In the matter of the Adoption Act, 2010, Section 49 (2), and in the matter of JB (a minor) and KB (a minor) [2018] IESC 30 (16 July 2018)

i brought by the State, as guardian of the common good, for the purpose of preventing the safety and welfare of any child from being prejudicially affected, or

ii concerning the adoption, guardianship or custody of, or access to, any child,

the best interests of the child shall be the paramount consideration.”

Article 42A.4.1° does not stand alone. It was introduced as part of an amendment designed to ensure that the Constitution was more clearly child-centred. For that reason, for example, the new Article 42A.1 states explicitly that the State recognises and affirms “the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights”. As I understand it, the amendment as a whole was directed towards a perceived approach of statutory and constitutional interpretation as matter of history, which was considered to be unsatisfactory in principle, and to give rise to potentially unsatisfactory results. That is because it was considered that issues in relation to children could be skewed by the emphasis placed by the Constitution as originally enacted on the family as the natural and primary educator of children, and as a moral institution possessing rights anterior and superior to positive law, which might lead to cases being resolved a way which subordinated the interests of the child to that of a family, and in effect, therefore, of parents. This occurred perhaps most clearly in the field of the possible adoption of children born to married parents, or parents who were subsequently married. Article 42A can therefore be seen as a restating of the balance, acknowledging in explicit terms the individual rights of children, and indeed explicitly permitting the adoption of children whatever the marital status of their parents. In that context, Article 42A.4 was unremarkable, and perhaps the least significant aspect of the amendment. It is unnecessary at this stage to consider whether concerns as to the interpretation of the Constitution were justified, or to what extent any unhappy outcomes were the consequence of the text of the Constitution or the interpretation applied to it. However, the very fact that there were concerns as to the interpretation and application of the pre-2015 provisions is itself a warning against further glosses of the new provisions.

6. While I appreciate the attraction of placing some rhetorical reliance in this case on an Article of the Constitution making reference to the best interests of the child in adoption proceedings, I do not think that in truth Article 42A.4.1° can be usefully called in aid in the resolution of a case like the present. First, as McKechnie J. observes, the constitutional obligation contained in Art.42A.4.1° has been complied with. It is, explicitly, a requirement to introduce into legislation dealing with proceedings in the specified areas a provision requiring that the interests of the child be considered paramount: that is, superior to other interests that might be engaged. Such a provision is, however, set out in unambiguous terms by s. 19 of the Act of 2010. Furthermore, I consider the requirement that “provision shall be made by law” is not merely a well worn constitutional phrase, but rather has substantive importance. This is so because the ‘best interests of the child’ is a phrase with a long history in the law relating to children. There is near universal agreement on the merit of the test, but considerable scope for vehement disagreement on what the test implies in a particular case, whether between parents and children, parents themselves, relatives, social workers, lawyers, and indeed judges. The best interests test involves both broad societal judgments and individualised determinations in a particular case. In the context of a statute, it does not authorise the court to exceed the statutory limitations of the decision making process: rather, it means that, within the area in which a court has to make a decision, where there is a discretion, the decision should be made on the basis that the paramount consideration should be the best interests of the child, rather than the interests of parents, relatives, or the State itself. Article 42A.4.1° now underpins that. However, the area for decision making in which those considerations apply is defined by the statute.

7. If it were otherwise, then the effect of Article 42A.4.1°, far from being modest, would be dramatic, since it would mean that in the area of adoption, guardianship, custody and access, the legislation could be reduced to a simple provision that orders may be made or refused whenever it would be in the best interests of the child to do so, in the view of a court. This would be undesirable at a practical level, and also at the level of principle, since it would remove the Oireachtas almost entirely from the area.

8. I consider it important, therefore, to observe that I do not understand the decision of the majority in this case to give any support to this approach. That this is so can be seen by considering the nature of the hearing suggested by the Court, and the manner in which the majority decision distinguishes the judgment of the High Court inJ.M. v The Adoption Authority[2017] IEHC 320, (Unreported, High Court, Reynolds J., 17 July 2017). The focus of any proceedings seeking relief pursuant to s. 92 of the Act of 2010 would be of the innocence or otherwise of the error leading to the breach of the statutory provisions, the degree of official culpability, and the general excusability of deviation from what was contemplated by the Convention and the Act. None of these features were present inJ.M.. However, the aspects which loom large in this case, and which were correspondingly absent inJ.M., are logically distinct from any question of the best interests of the children. It might be argued in another case – and I wish to emphasise that it is not being suggested here – that where there was even a flagrant and deliberate breach of the provisions of the Convention by adults, that nevertheless the position had been arrived at where the best interests of the child might be seen to be served not just by recognition of a foreign adoption, but by a domestic adoption in Ireland. As I understand it, the Court does not consider that such a course could be open even on the most expansive interpretation of s. 92 in conjunction with s. 19 and Article 42A. The fact that the Court has expressed differing views on the question of the breadth of the jurisdiction under s. 92 should not obscure the fact that all judgments conceive of such jurisdiction as narrow, and as not extending to permitting the Court to make an order recognising a foreign adoption which does not comply with the requirements of the Convention and the Act, simply on the basis that the Court considers it would be in the interests of the children to do so. If so, it does not appear to me that Article 42A.4.1° is a necessary or, indeed, a useful guide on the interpretative issue.

9. Finally, I recognise the pragmatic considerations which make it attractive to seek to regularise the position of these children in this jurisdiction. It is true that some of the legal difficulties may be addressed at least in part by the law of guardianship, and succession issues can be addressed to a significant extent by making a will. Furthermore, the question of whether a particular group constitutes a family depends as much on the individuals within it as on any legal provision. Even so, I recognise that there are financial considerations which I do not underestimate, even if they also occur in many complex family relationships where there are difficulties of international recognition. The most serious issue, however, may relate to the residency status of the children when no longer dependent on the adult notice parties. I find it hard to envisage a humane decision-maker determining that at that point the children should be required to leave the country, still less that any such decision could survive judicial scrutiny. Nevertheless, I recognise that it remains a possibility, and that the uncertainty, worry, stress, and expense are matters which could be avoided, or at least mitigated if children could be adopted. However, I do not think that it is desirable or sensible to use the law of adoption to solve problems which may or may not occur in relation to the law of residency. The history of litigation, particularly in this area, shows that well-intentioned, short-term solutions often have long-term consequences, not just for the individuals, but for others who are not before the Court and whose interests have not been the subject of any consideration. Fundamentally, the issue in this respect is one of interpretation of the statute and the Convention. In that respect, I agree with the judgment of McKechnie J.

JUDGMENT of Mr. Justice William M. McKechnie delivered on the 12th day of July, 2018

Introduction
1. This is an appeal from a judgment of the High Court (O’Hanlon J., [2016] IEHC 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.

2. 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.

3. 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 anad hocparallel 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.

4. 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
5. 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.

(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 the care of C.B. and P.B.

(i) By email dated 3 May 2013, C.B. and P.B. commencedtheir application for a domestic adoptionin respect of the children.

(j) In accordance with sections 37 and 39 of the 2010 Act, the Child and Family Agency prepared an assessment report and recommendation in respect of C.B. and P.B. The assessment report and recommendation were furnished to the Authority on 12 December 2014.

(k) On 16 March 2015, the Authority made a declaration of eligibility and suitability in respect of C.B. and P.B. under section 40 of the 2010 Act having considered the assessment report and recommendation.

(l)No application has been submittedto the Authorityseeking an entry on the register of inter-country adoptionsin relation to the Country A Adoption and the Authority has not been invited to make and has not made any determination as to the recognition of the Country A Adoption.” (Emphasis added)

6. It should be noted that in the applicants’ view these facts, being only those as outlined in the Case Stated, are incomplete in a number of significant respects. In short, it will suffice to say at this point in the judgment that the applicants engaged in a good deal of correspondence with the authorities throughout the adoption process and were given misleading and erroneous advice on a number of occasions, both in Ireland and in Country A. This matter, which is fully explored in the affidavit evidence of Mr. B. and which is not challenged in any material way, is something that I will come back to later in the judgment.

Issues
7. As stated, five questions of law were referred to the High Court on the Case Stated. Those questions (again with appropriate amendments to protect the anonymity of the applicants and the children), and the answers given by the High Court, were as follows:

Question

: Is the County A adoption recognisable in Ireland under Part 8 of the 2010 Act or common law?

Answer: No

b.Question: On the facts disclosed in this Case Stated, does the Authority have jurisdiction to make an adoption order in respect of the children, having regard to the pre-existing Country A adoption, section 45 of the Adoption Act 2010 and any other relevant provision?

Answer: Yes

c.Question: DoesM.F. v. An Bord Uchtála[1991] I.L.R.M. 399 (“theM.F.case”) remain good law following the passing of the 2010 Act and, specifically, the incorporation of the Hague Convention into Irish law (section 9)?

Answer: Not necessary

d.Question: If so, and on the facts disclosed in this Case Stated, and assuming the Country A adoption is not recognised in Ireland, does the original status of the children remain (perM.F.)?

Answer: The original status of the children remains

e.Question: On the facts disclosed in this Case Stated, are the children eligible for adoption under section 23 of the 2010 Act, having regard to sections 9 and 45 of the 2010 Act?

Answer: Yes

8. Although leave was granted to the Authority to pursue some sixteen grounds of appeal, in essence it is these five questions which are before this Court on appeal - although, as will be seen, there is little disagreement between the parties in relation to the answer to the first such issue. It may be helpful at this point to set out the parties’ suggested answers to these questions posed. On behalf of the Authority it was submitted that the answers should be as follows:

a. The Country A adoption is not recognisable in Ireland under Part 8 of the 2010 Act or common law;

b. The Authority has no jurisdiction to make an adoption order in respect of the children on the facts disclosed in this Case Stated having regard to the pre-existing Country A adoption, section 45 of the Adoption Act and any other relevant provision;

c. TheM.F.case does not remain good law following the passing of the 2010 Act and the incorporation of the Hague Convention into Irish law and so the original status of the Children does not remain;

d. As above.

e. The Children are not eligible for adoption under section 23 of the 2010 Act, having regard to sections 9 and 45 of the 2010 Act.

9. By contrast, the applicants submit that the questions must be answered in the following fashion:

a. The Country A adoption is not recognisable in Ireland under Part 8 of the 2010 Act or common law.

b. In all the circumstances of this case, the Authority does have jurisdiction under the Act to make an adoption order in respect of the Children.

c. Save for the matters raised in the answer given to (d), it is immaterial on the facts of the present case, and having regard to the answer given to (a), whetherM.F. v An Bord Uchtálaremains good law.

d. The view of MacKenzie J inM.F. v An Bord Uchtálaat p. 402 that, for the purposes of Irish law, the original status of the child remains if a foreign adoption is not recognised in Irish law is a valid and sensible principle of general application which survives any reversal by the enactment of the Adoption Act 2010 of those other aspects of the judgment inM.F.which dealt with the specifics of the common law jurisdiction to recognise foreign adoptions and the criteria for such recognition.

e. The Children are eligible for adoption under section 23 of the Act, having regard to section 9 and section 45 of the Act.

10. The Attorney General agrees with the answers given by the High Court, with the nuance that he submits thatM.F. v. An Bord Uchtáladoes not establish authoritatively and conclusively that there ever was a common law jurisdiction within this State for the recognition of a foreign adoption based on domicile.

Core Concern
11. At its most fundamental level, the issues in this case arise out of the concern on the Authority’s behalf that were it to accede to the request for a domestic adoption order, it would be required to act in contravention of the both the Convention and the 2010 Act, which gives the Convention the force of law in this jurisdiction. The Authority characterises the Convention as “the international gold standard for adoption”, which lays down a common system of protocols in relation to intercountry adoption, requiring the cooperation and active involvement of the competent authorities in the state of origin (in this case, Country A) and in the receiving state (Ireland). As such it is fearful, and rightly so, in my view, that this international regime could be seriously undermined if it is possible to circumvent its terms, which have not been complied with for whatever reason.

Adoption: Prior to Statutory Regulation
12. The assumption of parental responsibility, either jointly or individually, in respect of children not of one’s blood has been undertaken by men and women since at least the age of antiquity (it having been a feature of the Justinian Code of ancient Rome, for example), if not indeed far longer ago than that. Disregarding the more modern role of public authorities in this area, child care (both short and long-term), placement, fostering and other arrangements - within and external to family - have been known the world over throughout history. Adoption is one such form of responsibility.

13. Thus in multiple ways, in various forms and driven by diverse motives (not always altruistic, let it be said), the concept of adoption has been known to mankind for, conservatively, several millennia. Such practices were facilitated by different social, religious and concerned groupings and whilst many were informally organised, quite a number had a recognised structure to them, being founded on rules and practices acknowledged by law (see Benet, M.K.,The Character of Adoption (London, Jonathan Cape, 1976) and Goody, E.,Contexts of Kinship(Cambridge, Cambridge University Press, 1973)). As Benet explains, the practice was widespread not simply throughout the period of the Roman Empire, but also in places as culturally and geographically distinct from one another as China, India and numerous African states, to name but a few. Its practice ebbed and flowed, as can be seen from its revival by the French Civil Code in 1902. Whilst the majority of such adoptions could be classified as domestic, there were undoubtedly some which had a cross-border element to them. As is to be expected, the architectural framework of the concept has evolved over time, both in shape and structure, so as to accommodate changing trends and shifting needs, aims and objectives.

14. As society became more affluent, as childless couples sought to redress the misfortune of infertility, and as travel became more readily available and the world more integrated, the international transfer of children began to rise. In this country alone it has been suggested that as many as 4,000 children were discretely, if not entirely furtively, moved to the United States by religious orders in the period from 1948 to 1968. Millotte poignantly quotes a report from a German newspaper in 1951 which stated that “Ireland has become a sort of hunting ground today for foreign millionaires who believe they can acquire children to suit their whims” (Milotte, M.,Banished Babies: The Secret History of Ireland’s Baby Export Business(New Island Books, 1997) at 46). Many were never to return or have contact with their parents or siblings, or even to know the human roots of who they were. By today’s standards and social norms that highly covert regime would constitute a scandal of some serious proportion. Of course it was not simply children who were moved on. Unmarried expectant couples were expected to do the right thing: emigrate, marry, give birth and then return to respectability. A great number were forced to so act. It is easy to disconnect from the past, but I speak of a time not so distant to those who lived through it, and most certainly not for those who were affected by it. Thankfully, albeit not before time and not without much suffering and great pain, we presently live in a much more humane and civilised society.

15. InWestern Health Board v. K.M.[2002] 2 IR 493, McGuinness J. further explained what was happening in the adoption sphere at the time:

“At the time of the enactment of the Adoption Act, 1952, which was the first legislation permitting legal adoption in this State, a particular problem had arisen by which prospective adopters from other jurisdictions, the majority from the United States, were taking Irish infants abroad for the purpose of adoption. In the main these were infants born to unmarried mothers who in the circumstances of the time felt themselves unable to care for their own children. There was little or no inquiry or assessment as to the suitability of the families or environments to which these infants were being brought and no evidence as to whether their removal from the State was in the best interests of their welfare.” (pp. 514-515)

See also White, G.,Church and State in Modern Ireland 1923-1979, (2nd Ed., Dublin, Gill & MacMillan, 1980).

16. Therationalebehind intercountry adoptions has of course altered throughout the years; a common explanation for this constant fluctuation relates to the changing patterns and uses of domestic adoption. The greater the number of national placements, the less necessity to travel externally. Ireland is a good example of this trend, which is also common to many other jurisdictions. Whilst it is difficult to be precise about the figures, in 2000 Selman estimated that over 30,000 children per year were the subject matter of foreign adoptions, involving about 100 different countries (Dr. Peter Selman, Selman “The Demographic History of Intercountry Adoption” in Selman (ed.),Intercountry Adoption: Developments, Trends and Perspectives(British Agencies for Adoption and Fostering 2000) at 16). There has, however, been a pronounced drop-off more recently. Selman, in surveying the total number of intercountry adoptions in 24 receiving States (including Ireland) for the period 2004-2016, has observed that from a high of 45,483 total adoptions in 2004, that figure has shrunk down to just 11,102 in 2016, with the decline being relatively constant and steady throughout that period (Selman, P. (2017)Global Statistics for Intercountry Adoption: Receiving States and States of origin 2004-2016(available at HCCH Adoption Section - Annual adoption statistics)). The figures in respect of States of origin similarly reflect this drop; of 20 States of origin surveyed in the same source, the total number of intercountry adoptions has fallen from 40,354 in 2004 to 8,708 in 2016. Though there are many possible explanations for this trend, it seems at a general level to reflect the overall tightening-up of the intercountry adoption system envisaged by the 1993 Convention. The numbers in respect of Ireland as a receiving State correspond with the overall trend, with 398 intercountry adoptions here in 2004, a high of 422 in 2008, but as few as 34 in 2014 and 54 in 2016. Interestingly, the drop-off appears to have started prior to Ireland’s ratification of the Convention in 2010; the figure for 2009 was 309 (down from 422), in 2010 it was 201, and in 2011 there were 188 intercountry adoptions, with a continuing drop from there. Again, the precise reasons for this are unclear, but it is a development worth noting.

Foreign Adoptions under the Adoption Act 1991
17. The Adoption Act 1952 was the first regulationvis-à-visdomestic adoptions in this jurisdiction, and remained the cornerstone thereof until 2010. It was a piece of major social reform at the time. However, it was another forty years before the Oireachtas undertook the task of putting in place a regime to deal with intercountry adoptions. The Adoption Act 1991 (“the 1991 Act”) reflected these intentions. Together with the amendments introduced by the Adoption Act 1998, it sought,inter alia, (i) to facilitate the recognition of foreign adoptions made in favour of persons ordinarily resident in this jurisdiction, (ii) to retrospectively validate foreign adoptions otherwise potentially void due to issues regarding “simple adoptions” (B & B v. An Bord Uchtála[1997] 1 I.L.R.M. 15) and (iii) to significantly expand the basis of recognising such adoptions, which, asM.F. v. An Bord Uchtálaand other similar cases show, was confined at common law to those lawfully effected in the jurisdiction where the proposed adopters were domiciled at the time (Dicey, Morris & Collins,The Conflict of Laws(Sweet & Maxwell, 2001) at 1081).

18. The passing of the 1991 Act, which incidentally was one of the first pieces of such legislation enacted in Europe, achieved the above objectives in a number of ways, including through the establishment of a register wherein such adoptions were noted (section 6 of the Act). From the original entry of fifty-eight first posted in 1991, the number of such adoptions recorded in the Register of Foreign Adoptions increased some tenfold in the period following. In the seventeen years up to 2008, about 5,200 entries were made, of which almost 4,000 involved the issuing of certificates of eligibility and suitability under section 5 of the Act (O’Halloran,Adoption Law and Practice(2nd Ed., Round Hall, 2010), at para. 2.14). In all the Adoption Board recognised adoptions from approximately 70 different countries (Law Reform Commission,Consultation Paper on Aspects of Intercountry Adoption Law(LRC CP 43-2007) at para. 4.13).

19. Both the 1991 Act and the amending statute of 1998 have been repealed by the 2010 Act. Nonetheless, it is instructive to have a brief look at some of their former provisions as the same, though different at the level of detail, had some associated measures which are still current as regards the relationship between the country where the adoption was effected and this jurisdiction, where it was to be recognised.

20. By virtue of the definitional section of the 1991 Act (section 1 of the 1991 Act as amended by section 10 of the 1998 Act), a foreign adoption meant an adoption effected outside the state but only if,inter alia:

• All required consents under the law of the place where the adoption was effected had been validly obtained or dispensed with;

• The adoption had 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 a domestic adoption order would have in this jurisdiction;

• The law of the foreign country required an assessment of the circumstances of the adopters, the child and the parents or guardians; and

• The law of the foreign country required due consideration to be given to the interests and welfare of the child.

Once these conditions were met, a foreign adoption registered under section 6 of the Act had the same legal effect as a domestic adoption order (seeG v. An Bord Uchtála[1980] I.R. 32; section 1 of the 1991 Act defines an “adoption order” made under that Act as an order under section 9 of the 1952 Act).

21. As referred to at para. 17,supra, from 1991 onwards, any adoption lawfully effected in a place where either or both adopters were domiciled, habitually resident, or ordinarily resident for more than one year, or where the adopters were ordinary resident in this State, was deemed, subject only to any overriding principle of public policy, to have been effected by a valid adoption order (sections 2, 3, 4 and 5 of the Act). In 1998 a fifth category was added to this list, namely, foreign adoptions effected in a jurisdiction other than those just mentioned, but one not recognised in the State where the proposed adopters were in fact domiciled or habitually/ordinarily resident, solely because the law of that place did not provide for the recognition of adoptions effected outside that place (section 4A of the 1991 Act, inserted by section 12 of the 1998 Act).

22. Furthermore, section 9 of the 1991 Act made formal provision for proof within the state of foreign adoptions. It stated that a document, duly authenticated as a copy of the document by which an adoption outside the State was effected, was to be admissible in evidence, and would presumptively be regarded as proof of its contents; furthermore, such foreign adoption was presumed to have been effected under and in accordance with that foreign law.

23. Two other provisions should be noted. Section 2(2) of the 1991 Act, as amended, inserted a measure directly relevant to the decision inM.F. v. An Bord Uchtála: it stated that the provisions of sections 2, 3, 4, 4A and 5 of the Act shall be “in substitution for any rule of law providing for the recognition of adoptions effected outside the State”. Finally, section 7 of the 1991 Act is strikingly similar to section 92 of the 2010 Act, which deals with the power of the High Court to give directions in relation to entries in the Register of Intercountry Adoptions; this is an issue which I will return to later in this judgment.

24. Even though the cross-border cooperative requirements under the Convention are much more elaborate than those set out in the 1991 and 1998 legislation, nonetheless, what provisions existed and what steps were (or were not) taken in the country of origin were undoubtedly matters of concern to An Bord Uchtála even then; examples were whether all necessary consents under the law of that place had either being obtained or dispensed with, whether appropriate inquiries were carried out and whether provisions existed by which the interests of the child could be considered. Whilst these and other such factors could be established by duly authenticated documents, and whilst an adoption so verified had a statutory presumption of validity standing behind it, nonetheless, by the time of the 2010 Act’s enactment the Board had much experience, accrued over many years, of the interaction between a country of origin and the receiving jurisdiction, namely, this State.

The Overall International Framework
25. It should be understood that whilst presently the Hague Convention is the major international instrument dealing with foreign adoptions, there are many other multilateral layers of cooperation and protection which play a positive and influential role in this context. The United Nations 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 1986, and the United Nations Convention on the Rights of the Child 1989 (“CRC”), come to mind. Furthermore, although there is no specific reference to adoption within its terms, the European Convention on Human Rights has played a significant role through its jurisprudence relative to Articles 6, 8, 12 and 14 thereof. These articles invariably interact with adoption issues and have been discussed in multiple cases before the European Court of Human Rights, such asKeegan v. Ireland[1994] 18 EHRR 342 andPini & Ors v. Romania[2004] E.H.R.R. 275. Of course the Convention applies in this jurisdiction in the manner provided for by the European Convention on Human Rights Act 2003.

The Hague Convention
26. Although it was not finalised until 1993, the Convention has its origins in the 1980s, when it was first recognised that a new convention on intercountry adoption was necessary in light of the ineffectual nature of the Hague Convention of 15 November 1965 on Jurisdiction, Applicable Law and Recognition of Decrees Relating to Adoptions (“the 1965 Convention”) and the dramatic increase in international adoptions since the 1960s. As noted in theGuide to Good Practice:The Implementation and Operation of the 1993 Hague Intercountry Adoption Convention (Guide No. 1)(Hague Conference on Private International Law, Family Law, Bristol, 2008) (“theGuide to Good Practice”):

“Intercountry adoption had increased to such an extent that it had become a worldwide phenomenon involving migration of children over long geographical distances and from one society and culture to another very different environment. It was also recognised that this phenomenon was creating serious and complex human and legal problems and the absence of existing domestic and international legal instruments indicated the need for a multilateral approach.” (para. 13)

The Hague Conference on Private and International Law (HCCH), which is a global inter-governmental organisation comprising 83 members, including the European Union, stepped into the void, as it has done on many occasions since its foundation in 1893.

27. Thus at the Sixteenth and Seventeenth Sessions of the HCCH, held in October, 1988 and May, 1993, respectively, it was decided to draw up a new convention to replace the 1965 Convention. Special Commission meetings were also held in 1990, 1991 and 1992. The draft Convention was unanimously approved on the 29th May, 1993. The Convention recognises that growing up in a family is of primary importance and is essential for the happiness and healthy development of all children. It acknowledges that the child should ideally be raised in his or her family of birth; failing that, a family should be sought in the child’s country of origin. It is only where this is also not possible that an intercountry adoption should be considered so as to provide the child with a permanent, loving home.

28. From an overall perspective, the Convention requirements for intercountry adoptions are contained in Chapter II, with Article 4 detailing the obligations on the “State of Origin” and Article 5 setting out those in respect of the “Receiving State”. Chapter III, which sets out the functions and duties of Central Authorities and accredited bodies, is not entirely germane to this case, save to note their important duties which are set out in Article 9. Chapter IV, concerning the procedural requirements in intercountry adoptions, most certainly is relevant. Chapter V relates to the recognition and effects of an adoption, with Chapter VI containing the general provisions. Per Article 40, no reservations to the Convention are permitted. The Final Clauses are contained in Chapter VII.

29. As of the date of judgment there are 98 Contracting Parties to the Convention. Ireland signed the Convention on the 19th June, 1996, but did not ratify it until the 28th July, 2010. The Convention entered into force in this jurisdiction on the 1st November, 2010, which was the date of commencement of the Adoption Act 2010. At all relevant times the principles, regulations and conditions of the Convention were applicable to both countries involved in this case, with Country A’s ratification pre-dating that of this State.

The 2010 Act
30. As previously observed, the first Irish legislation in this area was the 1952 Act, which provided the legal basis for adoption in Ireland and for the establishment of An Bord Uchtála. That Act was amended in 1964, 1974, 1976, 1988, 1991 and 1998. The law in Ireland has since been consolidated in the Adoption Act 2010, which now constitutes a complete code in respect of Irish adoption law.

31. The long title of the 2010 Act sets out,inter alia, the following purposes of the 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;

• 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; and

• to repeal the Adoption Acts 1952 to 1998.

32. A number of provisions of the 2010 Act are of direct relevance to this appeal. These include sections 9, 10, 19, 20, 23, 26, 33, 34, 37, 45, 57, 90 and 92, all of which are material to the issues under discussion to some greater or lesser extent. It would, however, be unduly burdensome to the reader to quote each of these provisions in its entirety; accordingly, I will introduce them where appropriate.

33. Section 9 provides that the Convention has the force of law in the State, while section 10 states that judicial notice shall be taken of the Explanatory Report to the Convention prepared by Gonzalo Parra-Aranguren (“the Explanatory Report”) and that due regard shall be paid to that report when interpreting the Convention. Section 20 confers on the authority the power to make an adoption order, as defined by the Act, and to recognise intercountry adoptions effected outside the state. Subsection (4) goes on to state:

“(4) In making an adoption order, the Authority is required to take into account—

(a) the relevant assessment report prepared under section 37 , and

(b) the relevant declaration of eligibility and suitability if one has been issued under section 40 .”

Subsection (5) in effect replicates the requirements of subs (4) regarding foreign adoptions. It reads as follows:

“(5) In recognising an intercountry adoption effected outside the State, the Authority may take into account—

(a) the relevant instrument prepared by or on behalf of the Central Authority of that other state that is the equivalent of the assessment report referred to in subsection (4)(a), and

(b) the relevant instrument prepared by or on behalf of the Central Authority of that other state that is the equivalent of a declaration of eligibility and suitability.”

34. Sections 23 and 26 are mandatory: there shall beno adoption unless the conditions specified in both sections are satisfied.Under section 23(1)(c), to be adopted a child must be “an orphan or … born to parents not married to each other”. Under section 26, all appropriate consents must be obtained, unless dispensed with by the High Court.

35. Sections 33-41, inclusive, deal with the eligibility and suitability of the proposed adopters. Section 34, like sections 23 and 26, forbids the making of an adoption order, or the recognising of an intercountry adoption, unless the applicants are suitable persons to have parental rights and duties in respect of the child and satisfy the other requirements of that provision. An assessment of the applicants to that effect is provided for in section 37, with the ultimate declaration of eligibility and suitability being governed by section 40. Finally in this context, a copy of such declaration, if one should issue, is admissible in evidence in any legal proceedings (section 42).

36. However, whilst both the Act and the Convention complement each other and many of their provisions are overlapping, it is the Convention which provides the fundamental foundation for intercountry adoptions

The Convention applies to this Case
37. Article 1(a) of the Convention recognises the necessity to establish safeguards to ensure that intercountry adoptions are made in the best interests of the child and with respect for his or her fundamental rights. Article 1(b) provides that an object of the Convention is the establishment of a system of co-operation amongst Contracting States to ensure that those safeguards are respected and thereby prevent the abduction, the sale of, or traffic in children. Article 1(c) adds the objective of securing the recognition in Contracting States of adoptions made in accordance with the Convention. The provisions of Article 1 are reflected almost verbatim in the preamble to the Convention.

38. Article 2 sets out the scope of the Convention; it provides that:

“(1) The Convention shall apply where a child habitually resident in one Contracting State (“the State of origin”) has been, is being, or is to be moved to another Contracting State (“the receiving State”) either after his or her adoption in the State of origin by spouses or a person habitually resident in the receiving State, or for the purposes of such an adoption in the receiving State or in the State of origin.

(2) The Convention covers only adoptions which create a permanent parent-child relationship.”

39. Chapter II, under the heading of “Requirements for Intercountry Adoptions”, specifies when such an adoption may take place. It contains two Articles, Articles 4 and 5. The former concerns the obligations of the competent authorities of the State of origin, and the latter relates to the obligations on the authorities of the receiving State. Article 4 reads as follows:

“An adoption within the scope of the Convention

shall take place only if the competent authorities of the State of origin

a) have established that the child is adoptable;

b) have determined, after possibilities for placement of the child within the State of origin have been given due consideration, that an intercountry adoption is in the child's best interests;

c) have ensured that … ” (Emphasis added)

The requirements as mentioned in subparagraph (c) go on to deal with the necessity to obtain the consents of various persons who are directly involved in or affected by a proposed adoption.

40. Article 5 states that such an adoption within the scope of the Convention “shall take place only if the competent authorities of the receiving State:

a) have determined that the prospective adoptive parents are eligible and suited to adopt;

b) have ensured that the prospective adoptive parents have been counselled as may be necessary; and

c) have determined that the child is or will be authorised to enter and reside permanently in that State.” (Emphasis added)

41. It is clear from the plain wording of these and several other Articles that compliance therewith is mandatory; therefore, reliance on interpretative principles is hardly required, but since such have been referred to I should mention them.G v. An Bord Uchtála[1980] I.R. 32 andNorthern Area Health Board v. An Bord Uchtála[2002] 4 IR 252, two cases where a purposive approach to adoption legislation was suggested, dealt solely with domestic adoptions. Whilst the end point for all those involved is the same, the journey from inception to finality differs greatly.H.I. v. M.G. (Child Abduction - Wrongful Removal)[2000] 1 I.R. 110 dealt with an entirely different convention, the Hague Convention on the Civil Aspects of International Child Abduction, 1980 (“the 1980 Abduction Convention”), the aims, purpose and objectives of which differ greatly from the Convention the subject matter of this case, as of course does the essential text itself. Fundamentally, the Abduction Convention has as its ambition the return of the child to those in whose care he or she was, whereas the 1993 Adoption Convention is intended to have precisely the opposite effect.

42. In any event, whilst I agree that a question of statutory interpretation is involved, it is one which must be seen through the prism of its international context. In short, the reality of what is involved simply cannot be discarded, which is that the Convention must be operated by ninety-eight countries, spread across six continents, involving breathtaking diversity in virtually every sphere of human interaction and indeed in their respective legal systems. As such, there is very little scope for creativity at individual State level, let alone at singular case level. Reviews take place periodically: these are structured and must remain at inter-State level. The last, so far as I can tell, took place in June 2015. Some seventy-four States and nineteen international organisations participated, with more than 250 participants giving their views. Such is the forum for discussion and, if thought necessary, change. Moreover, any doubt on the Convention’s mandatory nature is entirely removed by the Explanatory Report (para. 33,supra), which emphasises this obligation in several areas, covering many Articles (see, for examples, paras. 70, 76, 108, 109, 110, 113, 173 and 175).

43. Paragraphs 70, 76 and 175 offer a flavour of what is involved:

“70. The first paragraph reproduces the text of the draft (article 2) and includes in the English text the words ‘shall apply’ to

stress the mandatory character of the Convention, making it clear that all intercountry adoptions granted by the Contracting States must comply with the conventional rules

. It was accepted by consensus that this mandatory character was the only manner to achieve some of the main objects pursued by the Convention,

i.e.,

the protection of the best interests of the child as well as the respect for his or her fundamental rights (sub-paragraph

of Article 1): to prevent abuses, such as abduction, the sale of, traffic in, and other illegal or illicit activities against children (sub-paragraph

of Article 1), and to secure the recognition in Contracting States of adoptions made in accordance with the Convention (sub-paragraph

of Article 1).” (Emphasis added)

“76. According to Article 2, the prospective adoptive parents must be habitually resident in the receiving State at the time when they present their application for adoption, as prescribed also by Article 14, and the condition of the child's residence in the State of origin shall be fulfilled when the duties imposed by Article 16 are to be discharged by the Central Authorities. Therefore, the Convention’s rules will have to be observed, even if either the prospective adoptive parents or the child establish afterwards their habitual residence in another Contracting State.”

“175. The conditions sanctioned by Article 5 have to be fulfilled cumulatively, but it is to be kept in mind that they are only minimum safeguards and for that reason, the receiving State is free to impose the verification of additional requirements.”

Furthermore, the Convention, in both design and outcome, is prospective in operation.

44. It is not difficult to see why this approach is so. Under Article 23, the terms of which are reflected in section 57 of the 2010 Act, an adoption duly certified by the competent authority as having been made in accordance with the Convention is, by operation of law, automatically recognised in other Contracting States, whereas previously a further application was required in most receiving states. As can readily be understood, the certification process is fundamental to the functional operability of the Convention, whose structure is one of cooperation and shared distribution of responsibility between the States involved: hence the necessity for mandatory compliance (see also para. 51,infra).

This Case
45. The circumstances outlined in the Case Stated, and for that matter in the affidavit evidence of Mr. C.B., fall squarely within Article 2(1) of the Convention on any view of the facts. The children were habitually resident in a Contracting State, Country A, and it was the declared intention of the applicants that they and the children would move to another Contracting State, Ireland. In some respects it is immaterial whether this happened (i) after their adoption in Country A by Mrs. B, a person habitually resident in Ireland, or (ii) for the purposes of such an adoption in Ireland by the applicants, who are habitually resident in this jurisdiction. On either view, the situation of the children clearly comes within the scope of Article 2 of the Convention. The case likewise falls within the definition of an “intercountry adoption” under section 3 of the 2010 Act.

46. Such conclusion is not in doubt. What is asserted, however, is that by virtue of their move to this country and the changed circumstances which have existed since then, such designation and its consequences have lapsed, and thus can be disregarded. To follow such a route is not only diametrically contrary to the Convention but - and I have never been a supporter of the totally overused “floodgates” argument - it could lead, not, I suspect, to a cascading collapse, but to an incremental and insidious practice, highly difficult to monitor at Convention level, whereby best practices are stood down. To permit such an outcome would be to unduly sacrifice the overall safety, protection and wellbeing of the multiple children whom the Convention is designed to serve.

Non-Compliance with the Convention
47. It is, moreover, equally clear that the mandatory requirements for an intercountry adoption have not been made out. Indeed, of this there is no dispute. However, given my view of the fundamental need for such compliance, it is perhaps worth detailing the myriad ways in which the present situation fails to satisfy same. This is not a case of mere non-compliance with a technical aspect of the Convention regime; though I attribute no blame to the applicants in saying so, it is common case that there has been practically no engagement with the Convention scheme at all. Accordingly, each and every one of the safeguards which ought to apply has effectively been stood down. It is to be stressed that there is no suggestion ofmala fidesfrom any quarter, but then the same is not required in order to show a failure to meet a procedural safeguard of the Convention.

48. Turning then, to the obvious deficiencies of the adoption in this case from a Convention perspective. Chapter II, as above noted, is headed “Requirements for Intercountry Adoptions”. At the most basic level, neither the competent authorities of Country A nor the Country A Central Authority were involved in the adoption at any level. Despite initial contact being made with the Irish authorities, they too did not participate in the process in the manner envisaged by the Convention. Accordingly, there was total non-compliance with Articles 4 and 5 of the Convention, in that the competent authorities of Country A did not:

- Establish that the child is adoptable (Article 4(a));

- Determine, after possibilities for placement of the child within Country A had been given due consideration, that an intercountry adoption is in the children’s best interests (Article 4(b)) (it being remembered that a foreign adoption is not the preferred means of safeguarding a child’s welfare - such is very much a subsidiary option (see Article 21(b) of the CRC and para. 120 of the Explanatory Report);

- Ensure that:

o the persons, institutions and authorities whose consent is necessary for adoption had been counselled as may be necessary and duly informed of the effects of their consent, in particular whether or not an adoption will result in the termination of the legal relationship between the children and their family of origin (Article 4(c)(1));

o such persons, institutions and authorities had given their consent freely, in the required legal form, and expressed or evidenced in writing (Article 4(c)(2));

o the consents had not been induced by payment or compensation of any kind and had not been withdrawn (Article 4(c)(3));

- Ensure, having regard to the age and degree of maturity of the children, that:

o They had been counselled and duly informed of the effects of the adoption and of their consent to the adoption, where such consent is required (Article 4(d)(1));

o Consideration had been given to the children’s wishes and opinions (Article 4(d)(2));

o The children’s consent to the adoption, if required, had been given freely, in the required legal form, and expressed or evidenced in writing (Article 4(d)(3)); and

o Such consent had not been induced by payment or compensation of any kind (Article 4(d)(4)).

49. Similarly, the competent authorities in Ireland did not:

- Determine that the prospective adoptive parents are eligible and suited to adopt (Article 5(a));

- Ensure that the prospective adoptive parents had been counselled as may be necessary (Article 5(b)); or

- Determine that the child is or will be authorised to enter and reside permanently in the State (Article 5(c)).

50. Moreover, as a consequence of the non-involvement of the relevant authorities there was a failure to comply with many of the procedural requirements for an intercountry adoption as contained in Chapter IV.

- The Irish Central Authority did not prepare a report on the applicants’ identity, eligibility and suitability to adopt (Article 15(1));

- As a result, the Irish Central Authority did not transmit any such report to the Country A Central Authority (Article 15(2));

- The Country A Central Authority did not prepare a report on the children’s adoptability (Article 16(1)(a)), did not give due consideration to the children’s upbringing and to their ethnic, religious and cultural background (Article 16(1)(b)), did not ensure that consents had been obtained in accordance with Article 4 (Article 16(1)(c)), and did not determine, on the basis of the relevant reports, whether the envisaged placement was in the best interests of the children (Article 16(1)(d));

- Accordingly, no such report was transmitted to the Irish Central Authority, nor was any proof of the necessary consents (Article 16(2));

- The Country A Central Authority did not ensure that the prospective adoptive parents agreed that the children should be entrusted to them (Article 17(a));

- The Irish Central Authority did not approve any such decision (Article 17(b));

- The Central Authorities of both States did not agree that the adoption may proceed (Article 17(c));

- It has not been determined, in accordance with Article 5, that the prospective adoptive parents are eligible and suited to adopt (Article 17(d));

- The Central Authorities of both States did not take all necessary steps to obtain permission for the children to leave Country A and to enter and reside permanently in Ireland (Article 18);

- The requirements of Article 17 were not satisfied such as to authorise the transfer of the children to Ireland (Article 19(1));

- The Central Authorities of both States did not ensure that this transfer took place in secure and appropriate circumstances (Article 19(2));

- The Central Authorities have not kept each other informed about the adoption process and the measures taken to complete it (Article 20);

- And of course, as had to follow from the above, there is no (and there could not be a) certificate by the appropriate authority certifying that the adoption was Convention-compliant (Article 23).

51. As noted at paragraph 283 of the Explanatory Report, “[a]fter some discussion in the Special Commission, consensus was reached as to the mandatory character of the rules of Chapter IV … they are not a facility available to the parties, but must be applied in all cases.” Further confirmation of the mandatory character of individual Articles is also given in the Explanatory Report (see, for example, para. 290: “The rule established by Article 14 is mandatory”). This is put beyond doubt by paragraph 312 of theGuide to Good Practice, which states that:

“312. The procedural requirements for each intercountry adoption under the Convention are prescribed in Articles 14 to 22 of the Convention (Chapter IV). These rules are mandatory and must be followed for every adoption, including in-family adoptions.”

Thus, as is accepted by all, there has been a total failure in this case to comply with the requirements of the Convention at any level.

52. As a consequence of this non-compliance there has also been, as one can imagine, similar non-compliance with various provisions of the 2010 Act, only one of which I wish to specifically refer to at this point. Pursuant to section 90(4) of the Act, any proposed adopter must make application to the Authority, not later than three months after the child first enters the State, to have certain particulars entered on the register of intercountry adoptions. Failure to do so constitutes an offence punishable with a fine and/or imprisonment for up to six months (see sections 147(4) and 148(4) of the 2010 Act). I make this point solely to draw attention to the importance that the Oireachtas has ascribed to this matter.

53. In their submissions the applicants are impatient with the consequences which the Authority suggests must follow from this situation. They point to two English cases which, from their reading, preserve a common law power to recognise foreign adoptions, despite the United Kingdom being a Contracting Party to the Hague Convention. They say that such a position is neither inconsistent with Article 40 of the Convention, nor is it damaging in an overall way to its proper and efficient operation. Although I think that this conclusion is based on a misreading of what was involved in these cases, I confess not to be entirely clear on one point from a reading of what was stated.

54. InK.K. v. L.K.; Re R. (a Child) (Adoption Abroad)[2012] EWHC 2956 (Fam), Hedley J. was dealing with an application to have the English courts recognise an Indian adoption, which was validly made in that country. Having made it clear that India was a signatory to the Convention, the learned judge immediately went on to note that such country had excluded private placements from the scope of that measure, as the instant adoption had been. Accordingly, “the Hague 1993 route was not available to him”.

55. Hedley J.’s approach in such circumstances was to identify the criteria for the recognition of adoptions in non-Convention cases. He found that these, subject to one elaboration, were set out inRe T and M (Adoption)[2011] 1 FLR 1487 (“Re T and M”). Having dealt with those he then turned to what he described as the “jurisdictional question”, which immediately required consideration ofRe Valentine’s Settlement[1965] Ch. 831; [1965] 2 All E.R. 226 (“Re Valentine’s Settlement”). In that case the Court of Appeal refused to recognise a South African adoption as the adoptive father was domiciled in what was then Southern Rhodesia, and as the domicile of a married woman was still dependent on her husband, it necessarily followed that his wife was likewise so domiciled in that country. Therefore the adoption, the recognition of which was sought, was obtained in a country where neither proposed adopter was domiciled.

56. The learned judge then considered the qualifying conditions for adoption (section 49(2) and (3) of the Adoption and Children Act 2002 (“the 2002 Act”)), and having noted that the concept of domicile dependency was well gone, took the view that theratio of Valentinepermitted recognition of the adoption so obtained in the circumstances of the case, where the husband was domiciled in India. On the facts he so found.

57. The second case referred to was the decision of Moor J. inRe J. (A child) (Foreign Adoption Order)[2012] EWHC 3353 (Fam), again a case concerning the adoption of an Indian child, but with the recognition application being based solely on the court’s inherent jurisdiction. It is evident, as expressly confirmed at para. 10 of the judgment, that this also was a non-Convention adoption, but we are not told the reasons for this. The learned judge seems to have approached the matter via connecting routes, namely, by first applying the “welfare” test as set out in section 1 of the 2002 Act and, secondly, by applying the same domicile principle of law as Hedley J. inRe T and Mhad extracted fromRe Valentine’s Settlement. In this manner he concluded that the court did have power at common law to recognise the adoption in question.

58. What is clear from both judgments is that the application to recognise the adoption effected abroad was not brought pursuant to the Hague Convention, as that measure did not apply to the adoption so effected. Why that was the case was explained by Hedley, not so by Moor J.; in the first instance it seems to have been related to the exclusion of private placements provided for by Indian law. Being a Contracting State, however, it is not self-evident why all adoptions with another such state are not required to be Convention-compliant;International Adoptionby Cabrezaet al(2012) would seem to suggest that they should be (see para 2.3). At this remove, I am not certain if any productive explanation could be achieved by further independent research. From the English perspective, I have considered the 2002 Act, including sections 1, 47-52, and 66 and Chapter 6, which deals with adoptions with a foreign element. All I would venture to say is that there are some complicated provisions within this Act which may well relate to the relationship which England has,inter alia, with “overseas countries”, as understood in English constitutional law (and as identified in the Adoption (Designation of Overseas Adoptions) Order 1973, as amended), in which places adoptions so obtained are statutorily recognised (section 66(1)(d) of the Act). In fact Cabreza seems to suggest that adoption with a foreign element may fall into any one of four different categories: a Convention adoption, an overseas adoption, an adoption not recognised as either, or an adoption domestically of a child brought to England from the country of origin for that purpose (para. 1.10). In any event, as the situation was not fully explained, nor did it have to be, and without a greater understanding of the basis for these decisions, I do not think that the applicants’ reliance on such judgments can advance their argument in this context.

The High Court Judgment
59. In the High Court, O’Hanlon J. first referred to the preambles to the 2010 Act and the Convention, noting that it is common case that the Country A adoption is not recognisable in this jurisdiction and that it was not carried out in accordance with the requirements of the Convention. No party sought to suggest otherwise. In fact, as noted earlier, the applicants were not seeking recognition of a foreign adoption, had not made an application to the Authority for entry on the Register of Intercountry Adoptions, and accepted that the Country A adoption was not recognisable in Ireland: in such circumstances the Court considered that the answer to question (a) must be that the Country A adoption is not recognisable in Ireland under Part 8 of the 2010 Act or at common law (para. 47).

60. Next the learned judge turned to the applicants’ contention that the proposed adoption order would not be a “re-adoption” under section 45 of the 2010 Act, on the basis that there has been no antecedent “adoption order” within the meaning of the 2010 Act, and secondly, that the Country A adoption is not recognisable. She referred to the judgment of Abbott J. inM.O’C. & B.O’C. v. Údarás Uchtála na hÉireann[2014] IEHC 580, to the effect that if a common law power did exist, it would be applicable only to situations which are not covered by the Convention and the 2010 Act. In this respect she considered as persuasive the Attorney General’s submission that some latitude is compatible with the Convention framework, provided that the exceptions regarding such recognition are of a limited character and do not act as a gateway to circumvent its provisions (para. 50).

61. The second question for the Court asked whether the Authority has jurisdiction to make an adoption order in respect of the children having regard to the pre-existing Country A adoption, section 45 of the 2010 Act, and any other relevant provision. The learned judge was of the view that as the previous adoption is not recognisable, she would deal with this point in the context of section 45 of the Act, noting the applicants’ submission that the children are legally eligible for adoption under this and other provisions of the 2010 Act.

62. The judge then framed the core question posed in the Attorney General’s submissions as being “whether a foreign adoption which does not comply with the Hague Convention and is not recognisable under Irish law has any effect within the State.” The central finding of the trial court is set out at paragraph 52 of its judgment, and states in answer to that question that “given that the [Country A] adoption is not a recognised adoption in this State, it cannot therefore preclude the Authority from making an adoption order in relation to the children.”

63. O’Hanlon J. stated that a purposive interpretation of the 2010 Act was appropriate. She referred to the decision of this Court inB. v. An Bord Uchtála[1997] 1 I.L.R.M. 15, where it was said by Murphy J. that section 18 of the 1952 Act (a statutory precursor to section 45 of the 2010 Act) did not preclude a second adoption order being made outside the restrictive scope of a situation where the adopters have died, giving as an example where the adopters had failed in their moral duty as parents. She noted the submission that section 45 is drafted in permissive terms and was of the view that such should not be seen as a bar to the making of an adoption order in this case, as the children have not previously been made the subject of an order as defined in section 3 of the 2010 Act (para. 53).

64. Turning to the issue of whether the children are eligible for adoption under section 23 of the 2010 Act, the learned judge noted that the applicants had placed significant emphasis on the fact that the children are and have been habitually resident in Ireland, independent of their natural parents, for a significant period of time. The applicants had argued that this gave the Authority jurisdiction to make an adoption order based on said habitual residence. Moreover it had been suggested, in reliance on Article 42A of the Constitution, that such an order would be in the best interests of the children (para. 55).

65. The Attorney General, meanwhile, took the position that if there is non-recognition of a foreign adoption, then the status of the child is to be understood within Ireland as being that prior to the foreign adoption, and accordingly they remained the un-adopted children of unmarried natural parents who were consenting to the adoption. In the Attorney General’s view the children were therefore eligible for an Irish domestic adoption. The High Court agreed, concluding in answer to question (e) that “these children are eligible for adoption under section 23 of the Adoption Act 2010 as set out earlier in this judgment” (para. 56).

66. The learned judge also added that she accepted the Attorney General’s submission that the powers of the High Court under the 2010 Act are co-extensive with the Authority’s powers and that, if the children are eligible for a domestic adoption, the Authority has jurisdiction to make that order without the direction of the High Court.

67. Thus the outcome of the Case Stated was that the Authority has jurisdiction to make an adoption order in respect of children from Country A, notwithstanding that there exists a pre-existing adoption order from that country that is not Convention-compliant. Although O’Hanlon J. stated that it was not necessary to come to any conclusion in relation to whether theM.F.case remains good law, it is difficult to disagree with the Authority’s contention that, in practical terms, the judgment of the High Court followedM.F.to the letter and clearly approved its continuing application. In its submission, the learned judge was wrong to do so in light of the “intervening, significant changes in the law achieved by the 2010 Act.”

68. I will turn now to the questions before the Court.

Question (a) of the Case Stated: can the Foreign Adoption be recognised in Ireland under Part 8 of the 2010 Act or at common law
69. Little time is required on this issue as all the protagonists are at one: the County A adoption cannot be recognised under either Part 8 of the 2010 Act or at common law. None of the parties have argued otherwise. However, as MacMenamin J. has suggested that the Court has power to authorise the Authority to make such an order, albeit under different provisions, this is a point that I will return to later.

Question (b): the role of section 45 of the 2010 Act
70. This provision is quite similar to section 18 of the 1952 Act , and reads as follows:

“45.— Where a child’s adopters have died—

(a) a further adoption order may be made in respect of the child, and

(b) for the purposes of the order, the child shall be taken to be the lawful child of the deceased adopters.”

71. Whilst it is not entirely clear what the learned judge took from this provision, she certainly held the view, citingB v. An Bord Uchtála[1997] 1 I.L.R.M. 15, which dealt with its statutory precursor, that this section did not preclude a further adoption outside the circumstances expressly recognised by its terms, citing as an example the situation where the original adopters had failed in their moral duty as parents. Giving the provision a purposive approach, and applying that decision, she held that the section was not a bar to making an adoption order in this case, and at least implied that, perhaps followingB, it may even authorise it. I hope that I am not being unfair with the point last made. However, if I am right in this regard, I must say that I have grave doubts that the judgment given by Murphy J., on behalf of the Supreme Court, inBcan be read as further extending the example which he gave in that case.

72. The issue inBarose in the following way. The applicants, three couples, each wished to adopt a Chinese child. As part of the ongoing process still alive in that country, the relevant adoption authority wanted an assurance that if an adoption order was made, it would be recognised in the receiving state, Ireland. They therefore applied for entries under section 6 of the 1991 Act. The problem facing An Bord Uchtála was that under section 1 of that Act, an essential condition for the recognition of a foreign adoption effected outside the state was that such had to have essentially the same legal effect, in terms of the creation and termination of parental rights and duties, as it would if the adoption was effected by an Irish adoption order. In China that did not appear to be the case, as an adoption effected under its laws could be terminated by agreement between the parties. Being of the view that this was fundamentally different from the nature and effect of an adoption order made under Irish law, the issue ended up in the Supreme Court following a decision of the High Court on an application for judicial review.

73. The only express reference to section 18 of the 1952 Act in the judgment of the Court, delivered by Murphy J., appears on page 26 of the report. It reads as follows:

“There is express provision in the Adoption Act 1952 (s. 18) permitting a further adoption order to be made in respect of a child where the original adopters (or the sole adopter) has died. Indeed it may well be that adoptive parents might comply with the conditions enabling them to put up an adopted child for readoption and there does not appear to be any statutory embargo on the natural parents — subject to compliance with the statutory conditions — obtaining an adoption order in respect of their own child. However even if such a procedure is statutorily permissible it is in practice virtually impossible. Undoubtedly a second adoption order may be made in relation to a child in respect of whom an order is made by virtue of s. 2 of the Adoption Act 1988, that is to say, an adoptee in respect of whom the adopters have failed in their parental duty. Accordingly it would seem that the concept of permanence as an incident of adoption is not absolute in this jurisdiction. Our legislation does recognise that adopters may lose the rights and duties which they acquire by an adoption order so that the possibility of such an event does not necessarily undermine the essence of adoptions here.”

74. If I might make a number of comments in respect of this passage. First, it was dealing with a situation where what are sometimes referred to as “simple adoptions” were the only type permitted in the State of origin. The reliance on section 18 was in order to pull back from what was generally recognised as a peculiar but definite incidence of adoption, namely, the permanent termination of the parent-child relationship (see the comments of Bingham M.R. inRe B (Adoption: Jurisdiction to set aside)[1995] 2 FLR 1 at 10; see also section 1 of the 1991 Act as amended by section 10 of the 1998 Act, which reflected what was decided inB v. An Bord Uchtála, and now section 57(3) and (4) of the 2010 Act). Of more significance, however, is the fact that the observations of the Court could not be considered as other than reflecting Article 42.5 of the Constitution in its then form, which enabled the state to take the place of parents who have failed in their responsibility and duties to a child. In fact the Court did not even have to rely on this provision, for at the time it had been given statutory recognition in sections 2 and 3 of the Adoption Act 1988. Therefore re-adoption, where the adopters had died, and where the State stepped in, had both a legal and a constitutional basis, which fully explains this reference. Accordingly, I cannot read the judgment in any more expansive a way than this.

75. In any event, I would agree, but only on the basis of the definition of an “adoption order” in section 3 of the 2010 Act, thatex faciethe section would not constitute a prohibition “per se”,but, for reasons outlined elsewhere, I do not consider that it has any application to this case.

Question (c):M.F. v. An Bord Uchtála
76. This too was a Case Stated to the High Court by An Bord Uchtála (“the Board”), pursuant to the then-applicable section 20 of 1952 Act, arising out of an application made to the Board for an adoption order. The mother, referred to as M.F., of the infant in question was the person seeking the order. She had become pregnant at the age of 17 and travelled to England, where the child was born on the 9th December, 1973. The child was given the name M.P.G, the surname being that of the child’s father. Although it was hoped by the mother that she and the father might marry, that was not to be and the relationship ended.

77. She decided that she would return to Ireland with her child. Wishing to give the child her own name, she consulted a social worker. In a similarity with this case, the social worker, though doubtless endeavouring to give the best advice possible in the circumstances, put the mother on a path beset by unforeseen complications and consequences for both mother and child. The social worker’s advice was that the mother should adopt the child, thus avoiding the effects of illegitimacy and permitting the child to take the mother’s name. The mother followed this advice. She later returned to Ireland, married and had children by her husband. However, difficulties arose as a result of having a child in the family whose name was different to her married name. As a result, the mother and her husband applied to the Board to adopt the child.

78. At the time, section 10(c) of the 1952 Act, as amended, stated that “[a]n adoption order shall not be made unless the child is illegitimate or an orphan.” Because an adoption order had been made in England, the child was not regarded as illegitimate by the Board, and thus they took the view that they could not make an adoption order in respect of the child. However, as detailed in the judgment which followed, if the English adoption order was not recognised by the Irish courts, the original status of the child would return and she would be regarded as the illegitimate child of her mother. Thus if the Court did not recognise the English adoption order, the Board would have been permitted to make an adoption order in respect of the child. The application therefore raised the issue of the rules that are to be applied by the courts in recognising foreign adoptions.

79. MacKenzie J., in a highly compassionate judgment, laced with an understanding of human nature and its frailties, and also with an appreciation of the difficulties caused by what was once the overwhelming public condemnation of pregnant persons outside of marriage, stated as follows:

“There are no statutory rules providing for the recognition of adoption orders made in foreign jurisdictions. In those circumstances the common law rules on recognition must apply. I accept the statement of principle contained in Diecy and Morris,

The Conflict of Laws

, 10th edition, rule 69(3) at pp. 495-496. While setting out the position in England at common law I [adopt it] as stating the law in this jurisdiction:

‘An adoption made in any country outside Great Britain and valid by its law will be recognised in England at common law if at the time of the adoption the adopter was domiciled in that country.’” (p. 402 of the report)

80. Thus, applying this rule, the issue was whether the mother was domiciled in England at the time of the adoption. The legal principles governing the abandoning of a domicile of origin and the acquiring of a new domicile of choice need not detain us; on the facts, the judge regarded the mother as retaining at all times her domicile of origin, with the consequence that the Court did not recognise the English adoption order.

81. The learned judge then referred to two authorities:In re Valentine's Settlement: Valentine v. Valentine[1965] Ch 831 (referred to above), which concerned an adoption in South Africa by adoptive parents domiciled in what was then known as Southern Rhodesia, andIn re Wilson deceased: Grace v. Lucas[1954] 1 All ER 997, which concerned an infant adopted in Quebec by adopters not domiciled in that jurisdiction. In both instances, it was decided that the adoption order would not be recognised by the English courts. These judgments fortified the view taken by the learned High Court judge. Thus he was of the view that this was a clear case where the English adoption order was not recognised in Irish law, as the adopter was not domiciled in England at the time of adoption. Accordingly, he concluded that the Board had jurisdiction to make an adoption order in respect of the child.

82. I must confess that I am entirely unsure why this question has been posed in the Case Stated, as I am with the responses of the various parties. First, could I say, but purely as an aside, that the submission of the Attorney General to the effect that there was never a common law principle to recognise foreign adoption is not borne out either by the case law or by well respected textbook writers on this point, including Dicey & Morris (which has been quoted) and also Binchy,Irish Conflicts of Law(2nd Ed., Bloomsbury Professional, 2009) at Chapter 6.

83. The comment is an aside because of the provisions of section 2(2) of the Adoption Act 1991, and also because of a well-recognised and established principle of statutory interpretation, namely, that where the Oireachtas has intervened in any given area the subject matter thereof is thereafter dealt with on that basis in substitution for the previous common law principles. It will be recalled that when dealing with the 1991 Act earlier in this judgment (para. 23,supra), I referred to sections 2, 3, 4, 4A (inserted by the 1998 Act) and 5 as enlarging the common law basis on which foreign adoptions may be recognised in this State. The first such provision was section 2; subsection (2) of that section read as follows:

“(2) This section and sections 3, 4 and 5 of this Act are in substitution for any rule of law providing for the recognition of adoptions effected outside the State.”

As this measure appearsex facieto apply to all such adoptions effected outside the State, it cannot but mean than that the principle outlined in the 1987 decision of MacKenzie J. inM.F.was superseded and replaced by the statutory provisions which I have identified. Accordingly, subject to one caveat, the judgment of MacKenzie J. no longer represents the law. Indeed, it should be noted that throughout his decision he was at pains to point out that his conclusion was arrived at in the absence of any statutory provisions dealing with the subject matter. That situation altered in 1991.

84. The caveat mentioned is that although the 1991 Act has been repealed by the 2010 Act, I cannot identify any provision in the latter Act comparable to the measures set out in section 2(2) of the former. Even so, however, I am unaware of any rule of construction which by omission could reinstate a principle of the common law which has previously been repealed by way of express substitution. Furthermore, given the consolidating nature of the 2010 Act, repealing as it does all previous adoption provisions and giving the force of law in this State to the Hague Convention, it is difficult to see that Act as being anything other than a declaration that this new measure was all encompassing and thus was intended as a complete replacement for all previous statutory provisions. I therefore do not accept thatM.F.has any continuing vitality in this jurisdiction.

Question (d): does the Original Status of the Children Remain?
85. Whilst this question is premised onM.F.continuing to be good law, which I have held not to be the case, nonetheless it is worth very briefly saying a few words on this point. All, save the Authority, submit that the children’s original status remains, but they do so on the erroneous basis thatM.F.still applies. The Authority takes the view that they should no longer be regarded as illegitimate, presumably on the basis of what appears to have been a valid adoption order made in Country A, albeit one of domestic effect only. This directly raises the question, which has not been explored to any extent, whether such order has any continuing validity for any purpose in either of the Contracting States, or whether it must be regarded simply as a nullity.

86. A curiosity of the argument of those who favour no change in the original status is that they rely on the reference made to the Country A adoption in the High Court as a basis to confirm that the consent of the natural parents to the adoption had been obtained. On the other hand, whilst holding firm to the view that it cannot be recognised as an intercountry adoption, I would by no means be certain that there is not something in the submission of the Authority to the effect that the adoption cannot simply be regarded as a nullity. However, given my view that section 23 of the 2010 Act can have no application, I do not have to decide this point. Nevertheless, the true position may be a matter of some significance when it comes to any re-engagement with the Central Authority in Country A, which undoubtedly will have a view as to the current status of such adoption in that jurisdiction, and in particular whether it continues to be an extant adoption order. This is a point again referred to at paras. 116-117 of this judgment.

Question (e): are the Children Eligible for Domestic Adoption?
87. With respect, given that the facts of the Case Stated and those averred to by Mr. B. clearly fall within the scope of Article 2 of the Convention, I cannot see any method or means by which the requirements of the Convention can be entirely stood down and ignored.

88. The applicants concede, as they must, that Article 2 of the Convention would surely have applied in 2011 when the children were adopted. However, they question whether it is therefore the case that Article 2 must forever be taken to apply to the children’s adoption; specifically, they submit that in light of the unusual circumstances of this case, the present situation and current habitual residence of the children, and the fact that there is no longer any reliable procedure by which an intercountry adoption can be effected, Article 2 should be interpreted purposively and therefore should be taken not to apply to the present circumstances. They argue that the Authority’s stance is based on a narrow, literal and absolutist reading of the Convention which, if upheld, would operate to the detriment of the children.

89. In my view, however, regardless of how purposive or flexible an interpretation one tries to adopt, it is not possible to escape the conclusion that the underlying adoption is an intercountry adoption for Convention and statutory purposes, and therefore that the material and relevant requirements of both must be complied with. It would be a gross disapplication of this international instrument to do otherwise.

90. Section 23 of the 2010 Act, which is the essential basis to sustain this submission, is a provision dealing with domestic adoptions only. The argument that the children are now habitually resident in this jurisdiction is to turn that concept on its head. The same can be said and, if valid, hold good no matter how or in what circumstances the children got to this jurisdiction. The fact of their relationship with Mrs. B does not change this. At the relevant time, which must be circled by the events which occurred between September, 2011 and April, 2012, their place of habitual residence was in Country A. If the determination of this case is to be controlled by the type of application which Mr. and Mrs. B. have made, they will in effect by that calculated approach have fundamentally changed both international and domestic law.

91. As pointed out by MacMenamin J., “the intent of the Act and the Convention is to avoid circumvention. The most obvious form of circumvention would be to ‘morph’ the factual context of an ‘inter-country adoption’ into a ‘domestic adoption’ simply by the act of establishing habitual residence. But this would entirely defeat the Act’s purpose” (para. 85). I respectfully agree and would echo these sentiments. Furthermore, the learned judge expressly rejects a submission to that effect made by the Attorney General (see also para. 94(6),infra). He goes on to acknowledge, as is undoubtedly the case, that the Authority could only view the presenting situation through the lens of there being a non-compliant intercountry adoption. Accordingly, in my view it is simply impermissible to re-characterise what should have been described as a Hague Convention case and to proceed domestically, principally if not solely on the basis of habitual residence, as if the events above described had never occurred.

92. Thus in my view the Convention, which expressly has the force of law in this State pursuant to section 9 of the 2010 Act, excludes a domestic adoption in this case. For this reason I do not consider it necessary to consider whether any other obstacle is presented by the 2010 Act to the processing of a domestic adoption in this matter.

93. However, a number of questions remain: first, whether any or all of these breaches can now be remedied, such that the requirements of the Convention mayex post factobe satisfied (and whether achieving this retrospectively is legally possible) and, secondly, whether the alternative and fall back position of the majority of this Court is sustainable.

Judgment of MacMenamin J.
94. Even though the conclusion which I have reached is at odds with that of the judgments of the majority, and even though I cannot accede to either the reasons or the basis for such view, it is worth noting that there are major areas of legal significance in respect of which the judgments agree. To summarise:

(1) This is and from the outset always has been an intercountry adoption situation: a Hague Convention case. The reasons for that inescapable conclusion are set out in this judgment and that of MacMenamin J.

(2) As such, it should have been progressed as the Convention demands, but this has not occurred. There has been a clear and definite disregard of its provisions. Let me quote from para. 75 of the judgment of MacMenamin J.:

“Inescapably, the unfortunate facts are that there was a clear want of compliance with a range of Convention procedures in this case. Article 40 of the Convention prohibits any reservations, for the good reason that exceptions may be exploited. By way of illustration, the fundamental requirements of Articles 2 to 4 were not complied with. None of the preliminary steps were properly complied with in accordance with the Convention and the Act. The Central Authorities in Ireland and Country A played no role in these proceedings prior to the Country A adoption. The Central Authorities did not determine the eligibility, consent or any of the other essential requirements laid down by the Convention, and which form part of the law of the State.”

(3) The Adoption Authority is rightfully concerned with what MacMenamin J. described as the “downstream” effects of the High Court judgment, if it should stand. Could I add, of even more importance are the “upstream effects” of proceeding as therein suggested or even as now envisaged.

(4) Even with a fully purposive approach to both the Convention and the 2010 Act, it is self-evident that the recognition of an intercountry adoption, whether by operation of law under section 57 of the Act or by the Authority, can only occur in respect of such an adoption which,inter alia,complies with Articles 17 and 23 of the Convention. These measures, without argument or debate, have not been engaged in.

(5) The principal (if not the entire) basis advanced by both the applicants and the Attorney General, giving rise to the submission that a domestic adoption order may be available, is founded on the children’s habitual residence as of now.

(6) MacMenamin J. answers this argument at paragraph 84 of his judgment. Could I be permitted to quote extracts, though placed in context, of his views:

“I am unable to accept [the applicants’ and Attorney General’s submission that habitual residence forms a basis for a domestic adoption in the circumstances of this case]. The Authority was duty bound to deal with the situation as being a non-compliant inter-country adoption. To ask the Authority to apply such a ‘flexibility’ would, in effect, be to ask it to ignore the basis of the Convention and to act outside the terms of its governing statute. The Authority cannot be asked to proceed

ultra vires

. While a court may legitimately adopt a flexible approach in a remedial statute, such as this, even a court may only do so within the scope of the Act, as set out in the long title. As a creature of statute, the Authority must operate within the terms of the Act of 2010. To allow an ‘inter-country adoption’ to be re-characterised as a ‘domestic adoption’ simply by dint of establishing habitual residence in this country, would be to defeat the intent of the Oireachtas, and the clear terms of the Convention. It was precisely that type of ‘mischief’ or wrongdoing, which the Act and the Convention were designed to prevent.”

I respectfully entirely agree.

95. Acknowledging the circumstances as existing now, MacMenamin J. poses what in his view is the ultimate question at para. 98 of his judgment; it is thus:

“The question, therefore, comes down to whether the Act of 2010, properly interpreted and applied, provides a route forward which guarantees the future status and wellbeing of the children, in accordance with the Constitution? In my opinion, it can. I consider the way forward involves a number of steps, each having regard to the legislation, the Report, the Guide to Good Practice, and the overarching requirements of the Constitution. I do not conceive these objectives as being divergent.”

96. Essentially, the taking of two steps is suggested as a means of achieving this end. First, MacMenamin J. suggests that contact should immediately be made with the Central Authority of Country A to see whether or not it is feasible, at this point of remove and within a reasonable period of time, to have the necessary steps taken under the Convention so that its essential terms may retrospectively be satisfied.

97. The second step is the utilisation of section 92 of the 2010 Act. For the reasons set out in paragraph 114 of his judgment, he is of the view “on the facts of this exceptional case” that the High Court can be satisfied to issue a direction to the Authority under that provision so that the Country A adoption may be entered in the Register of Intercountry Adoptions as an intercountry adoption effected outside the State. I hope that is a correct reading of the passage referred to, but I think it is, as it seems to reflect the final observation in paragraph 114 of his judgment: “This would do no violence to the best interests test. It would be consistent with what I conceive to be the spirit of the Convention in dealing with exceptional cases such as this one”, this notwithstanding the acknowledgment which immediately follows, namely, that “[t]he recognition would be outside the Convention, but in accord with the type of situation envisaged in the Report, to which this Court should have regard.”

98. It is true that the learned judge has invited further submissions from the parties on this aspect of the case (para. 115), but I read that as being solely for the purposes of determining whether a section 92 order can be made within the existing proceedings given their inception as a Case Stated, or whether it might be necessary to institute further proceedings. The caveat so entered was, I believe, for this purpose only.

Points of Departure
99. In spite of the above similarities between the judgments of MacMenamin J. and myself (para. 94,supra), it must be said that there are a number of significant points of departure also. As I see it, these include (i) his use of the “best interests of the child” argument; (ii) the relevance of the children’s current habitual residence; and (iii) whether it is open to the High Court to make an order under section 92(1) on the facts of this case. Before moving on to discuss these points, I should deal as a discrete issue with the case ofNeulinger and Shuruk v. Switzerland(Application no. 41615/07, judgment of the Grand Chamber of the 6th July, 2010) (“Neulinger v. Switzerland”), which has also been referred to. I wish to indicate at this juncture why I believe that this case must be discounted.

Neulinger v. Switzerland

100. It is beyond this judgment to conduct a comprehensive analysis of this case. For my part I am content to make the following points only:

(i) The Abduction Convention was designed to frustrate forum shopping: once wrongful removal was is established, the child in question should be returned to the jurisdiction from which that removal occurred.

(ii) Such a decision, if made, does not in any way deal with the question of guardianship or custody or other such associated rights; it simply acknowledges that the requesting state is the jurisdiction in which these issues are more properly determined.

(iii) Thus, the Convention is solely jurisdictional-based.

(iv) As with most, if not virtually all, conventions (and more recently now with pieces of domestic legislation) dealing with children, it is common practice to find a reference to the “best interests of the child”, to the child’s “welfare”, or to his or her “wishes”. For several years, across multiple decisions, the European Court of Human Rights had never elevated these references to a point of being determinative above and beyond the aims, purposes and essential objectives of the instrument in question;Neulingerappears to have done so.

(v) For my part, therefore, unless and until such time as the European Court of Human Rights should address the criticism frequently directed to this decision, I would not be prepared to consider it as anything other than an outlier. Accordingly, I do not accept that it offers any general approval for stepping down the otherwise declared intention of a Convention and permitting the best interests of the child, as then determined without reference to its historical context, to prevail.

(vi) In any event, as previously stated, the Abduction Convention is an entirely different instrument than the subject Convention in this case.

Best Interests of the Child
101. Several sources have been quoted by MacMenamin J. in support of his reliance on the “best interests of the child” argument. Hopefully without doing his judgment any injustice, and purely for brevity, can I identify such sources as follows:

(1) Article 42A of the Constitution;

(2) Paragraphs 63-65 of the Explanatory Report as well as the fourth paragraph of the Preamble to the Convention;

(3) Paragraphs 411 and 412 of the same report, where in the example quoted it was suggested that the non-involvement of the Central Authorities may be overlooked; and

(4) Paragraphs 531, 532 and 533 of theGuide to Good Practice.

Whilst I fully acknowledge the importance of this concept, I cannot agree with the analysis or reasoning by which this factor has become so decisive in this case.

102. That the best interests of the child or its welfare are the paramount consideration in all adoption proceedings is acknowledged by all. This is clear from the terms of the Convention and indeed the 2010 Act (see, most particularly, section 19, and also,inter alia, sections 31(3), 33(1)(a)(iii), 50(1)(a), 75(3)(b), 92(2) and 92(3)), which gives the Convention the force of law in this State. It is true that Article 42A of the Constitution provides another source for this principle. It is thereby enshrined at the highest level of our legal hierarchy. The Thirty-first Amendment of the Constitution, which inserted Article 42A into the Constitution, postdates Ireland’s ratification of the Convention and the entry into force of the 2010 Act. Nonetheless, it is not apparent to me that that provision alters in any way the prevailing considerations in respect of an adoption matter, be it intercountry or otherwise. The simple reason for this is that once specific provision has been made at a legislative level to ensure the primacy of the best interests of the child during adoption proceedings, it is difficult to see what additional impact the Article may have, save in a constitutional challenge.

103. The reason for this observation is based,inter alia, on the wording of the relevant provision of Article 42A. It reads as follows:

“4 1°

Provision shall be made by law

that in the resolution of all proceedings-

i. …

ii. concerning the adoption … of … any child,

the best interests of the child shall be the paramount consideration.” (Emphasis added)

Thus, even though very little debate, at a serious level, was had either on this provision or on Article 42A overall, nonetheless the wording as quoted would appear to suggest that the obligation on the State in adoption cases is, by law, to place the best interests of the child as the paramount consideration. Thus the legislation has done precisely what the Constitution ordains, and that would appear to have discharged the obligation so imposed at the constitutional level. In the absence of any suggestion that the 2010 Act does not implement or reflect the constitutional imperative, I do not see that it is necessary to look behind the legislation in order to again draw on Article 42A. This view is shared by O’Donnell J. in his judgment delivered in this case (see para. 6 thereof).

104. First, a general observation. It is not an uncommon feature of international instruments, and of the Constitution itself, that obligations imposed on States to respect rights are directly discharged by the State putting in place the requisite legislation to give effect to same. Once such has faithfully and accurately been implemented, it is no longer necessary to look behind the legislation to the international instrument/Constitution in order to find an auxiliary source for the protection of the right in question; the same is achieved by properly applying and utilising the statutory provisions put in place to that end.

105. In the situation at hand, the paramountcy of the “best interests of the child”, which is specific both to an individual child and in general to all children, is already built into both the Convention and the Act; it is reflected throughout the scheme of both instruments. Reference is made to the principle in the preamble to the Convention, with Article 1(a) providing that one of the objects of the Convention is “to establish safeguards to ensure that intercountry adoptions take place in the best interests of the child and with respect for his or her fundamental rights as recognised in international law”.

106. The Explanatory Report expressly confirms that the establishment of such safeguards in the Convention “will bring about the protection of the best interests of the child” (para. 64) and, to that end, the Convention puts in place a system of shared and mutual cooperation “to ensure the observance of those safeguards” (para. 66). So, as an integral part of this measure, first, there is a recognition of the best interests of the child; second, safeguards are put in place to reflect this; and, third, a functional system of implementation stands behind it. Accordingly, in my view the international instrument fully reflects this concept of and by itself. So too does the implementing legislation: section 19 of the 2010 Act provides that in any matter relating to the adoption of a child, the Authority or a court shall regard the welfare of the child “as the first and paramount consideration.”

107. In such circumstances, I do not believe that it is necessary to have regard to Article 42A of the Constitution as an external source for the protection of the best interests of the child, capable, at one end, of nuancing the interpretation of the Convention/Act away from what it would otherwise be, or, at the other end, of overriding the requirements of the Convention and/or Act entirely. The Convention and the Act themselves provide the framework through which the best interests of the child are to be protected in a given case. As such, the constitutional obligation contained in Article 42A.4. 1° has been discharged; the best interests of the child having been enshrined in the 2010 Act (reflecting the Convention) as the primary consideration in such matters, in my view it is not necessary to draw again on Article 42A for the purposes of this specific case. Accordingly, I fail to see how that constitutional provision can have a further defining influence on the outcome of this case.

108. I would make a similar observation regarding obligation to ascertain the views of the child. Article 42A.4. 2° provides that“[p]rovision shall be made by lawfor securing … that in all [adoption proceedings] in respect of any child who is capable of forming his or her own views, the views of the child shall be ascertained and given due weight having regard to the age and maturity of the child.” Again, the requirement is to put in place laws by which this can be achieved. Article 4(d)(2) of the Convention reflects this aim, as does section 24(2) of the 2010 Act. Such laws being in place, I do not believe that it is necessary to refer back to the constitutional provision.

109. Furthermore, I do not believe that it is appropriate, for interpretive purposes, to import a totally free-standing concept of “the best interests of the child” from an external source, even from the Constitution itself. To permit this single consideration to stand removed from the system put in place by the Act and Convention, with the capacity to supersede all of the other requirements contained in those instruments, would be to open the entire regime up to abuse. “Paramount” consideration cannot mean “sole” consideration. As the Authority has stressed, allowing the best interests of the children to become the only consideration in a given case runs the risk of setting at nought the protections of the Convention and of encouraging non-compliance therewith by adopters who feel that their actions will not be met by adverse consequences. This would have the capacity to jeopardise the entire structure of the Convention. Although thebona fidesof C.B. and P.B. are not in doubt, the Court must be vigilant not to decide these proceedings in a way which rewards, even encourages, inappropriate conduct on future occasions, or which undermines the Convention. Accordingly, whilst ever mindful of the best interests of the children, meaningthesechildren specifically, I am of the view that the same must nonetheless be achieved within the ambit of the Convention and Act, insofar as it is possible to do so.

110. These observations do not, in my view, stand down Article 42A of the Constitution. That Article cannot, of course, be rendered obsolete, nor would I endeavour to do so. Neither can it be subjugated to the requirements of either the Convention of the Act. It retains its place at the top of our legal hierarchy. Rather, the point is that what the Constitution commands has in fact been complied with: laws have been put in place to secure the best interests of the child, and to ascertain the views of the child, in all adoption proceedings. The relevant provisions of the Constitution require no more than that. The duty so imposed having been discharged, I believe that the focus must remain on the Act, which gives effect to this obligation and which governs adoption law in this country. By this I mean that as the legislation faithfully corresponds to the constitutional requirement, it is not necessary to consider Article 42A as an additional layer or further test to be navigated. To otherwise characterise my views on Article 42A, as MacMenamin J. has, is to completely misunderstand them.

111. Much reliance, in the present context, has been placed on paragraphs 63 and 64 of the Explanatory Report. I entirely accept that foremost in both the impetus and the incentive behind this international instrument was “the best interests of the child”. These paragraphs relate solely to Article 1 (the “objects” of the Convention) and, as previously noted, mirror-image the preamble.

112. The purpose of a preamble and the purpose of setting out the objectives of any instrument intended to have legal effect is to show what has motivated the provisions which follow. It is making a solemn declaration that what is ordained in the Convention and signed up to by the Contracting Parties is representative of their views as to how and in what circumstances the best interests of the child can be accommodated. This means that the Convention itself represents such best interests and, accordingly, that aim and ambition is best satisfied by implementing its terms.

113. What has become more prevalent in recent times is that some courts have subverted these expressions as meaning that there is a right, separate, distinct and unconnected from the subject matter, to determine a particular case having regard almost exclusively to the “best interests” argument. Such is only a short step from suggesting that a single paragraph of legislative enactment, namely, that adoption should be carried out “in the best interest of a child”, would suffice. That would of course be utterly untenable. Accordingly, I do not accept any suggestion of a freestanding right over and above the Convention or the 2010 Act by which the situation of these children can be determined on the basis of their best interests.

The Pragmatic Approach

Attempt to Retrospectively Create a Convention-Compliant Adoption with the Cooperation of the Country A Authorities

114. It is tentatively suggested on behalf of the Authority that although the intercountry adoption in the present case is not currently capable of recognition or registration, it may be possible to retrospectively rectify the defects that have occurred with the cooperation of the Central Authority of Country A. Let me say, first, that it seems quite remarkable that the proceedings have made it all the way to this Court without any attempt being made to go down this avenue. If this was in any way feasible, one would have expected the obvious, namely, that such an option would have been fully explored prior to invoking section 49(2) of the 2010 Act. If there was any realistic prospect of rescuing the current situation by remedying the defects outlined and by securing,inter alia, an Article 23 certificate from the Country A, it is astonishing that it should require the case to have proceeded through the Supreme Court before the same is even attempted. Perhaps this bodes ill for the prospect of a satisfactory resolution being achieved by these means. Indeed it is clear from their submissions that the applicants have no faith in its success; they say, without contradiction, that an attempt to retrospectively “reverse engineer” a Convention-compliant foreign adoption has previously been suggested by the Authority in another case, and that it came to nought.

115. Moreover, this is to say nothing of the obvious practical difficulties which might impede any efforts to satisfy the Convention’s requirements at this stage. How, for example, might Country A satisfy its obligations under Articles 4 and 16 of the Convention, now that the children are habitually resident in Ireland? It is not suggested by anyone that the children should be returned to Country A, nor would I countenance it. Nonetheless, it is difficult to see how the Country A authorities can in good faith establish and certify the child’s adoptability (Article 4) and prepare the relevant report (Article 16(1)(a)) without the children returning to Country A for the purposes of the requisite assessments. How long would that take? The disruption to their social and personal life and their education in Ireland could be enormous, not to mention the strain on the family.

116. Indeed, more generally and notwithstanding the above, it is not clear that Country A, even if a willing participant in the process, will be in a position to cooperate and certify the children for an intercountry adoption, given that they are already the subjects of an extant domestic adoption order in Country A. In this respect the situation before the Court is quite different from that described at paragraphs 531-533 of theGuide to Good Practice, where the adoption in the example given took place in the receiving country; as a result, the “pragmatic solution” discussed therein might not be so readily achievable, if at all, in the present circumstances. Whatever about its status, validity or recognition in this jurisdiction, this Court has not been given reason to doubt that it remains a valid adoption order under the law of Country A. How, then, could the Country A authorities proceed in those circumstances? Numerous questions arise. Would it have to be set aside? Who would have to be put on notice? What consents might be required? Would the situation have to be looked at afresh? What role would the children have to play in this and from where, and are there even proceedings or provisions to facilitate this? We simply do not know whether this may or may not be legally possible.

117. The evident uncertainty surrounding how such “reverse engineering” might be achieved illustrates why it is unsatisfactory for this Court to propose it as a route forward, and why it should have been attempted much earlier in the process. And yet, notwithstanding my evident misgivings with this suggestion, may I say this: if it is possible to now obtain the cooperation of the Country A authorities, and so fashion afresh a Convention-compliant intercountry adoption, that would be the best outcome that could be achieved for Mr. and Mrs. B and the children in this most unsatisfactory situation. From a humanitarian perspective, no one could possibly object to such a step.

The Fallback Position: Section 92 of the 2010 Act

118. Even though the discussions had on sections 90 and 92 is rightfully said by MacMenamin J. to beobiter(para. 86), a view with which I fully concur, given that no submissions were made on these provisions, nonetheless I feel that I should make some observations on the issue, if only to contribute to the ensuing debate.

119. As previously noted, the Register of Intercountry Adoptions was first established by section 6 of the 1991 Act. Thereunder, on application made and subject to compliance with the conditions specified, An Bord Uchtála was given power to make an entry to that effect on the Register. In addition, however, it was obliged to do so if directed by the High Court under section 7 of the Act. That measure was the direct precursor of section 92 of the 2010 Act.

120. Under both sections the court was given power to direct An Bord Uchtála/the Authority:

(a) to make a specific entry, with the consequences which that entailed;

(b) to procure the cancellation of an entry already existing; or

Such are now represented by section 92(1)(a),(b) and (c) of the 2010 Act. These powers, as well as certain procedural matters - such as who should be put on notice of any such application, whether any party may make submissions on the hearing thereof, including the Attorney General either of his own motion or if requested to so do by the High Court, and whether such proceedings should be heard in private (section 92(8) as amended) or otherwise than in public (section 7(4)) - were the provisions common to both sections.

121. However, the most critical provision dealing with the power of the High Court to direct,inter alia, the making of an entry is that now contained in section 92(1)(a) of the Act, which is in effect virtually identical to section 7(1) of the 1991 Act. It is the jurisdictional foundation for any such order and reads as follows:

“92.— (1) If, on application to the High Court in that behalf by a person who may make an application to the Authority under section 90(3), the High Court is satisfied that an entry with respect to an adoption in the register of intercountry adoptions should be made, cancelled or corrected, the High Court may by order, as appropriate—

(a) direct the Authority to procure the making of a specified entry in the register of intercountry adoptions”

122. The substantive provisions which then follow, specifically those in subsections (2), (3) and (4) of section 92, are consequential measures, but only on the Court directing the cancellation of an existing entry under subsection (1)(b). Accordingly, the reference to “the best interests of the adopted person”, in subsection (2), or to the Court’s power under subsection (3) to make orders, including those relating to the “guardianship, custody, maintenance and citizenship of the person” in question, have no relevance or effect, direct or otherwise, in the presenting circumstances of this case. Consequently, if the High Court should have the power as suggested, it is to be found, and found only, in subsection (1) of section 92.

123. As I understand it, MacMenamin J. pursues the following route in order to arrive at the conclusion that, in principle, the High Court may have jurisdiction in this particular case to direct the Authority to enter such particulars as are necessary so as to reflect the existence of an intercountry adoption effected outside the State, that is, to register the adoption on the register of intercountry adoptions pursuant to section 92(1)(a) of the 2010 Act:

a. Section 90(8) provides that “[i]f the High Court so directs under section 92(1), an entry shall be made in the register of intercountry adoptions concerning a specified

intercountry adoption effected outside the State

” (emphasis added).

b. In the definitional section of the Act, three categories of adoption are therein said to qualify as same. The first, (a), which refers to adoptions which took place before the establishment day appointed under the 2010 Act, and the third, (c), which refers to adoptions which comply with the applicable provisions of the 2010 Act and Convention, manifestly could not apply in this case.

c. That leaves the second category, (b), which defines such an adoption as “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). This definition contains three elements. First, the adoption must not be an intercountry adoption, as also defined in section 3. Second, it must have been effected outside the State on or after the establishment day. Third, it must conform to the definition of “foreign adoption” as contained in section 1 of the 1991 Act, as it read on the 30th May, 1991. The second of these three requirements is evidently met; the others I will return to.

124. MacMenamin J. is of the view that all three elements of that definition are made out; it follows, in his view, that the children areprima facieeligible to be made the subject of an order under section 92 of the 2010 Act, as the adoption qualifies under the second limb of an “intercountry adoption effected outside the State” (see para. 110 of his judgment). He then goes on, in paragraph 111, to contrast the wording of section 90(8) with that contained in section 92. At the risk of labouring the point, recall that section 90(8) refers to an entry being made concerning “a specified intercountry adoption effected outside the State”. Section 92(1), by contrast, refers only to the High Court being satisfied that “an entry with respect to an adoption in the register of intercountry adoptions should be made” - unlike section 90(8), there is no reference to the defined term of “intercountry adoption effected outside the State”. For MacMenamin J., this suggests that the power of the High Court under section 92(1) is “broader” or “slightly wider” than that vested in the Authority under section 90(8).

125. If I might make two observations at this juncture. First, it is not clear to me that section 92(1) can be read independently of 90(8) so as to create a comparison between the breadth of the respective powers of the High Court, on the one hand, and the Authority, on the other. I rather take the view that a proper construction of the sections is that they should be read together. Section 90(8) opens by providing that “[i]f the High Court so directs under section 92(1)”, an entry shall be made in the register concerning a specified intercountry adoption effected outside the State. Accordingly, when section 92(1) (and section 92(1)(a), in particular) refers to the Court directing the Authority to procure the making of a specified “entry” in the register, this can only relate back to the entry “concerning a specified intercountry adoption effected outside the State” referred to in section 90(8). Rather than containing differing powers, the two sections are in fact opposite sides of the same coin; the High Court directs the making of an entry under section 92(1), but that entry takes effect pursuant to section 90(8), which refers only to “specified intercountry adoption[s] effected outside the State”. Thus it is not clear to me that the power of the Court to order the making of entry on the register is any wider than that of the Authority. Either way, it is only an intercountry adoption effected outside the State, as so defined in the Act, that can be entered on the register using these provisions.

126. Secondly, based on MacMenamin J.’s view that definition (b) of “intercountry adoption effected outside the State” under section 3 is made out, it is not clear to me that the High Court would necessarily need to have any broader power than those contained in section 90(8). Though I do not agree that the within adoption qualifies under that limb of an “intercountry adoption effected outside the State” (on which see the next paragraph), if the analysis of MacMenamin J. is correct, the High Court would be able to order the making of an entry on the register even on the “more narrow” construction based on section 90(8).

127. Turning then, to that definition (b) of an “intercountry adoption effected outside the State”. As I have observed above, there are three elements to this definition (see para. 123(c),supra). The second element, namely, that the adoption was effected outside the State on or after the establishment day, is clearly satisfied. For the third element, the five requirements of a “foreign adoption” as defined under section 1 of the 1991 Act must be satisfied. It is, I think, highly uncertain whether the evidence in this case definitively establishes that these criteria are met, but even if it does, there is, in my view, a more fundamental difficulty with this line of reasoning, which centres on the first element of the definition. Such specifies that an intercountry adoption effected outside the State must be “an adoption, other than an intercountry adoption”. The definition of “intercountry adoption” is also contained in section 3 of the 2010 Act and reflects the wording of Article 2(1) of the Convention (see para. 38,supra). That definition is as follows:

“‘intercountry adoption’ means the adoption of a child habitually resident in a state (the ‘state of origin’), whether a contracting state or non-contracting state, who has been, is being or is to be transferred into another state (the ‘receiving state’)—

(a) after the child’s adoption in the state of origin by a person or persons habitually resident in the receiving state, or

(b) for the purposes of an adoption, in either the receiving state or the state of origin, by a person or persons habitually resident in the receiving state”

128. In my view, having regard to this definition of “intercountry adoption” and the wording of Article 2(1) of the Convention, this case cannot be conceived of as other than an “intercountry adoption” under the 2010 Act, and thus as being governed by the Convention. My reasons for so holding are laid out at paragraph 45,supra. Whichever view one takes of the facts of this case, it is clear that here the children were habitually resident in Country A and were transferred to Ireland either (i) after their adoption in Country A by Mrs. B, a person habitually resident in Ireland, or (ii) for the purposes of an adoption in Ireland by Mrs. B. (On the facts it seems that (i) is the better description of what occurred, but in the event that the Country A adoption were to be disregarded, (ii) would kick into play and therefore any subsequent adoption in Ireland would, in my view, still clearly be an “intercountry adoption”).

129. Thus to my mind it is an inescapable conclusion that what has occurred in this case can only be described as an “intercountry adoption” for the purposes of the Act; I do not believe that any other consideration, such as the passage of time or the children’s current habitual residence, can change this position. It follows that, because this is an “intercountry adoption”, as defined in section 3, it cannot be an “intercountry adoption effected outside the State” as also defined in that section. Accordingly, I am of the view that no entry in respect thereof can be made under section 90(8) or, based on the above, section 92(1)(a).

130. Even with a purposive approach, the High Court, before it can exercise the powers under subsection (1)(a) of section 92, must be “satisfied that an entry with respect to an adoption in the register of intercountry adoptions should be made” (emphasis added). The most obvious question is how and on what basis it can be so satisfied in the circumstances of this case. This Court unanimously agrees that the making of a domestic adoption order is foreclosed upon: it is not an option. It is therefore the recognition of an intercountry adoption, or nothing. There must be real uncertainty, at least, as to how the High Court can in practice be “satisfied that an entry … should be made”. The section is silent as to what factors the Court must take into account. How would it approach the evaluation required under the section? Indeed, whatisthe evaluation required? Would it be necessary to make any further findings or will the situation be assessed as is? Unlike sections 92(2) and 92(3), section 92(1) makes no specific reference to the best interests of the adopted person, so is the Court to be primarily guided by that criterion alone or do other considerations come into play? As stated, there is, at best, serious ambiguity as to how the High Court is to carry out the function entrusted to it under section 92(1).

131. In their concurring judgment, Dunne and O’Malley JJ. refer to a situation whereby innocent mistakes or misunderstandings by either applicants or state officials result in an invalid adoption. In such circumstances they pose the question whether there is available a mechanism to vindicate the rights of children without breaching either the Act or the Convention. They suggest that section 92 “is capable of meeting this objective”. With great respect, I cannot understand how this could possibly be so. Such would change the entire focus of what the inquiry should be: it would simply become an appraisal of the excuse instead of an assessment of the requirements. It would mean that any act, event, omission or circumstance, short ofmala fides,could be disregarded. Again, with due deference, for the multiple reasons set out in this judgment, I reject any such proposition. However, even if section 92 is a possibility, surely the High Court, in the first instance, must be free to determine afresh the true meaning and scope of that provision, that is, uninfluenced by anyobiterremarks made in this case. The proper interpretation of that section was never even debated before this Court, much less did it form the subject matter of any legal analysis. Therefore, based on whatever evidence may be adduced and having considered what submissions might be advanced by the parties, including the Attorney General, if necessary, the High Court, in my view, must first address what the section properly means and, depending on the outcome, the views of an appellate court may or may not be required thereafter.

132. At a general level, I ask whether the Oireachtas could have intended to confer on the High Court power under section 92 to disregard such non-compliance and lack of conformity, and nonetheless to permit, on some unspecified basis, the giving of a direction to the Authority to make the entry as suggested? The answer, in my view, must be self-evident. Otherwise the very essence of the Convention is not simply in peril but is utterly neutralised. As pointed out at para. 110,supra, if the child’s welfare was the determinative factor then the core utility of the measure itself would be highly questionable.

133. If the best interests of the child, in respect of which there are several references under the 2010 Act, was to the forefront in the operation of subsection (1)(a), it is highly surprising that the only reference to that phrase is in subsection (2), which, as stated, is separate and distinct from the preceding provision. Equally, whilst one can readily recognise the width of the consequential power given under subsection (3), that likewise can only apply to a cancellation direction. It is therefore difficult to see how the “best interests” argument alone could form a sustainable basis for effectively conferring on the High Court a freestanding power to direct such entry even where the essence of the Convention and the Act has not been complied with.

134. The wording of section 92(1) of the 2010 Act stands in sharp contrast to the position of the High Court under Part 7 of the Act, where the Court plays a pivotal role in certain exceptional cases. Under section 54(2), the High Court may, on application made, direct the Authority to make an adoption order in respect of a child and to dispense with the consent of any person whose consent is necessary, provided that certain matters have been established to its satisfaction. What then follows is a detailed series of requirements and conditions; accordingly, the Court knows precisely what pathway it must navigate in its consideration of such application. Other similar provisions are to be found in section 18(4) (dispensing with notification to the natural father) and section 26 of the Act (dispensing with the consent of an interested person). As can therefore be seen, the difference between these provisions and section 92 is striking. Moreover, even if it was possible to have some form of derogation from the Convention, the same would surely require the most clear-cut and explicit language to that effect, of which there is none.

135. It seems to me that section 92(1)(a) should operate in a manner which reflects the general aims and objectives of the 2010 Act as a whole, which undoubtedly in the non-domestic context is primarily concerned with incorporating the Hague Convention into our jurisprudence and making provision by statute to complement or give full effect to it. That being the situation, I cannot see that there is any scope to operate its provisions in circumstances where, in my view, to do so would be to undermine rather than uphold the scheme of the Convention and to act directly contrary to these legislative measures. In my view, the provision in question cannot so operate. Accordingly, I can find no sustainable basis for its intended use. Incidentally, it is worth noting that the Attorney General does not agree with the suggestion that the High Court’s power under the section to make an adoption order is more extensive than that of the Authority.

136. Moreover, I would add that even if it were possible, there is a powerful practical reason not to utilise section 92 of the 2010 Act, and it is this: recognition of the current Country A adoption, be it under Part 8 of the Act or section 92 thereof, would leave Mr. B with no legal or parental relationship with the children. It is for this reason that the applicants steadfastly oppose this outcome. They say that any resolution of the adoption process that leaves the children with only one legal parent, rather than two, is clearly not in their best interests. In this respect, an order under section 92 directing the registration of the Country A adoption would serve only to further entrench the very defect which the applicants set out to heal. Thus even if such an order were permissible, and I am clearly of the view that it is not, I do not believe that it is in any way desirable.

137. The use of section 92 of the 2010 Act in the manner suggested in the majority judgments is also sought to be justified on the basis that this is an exceptional case and so exceptional measures are required to resolve it. I cannot agree. If the section can be utilised in this case, why can it not be used in any situation of total or near total non-compliance? Reliance is also placed on the incorrect advice which the Authority gave to Mr. and Mrs. B. With great respect, I consider this to be an unsustainable basis for the proposed outcome. If the focus should be on the explanation, then the test becomes one of evaluating the reasons offered, rather than focusing, as it should, on an assessment of compliance with the Convention. Furthermore, I am not at all sure how exceptional this case is; apart from the precise details,J.M. v. Adoption Authority of Ireland[2017] IEHC 320 andM O’C and B O’C v. Udaras Uchtála na hÉireann[2014] IEHC 580 are other examples. In addition, we are told of perhaps another dozen in the pipeline. Consequently, such a basis offers no comfort in this regard.

138. Regrettably, it is most difficult to see a clear way forward in this case. Though each of the parties has suggested a solution, there are some serious obstacles and obvious difficulties to each of them. Perhaps even more regrettably, I cannot offer an inventive or an inspired magic solution of my own.

Recent Irish Cases
139. As just mentioned, there are two further recent authorities from this jurisdiction which must be addressed. In this respect I would refer, first, to the decision of Reynolds J. inJ.M. v. Adoption Authority of Ireland[2017] IEHC 320 (“J.M.”), where the High Court was asked to register a non-Convention-compliant adoption pursuant to section 92 of the 2010 Act. The learned judge declined to do so.

140. The points of distinction between that case and the instant one are of no relevance for comparative purposes, but the points of similarity are very much to the forefront. First, the child in question was the niece of the proposed adoptive mother, she being the sister of the natural mother; second, for very many years there existed a close and loving relationship between child and aunt; third, it was a Hague Convention case; fourth, the adoption obtained was purely a domestic one from the country of origin; fifth, there was non-compliance with the Convention; sixth, there was of course no certification by the competent authority of the foreign state (Articles 17 and 23); and, finally, there was no suggestion of deliberate non-compliance ormala fideson the part of the applicants. Those factors are entirely common to both cases. It should be noted that inJ.M.,the oversight mentioned was purely down to ignorance of the requirements of the Convention.

141. In arriving at her decision, the learned judge contrasted the facts of the situation before her with those presenting before Abbott J. inM O’C and B O’C v. Udaras Uchtála na hÉireann[2014] IEHC 580 (“M O’C”), where he had expressed the need for flexibility where technical problems arise within the ambit of the Convention. Reynolds J. reconciled the two cases thus:

“34. Abbott J. directed the registration of the adoption under Section 92 on the basis of vested rights under the law as it was before adoption of the Hague Convention and in circumstances where the applicants had complied in all respects with the requirements of a foreign adoption and had secured a declaration of eligibility and suitability before travelling to Mexico to adopt the child.

35. The approach adopted by Abbott J. recognised that some flexibility could be adopted by the Court in situations where the requirements of the Hague Convention are broadly met.

36. However, clearly the facts of that case must be distinguished from the facts in the instant case in circumstances where the applicants had no prior engagement with the Authority and where no declaration of eligibility and suitability had been obtained.”

In such circumstances, the learned judge concluded, correctly, in my view, that “it is simple untenable to suggest that the broad requirements of the Hague Convention have been met or indeed that the Court could properly direct the registration pursuant to Section [92] of the Act” (para. 36).

142. Even though it is true that some contact was made with the Authority in the within case, unlike inJ.M.,nonetheless the end point is identical: total non-compliance with the Convention. Accordingly, I am satisfied that the instant situation approximates the facts ofJ.M.far more so than it doesM O’C,where there was substantial compliance by any measure. That being so, the conclusion reached by the learned judge is entirely consistent with the approach which I have adopted in this case.

143. As above noted, inJ.M.Reynolds J. distinguished the case ofM.O’C, which is the other recent judgment of note in this area of the law. The substantive link between the facts ofM O’Cand the conclusion of Abbott J. rested largely on the transitional provisions of the 2010 Act, in the context of whether what were termed “vested rights”, said to have been acquired prior to the 1st November, 2010, survived by virtue of section 63 of the Act. Such is an issue that has no bearing on the instant case, and I therefore pass no comment on the approach taken, the way in which the legal issues were analysed, or the conclusion reached.

144. However, I cannot agree with the views expressed on two other issues raised inM.O’C.First, no authority or other citation was referred to in support of the finding that, post the enactment of the 2010 Act, there existed at common law the power to make an adoption order, and further that, notwithstanding section 2(2) of the 1991 Act, the High Court still had the power to recognise an intercountry adoption by virtue of the common law principle (para. 33(2)). Secondly, and perhaps as a follow-on from the previous point, the learned judge also held that section 92(1) of the Act permitted some flexibility “so as to allow the High Court to be a second guarantor of the interests of the child” regarding inter-country adoptions (para. 33(3)). Whilst I cannot see any basis to that approach, nevertheless, out of the deference to that argument possibly being made, I will refrain from expressing a definite view as to whether, and in what circumstances, some minor technical non-compliance with the Convention could be remedied.

145. There is one further aspect of that decision which I should refer to. It is the judge’s view on the submission that the best interests of the child prevail and at least implicitly that such a concept is an added layer for consideration above and beyond the actual terms of the Convention itself. For the reasons set out in para. 33(1) of his judgment, which are essentially reflective of the views expressed above, I would endorse his rejection of such a submission. Whilst the case was decided prior to the enactment of Article 42A of the Constitution, nonetheless, for the reasons previously set forth, such provision does not, in my view, impact on the decision reached.

Conclusion
146. I would answer the questions posed as follows:

a. No, the Country A adoption is not recognisable;

b. No, the Authority does not have jurisdiction to make an adoption order in respect of the children;

c. No, theM.F. case does not remain good law;

d. Strictly speaking this issue does not arise, but no, the original status does not remain.

e. No, the Children are not eligible for adoption under section 23 of the 2010 Act, having regard to sections 9 and 45 of the 2010 Act.

147. I recognise that this would represent a most unsatisfactory outcome for all concerned, but in my view such are the only legally viable answers to the questions posed to the Court. The case represents somewhat of a Catch 22, there being no neat way to resolve the issues without seeming to do some measure of injustice one way or the other. The options presented are, effectively, to order the Authority to permit an adoption order to be made, and so to actultra viresits powers and directly in the teeth of the 2010 Act and the Convention; to register the existing domestic Country A adoption as an intercountry adoption, even though in my view there exists no jurisdiction to so order; or to maintain thestatus quo, with all of the obvious drawbacks that that may have for Mr. and Mrs. B and the children. Of these options, I am of the view that only the latter, despite its unattractiveness, is legally open to the Court. While this may be open to a claim of being an unduly strict approach, I firmly believe that only by taking such course can the vital objectives of the Convention be upheld. It is too important an instrument to effectively stand down its requirements in a given case, however desirable that might be for the family in question. I have earlier indicated my agreement that contact should be made with the Country A authorities with a view to ascertaining whether the requirements of the Convention can retrospectively be satisfied. If that can be achieved, I will gladly receive that good news.

148. In the absence of a Convention route being possible, I cannot, for the reasons above-indicated, see that section 92 can be operated as a substitute for non-compliance. Whilst I recognise the distressing nature of this outcome, I should record that there is no question of the children being removed from this jurisdiction and that their continuing presence and future residence in this country is assured. Acknowledging the sub-optimal outcome which the following may lead to, it is necessary to point out that I see no obstacle to the utilisation of the guardianship and custody rules in this jurisdiction so that their integration in this family is at least ring-fenced at that level. There are other measures available to deal with matters such as succession and the like. Accordingly, some degree of comfort can be gained from this approach. Whilst not the preferred outcome, the availability of such measures must not be overlooked and from a practical point of view can ensure that Mr. and Mrs. B. and the children can continue to live and flourish in the loving relationship which they obviously have.

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	Supreme Court of Ireland Decisions
You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> In the matter of the Adoption Act, 2010, Section 49 (2), and in the matter of JB (a minor) and KB (a minor) [2018] IESC 30 (16 July 2018) URL: http://www.bailii.org/ie/cases/IESC/2018/S30.html Cite as: [2019] 1 IR 270, [2018] IESC 30

Supreme Court of Ireland Decisions