CB v Údarás Uchtála Na hÉireann

• Jurisdiction: Ireland
• Judge: Ms. Justice Bronagh O'Hanlon
• Judgment Date: 25 November 2016
• Neutral Citation: [2016] IEHC 738
• Date: 25 November 2016
• Court: High Court
• Docket Number: [2016 No. 325 S.S.]

[2016] IEHC 738

THE HIGH COURT

FAMILY LAW

O'Hanlon J.

[2016 No. 325 S.S.]

IN THE MATTER OF THE ADOPTION ACT 2010, SECTION 49(2)

AND IN THE MATTER OF J.B. (A MINOR) AND K.B. (A MINOR)

BETWEEN

C.B AND P.B.

APPLICANTS

AND

ÚDARÁS UCHTÁLA NA hÉIREANN

RESPONDENT

AND

THE ATTORNEY GENERAL

NOTICE PARTY

Family – S. 49(2) Adoption Act 2010 – Hague Convention – Pre-existing Thai adoption – Domestic adoption

Facts: In the present case stated, the respondent had referred various questions of law to the Court. The issue arose as to the authority of the respondent to make an adoption order in favour of the applicants being the adoptive parents as the children were already adopted by the applicants in Thailand, whose adoptive procedures were not recognised under the Hague Convention. The respondent stated that they were restricted by the Adoption Act, 2010, and could not make a domestic adoption order in the present case as it would contravene the provisions of the Hague Convention. The respondent submitted that according to s. 49(2) Adoption Act, 2010, the children who had already been adopted could not be re-adopted unless their adoptive parents had died and hence the children were not eligible to be adopted as there was an existing Thai adoption in place. The applicants contended that the children were habitually resident in the State and therefore the respondent had jurisdiction to make an adoption order in the present case. The applicants stated that the proposed domestic adoption order would not amount to re-adoption as there had been no adoption order within the meaning of the Adoption Act, 2010.

Ms. Justice Bronagh O'Hanlon answered all the questions of law referred by the respondent and held that the respondent had jurisdiction to make the adoption order without the direction of the High Court. The Court held that Thai adoption was not recognisable in Ireland under Part 8 of the Adoption Act, 2010. The Court held that there was no bar to an adoption in the present case as the children had not been made adopted in the State and hence the issue of re-adoption did not arise. The Court held that it was not necessary that the law laid down under M.F. v An Bord Uchtala remained good, specifically the incorporation of Hague Convention into the Irish law. The Court held that the original status of the children would remain irrespective of the fact that the Thai adoption was not recognised in the State. The Court held that the best interests of the children would be served by making an adoption order in favour of the applicants. While answering the last question of the respondent, the Court held that the children were eligible for adoption under s.23 of the 2010 Act. The Court observed that the Adoption Authority in Ireland had been given wide powers in relation to adoption procedures.

JUDGMENT of Ms. Justice Bronagh O'Hanlon delivered on the 25th day of November, 2016

1 This case came before the High Court on 17th October, 2016. This is a case stated by the Adoption Authority of Ireland (herein after referred to as the ‘Authority’) pursuant to the provisions of Section 49(2) of the Adoption Act 2010 at the request of C.B. and P.B., for the determination of a number of questions of law set out hereunder arising on an application for an adoption order by C.B. and P.B., a married couple (herein after referred to as the ‘applicants’), in respect of the children named in the title of these proceedings, J.B. and K.B.

2 The Authority has referred the following questions of law to this Court:

(a) Is the Thai Adoption recognisable in Ireland under Part 8 of the 2010 Act or common law?

(b) On the facts disclosed in this Case Stated, does the Authority have jurisdiction to make an adoption order in respect of the children, having regard to the pre-existing Thai adoption, section 45 of the Adoption Act 2010 and any other relevant provision?

(c) Does M.F. v. An Bord Uchtála [1991] I.L.R.M. 399 remain good law following the passing of the 2010 Act and, specifically, the incorporation of the Hague Convention into Irish law (section 9)?

(d) If so, and on the facts disclosed in this Case Stated, and assuming the Thai Adoption is not recognised in Ireland, does the original status of the children remain (per M.F. v. An Bord Uchtála [1991] ILRM 399 at 402 (MacKenzie J.))?

(e) On the facts disclosed in this Case Stated, are the children eligible for adoption under section 23 of the 2010 Act, having regard to sections 9 and 45 of the 2010 Act?

Background

3 Certain facts were outlined in the case stated which counsel for the Adoption Authority submitted were the only relevant facts for consideration by this Court. They are set out at para. 6 of the case stated as follows:-

‘(a) C.B.B. and P.B. were married in the United Kingdom in August 2008 and have resided in Ireland since October 2006 and December 2007, respectively. They have been Irish citizens since March 2013 and October 2013, respectively.

(b) The children are sibling minors born in Thailand on 24 November 2006 and 30 September 2008, respectively.

(c) Their natural father and mother are unmarried.

(d) They are the niece and nephew of P.B. by virtue of their natural father being her brother.

(e) By email dated 16 June 2011, C.B.B. was advised by the Authority that in order to adopt, prospective adoptive parents must be assessed and be legally resident in Ireland for at least one year and, accordingly, was advised to contact the HSE for advice on the process. No such assessment was applied for at that time.

(f) Instead, on 7 September 2011, P.B. (at the time solely a Thai citizen) applied solely to the Social Development and Human Security Office of Prachuabkhirikhan to adopt the children in Thailand. The Social Development and Human Security Office of Prachuabkhirikhan is not the Central Authority or the Competent Authority in Thailand for the purpose of inter-country adoption, as provided for in the Hague Convention.

(g) The adoption of the children was approved by the Child Committee of Prachuabkhirikhan province on 25 January 2012, which approval was notified to P.B. in Thailand by letter dated 6 February 2012. The adoption (hereafter, the ‘Thai Adoption’) was registered in Thailand on 21 February 2012.

(h) On 25 April 2012, the children arrived in Ireland with C.B.B. and P.B. and, since that date, have lived in the care of C.B.B. and P.B. at their home in Malahide, Co. Dublin.

(i) By email dated 3 May 2013, C.B.B. and P.B. commenced their application for a domestic adoption in respect of the children (the ‘Application’).

(j) In accordance with sections 37 and 39 of the 2010 Act, the Child and Family Agency prepared an assessment report and recommendation in respect of C.B.B. and P.B. (the ‘Assessment Report and Recommendation’). The Assessment Report and Recommendation were furnished to the Authority on 12 December 2014.

(k) On 16 March 2015, the Authority made a declaration of eligibility and suitability in respect of C.B.B. and P.B. under section 40 of the 2010 Act (the ‘Declaration of Eligibility and Suitability’) having considered the Assessment Report and Recommendation.

(l) No application has been submitted to the Authority seeking an entry on the register of inter-country adoptions in relation to the Thai Adoption and the Authority has not been invited to make and has not made any determination as to the recognition of the Thai Adoption.’

4 It may be noted that Thailand has ratified the Hague Convention on the Protection of Children and Co-operation in respect of Inter-country Adoption 1993. However, it is accepted by all parties that the Thai authorities processed this adoption as if it were a domestic Thai adoption and did not involve the Central Authority or meet the Hague Convention requirements.

5 Counsel for the applicants wanted the affidavits, particularly that of C.B. dated 29th April, 2016, to be considered also and the Court accepts that these facts are part of the background of the case. The Court can not and is not making any finding of fact in relation to the affidavits before it.

The Law

6 This case stated asks the Court to assess the Adoption Act 2010. Section 49 of that Act provides the Adoption Authority with the jurisdiction to bring this case stated to the High Court as follows:-

‘49. – (1) The Authority may refer any question of law arising on an application for an adoption order or the recognition of an inter-country adoption effected outside the State to the High Court for determination.

(2) Notwithstanding subsection (1), the Authority, unless it considers a question of law arising on an application for an adoption order or the recognition of an inter-country adoption effected outside the State to be frivolous, shall refer the question of law to the High Court for determination if requested to do so by –

(a) an applicant for the order or the recognition of the inter-country adoption effected outside the State,

(b) the mother or guardian of the child, or

(c) any person having charge of or control over the child.

(3) The Authority shall refer any question in relation to public policy arising with respect to entries in the register of inter-country adoptions to the High Court for determination.

(4) Subject to rules of court, a question referred under this section to the High Court may be heard in private.’

7 The Adoption Act 2010 brought the Hague Convention on the Protection of Children and Co-operation in Respect of Inter-Country Adoption 1993 into Irish law. Section 9 of the Act states clearly that the ‘Hague Convention has the force of law in the State’. The Hague Convention specifically states at Article 40 that no reservation to the Convention is permitted.

8 The 2010 Act places particular importance on the welfare of the child:-

‘19. – In any matter, application or proceedings before...