A v Adoption Authority of Ireland

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 17 November 2021
• Neutral Citation: [2021] IEHC 784
• Court: High Court
• Docket Number: [2020 No. 1869 SS]

In the Matter of the Adoption Act 2010, Sections 49(1) and 49(3) and in the Matter of a (A Minor) and B (A Minor)

C and D

(First and Second Notice Parties)

The Attorney General

(Third Notice Party)

[2021] IEHC 784

[2020 No. 1869 SS]

THE HIGH COURT

Adoptions – Register of intercountry adoptions – Case stated – Second notice party seeking to have decrees of step-parent adoption entered onto the register of intercountry adoptions maintained by the Adoption Authority – Whether public policy concerns prevented recognition of the adoptions

Facts: The first notice party was born in England. The second notice party was born in Northern Ireland. They were married in the United States. They had three children. Two of the three children were twins, born in a US State pursuant to a surrogacy arrangement. The first notice party was the natural father of the twins. After the twins were born, the second notice party secured decrees of step-parent adoption from a court in the US State. In 2017, the second notice party made an application to the Adoption Authority to have those decrees entered onto the register of intercountry adoptions maintained by the Authority. The Authority was of the view that the application raised one or more public policy questions and thus required a Case Stated to be raised pursuant to s. 49(3) of the Adoption Act 2010.

Held by the High Court (Barrett J) that it did not see anything to suggest that the Oireachtas intended s. 125 of the 2010 Act to apply to ‘foreign domestic adoptions’ made in the habitual residence of the adopters. The court noted that s. 4 of the 2010 Act (which describes what is meant in the Act by references to the making of arrangements for the adoption of a child) appears not to apply to ‘foreign domestic adoptions’. The court saw no public policy concerns to present on the facts of the case that would prevent recognition of the adoptions. The court held that s. 145 of the 2010 Act presented no issue in the case. The court held that the standards contemplated by s. 1(c) and (d) of the Adoption Act 1991 had been satisfied, in the context of the recognition rules one could be satisfied that the children’s best interests were served and in the context of the evidence before the court as to the circumstances of the particular children, one could be satisfied in a general way for the purposes of s. 19 of the 2010 Act that the children’s best interests were served by recognising the adoptions. It seemed to the court that the high threshold for refusing, on public policy grounds, to recognise the adoptions before the court had not been met. The court noted that the opinion of an attorney of the US State indicated that only the first notice party’s consent was required and it was obtained. That, on the facts of the case before the court, ended any question as to necessary consents. The court held that no public policy issue presented, nor would such entry be otherwise inconsistent with the provisions of the Adoption Acts.

Barrett J saw no legal difficulty to present in recognising the adoptions and having them entered onto the register of intercountry adoptions.

Case stated.

Summary

Mr D adopted his husband's two children in a US state. He now wishes the adoption decrees to be entered onto the register of intercountry adoptions maintained by the Adoption Authority. The Adoption Authority has raised this Case Stated. It happens that the adoptions arose following on a pregnancy which involved a surrogacy arrangement. However, this case is not directly concerned with the surrogacy arrangement. Its particular focus is whether or not to recognise two ‘foreign domestic adoptions’, a term considered later below. The court sees no legal difficulty to present in recognising the adoptions and having them entered onto the register of intercountry adoptions.

JUDGMENT of Mr Justice Max Barrett delivered on 17 ^th November, 2021 .

A. Introduction

1 . The first and second notice parties are a same-sex male married couple. Mr C was born in England. Mr D was born in Northern Ireland. Some years ago they were married in the United States. They remain happily married today, still living in the United States, and have three children. Mr D retains strong connections with Ireland and he and Mr C come frequently to Ireland with the children. This case concerns two of the three children, referred to in this judgment as Master A and Miss B. They are twins, born in US State #1 a few years ago pursuant to a surrogacy arrangement. The third child of the family is not involved in these proceedings. So references herein to the children of the marriage are to Master A and Miss B.

2 . Mr C is the natural father of the children. The woman who gave birth to them (the surrogate mother) is referred to herein as ‘Ms E’. The egg donor was a Ms F. After the children were born, Mr D secured decrees of step-parent adoption from a court in US State #1. In 2017, Mr D made an application to the Adoption Authority to have those decrees entered onto the register of intercountry adoptions maintained by the Authority. The Authority was of the view that the application raised one or more public policy questions and thus required a Case Stated to be raised pursuant to s.49(3) of the Act of 2010.

B. Some Statutory Provisions

3 . When it comes to applicable legislation, the first ‘port of call’ in this case is the Adoption Act, 2010. The long title to that Act reads as follows:

“ AN ACT TO PROVIDE FOR THE DISSOLUTION OF AN BORD UCHTÁLA AND THE ESTABLISHMENT OF A BODY TO BE KNOWN AS ÚDARÁS UCHTÁLA NA hÉIREANN AND IN THE ENGLISH LANGUAGE AS THE ADOPTION AUTHORITY OF IRELAND; TO PROVIDE FOR MATTERS RELATING TO THE ADOPTION OF CHILDREN; TO GIVE THE FORCE OF LAW TO THE CONVENTION ON THE PROTECTION OF CHILDREN AND CO-OPERATION IN RESPECT OF INTERCOUNTRY ADOPTION SIGNED AT THE HAGUE ON 29 MAY 1993; TO PROVIDE FOR THE MAKING AND RECOGNITION OF INTERCOUNTRY ADOPTIONS IN ACCORDANCE WITH BILATERAL AGREEMENTS AND WITH OTHER ARRANGEMENTS; TO PROVIDE FOR THE RECOGNITION OF CERTAIN ADOPTIONS EFFECTED OUTSIDE THE STATE; TO REPEAL THE ADOPTION ACTS 1952 TO 1998; TO MAKE CONSEQUENTIAL AMENDMENTS TO OTHER ACTS AND TO PROVIDE FOR RELATED MATTERS.”

[Emphasis added].

4 . Section 3(1) of the Act of 2010 (s.3 is headed “ Interpretation”) provides, inter alia, that the phrase “ intercountry adoption effected outside the State” means “(b) an adoption, other than an intercountry adoption, of a child effected outside the State at any time on or after the establishment day that conforms to the definition of ‘foreign adoption’ in section 1 of the Adoption Act 1991 as it read on 30 May 1991” [Emphasis added]. For purposes of clarity the court cannot keep stating ‘limb (b) of the definition of “ intercountry adoption effected outside the State” contained in s.3(1) of the Act of 2010’. So the court hereafter (i) uses the shorthand term ‘Limb B Definition’ when referring to limb (b) of the definition of “ intercountry adoption effected outside the State” contained in s.3(1) of the Act of 2010, and (ii) uses the shorthand phrase ‘foreign domestic adoption’ when referring to the type of adoption contemplated by the Limb B Definition through its cross-reference into s.1 of the Act of 1991.

5 . As mentioned, the Limb B Definition cross-refers into s.1 of the Act of 1991, which provides as follows:

“‘foreign adoption’ means an adoption of a child who at the date on which the adoption was effected was under the age of 21 years or, if the adoption was effected after the commencement of this Act, 18 years, which was effected outside the State by a person or persons under and in accordance with the law of the place where it was effected and in relation to which the following conditions are satisfied: (a) the consent to the adoption of every person whose consent to the adoption was, under the law of the place where the adoption was effected, required to be obtained or dispensed with was obtained or dispensed with under that law, (b) the adoption has essentially the same legal effect as respects the termination and creation of parental rights and duties with respect to the child in the place where it was effected as an adoption effected by an adoption order, (c) the law of the place where the adoption was effected required an enquiry to be carried out, as far as was practicable, into the adopters, the child and the parents or guardian, (d) the law of the place where the adoption was effected required the court or other authority or person by whom the adoption was effected, before doing so, to give due consideration to the interests and welfare of the child, (e) the adopters have not received, made or given or caused to be made or given any payment or other reward (other than any payment reasonably and properly made in connection with the making of the arrangements for the adoption) in consideration of the adoption or agreed to do so”.

6 . What is before the court in this case is a form of “ intercountry adoption effected outside the State”, being the form of “ foreign adoption” contemplated by the Limb B Definition, i.e. a ‘foreign domestic adoption’. Such ‘foreign domestic adoptions’ are adoptions that take place in another jurisdiction under the laws of that jurisdiction and are availed of by persons who are either habitually resident or domiciled in that jurisdiction, and so are subject to the domestic rules of that jurisdiction. (In passing, the court notes that the observations of the Supreme Court in Re JB and KB (minors) [2019] 1 I.R. 270 and the wording of s.1 itself suggest that the proofs arising under s.1 fall to be read narrowly and in a reasonably limited manner).

7 . Under s.57(2)(b) of the Act of 2010 (s.57 is headed “ Recognition and Effects of Intercountry Adoption Effected Outside State”), amongst other matters, “[A] n intercountry adoption effected outside the State that…(ii) [h...