S.H. v A.H. and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Henry Abbott
• Judgment Date: 24 January 2014
• Neutral Citation: [2014] IEHC 82
• Docket Number: [No. 91 MCA/2013]
• Court: High Court
• Date: 24 January 2014

[2014] IEHC 82

THE HIGH COURT

[No. 91 MCA/2013]

H (S) & H (A) v Udaras Uchtala na hEireann

FAMILY LAW

IN THE MATTER OF THE ADOPTION ACT 2010, AND IN THE MATTER OF R. FORMERLY L.V.

BETWEEN

S.H.

AND

A.H.

APPLICANTS

AND

ÚDARÁS UCHTÁLA NA hÉIREANN

RESPONDENT

HAGUE CONVENTION ON PROTECTION OF CHILDREN & CO-OPERATION IN RESPECT OF INTERCOUNTRY ADOPTION [HAGUE ADOPTION CONVENTION] ART 23

M (S) & M (M) v M (G) & ORS 1985 ILRM 186

C (D) v M (D) & SOUTH EASTERN HEALTH BOARD 1999 2 IR 150 1999/5/1155 1998 IEHC 181

ADOPTION ACT 2010 S86(1)

ADOPTION ACT 2010 S88

ADOPTION ACT 2010 S86(2)

Family law - Adoption - Foreign adoption - Eligibility for foreign adoption - Adoption order - Register of Adoption - Refusal of entry to register - Jurisdiction - Statutory powers - Best interest of the child principle - Legislative interpretation - Adoption Order 2010 - 1993 Hague Convention on Inter Country Adoption

Facts: The applicants were a couple who had been assessed by the respondent as being eligible as prospective adopters for a foreign adoption. In 2011, they located a child named “R.” in Mexico and arrangements were made with the child”s mother to formalise an adoption. An adoption order was then obtained from a Mexican court, though it ruled that it would not issue a separate document as a certificate pursuant to Article 23 of the 1993 Hague Convention on Inter Country Adoption , but would integrate it into the Deed of Adoption. The Hague Convention had been ratified by Ireland on the 1st November 2010 and by Mexico on the 1st May 1995. On return to Ireland, the applicants applied to the respondent to enter R. in the Register of Adoptions. The respondent refused to do so on the basis that it lacked jurisdiction; the applicants, thereafter, brought proceedings to challenge that decision.

By way of notice of motion dated the 31^st July 2013, the applicants brought an application for the respondent to make discovery of ‘all documents relating to any entry of particulars by the respondent in the Register of Inter Country Adoptions since the commencement of the Adoption Act 2010, and of entry Inter Country Adoptions effected in Mexico and/or Inter Country Adoptions of children who were habitually resident in Mexico, including any documents relating to the applications for such entries’. It was said that such information was required to establish whether or not the respondent had the power to recognise the adoption, to determine why it believed that it did not have such power, and to uncover which sections of the Adoption Act 2010 (‘the 2010 Act’) the respondent relied upon in support of its contention. It was also said that the application should be granted because it was in the best interest of the child to do so, which was the overriding consideration of the Court.

Held by Abbott J. that pursuant to s. 88 of the 2010 Act, adoption records are to remain private ‘unless the court is satisfied that it is in the best interest of any child concerned to make the order’. It was also clear that the overriding consideration for the court in deciding any application in proceedings under the 2010 Act was the best interest of the child. Nevertheless, it was noted that in interpreting s. 88, case law seemed to indicate that the best interest principle applied to the child to whom the register or documents related, rather than to the child connected with the application.

It was further held that upon examination of the provisions of the 2010 Act, the indication of case law appeared to be well-founded given the fact that s. 86(1) stated that ‘An t-Ard Chláraitheoir shall keep an index to make traceable the connection between each entry in the Adopted Children Register and the corresponding entry in the Register of Births.’ The word ‘each’ clearly related to one child. It was, therefore, held that the words ‘any child concerned’ in s. 88 related to a specific child to whom the adoption records or documents related, and not a child who had no connection with the documents or records but was connected with an application for discovery for such documents or records. Because the information sought by the applicants did not relate to R. directly, it was held that the best interest principle could not be relied upon in support of the application. It was, therefore, refused.

Mr. Justice Henry Abbott

1 This application by notice of motion dated 31^st July, 2013, returnable for 8^th November, 2013, is for the respondent to make discovery of "all documents relating to any entry of particulars by the respondent in the Register of Inter Country Adoptions since the commencement of the Adoption...