Tristan Dowse, an infant. Joseph Dowse and Lala Dowse v an Bord Uchtála and Attorney General

Judgment Date31 January 2006
Date31 January 2006
Docket Number[2005 No. 64 M
CourtHigh Court
Dowse v. An Bord Uchtála
In the matter of Tristan Dowse, an infant. Joseph Dowse and Lala Dowse
An Bord Uchtála and Attorney General
[2006] IEHC 64 and 65,
[2005 No. 64 M & 2005 No. 1855P]

High Court

High Court

Adoption - Foreign adoption - Cancellation - Irish adoptive parent - Failure of adoption - Child returned to orphanage - Child subsequently reunited with natural mother - Orders required - Register of foreign adoptions - Application to cancel entry in register - Powers available to court on directing cancellation - Consequent orders - Guardianship, custody, maintenance and citizenship of child - Principles applicable - Calculation of maintenance - Standard of living of adoptive parents or natural mother - Constitutional duties owed to child - Adoption Act 1991 (No. 14), ss. 4 and 7(1A) and (1B) - Adoption Act 1998 (No. 10) - Constitution of Ireland 1937, Article 42.1 and 42.5.

Practice and procedure - In camera hearing - Publication of judgment - Case involving child - Administration of justice otherwise than in public - Case heard in private - Issues of public concern - Case in public domain - Need to correct misinformation already in public domain - Competing rights of privacy as against publication - Doctrine of proportionality - Welfare of child to be paramount - Adoption Act 1991 (No. 14), s. 7(4) - European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, article 6(1).

Section 7 of the Adoption Act 1991, as amended, provides inter alia:-

"1A. The Court shall not give a direction under paragraph (b) of subsection (1) [directing the Adoption Board to procure the cancellation of an entry in the register of foreign adoptions] by reason of the fact that an adoption has been set aside, revoked, terminated, annulled or otherwise rendered void under and in accordance with the law of the place where it was effected unless the Court is satisfied that it would be in the best interests of the person who was the subject of the adoption.

1B. Where the Court gives a direction under paragraph (b) of subsection (1), it may make such orders in respect of the person who was the subject of the adoption as appear to the Court to be necessary in the circumstances and in the best interests of the person, including orders relating to the guardianship, custody, maintenance and citizenship of the person, and any such order shall, notwithstanding anything in any other Act, apply and be carried out to the extent necessary to give effect to the order."

The applicants, a married couple, adopted T. (a child born in Indonesia to a mother of the Muslim faith) subject to the provisions of Indonesian law while they were living there. The first applicant is Irish and the second applicant is Azerbaijani. The adoption was registered in Ireland in the register of foreign adoptions. Shortly after this entry in the register, the applicants discovered that they were expecting a baby. The applicants contended that the adoption of T. did not succeed and in May, 2003 they applied to the South Jakarta District Court for an order relinquishing care of T. to nominated persons. The court so ordered, but evidence was given that the said nominated persons did not take custody of T. and that he was placed in an orphanage in Indonesia and thereafter moved to a state orphanage catering for children of the Muslim faith. Some time between May, 2005 and October, 2005 contact was made with T.'s natural mother and evidence was given that T. had returned to reside with his mother in Indonesia and of her circumstances there.

The second respondent had issued proceedings against the applicants seeking orders directing them to carry out their constitutional duties in respect of T. Those proceedings were adjourned generally when it was discovered that T. had returned to the care and custody of his natural mother. The applicants then brought these proceedings seeking to have the registration of the adoption in the register of foreign adoptions cancelled and seeking the directions of the court in respect of the welfare of T.

Held by the High Court (MacMenamin J.), in cancelling the registration of the adoption, maintaining T.'s Irish citizenship, granting sole guardianship and custody of T. to his natural mother and making orders in respect of maintenance and succession rights as against the applicants, 1, that as T. was deemed to have been adopted pursuant to an Irish adoption order, he was considered in law to be the child of the applicants, having the same status as if born to them in lawful wedlock and his natural mother, prima facie, lost all parental rights and was freed from parental duties in respect of him pursuant to s. 24 of the Adoption Act 1952, as amended. As he was in law then deemed to be their marital child, the applicants owed constitutional duties to him and he in turn enjoyed constitutional rights in respect of them.

2. That there had been a clear breach of the constitutional duty owed to the child by the applicants who were his adoptive parents.

3. That, since the effect of cancellation of the registration of the adoption would be to end the inalienable rights and duties of the applicants to their adoptive son, and also to end his natural and imprescriptible rights in respect of them as his parents, the court should only make such an order if the provisions of Article 42.5 of the Constitution were satisfied. These provisions required not only a failure of constitutional duty by the parents but also that due regard be had for the "natural and imprescriptible rights of the child". Amongst the natural and imprescriptible rights of T. to which the court must have due regard was the right to have his needs, including his religious, moral, intellectual, physical and social education provided for by the applicants in accordance with their means.

4. That, where the court directed a cancellation of the registration of an adoption, it was given power pursuant to s. 7(1B) of the Act of 1991 to make such orders as were necessary to protect the person affected and as were in his or her best interests. In deciding upon the terms of such orders, the court must have regard to the conditions and lifestyle which would have been enjoyed by T. if the applicants had, and continued, to fulfil their constitutional obligations to provide for him in accordance with their means. The level of maintenance should not, as a general principle, be set against the background of the standard of living and cost of living in Indonesia.

5. That the court was not narrowly confined in respect of the specific matters mentioned in s. 7(1B) of the Act of 1991. This was clear from the use of the words "including orders relating to …". Equally, the breadth of the powers available was emphasised by the fact that any such order shall be carried out "notwithstanding anything in any other Act".

Held by the High Court (MacMenamin J.), in dealing with the extent to which the judgment should be put in the public domain, 1, that, as a constitutional and legal principle, even if cases were heard in private there might be issues which were of public concern and where the interests of justice required that after the hearing in private the judgment made therein should so far as possible be made public, having regard to the particular issues and to the doctrine of proportionality.

In re R. Ltd. [1989] I.R. 126 applied.

2. That the court had to have regard to the fact that the position in regard to the child in this case was already much in the public domain, subject to the principle that the court could not countenance a situation where the acts of some third party or persons had the effect of putting the issue of publicity regarding a case "into play".

Blunkett v. Quinn [2004] EWHC 2816 (Fam), [2005] 1 F.L.R. 648 considered.

Cases mentioned in this report:-

The Adoption (No. 2) Bill, 1987 [1989] I.R. 656; [1989] I.L.R.M. 266.

Blunkett v. Quinn [2004] EWCA 2816 (Fam), [2005] 1 F.L.R. 648.

Dharamal v. Lord Holmpatrick and Others [1935] I.R. 760; (1935) 70 I.L.T.R. 26.

Northern Area Health Board v. An Bord Uchtála [2002] 4 I.R. 252; [2003] 1 I.L.R.M. 481.

Pelling v. Bruce-Williams [2004] EWCA Civ 845, [2004] Fam. 155; [2004] 3 W.L.R. 1178; [2004] 3 All E.R. 875; [2004] 2 F.L.R. 823.

In re R. Ltd. [1989] I.R. 126; [1989] I.L.R.M. 57.

In re a Ward of Court (withholding medical treatment) (No. 1) [1996] 2 I.R. 73.

Special summons

The facts of the case have been summarised in the headnote and are more fully set out in the judgments of MacMenamin J., infra.

By way of plenary summons dated the 30th May, 2005, the second respondent commenced proceedings (2005 No. 1855P) against the applicants seeking declaratory relief and orders directing the applicants to carry out their constitutional duties in respect of the child, the subject matter of the proceedings. Those proceedings were adjourned generally with liberty to re-enter by order of the High Court of the 29th July, 2005. The applicants commenced proceedings by special summons issued the 5th August, 2005, seeking, inter alia, cancellation of the entry in the register of foreign adoptions relating to the adoption of the child, the subject of the proceedings and orders concerning his guardianship, custody, maintenance and citizenship.

The matter came on for hearing before the High Court (MacMenamin J.) on the 9th and 20th December, 2005.

On the 26th January, 2006, the High Court (MacMenamin J.) heard submissions regarding publication of the judgment.

Cur. adv. vult.

MacMenamin J.

13th January, 2006

1 By way of plenary summons dated the 30th May, 2005, the Attorney General commenced proceedings in his constitutional or legal capacity to protect the interests of Tristan Dowse born on the 26th June, 2001, who is an Irish citizen. In those proceedings, the plaintiff claimed:-

  • 1. declarations that the defendants had failed in their duty...

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