The Adoption Act, 2010, Section 49 (2), and JB (A Minor) and KB (A Minor)

JudgeMr. Justice John MacMenamin
Judgment Date12 July 2018
Neutral Citation[2018] IESC 30
Docket Number[S.C. No. 20 of 2017].,[Supreme Court Record No. 2017/20]
CourtSupreme Court
Date12 July 2018
Between /


Notice Parties
Notice Party

[2018] IESC 30

McKechnie J.

MacMenamin J.

O'Donnell Donal J.

McKechnie J.

MacMenamin J.

Dunne J.

O'Malley Iseult J.

[Supreme Court Record No. 2017/20]

[High Court Record No. 2016/325 SS]


Adoption – Case stated – Adoption Act 2010 – Notice party seeking to state a case – Whether an adoption was recognisable in Ireland under Part 8 of the Adoption Act 2010, or the common law

Facts: The notice party, the Adoption Authority, brought a case stated to the High Court on issues of law, pursuant to s. 49(2) of the Adoption Act 2010. Those proceedings concerned the manner in which a married couple engaged in adoption procedures relating to two children who were born in a different country. In the case stated, the Authority asked the High Court to answer a number of questions: (a) whether the adoption was recognisable in Ireland under Part 8 of the 2010 Act, or the common law (to this, the High Court judge responded "no"); (b) whether, on the facts disclosed, the Authority had jurisdiction to make an adoption order in respect of the children having regard to the pre-existing adoption, s. 45 of the 2010 Act, and any other relevant provision (the High Court judge answered "yes"); (c) whether, following the passage of the 2010 Act, and specifically the incorporation of the 1993 Hague Convention on the Protection of Children and Co-operation in respect of Inter-Country Adoptions into Irish law, that common law jurisdiction, as identified in MF v An Bord Uchtála [1991] ILRM 399, remained (in light of her previous answers, the High Court judge considered it unnecessary to answer this question); (d) whether, on the basis that MF remained good law, and on the facts disclosed in the case stated, and assuming that the adoption was not recognised in Ireland, did the original status of the children remain (to this, the High Court judge answered "yes"); (e) whether the children were eligible for adoption under s. 23 of the 2010 Act, having regard to s. 9 and s. 45 of the 2010 Act (to this the High Court judge answered "yes"). The Authority, concerned as to the potential consequences of the answers given by the High Court, applied for leave to appeal directly to the Supreme Court under Article 34.5.4 of the Constitution. In a determination issued on the 10th March, 2017, the Supreme Court acceded to that application.

Held by MacMenamin J that, regarding question (a), the adoption may, in the first instance, be recognisable on foot of decisions arising from the timely conclusion of remedial measures between the Adoption Authority and the Central Authority of the other country; subject to the outcome of those contacts, or, if necessary, otherwise, the High Court may alternatively, if satisfied, on the evidence and the law, direct the Authority to register the adoptions, pursuant to s. 92 of the 2010 Act. MacMenamin J held that the High Court may, on the basis of the evidence before it, then, consider what order best gives effect to the provisions of the law generally, s. 92 of the 2010 Act, the Explanatory Report, the Guide to Good Practice, and in light of the requirements of Article 42 of the Constitution. MacMenamin J held that only if the conditions of s. 92(1) are in the opinion of the High Court satisfied may it then direct the adoption be registered pursuant to s. 92. Regarding question (b), MacMenamin J held that the Authority does not have such a jurisdiction under those sections; it must not be asked to exercise a power contrary to its governing statute. MacMenamin J held that this does not preclude the possibility of a proceeding under s. 92 of the 2010 Act. Regarding question (c), MacMenamin J held that MF does not remain good law with regard to inter-country adoptions. Regarding question (d), MacMenamin J held that

MF is no longer good law but the original status of the children remains, as the adoption in the other country cannot be recognised in Irish law by the Authority. MacMenamin J held that this does not preclude the possibility of a proceeding under s. 92 of the 2010 Act. Regarding question (e), MacMenamin J held that ss. 23 and 45 are not directly relevant to the main issue in the case stated, which is whether an order may be made under s. 92(1) of the 2010 Act by the High Court; ss. 23 and 24 address qualifying criteria which may be relevant to this process, s, 45 is not at all relevant in this case and ss. 9 and 10 require the court to interpret the Act in accordance with the Report.

MacMenamin J held that he would allow the appeal, set aside the judgment and order of the High Court, and answer the questions in the form contained in his judgment.

Appeal allowed.


This is an appeal from a judgment of the High Court (O'Hanlon J., [2016] I.E.H.C. 738) given in response to a Case Stated by the Adoption Authority of Ireland ('the Authority') pursuant to the provisions of section 49(2) of the Adoption Act 2010 ('the 2010 Act'). The case arises from attempts by a married couple, Mr. and Mrs. B ('the applicants'), to adopt two children, a niece and nephew of Mrs. B, from their birth country, Country A, of which Mrs. B. is also a national. Five questions of law were referred to the High Court for its determination; those same questions, which are set out at para. 7, infra, remain the subject matter of this leap-frog appeal to this Court as per its Determination dated the 10th March, 2017 ( [2017] IESC DET. 25). These questions of law require interpretation of both the 2010 Act and the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, done at The Hague on the 29th May, 1993 ('the Hague Convention' or just 'the Convention'). Both Ireland and Country A are Contracting Parties to and have ratified the Convention.


When reading this judgment, it must remain foremost in one's mind that this is a Hague Convention case and that the terms of the Convention have not been complied with; and, even if it is retrospectively possible to so comply, which I gravely doubt, it is highly probable that this can never be achieved. In fact the applicants, who seek only a domestic adoption order in respect of the children concerned, and not the recognition of an intercountry adoption, engaged with the Convention in their submissions solely for the purposes of indicating how and why, in their view, it should be disregarded. Whilst understanding the motivation behind this approach, I am afraid that, for reasons which will become apparent in a moment, I cannot agree with their suggested course of action.


Likewise, I cannot subscribe to what is said to be the proposed 'pragmatic solution' suggested by the majority of the Court (see para. 117 onwards in the judgment of MacMenamin J.). To do so involves standing the Convention down and in effect creating an ad hoc parallel system of intercountry adoption, something which the 98 Contracting Parties, in signing up to the Convention, steadfastly turned their face against. As sympathetic as I am to the plight of Mr. and Mrs. B and the two children involved, it would jeopardise the entire structure and the legal certainty of this international instrument, so painstakingly negotiated over so many years, if I were to go along with the route proposed by the majority. It is not the function of this Court to find a solution, at any cost, to every case that comes before it. Sometimes that simply cannot be done. Regrettably, in my view this is one such case. Whilst undoubtedly unfortunate from the viewpoint of those involved, the overall cohesion and integrity of the Convention must prevail.


For the purposes of this judgment, whilst I gratefully adopt the comprehensive account of the background circumstances of the adoption process as set out in the judgment of MacMenamin J., nonetheless it will be necessary to articulate my views as to what role such facts ultimately play in the legal consideration of the presenting issues. First, however, it may be beneficial, in order to contextualise what follows, to briefly set out the facts as recorded in the Case Stated.

Facts of the Case Stated

Those facts, with appropriate redactions for the purposes of preserving the applicants' and the children's anonymity, are as follows:

'(a) C.B. and P.B. were married in the United Kingdom in August 2008 and have resided in Ireland since October 2006 and December 2007, respectively. They have been Irish citizens since March 2013 and October 2013, respectively.

(b) The children are sibling minors born in Country A in November 2006 and September 2008, respectively.

(c) Their natural father and mother are unmarried.

(d) They are the niece and nephew of P.B. by virtue of their natural father being her brother.

(e) By email dated 16 June 2011, C.B. was advised by the Authority that in order to adopt, prospective adoptive parents must be assessed and be legally resident in Ireland for at least one year and, accordingly, was advised to contact the HSE for advice on the process. No such assessment was applied for at that time.

(f) Instead, on 7 September 2011, P.B. (at the time solely a citizen of Country A) applied solely to the Social Development and Human Security Office of [a province in Country A] to adopt the children in Country A. The Social Development and Human Security Office of [that province] is not the Central Authority or the Competent Authority in Country A for the purpose of inter-country adoption, as provided for in the Hague Convention.

(g) The adoption of the children was approved by the Child Committee of [the province] in January 2012, which approval was notified to P.B. in Country A by letter dated 6 February 2012. The adoption was registered in Country A on 21 February 2012.

(h) On 25 April 2012, the children arrived in Ireland with C.B. and P.B. and, since that date, have lived in...

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