M. O'C. and Another v Udaras Uchtála Na Héireann
| Jurisdiction | Ireland |
| Judge | Mr. Justice Henry Abbott |
| Judgment Date | 30 May 2014 |
| Neutral Citation | [2014] IEHC 580 |
| Docket Number | [2013 No. 89 MCA] |
| Court | High Court |
| Date | 30 May 2014 |
[2014] IEHC 580
THE HIGH COURT
BETWEEN
AND
ADOPTION ACT 2010
HAGUE CONVENTION ON PROTECTION OF CHILDREN & CO-OPERATION IN RESPECT OF INTERCOUNTRY ADOPTION 1995 ART 2
ADOPTION ACT 2010 S90
HAGUE CONVENTION ON PROTECTION OF CHILDREN & CO-OPERATION IN RESPECT OF INTERCOUNTRY ADOPTION 1995 ART 23
HAGUE CONVENTION ON PROTECTION OF CHILDREN & CO-OPERATION IN RESPECT OF INTERCOUNTRY ADOPTION 1995 ART 17
ADOPTION ACT 1991 S5(1)(III)(11)
ADOPTION ACT 1991 S10
ADOPTION ACT 2010 S92(7)
GOODMANS TRUSTS, IN RE 1881 17 CH 266 1881 AER 1138
VALENTINES SETTLEMENT, IN RE 1965 CH 831 1965 2 WLR 1015 1965 2 AER 226 1965 109 SJ 237
ND & ANOR (CHILDREN) (RECOGNITION OF FOREIGN ADOPTION ORDERS), IN RE 2008 EWHC 403 (FAM) 2008 1 FLR 1475 2008 FAM LAW 501 2008 AER (D) 398 (JUN)
J (RECOGNITION OF FOREIGN ADOPTION ORDER), IN RE 2012 EWHC 3353 (FAM) 2013 2 FLR 298 2013 FAM LAW 670 2013 AER (D) 108 (MAR)
R (A CHILD) (RECOGNITION OF INDIAN ADOPTION), IN RE 2012 EWHC 2956 (FAM) 2013 1 FLR 1487 2013 FAM LAW 274 2012 AER (D) 157 (DEC)
ADOPTION ACT 2010 S20
ADOPTION ACT 2010 S3
ADOPTION ACT 2010 S57
MCG (G) v W (D) 2000 1 IR 96 2000 1 ILRM 107 1999/17/5217
NORTHUMBERLAND CO COUNCIL v X (A CHILD), IN RE UNREP 12.6.2008 2008 EWHC 1324 (FAM)
S (W) v ADOPTION BOARD 2010 2 IR 530 2010 1 ILRM 417 2009/52/13131 2009 IEHC 429
AG v DOWSE 2006 2 IR 507 2007 1 ILRM 81 2006 IEHC 64
ADOPTION ACT 2010 S92(1)(B)
CONSTITUTION ART 41
CONSTITUTION ART 42
CONSTITUTION ART 40.3
NORTHAMPTON CO COUNCIL v F (AB) & F (MB) 1982 ILRM 164
NOTTINGHAMSHIRE CO COUNCIL v B (K) & B (K) 2012 2 ILRM 170 2013/40/11598 2011 IESC 48
OSAYANDE & LOBE v MIN FOR JUSTICE 2003 1 IR 1 2003/31/7267
WAGNER v LUXEMBOURG UNREP ECHR 28.6.2007 (APPLICATION NO 76240/01)
NEULINGER v SWITZERLAND 2011 2 FCR 110 2012 54 EHRR 31 28 BHRC 706
M (J) & M (G) v BORD UCHTÁLA 1987 IR 510
ADOPTION ACT 2010 S7
INTERPRETATION ACT 2005 S27(1)(C)
ADOPTION ACT 2010 S63
HTV LTD v PRICE CMSN 1976 ICR 170
HAGUE CONVENTION ON PROTECTION OF CHILDREN & CO-OPERATION IN RESPECT OF INTERCOUNTRY ADOPTION 1995 ART 24
BENNION STATUTORY INTERPRETATION 5ED 2008 50
ADOPTION ACT 1991 S6
ADOPTION ACT 2010 S92
ADOPTION ACT 2010 S90(11)
ADOPTION ACT 2010 S90(2)
ADOPTION ACT 2010 S90
ADOPTION ACT 2010 S63(2)
ADOPTION ACT 2010 S176
MIN FOR JUSTICE v TOBIN 2012 4 IR 147 2012/28/8166 2012 IESC 37
MIN FOR JUSTICE v BAILEY 2012 4 IR 1 2012/25/7268 2012 IESC 16
J WOOD & CO LTD v WICKLOW CO COUNCIL 1995 1 ILRM 51 20.7.1994 1994/11/3153
DODD STATUTORY INTERPRETATION 2008 PARA 4.53
ADOPTION ACT 2010 S63(A)
ADOPTION ACT 2010 18(4)
ADOPTION ACT 2010 S26
ADOPTION ACT 2010 S90(6)
S (W) v ADOPTION BOARD 2010 2 IR 530 6.10.2009 2009/52/13131 2009 IEHC 429
ADOPTION ACT 2010 S57(2)(B)(II)
F (M) v AN BORD UCHTALA 1991 ILRM 399
B (B) v AN BORD UCHTALA UNREP FLOOD 12.4.1996 1996/9/2679
B & ORS v AN BORD UCHTALA 25.7.1996 1997 1 ILRM 15
CMSR FOR COMMUNICATIONS REGULATION v AN POST UNREP HEDIGAN 8.3.2013 2013/11/2999 2013 IEHC 149
START MORTGAGES LTD & ORS v GUNN & ORS UNREP DUNNE 25.7.2011 2011 IEHC 275
Family Law – Adoption – Child - Adoption Act 2010 – Practice and Procedures - Inter-country Adoption – Hague Convention – Interpretation – Best Interests - Jurisdiction
Facts: This case concerned an application by the applicants to have the adoption of a child from Mexico registered in the Register of Inter Country Adoptions maintained by the respondent pursuant to the Adoption Act 2010. Difficulties in having the child"s adoption registered as a foreign adoption in Ireland arose by reason of the intervention of the passing and commencement of the Adoption Act 2010 and the ratification of the Hague Convention on Protection of Children and Cooperation in respect of Inter-country Adoption. The Court was faced with the task of deciding whether to recognise the adoption in the instance where the adoption had been affected in a contracting State to the Hague Convention but where the adoption did not comply with the Hague Convention.
Held by Justice Abbott, having regard to the submissions presented, child progression reports and applicable legislative instruments, that adoption was unquestionably in the child"s best interests. Taking into account the best interests of the child and having interpreted the law it was reasoned that the Court was obliged to construe the legislation under consideration in accordance with the principles of the Constitution and to allow for an interpretation of the provisions allowing the continuing use of declarations of eligibility which avoided outcomes such as invidious discrimination against persons in the applicants position. It was further stated that interpretation also forced the court to consider that s. 63 was not sufficient to repeal or revoke the vested rights of the applicants in relation to the adoption. Consequently, Justice Abbott made an order under s. 92 that the adoption be entered in the Register of Inter Country Adoptions.
JUDGMENT of Mr. Justice Henry Abbott delivered the 30th day of May 2014
1. This judgment relates to an application by the applicants to have a child, A. O'B. formerly T., adopted by them by having the applicants adoption of the child registered in the Register of Inter Country Adoptions maintained by the respondent pursuant to the Adoption Act 2010. The child was born on the 22 nd October, 2010, and was placed in the applicants care on the 26 th October, 2010, following which a Mexican court made an adoption order on the 24 th March, 2011.
2. Difficulties in having the child's adoption registered as a foreign adoption in Ireland have arisen by reason of the intervention of the passing and commencement of the Adoption Act 2010, between the commencement by the applicants of a process for a foreign adoption of a child in Ireland and ultimately, a declaration of eligibility of the applicants for such an adoption under the then existing legislation and the time for the registration under the Act of 2010 of the adoption made by the said order of the Mexican court dated the 24 th March, 2011.
3. The Adoption Act 2010, commenced on the 1 st November, 2010, and Ireland thereby ratified the Hague Convention on Protection of Children and Cooperation in respect of Intercountry Adoption - (hereinafter "the Hague Convention"). Since that date, and pursuant to article 2 of the Convention, all adoptions between Ireland and Mexico are subject to the terms and conditions of The Hague Convention. After the adoption procedure relating to the child in Mexico, and when the child was removed to this country from Mexico, by and in the care of the applicants, the applicants applied to the respondent for an entry in the Register of Inter Country Adoptions pursuant to s. 90 of the Act of 2010 of the adoption of the child.
4. The essence of the dispute between the applicants and the respondent may be conveniently summarised by quoting a letter from the Inter Country Adoption Unit of the respondent dated the 22 nd July, 2011, responding to the application for an entry in the Register of Inter Country Adoptions pursuant to the s. 90 of the child as follows:-
"I refer to your clients' application for an entry in the Register of Inter Country Adoptions (RIA) in respect of an adoption effected by them in the United States of Mexico on 28 th March, 2011. "
As you know, Ireland ratified "The Hague Convention on Protection of Children and Cooperation in respect of Inter Country Adoption" on 1 st November, 2010. Since that time and pursuant to Article 2 of the Convention, all adoptions between Ireland and Mexico are subject to the terms and conditions of The Hague Convention.
Since your clients effected an adoption in Mexico after the enactment date, the terms and conditions of The Hague Convention apply to it.
Your clients have submitted various documents in support of their application for an entry in the RIA. One of these purported to be an Article 23 Certificate issued by the judiciary of the State of BC Mexico.
Article 23 of The Hague Convention states:-
'Recognition of adoption certified by a competent authority of state of adoption
(1) An adoption certified by the competent authority of the Slate of the adoption as having been made in accordance with the Convention shall be recognised by operation of law in the other Contracting States. The certificate shall specify when and by whom the agreements under Article 17, sub-paragraph (c), were given.'
I am to say that the Adoption Authority of Ireland (AAI) has not yet been requested to approve nor has it approved any placement of a child in Mexico pursuant to Article 17 of the Convention for your clients. Since no Article 17 approval was issued by the AAI to the placement you might address how the Article 23 Certificate can be valid.
There is no provision in Irish legislation for the recognition of an inter country adoption from a Hague Convention state that has not been carried out in accordance with the terms and conditions of The Hague Convention."
5. The applicants are wife and husband respectively, both in their mid forties having married in 1998. Both applicants have at all material times lived and continued to live in Ireland. It was always their desire to have children, but they experienced fertility difficulties and undertook a number of procedures to counteract these difficulties without having the success of the conception of a child.
6. The applicants applied...
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