J.M. v The Adoption Authority of Ireland
| Jurisdiction | Ireland |
| Judge | Ms. Justice Ní Raifeartaigh |
| Judgment Date | 29 July 2022 |
| Neutral Citation | [2022] IECA 171 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Court of Appeal Record Number: 2018/63 |
[2022] IECA 171
Murray J
Ni Raifeartaigh J
Power J.
Court of Appeal Record Number: 2018/63
THE COURT OF APPEAL
CIVIL (ORDINARY APPEAL)
Intercountry adoptions – Registration – Adoption Act 2010 s. 92 – Appellant seeking to have an adoption entered upon the Irish Register of Intercountry Adoptions – Whether the adoption fell within s. 57(2)(a) of the Adoption Act 2010
Facts: The appellant and his wife adopted a child in the Philippines. They wished to have the adoption entered upon the Irish Register of Intercountry Adoptions. Their application to have the adoption registered was declined by the respondent, the Adoption Authority of Ireland. The key issue in the case was whether the adoption fell within s. 57(2)(a) of the Adoption Act 2010 on the basis that it was “effected” in the country of origin before the commencement date of the Act. This issue arose because the adoption was not compliant with the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption or the 2010 Act. The matter was brought before the High Court by means of an application pursuant to s. 92 of the 2010 Act which empowers the court to direct that an entry be made in the Register. The High Court (Reynolds J) refused to make the order sought ([2017] IEHC 320) and the appellant appealed to the Court of Appeal on the basis of the single point identified above. As a fall-back position, he relied on the “bests interests of the child” principle.
Held by Ní Raifeartaigh J that there was a lacuna in the evidence before the Court which prevented her from reaching a definitive conclusion that the adoption was “effected” before the commencement date of the 2010 Act (i.e. the 1 November 2010). She held that, even if the adoptive parents’ rights were considered to have been created in November 2009 (before the Act’s commencement, by reason of the retroactive provision), there was no clear proof that the biological parents’ rights had terminated three months after their affidavits of consent were sworn on the 9 November 2009 (as would have occurred had a Deed of Voluntary Committal not been replaced by affidavits of consent) and thus, before the Act’s commencement. In the absence of proof that both events (termination and creation of rights) took place before the commencement of the 2010 Act, she could not conclude that the adoption was “effected” before its commencement. She appreciated that the exceptionality in the case was not of a similar kind to that arising in O’C. v Údarás Uchtála na hÉireann [2015] 2 I.R. 94 and Údarás Uchtála v K and F and others [2021] IR 751, which involved the active involvement of Irish authorities (or what was described as “official error”), but s. 92 itself does not constrain the type of exceptionality that may justify its deployment. She held that what is important is that the Court stays within the parameters of the discretion as identified by the Supreme Court in the authorities, and that it does not use the discretion in such a manner as to undermine the intentions and objects of the legislation. In her view, the Court would be remaining within the appropriate parameters by exercising the discretion pursuant to s. 92 on the facts of the case.
Ní Raifeartaigh J allowed the appeal and made an order directing that the Registrar enter the adoption upon the Register.
Appeal allowed.
JUDGMENT of Ms. Justice Ní Raifeartaigh delivered on the 29th day of July 2022
. This case arises from the adoption by the appellant and his wife of a child (“A”) in the Philippines. They wish to have the adoption entered upon the Irish Register of Intercountry Adoptions. Their application to have the adoption registered was declined by the respondent (“ the Authority”).
. Intercountry adoptions are regulated by the Adoption Act 2010 (“ the 2010 Act”). The 2010 Act commenced on the 1 November 2010 and gave effect in Irish law to the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (“ the Convention”). The key issue in the case is whether the adoption falls within section 57(2)(a) of the 2010 Act on the basis that it was “effected” in the country of origin before the commencement date of the Act.
. This issue arises because (as is now accepted by the appellant) the adoption was not compliant with the Convention or the 2010 Act. An adoption which was not compliant with the Convention or the 2010 Act may nonetheless be entered upon the Register if it was effected in the country of origin before the commencement date of the Act.
. The matter was brought before the High Court by means of an application pursuant to section 92 of the 2010 Act which empowers the court to direct that an entry be made in the Register. The High Court (Reynolds J.) [2017] IEHC 320 refused to make the order sought and the appellant brought the appeal on the basis of the single point identified above. As a fall-back position, he relies on the “bests interests of the child” principle.
. In February 2013, the appellant and his wife applied to the Authority to have an adoption entered into the Register of Intercountry Adoptions. The application was accompanied by a number of documents and was premised on the appellant's view that the adoption had taken place on the 9 November 2009.
. After an exchange of correspondence, the Authority declined to make the requested entry into the Register for reasons set out in their letter dated the 15 May 2013. Essentially this was on the basis that the adoption did not satisfy the requirements of section 57(2) of the 2010 Act because it was not “effected” before the 1 November 2010. The letter stated that the appellant and his wife could make an application to the High Court under section 92 of the Adoption Act 2010 if they were not satisfied with the decision of the Authority, which is what the appellant duly did.
. The appellant's affidavit sets out the background facts. Ms. A was born in April 1995 and was 22 years of age at the date of the High Court judgment. She is the niece of the adoptive mother, the latter being a sister of the birth mother. A and her adoptive mother formed a very close and loving relationship during A's young years, and in later years, after the appellant and his wife had married, they took steps to adopt her lawfully in the Philippines in the period 2010/11. The appellants have at all times accepted that they were not habitually resident in the Philippines at the time of the adoption. A remains a Filipino citizen and is habitually resident in the Philippines. The appellant and his wife now live in Northern Ireland and are therefore habitually resident in the United Kingdom.
. The appellant described on affidavit the unsuccessful efforts to have A adopted in Northern Ireland around 2012. He says that the Northern Ireland authorities based their refusal upon the fact that the child would reach the age of 18 before the process would be completed. He and his wife then sought to have the adoption registered in this jurisdiction but were unsuccessful, as described above.
. A replying affidavit was sworn on behalf of the Authority by Kiernan Gildea, Director of Operations and Corporate Services of the Authority. He exhibited the documents submitted by the appellant and his wife to the Authority and explained why the Authority had taken the decision it did. The decision was taken on the basis that the date of the adoption in the Philippines was determined by the Authority to be the 28 March 2011, finalised on the 1 July 2011. The Authority had regard to the fact that the child continued to reside with the birth mother until the 1 July 2011 and that the adoption was non-Hague compliant.
. It is important to observe that no affidavit of laws was put forward on behalf of the appellant. The appellant filed a further affidavit in which he argued that the date of the adoption was the 9 November 2009. He also referred to the “best interests of the child” test under section 19 of the 2010 Act. He said that Philippine law included a similar principle within the Domestic Adoption Act 1998. In the course of this affidavit, he further averred that “… at any time up to finality the birth mother (or others) could revoke (sic) the adoption and she wanted [A] to remain until this time to look after siblings. Once Finality was issued, we took [A] away. Finality is effectively a safeguard and confirmation, not an adoption decree” … There may be a significant typographical error in his affidavit as the substance of his submission was that the birth mother could not revoke her consent. He made other points in his affidavit in support of the argument that the adoption was effectively, if not formally, Hague-compliant but these are no longer relevant as the issue on appeal is the net issue described earlier.
. The appellant submitted some further documents on appeal to which reference will be made later in this judgment.
. The first key date is the 9 November 2009. This is the date upon which the appellant and his wife brought a petition for adoption in the Philippines. The appellant's position is that the adoption which was later finalised was retroactively backdated to this date. Proof of that fact, and its implications under both Philippine law and the law of this State, are critical to the issues in this appeal.
. A key document in the case is a three-page document from the Regional Trial Court of the Philippines entitled “Decision”. It is signed by a judge and dated the 28 March 2011. It may be noted that there is no reference to the Hague Convention anywhere in this document. It records that an order of the 11 November 2009 had been furnished to the Office of the...
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