The Supreme Court has found the Adoption Authority of Ireland (AAI) does not have jurisdiction to recognise the foreign adoption of a woman's niece and nephew after the woman and her husband also sought to have them adopted under Irish law.
However, by a three-two majority, the court said certain steps, including further legal measures, could be taken by the couple to ensure the regularisation of the adoption of the children, who have been in Ireland for six years, between this country and the children’s birth country.
The relationship of the children’s natural parents ended and the man’s sister, who came to live in Ireland and has Irish citizenship, offered to give them a good life and home along with her Irish citizen husband.
In 2011, the wife, who at that time was only a citizen of her birth country, sought permission from the AAI to adopt them but was told she and her husband would have to be assessed for their suitability by the HSE and be resident here for a year.
Instead, she applied to a provincial authority in her birth country to adopt them there and was successful. However, only the central authority of that country, not a local one, has the power to approve what was an inter-country adoption, in accordance with the Hague Convention 1993.
The children got passports in their new family name and arrived in Ireland in 2012 when the couple also applied for adoption with the AAI.
The AAI, following correspondence, told them in 2013 the children were not eligible to be adopted in Ireland.
Legal proceedings followed and in May 2015 the AAI referred issues to the High Court under Section 29 of the 2010 Adoption Act dealing with inter-country adoptions.
The High Court found the adoption in the birth country was not recognisable here but also held the AAI had jurisdiction to make an adoption order here. The AAI appealed to the Supreme Court, arguing the High Court judgment was incompatible with the mandatory nature of the authority's duties and with the Hague Convention and, if accepted, would create an ad hoc parallel regime.
The couple and the Attorney General, both notice parties to the case, said the legal position was met by the fact of the children’s “habitual residence”.
On Thursday, all five Supreme Court judges agreed the AAI does not have jurisdiction to make an adoption order having regard to the previous adoption in the children’s birth country.
However, Mr Justice John McMenamin, giving the majority judgment, said the birth country adoption may be recognisable here if “remedial measures” were taken between the AAI and the central authority of the birth country.
Depending on the outcome of contacts between the two countries’ authorities, the High Court may, alternatively, if satisfied on evidence and law, direct the AAI to register the adoption here in accordance with our 2010 Act.
The judge emphasised his judgment was confined to the specific facts of this case. The fundamental issue here was how the children’s rights could be vindicated right now, he said.
While what he was proposing was a number of steps to ensure compliance with the law, there was a real risk, if not inevitability, of indefinitely rendering the children’s status uncertain even though they were not at fault.
He did not think that uncertainty could have been the intention of the legislature here or the framers of the Hague Convention.
It would not be an injustice for the law to provide for what the Constitution calls a “vindication”, the recognition in substance and legally, of the “human reality” that the children see the couple as their father and mother, “based on the bonds of attachment which have formed over the last six years”.
Ms Justice Elizabeth Dunne and Ms Justice Iseult O'Malley, in a joint separate judgment, agreed with Mr Justice McMenamin.
Mr Justice William McKechnie said he could not subscribe to the majority judges' "pragmatic solution". To do so would involve standing down the Hague Convention and create an ad hoc parallel inter-country adoption system, he said.
While recognising the distressing nature of that outcome, there was no question of the children being removed and their continuing residence here was assured, he added. Their status could be addressed under guardianship and custody rules and other measures were available to deal with succession rights and the like.
Mr Justice Donal O’Donnell agreed with Mr Justice McKechnie.