Udarás Úchtála v M

• Jurisdiction: Ireland
• Judge: Mr. Justice Donal O'Donnell
• Judgment Date: 19 October 2020
• Neutral Citation: [2020] IESC 64
• Court: Supreme Court
• Docket Number: S:AP:IE:2019:000226,[S.C. No. 226 of 2019].
• Date: 19 October 2020

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 ÚDARÁS UCHTÁLA 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

[2020] IESC 64

O'Donnell J.

MacMenamin J.

Dunne J.

Charleton J.

O'Malley J.

S:AP:IE:2019:000226

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Judgment of Mr. Justice Donal O'Donnell delivered on the 19 ^th day of October, 2020.

1 This case concerns difficulties which have arisen in respect of two intercountry adoptions. Such adoptions are now regulated by the Adoption Act 2010 (‘the 2010 Act”): commenced on the 1 ^st of November, 2010, which gave effect in Irish law to the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (“the Hague Convention”). The commencement date of the 2010 Act, which is also the date of repeal of the Adoption Act 1991 (“the 1991 Act”), is central to these proceedings. Both the children involved in these proceedings, the third named applicant, K., and the sixth named applicant, F., were born in Mexico after that date.

2 The commencement of the 2010 Act in November, 2010, altered the Irish system for the recognition of intercountry adoptions and gives rise, moreover, to the difficult legal issue at the heart of this case. Under the 1991 Act a couple could, after assessment, obtain a declaration of eligibility and suitability (“DES”), travel abroad to pursue a private placement adoption, and, on return to Ireland, seek to have the adoption registered in the Register of Foreign Adoptions. The Hague Convention created a much more structured approach. It required each signatory state to have a central authority; adopting a child from a signatory state requires the co-operation of both the central authority in the child's state of origin and that in the state to which the child is being relocated.

3 Article 17 of the Hague Convention provides for the process to be followed in respect of intercountry adoption. Article 23 of the Hague Convention provides for the issuing of a certificate by the central authority of the state where the adoption is made. These cases concern adoption processes commenced under the regime created by the 1991 Act, but which had not been completed prior to the coming into force of the 2010 Act. In each case, the local adoption effected may have been sufficient under the 1991 Act but did not comply with the requirements of the Hague Convention and, therefore, the 2010 Act. In particular, in each case the prospective adopting couple did not have an Article 23 certificate from the designated central authority. No one suggests that anyone involved in these proceedings – the adoptive parents, Údarás Uchtála na hÉireann (“the Authority”), or the Mexican authorities – have acted improperly or have failed to perform their functions. It is apparent that each of the parties involved had acted conscientiously, having regard to their differing perspectives, and each is conscious of the best interests of the individual children involved. Nevertheless, the fact is that – almost ten years after both children were born, adopted, and brought back to Ireland – they remain in a form of legal limbo and where, as it was put in the legal submissions made on their behalf, they are unrelated by the law of their habitual residence to their de facto parents with whom they live and unrelated by the law of the land of their birth to the people whom Irish law, it is said, maintains are their parents.

Facts

The Third Named Applicant: Baby K.

4 The first and second named applicants, P.P. and Y.Y., applied for an assessment of eligibility and suitability for adoption in 2006. An assessment, dated the 24 ^th of November, 2009, was carried out recommending that the couple be approved to adopt a child of either gender, as young as possible, up to the age of 15 months and, in the first appendix, acknowledged Mexico as the country of choice. Mexico was an approved jurisdiction for the purposes of adoption abroad and the procedures complied with the 1991 Act.

5 A DES was granted to the couple by An Bord Uchtála (the body to which the Authority is the successor) on the 24 ^th of February, 2010, and a further declaration was issued dated the 8 ^th of February, 2011. Six explanatory letters to the couple from the Authority and the Foreign Adoption Unit of the Irish Naturalisation and Immigration Service (“INIS”) followed.

6 The couple travelled to Mexico in November, 2010, met Baby K. and, with the consent of the birth mother, have cared for Baby K. since the 22 ^nd of November, 2010, and ultimately adopted Baby K. on the 10 ^th of May, 2011, with an adoption order made by the Family and Civil Court of First Instance in the United Mexican States. The Mexican court ruled that it would integrate the Article 23 certificate into the Deed of Adoption. The Mexican authorities subsequently advised the Authority in Ireland that the court was not a central authority for the purposes of the Hague Convention and could not issue the Article 23 certificate.

7 The High Court judge, Jordan J., accepted the couple's assertions that they believed in good faith that they had complied with all necessary requirements of the Hague Convention. Towards the end of May, 2011, the couple received the adoption decree and Baby K.'s birth certificate was issued. A passport was issued to Baby K. by the Mexican authorities on the 29 ^th of May, 2011. On the 1 ^st of January, 2011, and the 17 ^th of February, 2011, the Foreign Adoption Unit of the INIS, by letter and on the Authority's instruction, gave immigration clearance for Baby K. to travel to and enter Ireland. The couple and Baby K. arrived in Ireland on the 2 ^nd of June, 2011, and sought thereafter to have the adoption entered in the Register.

8 The couple acknowledged that, prior to travelling to Mexico, they were aware that the law was changing and they sought clarification from the Authority in this regard. In a letter issued by the Authority on the 9 ^th of February, 2011, it stated that “the bearer(s) (of the declaration) are entitled to seek an entry in the [ Register of Foreign Adoption] … upon their return to Ireland” and that “a foreign adoption … is deemed to be effected by a valid Adoption Order if … (1) as having been effected in accordance with The Hague Convention on Inter-Country Adoption (1993) or (2) the adoption must be a recognised ‘foreign adoption’ as defined in Section 1 of the [ 1991 Act] … and (3) is not contrary to public policy”.

9 There were 19 so-called “Mexican adoptions” which encountered difficulty due to the commencement of the 2010 Act. 15 such cases were resolved as a result of O'C. & Anor. v. Údarás Uchtála na hÉireann [2014] IEHC 580 (“ O'C.”). That decision was not appealed by the Authority and the adoption in that case and 14 other adoptions were duly registered. However, the Authority considered that, since Baby K. was not born by the time of the 2010 Act's commencement, vested rights could not have accrued under the 1991 Act.

10 While the Authority has maintained the position that it cannot register the adoptions in the Register of Intercountry Adoptions, it has recognised the reality that the interests of the children concerned lie in remaining in Ireland and in a stable legal structure which is consistent with the reality of their lives. The Authority suggested that the children could be adopted in Ireland by a domestic adoption order pursuant to the provisions of Part 7 of the 2010 Act. However, difficulties in regularising the childrens' position arose where the Child and Family Agency insisted on confirmation that the child was eligible for adoption before carrying out an assessment under s. 37 of the 2010 Act. At the commencement of the High Court hearing, the Child and Family Agency indicated that it was no longer maintaining such a position.

11 One feature of the case which vividly illustrates both the legal issue involved and its dramatic effect on individual cases is that Baby K. has a birth sibling in Ireland with whom they have contact. That sibling was born before the 1 ^st of November, 2010, but was not adopted in Mexico until some months after Baby K.'s adoption. Consistent with its approach to the law, the Authority entered Baby K.'s sibling's Mexican adoption on the Register, while refusing to register Baby K's. The line drawn by the law – as interpreted by the Authority – runs to divide birth siblings, both of whom were adopted after the coming into force of the 2010 Act pursuant to adoption procedures commenced prior to that date.

The Sixth named Applicant: Baby F.

12 By a letter dated the 20 ^th of February, 2007, the couple applied for an assessment of eligibility and suitability for adoption. The assessment was carried out by the regional Child and Family Centre, and recommended that they be approved to adopt one child of either sex, with the first appendix noting Mexico as the country of choice. The first DES, dated the 26 ^th of May, 2009, was issued to the couple under cover of an undated letter.

13 The couple used the services of Adoption Alliance in Colorado, United States of America, and were ultimately matched around January, 2011, and applied to renew their DES. The renewed declaration is dated the 25 ^th of January, 2011: when the couple arrived in Mexico they gave their original documentation to their Mexican lawyer.

14 Ultimately, the couple adopted Baby F., who was also not born by the time of the commencement of the 2010 Act, on the 17 ^th of May, 2011, with the adoption order made by the relevant Family and Civil Court of First Instance in the United Mexican States. The court order recited that the couple “complied with the requirements ratified by the government of the United States of Mexico in [ the Hague...