to procure the making of the said entry in the register; and

An Order that the authority shall issue to the second applicant pursuant to s. 91(1) a certified copy of the said entry on payment to the Authority of the specified fee.

The application is resisted by the Authority and the Attorney General. The position of the Authority is set out in an affidavit sworn on 22nd October, 2018 by Tara Downes, who is the Authority's Director of Operations. Her affidavit was sworn in response to the grounding affidavit sworn by the first applicant on 12th October, 2018. As the dispute between the parties is set in the judgment by reference to all parties' submissions to the Court, I did not find it necessary to otherwise recite the contents of the aforesaid affidavits. Additionally, the Court has heard the oral evidence of the first and second applicants. As will become clear in the course of this judgment, the adoptions in issue in the within application already have a considerable litigation history in this jurisdiction.

Background

2 The applicants are a married couple who were married in the UK in August, 2008. They have resided in this jurisdiction since October, 2006 and December, 2007 respectively. The first applicant holds citizenship of both the UK and Ireland, becoming an Irish citizen in March, 2013. The second applicant holds citizenship of Country A and Ireland, having obtained Irish citizenship in October, 2013.

3 The children, J.B. and K.B., were born in Country A and resided there until April 2012.

4 The first applicant is a business executive holding the position of group company secretary in an international company. Previously, he worked as group company secretary for a financial institution that operates extensively across a continent. It was while in Country A in the course of his work that he met the second applicant who at the time was working in Country A's capital city having completed a university degree.

5 K.B. and J.B. are the niece and nephew of the second applicant by virtue of their natural father being her brother. The natural father is not married to the children's birth mother.

6 In November, 2006, the second applicant left her then employment and moved back to her home province in Country A to work with her aunt in the family business. For this (and other purposes) she bought a house in her home province. J.B. was born to the second applicant's brother and his partner on 24th November, 2006. The first applicant stated that he first met the infant J.B. in December, 2006 when she was one month old. At that time the second applicant's mother, nephew (a son of the second applicant's deceased brother), brother and his partner (i.e. the natural parents of J.B. and K.B.) were living and sleeping in a market where the second applicant's mother was working. He testified that he was shocked and concerned about the way the family were living and was thus relieved when in January, 2007 the family unit (including the natural parents of J.B.) moved to the house that the second applicant had purchased.

7 The second applicant remained living and working in her home province in Country A until she moved to Ireland in December, 2007. While living in her home province, the second applicant assisted her family financially, as did the first applicant. They both testified that they continued to assist the family financially after the second applicant moved to Ireland in 2007. They also stated that this assistance was not given to procure an adoption but was rather to help the family, as is the norm in the culture of Country A.

8 K.B. was born to the second applicant's brother and his partner on 30th September, 2008.

9 Following the second applicant's move to Ireland in December, 2007, she and the first applicant travelled regularly to Country A to visit her family.

10 The evidence before the Court is that in or about 2009/2010, difficulties arose in the relationship between the second applicant's brother and his partner. In early 2011, J.B. and K.B.'s birth mother left the family unit in Country A, leaving behind her partner and their children. It appears that by this time she had begun relationship with someone else.

11 The Court heard evidence from the applicants about their attempts, following their marriage, to start a family. The first applicant already had three children from a previous marriage. Following the birth of these children he had a vasectomy which he subsequently successfully reversed. Despite this, the second applicant did not become pregnant.

12 The applicants then began a series of fertility treatments. IVF treatments in January, 2011 and May, 2011 were not successful. The couple were advised that it was unlikely that the second applicant would be able to conceive. It is the case that the second applicant has since given birth to a baby who was born in 2017.

13 To return however to the events of 2011. The applicants testified that the second applicant's mother was aware of the non-success of the IVF treatments. The first applicant told the Court that by the time J.B. and K.B.'s natural mother left the family unit in January, 2011 their natural father's circumstances were that he was essentially long term unemployed and reliant on the financial assistance which the applicants were providing. He testified that both the children's grandmother and natural father were struggling to look after them by 2011. By this time both children were in school, the younger in pre-school. Their grandmother's daily work at the market necessitated the children spending their post school time with her at the market which meant that it was midnight before they could leave that place. This was the type of “desperate” situation the children were in.

14 According to the applicants, the suggestion that they adopt JB and KB emanated from the second applicant's mother in or about May, 2011.

15 Subsequent to the second applicant's mother having raised the issue of the adoption, the applicants made the decision to adopt the children. They did so because they were worried about the children's safety and health, particularly in circumstances where their parents were adolescents. The second applicant spoke to her brother who in turn spoke to the natural mother. The evidence given by the applicants was that both natural parents were receptive to the idea of the children being adopted. The first applicant testified that by 2011 both he and the second applicant had an already established bond with the children. I accept this to be...