Udaras Uchtala Na Heireann v M (A Minor)

• Jurisdiction: Ireland
• Judge: Mr. Justice Jordan
• Judgment Date: 27 November 2019
• Neutral Citation: [2019] IEHC 935
• Docket Number: [2018/853 SS]
• Court: High Court
• Date: 27 November 2019

[2019] IEHC 935

THE HIGH COURT

Jordan

[2018/853 SS]

IN THE MATTER OF SECTION 49 OF THE ADOPTION ACT 2010 AND IN THE MATTER OF K (A MINOR) AND F (A MINOR) AND IN THE MATTER OF A CASE STATED BY UDARAS UCHTALA NA HÉIREANN

-AND-

PP, YY AND K (A MINOR)

XM, ZW AND F (A MINOR)

THE ATTORNEY GENERAL

-AND-

THE CHILD AND FAMILY AGENCY

NOTICE PARTIES

Adoption – Case stated – Adoption Act 2010 – Údarás Uchtála na hÉireann brought case stated – Whether pre-existing rights to adoption which survived the Adoption Act 2010 are capable of arising where the minor to be adopted was born after the commencement of the Act

Facts: By two letters dated 20th June 2017, solicitors for the parents wrote to the Chairman of Údarás Uchtála na hÉireann (the Authority) on behalf of PP and YY (in respect of the application to adopt K) and on behalf of ZW and XM (in respect of the application to adopt F). This followed meetings on 13th June 2017 between the Authority and both sets of applicants, as well as prior correspondence. The Authority had previously determined that the principles and the judgment of Abbott J in MO’C and BO’C v Údaras Uchtála na hÉireann [2015] 2IR 94 (the O’C judgment) did not extend so far as to permit it to register the adoptions of, inter alios, the two foregoing minors on the Register of Inter-Country Adoptions (the Register) in particular because the minors were born after the date of commencement of the Adoption Act 2010 (the Act) on 1 November 2010, in distinction from the situation which applied in the O’C judgment. The said letters of 20th June 2017 requested the Authority to state a case to the High Court under s. 49 of the Act. The letters submitted that the issues arising were as follows: “1. Whether the aforementioned adoption should be recognised and/or registered in Ireland on the basis that rights had vested in the Respondents prior to the commencement of the Adoption Act, 2010? 2. Whether in all the circumstances of the aforementioned adoption the High Court is satisfied that an entry with respect to same should be made in the register of inter-country adoptions pursuant to s.92 of the Adoption Act whether ancillary to and/or arising from the recognition thereof pursuant to Paragraph 1 hereof or otherwise.” The Authority considered that additional questions ought to be stated other than those sought, and accordingly a case stated was brought pursuant to s. 49(1) of the Act as well as s. 49(2) thereof, as follows: (1) For the purposes of s. 27(1) (c) of the Interpretation Act 2005 are pre-existing rights to adoption which survived the Act (as per paragraph 34 of the O’C judgment), capable of arising where the minor to be adopted was born after the commencement of the Act on 1 November 2010? (2) In the event that the answer to question one is “No”, is the Authority entitled to proceed under Part VII of the Act in respect of the applicants who were notice parties to this case stated, subject to hearing the persons in s. 53(1) (a) of the Act and the other requirements in Part VII being fulfilled? (3) Is the Child and Family Agency entitled to insist on confirmation that a child is eligible for adoption before carrying out an assessment under s. 37 of the Act?

Held by Jordan J that he would answer the questions as follows: (i) yes; (ii) does not arise in light of the answer to the proceeding question; (iii) no.

Jordan J held that he would hear the parties in relation to the issue of costs and any other matters arising from this judgment.

Case stated.

JUDGMENT of Mr. Justice Jordan delivered on 27th day of November 2019

1 Inter-country adoption as a subject of international cooperation was submitted on the 19th January 1988 by the Permanent Bureau of The Hague Conference on private international law to the Special Commission on General Affairs and Policy of the Conference. After much preparatory work and debate the Convention on Protection of Children and Cooperation in Respect of Inter-Country Adoption was concluded on the 29th May 1993. This Convention, known as The Hague Convention, was subsequently given the force of law in Ireland by the Adoption Act 2010 which came into force on the 1st November 2010. Insofar as inter-country adoption is concerned the Hague Convention is regarded as the gold standard with the force of law throughout the signatory states, numbering ninety-eight currently. As an international convention its effectiveness depends on all the signatory states adhering to its provisions as deviation from it would undermine the Agreement. Article 40 provides that, “no reservation to the Convention shall be permitted”. The Convention is designed to protect children since many children are vulnerable and open to exploitation and require the protection of the international community. The preamble to the Convention states: -

“Recognising that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding, recalling that each state should take, as a matter of priority, appropriate measures to enable the child to remain in the care of his or her family of origin, recognising that inter-country adoption may offer the advantage of a permanent family to a child for whom a suitable family cannot be found in his or her state of origin, convinced of the necessity to take measures to ensure that inter-country adoptions are made in the best interests of the child and with respect for his or her fundamental rights and to prevent the abduction, the sale of, or trafficking children, desiring to establish common provisions to this effect, taking into account the principles set forth in international instruments, in particular the United Nations Convention on the Rights of the Child, of 20th of November, 1989, and the United States Declaration on Social and Legal Principles relating to the protection and welfare of children, with special reference to foster placement and adoption nationally and internationally (General Assembly Resolution 41/85, of 3rd December, 1986)””; [the state's signatory to the Convention agreed the provisions detailed in it.]

2. One immediate consequence of the signing into law of the Hague Convention in Ireland and its commencement as and from the 1st November 2010 was that it altered the pre-existing system which prevailed in Ireland under the Adoption Act 1991 and which permitted the recognition of inter-country adoptions which resulted from private placements or privately sourced adoptions abroad. Under the Adoption Act 1991 it was perfectly permissible and appropriate for a couple who had obtained a declaration of eligibility and suitability from An Bord Uchtála, following assessment under the 1991 Act, to travel abroad with that declaration and to pursue a private placement adoption. The Convention moves the system away from the private placement option towards a public placement system. The Convention requires each signatory state to have a central authority. Adopting a child from a signatory state which is bound by the Convention requires the cooperation of the central authority in the child's state of origin and the central authority where the child is being relocated – the central authority of the receiving state.

3. Article 17 of the Convention provides as follows: -

“Any decision in the state or origin that a child should be entrusted to prospective adoptive parents may only be made if –

(a) the central authority of that state has ensured that the prospective adoptive parents agree;

(b) the central authority of the receiving state has approved such decision, where such approval is required by the law of that state or by the central authority of the state of origin;

(c) the central authorities of both states have agreed that the adoption may proceed; and

(d) it has been determined, in accordance with Article 5, that the prospective adoptive parents are eligible and suited to adopt and that the child is and will be authorised to enter and reside permanently in the receiving state.”

4. Article 23 of the Convention provides: -

“(1) An adoption certified by the competent authority of the state 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 arrangements under Article 17, sub-paragraph (c) were given.

(2) Each contracting state shall, at the time of signature, ratification, acceptance, approval or accession, notify the depository of the Convention of the identity and the functions of the authority or the authorities which, in that state, are competent to make the certification. It shall also notify the depository of any modification in the designation of these authorities.”

5. The shift in focus in terms of inter-country adoptions from the private placement process to the public placement process represented a sea change in terms of the availability of and recognition of inter-country adoptions for those couples wishing to travel abroad to adopt a child from abroad. As with other changes in the law there had to be transition provisions in circumstances where many couples hoping to adopt had already commenced the process before the Convention had the force of law in their country. This matter is before the court by way of case stated and is concerned with the situation in which two families find themselves. Each of the families consist of a couple and a child adopted by the couple in Mexico as a private placement adoption. In each case the couple had commenced the adoption process in Ireland under the 1991 Act but the child whom they adopted in Mexico was not born until after 1st November 2010 – being the date of commencement of the Adoption Act 2010 in Ireland. Essentially each couple is unable to prove compliance with The Hague Convention to the...