In the matter of the Adoption Act, 2010, Section 49 (2), and in the matter of JB (a minor) and KB (a minor), [2018] IESC 30 (2018)

Docket Number:2017 20
 
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THE SUPREME COURT

[Supreme Court Record No. 2017/000020]

[High Court Record No. 2016/325SS]

O’Donnell J.

McKechnie J.

MacMenamin J.

Dunne J.

O’Malley J.

IN THE MATTER OF THE ADOPTION ACT, 2010, SECTION 49(2), AND IN THE MATTER OF JB (A MINOR) AND KB (A MINOR)

BETWEEN:

CB AND PBNOTICE PARTIESV.

THE ATTORNEY GENERALNOTICE PARTY

Judgment of Mr. Justice John MacMenamin dated the 12th day of July, 2018

Introduction

  1. The 1993 Hague Convention on the Protection of Children and Co-operation in respect of Inter-Country Adoptions (“the Convention”) became part of domestic Irish law by virtue of the Adoption Act, 2010 (“the Act”). Inevitably, when complex legislation such as the 2010 Act is brought into effect, as it was on the 1st November of that year, there may be initial problems. The series of events described in this judgment were set in motion within six months of the Act becoming law. In hindsight, one might surmise that officials charged with its administration were not as familiar as they might have been with the meaning and effect of the new legislation on what was in issue in this case: inter-country adoption. These events, now more than six years ago, culminated in the present appeal against a High Court judgment delivered in this matter by O’Hanlon J. on the 25th November, 2016 ([2016] IEHC 738), and the consequent order perfected on the 13th January, 2017.

    Proceedings

  2. The Adoption Authority (“the Authority”) brought this case stated to the High Court on issues of law, pursuant to s.49(2) of the Act. Those proceedings, and this appeal, concern the manner in which CB and PB, a married couple, engaged in adoption procedures relating to two children, JB and KB, who were born in a different country. The precise questions raised are to be found under the heading “The Questions in the Case Stated”, at para. 77 of this judgment. The Authority, concerned as to the potential consequences of the answers given by the High Court, applied for leave to appeal directly to this Court under Article 34.5.4 of the Constitution. In a determination issued on the 10th March, 2017 ([2017] IESC DET 25, Clarke J., MacMenamin J., Laffoy J.), this Court acceded to that application.

  3. While it was the Authority that “applied” to the High Court under s.49(2) of the Act, CB and PB will, although notice parties, for ease of reference be referred to as “the applicants”, as it was they who applied to the Authority for an order registering the adoption of JB and KB.

    The Attorney General

  4. Prior to the High Court hearing, the Attorney General was joined as a Notice Party to these proceedings, which concern the proper application and interpretation of the Act of 2010 to this case.

    Redaction

  5. At this appeal, counsel for the applicants applied to this Court for parts of this judgment to be redacted. Thus, the judgment neither identifies the names of the children, nor their country of origin, which is referred to as “Country A”.

    The Children

  6. This case is centred around the legal status of two children: JB, now an 11-year-old girl, and KB, her younger brother, aged 9. They were born in Country A. They have now been living with the applicants in Ireland for over six years. The children are settled in their home and school environments. Their wish is to remain with the applicants, whom they now see as parent-figures. No party to these proceedings is proposing that the “adoption process”, described in this judgment, should now be entirely reversed, or that the children should be sent back to Country A. Insofar as the evidence in this case involves consideration of the conduct of the applicants, I take the view it should also take into account the actions and decisions of the State agencies concerned.

  7. As described later, PB went through an adoption procedure for both children in Country A. The Authority does not recognise that procedure as a valid adoption, and, as matters stand, CB cannot legally adopt them either. There is an impasse. The reasons for this are complex, as are the legal issues arising from them.

    The Factual Background in Summary

  8. CB, the first named applicant is a business executive. He was born in the United Kingdom. His work involves regulatory and legal compliance. He was married previously, and has grown up children from that marriage. In 2006, his work brought him to Ireland. He began a relationship with PB, who was born in Country A. She came to live in Ireland in 2007, and the couple married in the United Kingdom in 2008. They have lived here since then. CB now holds citizenship of the United Kingdom and Ireland. PB now holds citizenship of Country A and Ireland. After the marriage in 2008, the couple unsuccessfully tried to have a family. Later, they chose to explore the possibility of adoption.

  9. JX, PB’s brother, was born, and continued to live, in Country A after his sister left. He had been involved in an informal relationship, which ended. JB and KB were the two children of that relationship. The break-up of their natural parents’ relationship left the children in an uncertain situation. CB and PB thought they could adopt the children and give them a good life and stable home in Ireland. What followed has been a very lengthy legal dispute. This time constitutes a protracted period in these children’s lives. As of now, many years after they were brought to Ireland, their legal status still remains unresolved.

    The Scope of this Appeal

  10. In general, a case stated to the High Court is often brought on agreed facts or findings of fact by a judge. In this instance, however, there was extensive correspondence and disagreement between the Authority’s solicitors and those now acting for the applicants. The Authority’s lawyers considered a narrative of the facts touching more directly on the legal issues raised in the case stated was sufficient. The applicants and their advisors, on the other hand, thought that it was necessary for the High Court to have a fuller understanding of what had transpired in the engagement between the applicants, the HSE, and the Authority in Ireland, and what happened in Country A.

  11. At one level, the Authority was, of course, correct: what is at issue here is indeed simply a question of statutory interpretation. But the questions here are neither simple in themselves, nor simply abstract legal propositions: they have a concrete application in the case of these children. This is a truly exceptional case, and as a result, this judgment addresses the legal issues as to interpretation of the Act and the Convention in the context of these two children, and these two children alone. There may be other cases of a similar type. I emphasise that this judgment is confined to the specific facts of the instant case. This means that whether this ruling comes to influence other cases will turn solely on the facts arising in those circumstances.

  12. Due to the impasse between the solicitors, CB swore an affidavit in the proceedings giving an account of the couple’s various actions in trying to adopt the children. The then Director of Operations, now Chief Executive of the Authority, swore a replying affidavit. This highly relevant evidence in both applications is considered later. It forms an important part of the background, and the approach proposed in this judgment.

    An Underlying Issue: The Question of

    Bona Fides

  13. The Authority does not contend in this appeal that these applicants acted dishonestly. But, it insists the law must be fully complied with in this area. Its particular concern is the possibility that other persons, this time acting mala fides, might use procedures which are the same as, or similar to, those employed by the applicants which would have the effect of circumventing the intent and text of the Act of 2010. This is but one of the reasons why the case has acquired its many ramifications.

    Inter-Country Adoption

  14. As well as raising difficult legal questions in itself, inter-country adoptions can give rise to complex human situations. Among other things, the 2010 Act was enacted to further regulate such procedures. The applicants contend that the Authority’s earlier refusal to enter the children’s adoption on the register of domestic adoptions resulted from an approach which was at once indecisive, dilatory and over-rigid. This domestic register is one of two operated by the Authority. The second register concerns inter-country adoptions. For its part, the Authority maintains that it is duty-bound rigorously to uphold each of the precautionary pre-adoption procedures laid down in the Act of 2010, which give expression to the Convention rules, described later. The Authority argues that what occurred in this case cannot be seen as a domestic adoption, but rather as a flawed inter-country adoption which cannot be registered. It contends further that failure to maintain the integrity of the process of registration, would, itself, result in a breach of the Convention, with potentially serious consequences. The Authority’s concerns are understandable. But no matter how difficult the legal issues may be, the passage of time is an inherent and undeniably significant factor in decisions regarding the fleeting nature of childhood. Time spent in deliberation and litigation must be measured against the inevitability that young children will form bonds of attachment during early stages of development.

    The Adoption Experience in Ireland

  15. One need not delve too far into Irish social history to identify the necessity of further legal regulation regarding the international aspects of this issue. In the last two decades, serious questions emerged as to how a significant number of young Irish children were, in the past, regularly sent abroad for adoption. (See Milotte, M., Banished Babies: The Secret History of Ireland’s Baby Export Business (Updated and Expanded Edition, New Island 2012. See also McCaughren, S. and Powell, F., “The Fate of the “Illegitimate” Child: An Analysis of Irish...

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