The name of Tristan Dowse must be removed from the register of foreign adoptions by the Adoption Board, the High Court has ruled. However, his former adoptive parents have been ordered to pay for his maintenance until he is 18, along with other financial orders, and his succession rights remain intact. Tristan's Irish citizenship is also preserved, according to Mr Justice McMenamin. Carol Coulter, Legal Affairs Correspondent, reports.
The detailed judgment was made available yesterday, although it was handed down to the parties on February 3rd last. The Attorney General, who was one of the parties, had sought the publication of the judgment, or such parts of it that related to matters of public interest, and this was granted by Mr Justice McMenamin yesterday.
In his judgment, he outlined the series of events which led to the Attorney General taking action in the High Court last June. Rory Brady SC sought a declaration that Joseph Dowse, an Irish citizen, and his Azerbaijan-born wife, Lala, had failed in their duty to care and provide for their adopted son, Tristan, an order directing them to do so, and a number of associated orders relating to his accommodation, care, support and maintenance.
Last August, Mr and Mrs Dowse initiated their own set of proceedings, seeking the cancellation of Tristan's entry in the register of foreign adoptions, along with such orders as the court might see fit relating to the welfare of Tristan.
In subsequent court hearings, all heard in camera as they concerned family law and the welfare of a minor, evidence was given by a number of witnesses, including Mr Dowse, the Irish Ambassador to Indonesia, Hugh Swift, senior social worker for the Adoption Board, Patricia Smyth, and deputy legal adviser to the Department of Foreign Affairs, James Kingston.
The adoption
According to the evidence, Tristan was born on June 26th 2001 and adopted by the Dowses on August 10th, by order of a district court in Jakarta, Indonesia.
The judge said that there was insufficient evidence to make any judgment about the circumstances of the adoption, but in any case Tristan was adopted legally under Indonesian law, and he lived with the Dowse family from August 2001 until May 2003. The adoption was registered with the Irish Adoption Board and Tristan was issued with an Irish passport.
The court was told by the Dowses that "very little or no bonding took place", that Tristan did not react or bond in a positive way with the couple and that he became disturbed in the presence of Mrs Dowse.
The couple contended that one of the reasons it did not work out was the absence of the supports which would have existed in another jurisdiction.
They sought the services of a psychologist, who said that continuing the adoption was not in Tristan's best interests.
They decided that he should be re-adopted and approached the Indonesian court, applying to hand him over to another couple, which the court accepted.
In May 2003, they made arrangements to leave Tristan in a privately-run orphanage in Indonesia, and they left for Azerbaijan shortly afterwards. They have had no contact with him since.
It emerged that, shortly after Tristan's name was registered with the Irish authorities, Mrs Dowse discovered that she was pregnant.
A daughter was born to the couple on May 29th 2002.
In the letter to the Indonesian court in May 2003, seeking the annulment of Tristan's adoption, Mr and Mrs Dowse stated that her pregnancy and the subsequent birth had interfered with the adoption and the bonding with Tristan.
The judgment pointed out that this is at variance with the account given to the High Court.
The orphanages
When he went into the home, Tristan spoke only English. His name was changed to Erwin, for a reason not disclosed to the court. The Irish authorities had been alerted to his situation in April 2004 and he was visited by Ms Smyth on behalf of the Adoption Board. She became aware of a Christian family who would have been willing to adopt him, but under a new Indonesian law children from one faith cannot be adopted by another, and Tristan had been born a Muslim.
The Indonesian authorities then moved Tristan to a state-run orphanage for Muslim children, which was larger than the private orphanage and which segregated the children according to age. He had settled into the private orphanage and formed friendships with older children. According to the judgment, "in July 2005 Tristan was described as being hurt, confused and somewhat bewildered".
The judgment continued: "In a form signed by the applicants for the purposes of the original adoption on 25th July 2001 [ the Dowses] wrote that they wished to raise Tristan as if he was their 'own flesh and blood'. What occurred is difficult to reconcile with that statement. It is hard to conceive of the effect which these traumatic changes must have had on this young child."
Mr and Mrs P
In May 2003, the Dowses went to the Indonesian court, where they sought, and obtained, permission to hand Tristan over to another couple, a Mr and Mrs P, who were Indonesian. Mrs P was Mr Dowse's assistant at work. It was stated in documents that they were prepared to bring him up as long as he did not have any other adoptive parents.
However, they did not care for him, but handed him in to the privately-run orphanage, which was not registered as an adoption agency with the Indonesian authorities. According to the judgment, the Indonesian order makes no reference to any orphanage, but permits Tristan to go to the P family.
"What is very clear," commented Mr Justice McMenamin, "is that the contents of the documentation did not reflect the actuality, and that what actually occurred was that the applicants arranged for Tristan to be placed in the home. Tristan was never going to reside with the Indonesian couple."
He also pointed out that Tristan's position was not made known to the Indonesian authorities.
Meanwhile, Mrs P was trying to find adoptive parents among the expatriate community. One of those who became aware of Tristan's situation was an Australian woman, a Mrs O'R, who contacted the Irish consulate in Singapore, which then contacted Dublin.
Although she knew the Dowses socially, she had not been aware that Tristan had been placed in an orphanage.
The Irish authorities
By late March 2004, the question of Tristan's whereabouts had become a matter of concern to people outside the Dowse family, and the Irish authorities had been informed through the consulate in Jakarta. Within three days, a representative of the Irish consulate visited Tristan in the privately-run orphanage, and an investigation into the circumstances whereby he was there began.
In April, Mr Dowse wrote to the Adoption Board seeking to have Tristan's name removed from the register of foreign adoptions. Correspondence between the Irish authorities and Gus Cullen, solicitor for Mr Dowse, continued.
In March 2005, Mr Dowse applied to the Jakarta district court to revoke its adoption order for Tristan. In the documents relating to these proceedings it is repeated that they "temporarily surrendered the child to a husband/wife pair, BPP and MP".
The Indonesian authorities located Tristan in the privately-run orphanage and had him transferred to the state orphanage. Shortly afterwards, Ambassador Swift and other Irish officials arrived in Jakarta to inquire into his situation. Ms Smyth, the Adoption Board social worker, also visited him twice, at the request of the Attorney General, and with the assistance of David Kingston, barrister with the Department of Foreign Affairs. As a result of all this activity, the Attorney General began the proceedings against Mr and Mrs Dowse on behalf of Tristan last July.
Tristan's mother
The court did not hear evidence as to how it came about, but around this time Tristan was reunited with his mother, Ms S, who had given birth to him outside marriage four years earlier. She was livingin a city of about 500,000 people some 350 miles north of Jakarta.
Ambassador Swift visited him in his mother's home, shared with her mother, grandmother, great-grandmother and brother. One child from a previous marriage also lived with her.
According to the judgment, "Ms S and her mother impressed Ambassador Swift as being sensible and straightforward people".
The evidence suggested that Ms S's family was "above the level of poverty but nonetheless far from well-off". The house was very small and Ms S was not working, although she and her mother did piecework for a local supplier, for about 70 US cents a day, and some embroidery work.
Tristan was found in "apparent good health and good humour". He was enrolled in a local kindergarten school, which had cost $40, with a monthly fee of $1. His education was likely to continue to cost his mother money, which she might not be able to afford unassisted.
Mr Justice McMenamin concluded that Joseph and Lala Dowse had failed in their constitutional duty to "provide, according to their means, for the religious and moral, intellectual, physical and social education" of their son Tristan.
He ordered that his name be removed from the register of foreign adoptions, that he be made a ward of the Irish High Court and retain his Irish citizenship, and that his natural mother have guardianship and custody of him, with a number of financial orders, payable by the Dowses, to enable him to have the material advantages he would have had had he been brought up by them.