J.M. v Adoption Authority of Ireland

• Jurisdiction: Ireland
• Judge: Ms. Justice Reynolds
• Judgment Date: 17 July 2017
• Neutral Citation: [2017] IEHC 320
• Docket Number: [2016 No. 374 M.C.A.]
• Court: High Court
• Date: 17 July 2017

IN THE MATTER OF AN APPLICATION UNDER THE ADOPTION ACT, 2010

BETWEEN

J. M.

APPLICANT

AND

THE ADOPTION AUTHORITY OF IRELAND

RESPONDENT

[2017] IEHC 320

Reynolds J.

[2016 No. 374 M.C.A.]

THE HIGH COURT

FAMILY LAW

International law – Registration of child adoption – S. 90 (2) of the Adoption Act, 2010 – Date of effective adoption – Habitually resident – Date of creation of parental rights – Hague Convention on Protection of Children and Cooperation in respect of Interlocutory Adoption ('Hague Convention') – Foreign adoption

Facts: The applicant filed the present application for the purposes of registration of the adopted child of the applicant and his wife in the Register of Interlocutory Adoptions ('Register'). The key issues pertained to the date of effective adoption and fulfilment of the requirements of the Hague Convention on Protection of Children and Cooperation in respect of Interlocutory Adoption ('Hague Convention'). The applicant argued that the date of effective adoption should be the date on which the applicant had filed the petition in a foreign court. The respondent claimed that the date of adoption should be the date of the decision of the said foreign court and the adoption effected on that date was not eligible to be registered on the Register under s. 57(2)(a) of the Adoption Act 2010. The respondent further claimed that the adoption was made in a country where the applicant had not been habitually resident and the authority from which the said adoption was made did not have the recognised authority under the Hague Convention.

Ms. Justice Reynolds refused to grant the desired relief to the applicant. The Court noted that the date of effective adoption would be the date of the order of the foreign court. The Court observed that the applicant needed to be compliant with the Hague Convention for the registration of the adoption after the due date mentioned in the Act of 2010. The Court found that the direct registration of adoption under s. 92 of the Act of 2010 was applicable only in cases where the applicant fulfilled the criteria laid down in the Hague Convention for foreign adoption and had secured a declaration of eligibility and suitability. The Court found that the applicant had not obtained any such declaration with the relevant authorities prior to travelling with the child, and hence, direct registration under s. 92 of the 2010 Act could not be done.

JUDGMENT of Ms. Justice Reynolds delivered on the 17th day of July, 2017

1 This judgment concerns an application by the applicant, brought on his own behalf and on behalf of his wife, to have a child adopted by them registered in the Register of Intercountry Adoptions (the 'Register') pursuant to Section 90(2) of the Adoption Act 2010 (the '2010 Act').

Background

2 The proceedings arise from the domestic adoption by the applicant and his wife of a child, A.M., in the Philippines by way of a Decision of the Philippine Court issued on the 28th March 2011. The adoption was subsequently finalised by way of a Certificate of Finality issued by the Philippine Court on the 1st July 2011.

3 The applicants endeavoured to have the adoption entered in the 'Register' maintained by the respondent pursuant to Section 90(2) of the 2010 Act.

4 The application was declined by the Authority in circumstances where the Authority contended that it did not satisfy the relevant provisions of Section 57 of the 2010 Act. In particular, it was noted that the adoption could not be registered under:

(a) Section 57(2)(a) of the 2010 Act as it was effected after the 1st November 2010, the date of commencement of the 2010 Act which incorporates the Hague Convention into Irish law.

(b) Section 57(2)(b)(i) because the applicants were not habitually resident in the Philippines at the time the adoption was effected.

(c) Section 57(2)(b)(ii) as the adoption was not certified by the competent authority of the State in which the adoption took place as having been effected in accordance with the requirements of the Hague Convention.

Further, it was noted that the adoption was not registered in the United Kingdom where the applicants are habitually resident.

5 In the circumstances, the applicant now seeks the directions of the Court pursuant to Section 92(1)(a) of the Act to:-

'direct the Authority to procure the making of a specified entry in the register of intercountry adoptions.'

Facts of the Case

6 A.M. was born on the 4th April 1995 and is now twenty-two years of age. A.M. is the niece of the adoptive mother in this case in circumstances where she and the birth mother were sisters. It is clear that A.M. and her adoptive mother formed a very close and loving relationship during A.M.'s tender years. In later years, after the applicants had married, they proceeded to lawfully adopt A.M. in the Philippines. Whilst it is clear that the application was properly processed through the Family Courts in the Philippines, the applicants appear to have been unaware of the necessity to liaise with the relevant Hague Convention Office with responsibility for intercountry adoption. In the circumstances, the respondent contends that the adoption is not one which is compliant with the procedures required for intercountry adoption in accordance with the Hague Convention.

7 The application form completed by the applicant for an entry of the adoption into the 'Register' refers to the date of the adoption order as being the 9th November 2009. On that basis, the applicant contends that the adoption should be registered pursuant to Section 90(2) of the Adoption Act, as it had been completed prior to the 1st November 2010, (the establishment day for the purposes of the 2010 Act which incorporates the Hague Convention into Irish law). The relevance of that date is that an adoption which was effected prior to the said date is eligible to be registered on the Register under Section 57(2)(a) of the Act, even if it had not been effected in compliance with the Hague Convention.

8 However, it is clear from the documents submitted by the applicants that the initial decision of the Philippine Court issued on the 28th March 2011 was followed by a Certificate of Finality dated the 1st July 2011.

9 It was contended by the applicant that the adoption was effective from the 9th November 2009, in circumstances where the decision of the Philippine Court referred to the Decree of Adoption 'effective as of the date of the filing of this petition on the 9th November 2009'.

10 The applicants have at all times accepted that they were not habitually resident in the Philippines at the time of the adoption.

11 In refusing the application, the respondent determined the date of the adoption to be '28th of March, 2011, finalised on the 1st of July, 2011' and further had regard to the fact that 'the child continued to reside with the birth mother until the 1st of July, 2011', a fact which is not disputed by the applicants herein.

Intercountry Adoptions

12 The Hague Convention on Protection of Children and Cooperation in respect of Intercountry Adoption (the Hague Convention) provides at Article 2 as follows:-

'(1) The Convention shall apply where a child habitually resident in one Contracting State ('the State of origin') has been, is being, or is to be moved to another Contracting State ('the receiving State') either after his or her adoption in the State of Origin by spouses or a person habitually resident in the receiving State, or for the purposes of such an adoption in the receiving State or in the State of origin'.

(2) The Convention covers only adoptions which create a permanent parent – child relationship.'

13 The relevant statutory provisions governing the registration of intercountry adoptions are as follows:-

(a) Section 9 of the 2010 Act states unequivocally that the Hague Convention has the force of law in the State and the text of the Hague Convention is annexed at schedule 2 to...