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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Udaras Uchtala v M & Ors (Unapproved) (Rev 1) [2020] IESC 64 (19 October 2020) URL: http://www.bailii.org/ie/cases/IESC/2020/2020IESC64.html Cite as: [2020] IESC 64 |
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AN CHÚIRT UACHTARACH
THE SUPREME COURT
S:AP:IE:2019:000226
O’Donnell J.
MacMenamin J.
Dunne J.
Charleton J.
Baker J.
IN THE MATTER OF SECTION 49 OF THE ADOPTION ACT 2010
AND IN THE MATTER OF K (A MINOR) AND F (A MINOR)
AND IN THE MATTER OF A CASE STATED BY ÚDARÁS UCHTÁLA NA hÉIREANN
AND
PP, YY, AND K (A MINOR)
XM, ZW, AND F (A MINOR)
THE ATTORNEY GENERAL
AND
THE CHILD AND FAMILY AGENCY
Notice Parties
Judgment of Mr. Justice Donal O’Donnell delivered on the 19th day of October, 2020.
1
.
This case concerns difficulties which
have arisen in respect of two intercountry adoptions. Such adoptions are now
regulated by the Adoption Act 2010 (‘the 2010 Act”): commenced on the
1
st
of November, 2010, which gave effect in Irish law to the Convention on
Protection of Children and Co-operation in Respect of Intercountry Adoption (“the
Hague Convention”). The commencement date of the 2010 Act, which is also the
date of repeal of the Adoption Act 1991 (“the 1991 Act”), is central to these
proceedings. Both the children involved in these proceedings, the third named
applicant, K., and the sixth named applicant, F., were born in Mexico after
that date.
2. The commencement of the 2010 Act in November, 2010, altered the Irish system for the recognition of intercountry adoptions and gives rise, moreover, to the difficult legal issue at the heart of this case. Under the 1991 Act a couple could, after assessment, obtain a declaration of eligibility and suitability (“DES”), travel abroad to pursue a private placement adoption, and, on return to Ireland, seek to have the adoption registered in the Register of Foreign Adoptions. The Hague Convention created a much more structured approach. It required each signatory state to have a central authority; adopting a child from a signatory state requires the co-operation of both the central authority in the child’s state of origin and that in the state to which the child is being relocated.
3.
Article
17 of the Hague Convention
provides for the process to be followed in respect of intercountry adoption.
Article
23 of the Hague Convention provides for the issuing of a certificate by
the central authority of the state where the adoption is made. These cases
concern adoption processes commenced under the regime created by the 1991 Act,
but which had not been completed prior to the coming into force of the 2010
Act. In each case, the local adoption effected may have been sufficient under
the 1991 Act but did not comply with the requirements of the Hague Convention
and, therefore, the 2010 Act. In particular, in each case the prospective
adopting couple did not have an
Article
23 certificate from the designated
central authority. No one suggests that anyone involved in these proceedings –
the adoptive parents, Údarás Uchtála na hÉireann (“the Authority”), or
the Mexican authorities - have acted improperly or have failed to perform their
functions. It is apparent that each of the parties involved had acted
conscientiously, having regard to their differing perspectives, and each is
conscious of the best interests of the individual children involved. Nevertheless,
the fact is that - almost ten years after both children were born, adopted, and
brought back to Ireland - they remain in a form of legal limbo and where, as it
was put in the legal submissions made on their behalf, they are unrelated by
the law of their habitual residence to their de facto parents with whom
they live and unrelated by the law of the land of their birth to the people whom
Irish law, it is said, maintains are their parents.
Facts
The Third Named Applicant: Baby K.
4. The first and second named applicants, P.P. and Y.Y., applied for an assessment of eligibility and suitability for adoption in 2006. An assessment, dated the 24th of November, 2009, was carried out recommending that the couple be approved to adopt a child of either gender, as young as possible, up to the age of 15 months and, in the first appendix, acknowledged Mexico as the country of choice. Mexico was an approved jurisdiction for the purposes of adoption abroad and the procedures complied with the 1991 Act.
5. A DES was granted to the couple by An Bord Uchtála (the body to which the Authority is the successor) on the 24th of February, 2010, and a further declaration was issued dated the 8th of February, 2011. Six explanatory letters to the couple from the Authority and the Foreign Adoption Unit of the Irish Naturalisation and Immigration Service (“INIS”) followed.
6.
The couple travelled to Mexico in
November, 2010, met Baby K. and, with the consent of the birth mother, have
cared for Baby K. since the 22nd of November, 2010, and ultimately
adopted Baby K. on the 10th of May, 2011, with an adoption order
made by the Family and Civil Court of First Instance in the United Mexican
States. The Mexican court ruled that it would integrate the Article
23
certificate into the Deed of Adoption. The Mexican authorities subsequently
advised the Authority in Ireland that the court was not a central authority for
the purposes of the Hague Convention and could not issue the
Article
23
certificate.
7.
The High Court judge, Jordan J.,
accepted the couple’s assertions that they believed in good faith that they had
complied with all necessary requirements of the Hague Convention. Towards the
end of May, 2011, the couple received the adoption decree and Baby K.’s birth
certificate was issued. A passport was issued to Baby K. by the Mexican
authorities on the 29th of May, 2011. On the 1
st of
January, 2011, and the 17th of February, 2011, the Foreign Adoption
Unit of the INIS, by letter and on the Authority’s instruction, gave
immigration clearance for Baby K. to travel to and enter Ireland. The couple
and Baby K. arrived in Ireland on the 2nd of June, 2011, and sought
thereafter to have the adoption entered in the Register.
8.
The couple acknowledged that, prior to
travelling to Mexico, they were aware that the law was changing and they sought
clarification from the Authority in this regard. In a letter issued by the
Authority on the 9th of February, 2011, it stated that “the
bearer(s) (of the declaration) are entitled to seek an entry in the [Register
of Foreign Adoption] … upon their return to Ireland” and that “a foreign
adoption … is deemed to be effected by a valid Adoption Order if … (1
) as
having been effected in accordance with The Hague Convention on Inter-Country
Adoption (1993) or (2) the adoption must be a recognised ‘foreign adoption’ as
defined in Section
1
of the [1991 Act] … and (3) is not contrary to
public policy”.
9. There were 19 so-called “Mexican adoptions” which encountered difficulty due to the commencement of the 2010 Act. 15 such cases were resolved as a result of O’C. & Anor. v. Údarás Uchtála na hÉireann [2014] IEHC 580 (“O’C.”). That decision was not appealed by the Authority and the adoption in that case and 14 other adoptions were duly registered. However, the Authority considered that, since Baby K. was not born by the time of the 2010 Act’s commencement, vested rights could not have accrued under the 1991 Act.
10. While the Authority has maintained the position that it cannot register the adoptions in the Register of Intercountry Adoptions, it has recognised the reality that the interests of the children concerned lie in remaining in Ireland and in a stable legal structure which is consistent with the reality of their lives. The Authority suggested that the children could be adopted in Ireland by a domestic adoption order pursuant to the provisions of Part 7 of the 2010 Act. However, difficulties in regularising the childrens’ position arose where the Child and Family Agency insisted on confirmation that the child was eligible for adoption before carrying out an assessment under s. 37 of the 2010 Act. At the commencement of the High Court hearing, the Child and Family Agency indicated that it was no longer maintaining such a position.
11
.
One feature of the case which vividly
illustrates both the legal issue involved and its dramatic effect on individual
cases is that Baby K. has a birth sibling in Ireland with whom they have
contact. That sibling was born before the
1
st of November, 2010,
but was not adopted in Mexico until some months after Baby K.’s adoption.
Consistent with its approach to the law, the Authority entered Baby K.’s
sibling’s Mexican adoption on the Register, while refusing to register Baby K’s.
The line drawn by the law - as interpreted by the Authority - runs to divide
birth siblings, both of whom were adopted after the coming into force of the
2010 Act pursuant to adoption procedures commenced prior to that date.
The Sixth named Applicant: Baby F.
12. By a letter dated the 20th of February, 2007, the couple applied for an assessment of eligibility and suitability for adoption. The assessment was carried out by the regional Child and Family Centre, and recommended that they be approved to adopt one child of either sex, with the first appendix noting Mexico as the country of choice. The first DES, dated the 26th of May, 2009, was issued to the couple under cover of an undated letter.
13. The couple used the services of Adoption Alliance in Colorado, United States of America, and were ultimately matched around January, 2011, and applied to renew their DES. The renewed declaration is dated the 25th of January, 2011: when the couple arrived in Mexico they gave their original documentation to their Mexican lawyer.
14.
Ultimately, the couple adopted Baby F.,
who was also not born by the time of the commencement of the 2010 Act, on the
17th of May, 2011, with the adoption order made by the relevant
Family and Civil Court of First Instance in the United Mexican States. The
court order recited that the couple “complied with the requirements ratified by
the government of the United States of Mexico in [the Hague Convention]”.
In May, 2011, upon learning from another Irish adoptive couple that a
certificate would be required upon their return to Ireland, the couple
requested one from their Mexican lawyer and received what they believed was the
certificate dated the 2nd of June, 2011. Jordan J. accepted, at
para. 29 of his judgment, that the intention of the document was to provide the
Article
23 certificate and the couple believed they had complied with all
requirements of The Hague Convention.
15.
The couple returned to Ireland on the 6th
of July, 2011, and applied to have Baby F.’s adoption entered in the Register
of Foreign Adoptions on the 27th of August, 2011, enclosing the
purported Article
23 certificate. The Authority considered it could not enter
the adoption on the register and, after an exchange of correspondence, the case
stated was issued by the Authority.
The High Court Judgment
16.
The present case came before the High
Court by way of case stated issued by the Authority. Each couple is unable to
prove compliance with the Hague Convention to the satisfaction of the Authority,
and is thus unable to have the Mexican adoptions recognised in Ireland. They
do not have the Article
23 certificate required by The Hague Convention to
allow inter-country adoption to be recognised by operation of law in Ireland
and other contracting states.
17. The children in question are now approximately 9 years old. Jordan J. accepted that they are and have been happy, thriving, and settled in their family units.
18.
Both cases present the difficulty of the
absence of a valid Article
23 certificate and confusion as to the identity of
the competent central authority in Mexico. It appeared to Jordan J. that the
actual identity of the Mexican Central Authority for Adoptions is the Secretary
for Exterior Relations (“S.R.E.”). The S.R.E. implements the
Hague Convention through the National System for the Full Development of the
Family (“D.I.F.”).
19.
On the 12th of June, 2012,
the Mexican Embassy in Dublin issued a third party note to the Authority
confirming that the National Central Authority does not now have the power to
issue an Article
23 certificate in respect of the 19 adoptions given the
“irregularities”. The issuance of such a notice is an unusual step and was the
subject of some comment by counsel for the applicants. It should be noted that
the note is in general terms and was not directed to any individual case. It
was considered in the judgments in both O’C. and the present case. It
is desirable to set it out in full:-
“[T]he
Embassy of Mexico presents its compliments to the Adoption Authority of Ireland
and has the honour to refer to the 19 cases of Mexican children adopted by
Irish couples who have not been issued the certificate referred to in Article
23 of The Hague Convention for the Protection of Children and Co-Operation in
respect of inter-country adoptions. The Mexican authorities have sent this
Embassy the following:
(1
)
The procedures established by The Hague
Convention for the Protection of Children and Co-Operation in respect of
inter-country adoptions, valid for both countries is the instrument which
determines that an adoption has been arranged in a regular or irregular manner,
and not what either the Mexican or Irish authorities decide.
(2)
The Mexican authorities and in
particular the Central Authority in Mexico does not have the powers under the
Convention, to regularise migration matters in the adoptive country of minors,
to redress the existing inconsistencies in the adoption proceedings made in
infringement of the provisions set in the Convention, but is impeded to issue
the certificate referred to in Article
23 of the International Instrument.
The above is regardless of the results of investigations carried out by the Attorney General’s office and the responsibilities which may result from such irregularities.
(3)
If the Irish authorities wish to assist
to regularise the situation it is their prerogative and it should be in
accordance with their legislation. However, it would be deemed as strange if
they were to seek to proceed with the regularisation of migration of cases that
are clearly in violation of the rules and procedures contracted bilaterally.
It would also be a concern, as it could be construed as encouragement to
violate Mexican procedures and then to have the validated by Irish authorities.
The Hague Convention contains no provision to make up or improve the processes
of adoption made outside its jurisdiction in fact it presupposes that those
procedures are only valid in the Convention’s. However, the adopters could,
under their own volition, attempt to get judgments to remedy the mistakes which
occurred in the previous procedure and argue the case in the best interests of
the child. This might perhaps mean that the adoptions referred to the Mexican
authorities would be nullified and that they would have to restart the process
through the mechanism of The Hague. In this vein, the Mexican authorities
should not be obliged to provide the elements that enable the adopters to
nullify such decisions, but only to maintain official contact with the Irish
authorities for purposes of The Hague Convention, as set out in Article
no. 4.
(4) The above comments are made independently of the conclusions that the Attorney General’s Office or any other authority could reach, on cases in analysis and adinistrative responsibilities that may distance themselves as a result thereof.
(5) The wellbeing of the child must prevail over the multiple considerations. Under the circumstances and given the social acclimitisation and familiarity of the children, it is not advisable to remove the children and return them to Mexico but to keep them in Ireland. The children are the victims here of procedural errors which occurred, therefore if the granting of Irish citizenship is to occur this will be determined by the Irish authorities, experts in Irish legislation.
The Embassy of Mexico avails itself of this opportunity to renew the Adoption Authority of Ireland the assurances of its highest considerations.
Dublin, 12th of June 2012”
20. It is, perhaps, noteworthy that the note does not purport to distinguish between any of the cases on the basis of the date of birth of the children in question.
The Vested Rights Argument
21.
Jordan J. considered ss. 27(1
)(c) and
27(2) of the Interpretation Act 2005 (“the Interpretation Act” or “the
2005 Act”), which together provide that the repeal of an Act does not affect
any right, privilege, obligation or liability acquired, accrued or incurred
under the enactment and that legal proceedings in respect of such can be
continued, and reviewed the applicable case law.
22. Having considered the case law and relevant statutory provisions, Jordan J. concluded, at para. 86 of his judgment, that a DES vests clear rights in the bearers of that declaration as a formal official document issued pursuant to statute that has clear, important, and valuable consequences for the bearers. At para. 87, he held that such vested rights cannot be taken away by the 2010 Act without clear words, which are noticeably absent. Jordan J. also held that there is nothing in the 2010 Act to rebut the presumption against an intention to remove these vested rights.
23. Jordan J. held, at para. 88, that the declarations in question were, in effect, licences to allow the bearers at the time of issue to travel abroad to adopt a child abroad and then return to Ireland with the child and apply to have the foreign adoption entered into the Register of Intercountry Adoptions. Accordingly, the date of birth of the child adopted in Mexico could not have an impact upon these vested rights.
24. While Jordan J. acknowledged that the transition from the old to the new system created confusion and uncertainty, that could not deprive the two couples of the rights vested in them when they received the declarations. He did not doubt that both couples relied fully on the declarations and took real steps to avail of the right, privilege, or licence which the declarations vested in them by proceeding with their plans to adopt in Mexico, as he noted at para. 90.
25. In O’C., Abbott J. had referred to eight separate rights which he said had arisen as a result of the applicants seeking to adopt under the 1991 Act. Jordan J., in this present case, considered at para. 91 that what Abbott J. identified as “rights” were actually illustrations of the existence of the right conferred by the declarations.
26. At para. 92 of the High Court judgment, Jordan J. held that it would be unfair to remove the vested rights from the couples even though the child to whom the declaration related was not born at the time the declaration was issued or at the time the applicable law concerning intercountry adoption was changed. While the Authority submitted that “the Oireachtas cannot have intended that vested rights of the (limited) nature proffered here, would prevail over the requirements of the [Hague] Convention”, Jordan J. disagreed.
Alternative routes suggested by the Authority and interactions with the Child and Family Agency
27.
Solicitors for the Authority had stated,
in correspondence to solicitors for the parents, that the Authority was willing
to consider applications under Part 7 of the 2010 Act and suggested that they
contact the Child and Family Agency to start the relevant process. Jordan J.
noted at para. 111
(14) that it appeared that the applicants had engaged with
the Child and Family Agency, but that the latter would not be able to commence
its assessment until the child’s eligibility to be adopted had been confirmed.
The Case Stated
28. After considering the law and the facts, Jordan J. turned to the questions of the case stated:
(i) For
the purposes of s. 27(1
)(c) of the 2005 Act are “…pre-existing rights to
adoption [which] survived the Act of 2010” (as per para. 34 of
the O’C. judgment), capable of arising where the minor to be adopted was
born after the commencement of the 2010 Act on the
1
st of November,
2010?
(ii) In
the event that the answer to (i) is “No”, is the Authority entitled to proceed
under Part 7 of the 2010 Act in respect of the applicants who are notice
parties to this case stated, subject to hearing the persons in s. 53(1
)(a) of
the Act and the other requirements in Part 7 being fulfilled?
(iii) Is the Child and Family Agency entitled to insist on confirmation that a child is eligible for adoption before carrying out an assessment under s. 37 of the Act?
Answers to the Questions of the Case Stated
29. Jordan J. answered the questions as followed:
(i) Yes.
(ii) Does not arise in light of the answer to the preceding question.
(iii) No.
30. The Authority sought leave to appeal to this court, supported by the Attorney General, which was granted.
Discussion
31.
The complex legal position in this case
must be understood by considering the development of the law and, in particular,
two cases, first, the High Court decision in M.O’C. & B.O’C. v. Údáras
Uchtála na hÉireann [2014] IEHC 580, [2015] 2 I.R. 94 (“M.O’C.”), and
the decision of this court in In Re.: Section 49(2) of The Adoption Act 2010
and J.B. (a minor) & K.B. (a minor) [2018] IESC 30, [2019] 1
I.R. 270
(“J.B.”).
32.
M.O’C. is
a case which is similar to these cases, other than in one respect: in that
case, the child to be adopted in Mexico was born prior to the coming into force
in Ireland of the 2010 Act, on the 1
st November, 2010.
33.
In October, 2009, the applicants who
were prospective adoptive parents obtained a DES under the 1991 Act. The child
in question was born in October, 2010, in Mexico and placed in the care of the
applicants on the 26th October, 2010. A Mexican adoption order was
made by a Mexican court in March, 2011. The order of the court referred
expressly to the Hague Convention of 1993 and stated (as translated) that
“these procedures aim to comply with Article
23 of the before mentioned
Convention”. As Abbott J. noted, there was more general confusion as to the
authorities in Mexico entitled to issue a certification under
Article
23 of the
Convention. At one point, the Mexican authorities had reported to the Working
Committee on The Hague Convention that certain Mexican judges were competent
authorities for those purposes. On their return to Ireland, the adoptive
parents sought to have the adoption registered as an intercountry adoption.
The Authority considered that it could not do so and the matter was referred to
the High Court.
34.
In the proceedings, the applicants
raised a number of arguments. They contended that there existed a common law
power to recognise foreign adoptions which remained in existence and was
independent of the provisions of either the 1991 or the 2010 Acts, relying on
the decision of McKenzie J. in M.F. v. An Bord Uchtála [1991] I.L.R.M.
399, which had predated the coming into force of the 1991 Act. The applicants
also argued that the order of the Mexican court should be accepted as an appropriate
certification under Article
23. In addition, it was argued that, at the time
of passage of the 2010 Act, the applicant adoptive parents had acquired a
vested right to adopt under the 1991 Act and the 2010 Act did not contain any
clearly expressed intention that such rights should not be given effect.
Accordingly, under s. 27(
1
)(c) of the Interpretation Act, it was said that the
vested right had accrued and was not affected by the repeal of the 1991 Act
which did not therefore “affect any right, privilege, obligation or liability
acquired, accrued or incurred under” that enactment. Finally, it was argued
that s. 92 of the 2010 Act gave the High Court power to direct the Authority to
register a foreign adoption if it was satisfied that it should do so. This, it
was said, gave a wide-ranging discretion to the High Court to direct the
registration of the foreign adoption where it considered it appropriate to do
so, which was wider than the power of the Authority to register a foreign
adoption under s. 90 of the 2010 Act.
35.
The Authority disagreed with these
submissions made on behalf of the applicant adoptive parents. It contended
that the common law power to recognise to foreign adoptions no longer existed, having
regard to the combined effect of the 1991 Act and the 2010 Act. Furthermore,
it was argued that no vested rights had accrued prior to the coming into force
of the 2010 Act which, in any event, contained transitional arrangements
directed towards cases which were pending as of the 1
st of November,
2010. The Authority initially argued that s. 92 did not extend beyond the Authority’s
own jurisdiction under s. 90 to register foreign adoptions, and was thus
subject to the same limitations. However, in the course of the proceedings,
the Authority appeared to agree that s. 92 was somewhat more extensive than s.
90 and did give to the court some degree of discretion.
36. The Attorney General argued that no common law power now existed to recognise foreign adoptions, but also argued forcefully, and contrary to the position of the Authority, that vested rights had accrued under the 1991 Act by reason of the applicants having commenced the process prior to the date of coming into force of the Act and obtained a DES: rights which were not affected by the repeal of the 1991 Act.
37.
Abbott J. concluded that the common law
power for recognising foreign adoptions still existed but, as regards
recognition of an adoption effected in a Hague Convention country, the common
law power did not survive the coming into force of the 2010 Act which governed
such adoptions. However, Abbott J. considered that s. 92 provided more open
wording than s. 90, and allowed the High Court to act as a second guarantor of
the interests of the child and the proper administration of the Act. He also
considered that the transitional provisions of the 2010 Act could not assist
since there was no evidence that the Mexican authorities would not issue a
certificate under Article
23 for a child less than five years old other than in
defined exceptional circumstances which did not appear to apply in this case.
38. However, in relation to s. 27 of the Interpretation Act, Abbott J. concluded that a number of specific rights could be said to be vested, namely: the declaration of eligibility of the applicants, in particular in relation to seeking the adoption of a child not older than six months; the furnishing of a letter giving a right to travel abroad for that purpose; the consent of the birth mother; the placing of the child in the custody and guardianship of the adoptive parents by the Mexican court; the right of the child in guardianship pending adoption to develop physically and emotionally and to be cared for; the right and duty of the applicants to apply for adoption to the Mexican courts; the right of the applicants and the child to apply to the Board/Authority for entry on the Register of Foreign Adoptions. Finally, Abbott J. considered the paramountcy of the best interests of the child as a separate factor.
39.
It is perhaps useful to note at this
point that, in the judgment under appeal, Jordan J. considered that the matters
described in the judgment in O.C. as “rights” were better conceived not
as separate rights, but rather as steps taken from which it was proper to find
that a vested right had accrued by the 1
st of November, 2010. It is
also useful to note at this point that nowhere among the factors identified by
Abbott J. was any significance attached to the date of birth of the children
involved.
40.
Although the Authority had argued
against the conclusion to which the High Court judge came, it did not appeal
the decision in O.C. Instead, it proceeded to enter the O.C.
adoption in the Register of Intercountry Adoptions and to take the same course
in relation to the bulk of the remaining Mexican adoptions where the process
had been commenced under the 1991 Act but had not been concluded by the date of
the coming into force of the 2010 Act. As I understand it, there were 15 in
number, although there is some doubt about the precise figure. However, the
important fact which is not in dispute is that a significant number of Mexican
adoptions were registered on the basis of the O.C. decision. This must
be taken as not only acceptance of the decision as determining the outcome in
the O.C. case, but also establishing the law for any similar case that
was not legally distinguishable. However, the Authority did not register the
adoption of four children, two of whom are the subject matter of these
proceedings. The Authority has made it clear that it considered it could not
do so because the children in question had not been born as of the 1
st
of November, 2010. In this case, this distinction gives rise to the striking difference
of treatment between a baby and a sibling child who, while born prior to the
1
st
of November, 2010, was adopted in Mexico some months after the adoption of Baby
K., but whose adoption has been entered on the register by the Authority
consistent, it should be said, with the view it has taken of the law.
41.
A further matter which must be noted is
the subsequent decision of this court in J.B. The facts of that case
were quite different. There was no question of a couple obtaining a DES and
then seeking a foreign adoption. Instead, one of the spouses adopted children
of a sibling in her country of origin, described as Country A. The couple then
sought a domestic adoption under s. 23 of the 2010 Act. They never
sought the registration of the foreign adoption (which, it should be noted, was
effected by only one of them). The Authority stated the case to the High Court
under s. 49 of the 2010 Act and the High Court found that there was a power to
make a domestic adoption order in respect of the two children. The Authority
appealed to this court, which reversed the High Court’s decision on that question.
However, the court was divided on a subsequent question as to whether or not
the High Court nevertheless had discretion under s. 92 to direct the entry of
the foreign adoption in the Register of Intercountry Adoptions. A majority
(MacMenamin J.; Dunne and O’Malley JJ. concurring; O’Donnell and McKechnie JJ.
not concurring) held that the High Court had a limited discretion under s. 92
less broad than that which had been held to apply in the O.C. case, but
which was sufficient to permit registration of the foreign adoption if, having
considered all the evidence, the High Court considered it appropriate and in
the best interests of the children to do so. The statement in O.C.,
however, that the discretion under s. 92 was to be exercised by reference to
the Constitution and to avoid “invidious discrimination” was considered a broad
statement which went far too wide; the section was to be interpreted narrowly
and with great care. The best interests guarantee under Article
42A of the
Constitution was not to be seen as an interpretive Trojan horse to undermine
the 2010 Act. It is clear that both the majority and minority judgments were
concerned that an interpretation of the Act to permit either a domestic
adoption, or a broad interpretation of s. 92, could permit the circumvention of
the 2010 Act since either route would provide a means whereby non-compliant
foreign adoptions could nevertheless be recognised and given effect.
42.
In this case, as already noted, the Authority
has refused to register the two adoptions. It should be said that the Authority
has not been in any way obstructive, but rather has made extensive efforts to
attempt to regularise an extremely difficult situation consistent with its
statutory powers and obligations under the Act, the underlying policy of the
Hague Convention, and the State’s international obligations. The Authority has
gone to some lengths to seek a satisfactory solution, including meetings with
the Mexican authorities. Furthermore, while considering they have had no power
to register the foreign adoptions in question, the Authority has maintained the
position that Part 7 of the Act could provide a route whereby the children
might be adopted under Irish law. Part 7 of the Act is headed “Adoption Orders
in Exceptional Cases and Role of High Court” and replaced the provisions of the
Adoption Act 1988 and which, in broad terms at least, permits the adoption of
children of married parents where it could be said that the parents had failed
in their duty towards their children, which is itself a clear reference to the
then-applicable terms of Article
42.5 of the Constitution. The adoptive
parents were, themselves, willing to pursue this avenue but, as already
observed, that process was stymied by the fact that the Child and Family Agency
considered that it was not in a position to conduct the initial assessment
process which was necessary. Accordingly, these proceedings were commenced.
43. The High Court, in a comprehensive and careful judgment of Jordan J., reviewed the facts and judgment in O.C. It held that this case was not distinguishable from O.C. and that, therefore, the Authority had power to, and therefore should, enter the adoptions in the Register of Intercountry Adoptions. The key reasoning is contained in paras. 86 to 88 of the judgment and which bears full quotation:-
“86. When I consider the legal authorities and the provisions of the Adoption Act 1991 along with the provisions of the Adoption Act 2010 I am driven to the conclusion that the declaration of eligibility and suitability vests clear rights in the bearers of that declaration. It is a formal official document issued pursuant to statute and it has clear, important and valuable consequences for the bearers. Indeed, to repeat just one part of the letter just quoted from the Adoption Authority of Ireland dated the 27th January 2011 concerning the declarations of eligibility and suitability:-
“The bearer(s) is/are entitled to seek an entry in the register of intercountry Adoptions upon their return to Ireland”.
87. It is not necessary to repeat any other portion of the documents which I have recited in full but it is an inescapable conclusion and I find that the declaration of eligibility and suitability which issued to each couple vested in each couple rights which cannot be set at nought or taken away by the Adoption Act 2010 in the absence of very clear wording - which is noticeably absent from the 2010 Act. The vested rights are clear and there is nothing in the 2010 Act to rebut the presumption against an intention to remove these vested rights.
88. I am entirely satisfied that the declaration of eligibility and suitability vested rights in both couples once they came into possession of the declarations. The declarations of eligibility and suitability in question were in effect licences to allow the bearers at the time of issue to travel abroad to adopt a child abroad and return to Ireland with the child and apply to have the foreign adoption entered in the Register of Intercountry Adoptions. The date of birth of the child adopted in Mexico cannot impact on these vested rights. The declarations are self-contained, clear and legal documents which must be afforded the recognition and effect which they were intended to have when issued in the absence of anything in the 2010 Act to say otherwise.”
44.
It is apparent that these cases and the
related cases have raised some intractable legal issues. There are a number of
different, and sometimes competing, considerations and no simple solution. However,
it is important not to lose sight of the fact that these difficult legal
disputes have a real human component. In that regard, it is important to
observe, first, that nothing this court can decide can have any impact on the
validity of the registration of the foreign adoptions in the O.C. case
or those affected pursuant to that judgment. As the Attorney General’s
submissions point out, s. 50 of the 2010 Act provides that a relevant adoption,
unless declared invalid by a court, shall be deemed for all purposes to be –
and at all times since its making - to have been valid and shall not be
declared invalid by a court if it considers that the declaration would not be
in the best interests of the child and it would not be proper to make the declaration,
having regard to those interests and the rights under the Constitution.
Furthermore, all relevant parties, including the Mexican authorities in their
diplomatic note, seem to agree that the best interests and the future of the
children must be in Ireland and, indeed, in the care of the couples who have
adopted them under Mexican law and brought them to Ireland. In considering
possible routes to provide any greater legal certainty for the families
involved, it is important to recognise that any such routes may not only give
rise to legal hurdles, foreseen and unforeseen, but also to real concerns for
all the persons involved. Thus, although the Mexican authorities raise the
possibility of a return to Mexico to seek a Hague-compliant adoption that would
permit an Article
23 certificate to be provided, no assurance is, or perhaps could
be, given in that regard. Any such proceedings might, for example, involve
setting aside the original Mexican adoption and the uncertainty of subsequent
proceedings. Similarly, proceedings under Part 7 would necessitate a court
application, notice to the birth parents, and, again, uncertainty as to how
such proceedings might be resolved. In addition to the legal uncertainty, it
would certainly involve undoubted stress and anxiety for everyone concerned. The
problem in this case is not simply a legal jigsaw puzzle, but a real-life
dilemma where the courses considered have a real impact on lives.
45. The first question is whether this case is capable of being distinguished as a matter of law from the decision in O.C.
46.
It is true that the facts in this case
do not replicate precisely the eight enumerated features identified and relied
on by Abbott J. in O.C. However, there is similarity, indeed identity,
in the basic structure of the facts in each case: a DES is granted before a
repeal of the 1991 Act and a Mexican adoption effected thereafter which it has
sought to have registered in Ireland, but which is not compliant with the
procedural requirements of the 2010 Act which was by then in force in Ireland.
Other factors were present in O.C., such as the placing of the child in
the custody of the adoptive parents almost immediately. The difference in the
factual circumstances might be relevant in another case and if, for example, there
was a contest in relation to the best interests of the child. However, here
the issue is a legal one: whether the adoptive parents can be said to have
acquired vested rights prior to the 1
st of November, 2010, so that
the repeal of the 1991 Act should not interpreted as removing such rights
unless that result was clearly intended by the specific language of the
repealing statute. It is hard to see, therefore, how any factual matter
occurring in relation to the detail of the arrangements made in Mexico short of
the Mexican adoption can affect that issue. In all the relevant cases, the
formal Mexican adoption order, which could be said to be contemplated by the DES,
was made well after the coming into force of the 2010 Act in Ireland and
accordingly cannot, itself, be said to give rise to any accrued right prior to
the date of repeal.
47.
The next question is whether a valid
distinction can be drawn between the O.C. case (and those which apply
that decision) and the present cases on the basis that the children in the
present cases were not born until after the date of coming into force of the
2010 Act. Counsel for the Attorney General argued that the fact that the
children were not born as of the 1
st of November, 2010, meant that
any rights were too contingent and speculative to be capable of being vested
for the purpose of the accrued rights principle contained in s. 27 of the
Interpretation Act. I do not agree. If the applicants are correct in other
aspects of their argument, and the grant of a DES is capable of being seen in
certain circumstances to give rise to vested and accrued rights, then any such
right would not fail simply because the child in question was not born until
after the
1
st of November, 2010. In those cases where vested rights
were held to have accrued, there was no requirement that the child to be
adopted was born at the time of the grant of the DES. Until the 1991 Act,
moreover, a DES had certain legal consequences for the duration of the lifetime
of the DES. Not only was there no requirement under the 1991 Act or under the
DES granted under that Act that a prospective adoptee be born at the time of
the grant of the DES, it was instead to be anticipated that a child to be
adopted under a DES might well not be born at the time of the grant. If,
therefore, the grant of a DES gives rise to rights capable of being vested or
accrued rights and obtaining the benefit therefore of s. 27 of the Interpretation
Act so that an adoption effected after the date of repeal would be entitled to
registration (or to seek registration) in Ireland, then there is, in my view,
no logical basis to restrict such rights to adoptions which occurred in respect
of children born prior to the
1
st November, 2010, and Jordan J. was
correct to so hold.
48.
This leads to another issue which was
debated at the hearing; there is a certain lack of clarity as to the nature of
the precise rights said to arise on the grant of a DES. It was forcefully argued
on behalf of the applicants that there was a change between the 1991 Act and
the regime established under the 2010 Act, and that - under the 1991 Act - a
DES was very significant and, indeed, could be said to be the last step
required by Irish law prior to the registration of a foreign adoption. Once
granted, then - assuming a foreign adoption was effected - a DES conferred a near-absolute
right to registration (and, therefore, recognition in Irish law). Thus, it was
argued that the accrued right was a right to have a foreign adoption
registered. Thus, it was said by the applicants that “it is essential to
point out that the DES is not the right. The right is the right to
adopt/recognition”. Furthermore, it was argued that “the right to have a
foreign adoption recognised here followed automatically in the cases of a
couple ordinarily resident in Ireland, in the possession of a DES, without
further steps being required of the predecessor to the Authority (subject to
satisfying the legislative proofs required)”. It was logical that the
applicants should put their case in this way, since it gave considerable force
to the argument that a vested right had accrued on the grant of a DES.
However, counsel for the Authority argued, persuasively, that this was to
significantly overstate the legal effect of a DES under the 1991 Act. He
pointed out that what the applicant describes somewhat dismissively as “legislative
proofs” are significant matters. Under s. 5 of the Act, it was provided that a
foreign adoption would be deemed to have been made “unless such deeming would
be contrary to public policy”. Public policy considerations play a significant
role in the area of adoption, and in the recognition of foreign adoptions in
particular. Some of those matters were also referred to in the definition of a
foreign adoption contained in s. 1
of the Act, to which counsel also pointed.
Section
1
included five relevant conditions which must be satisfied before a
foreign adoption can be said to be an adoption for the purposes of the 1991
Act, and therefore capable of being registered. They are as follows:-
“(a) the consent to the adoption of every person whose consent to the adoption was, under the law of the place where the adoption was effected, required to be obtained or dispensed with under that law,
(b) the adoption has essentially the same legal effect as respects the termination and creation of parental rights and duties with the respect to the child in the place where it was effected as an adoption effected by an adoption order,
(c) the law of the place where the adoption was effected required an inquiry to be carried out, so far as was practicable, into the adopters, the child and the parents or guardian,
(d) the law of the place where the adoption was effected required the court or other authority or person by whom the adoption was effected, before doing so, to give due consideration to the interest and welfare of the child,
(e) the adopters have not received, made or given or caused to be made or given any payment or other award (other than any payment reasonable and properly made in connection with the making of the arrangements for the adoption) in consideration of the adoption or agreed to do so.”
49.
These conditions, and the general
requirement of compliance with public policy, required a real inquiry by An
Bord Uchtála under the 1991 Act and could not be said to be mere formalities so
that registration could properly be said to flow necessarily, ineluctably and
automatically from the grant of a DES. It was presumably considerations of
this sort which led Jordan J., at para. 88 of his judgment, to characterise the
right which he found to have accrued in somewhat different terms. He described
it as a licence to allow the bearer to travel abroad and to adopt a child
abroad (and return to Ireland with the child and apply to have the
foreign adoption entered in the Register of Foreign Adoptions). This is, I
think, an accurate statement of the applicants’ case at the highest point to
which it can be plausibly put. But, it leads to difficulties both practical
and conceptual. On what basis, and by whom, would such an adoption be
registered given that, after the grant of the DES, the body granting it had
been dissolved and the Act, including the criteria contained in ss. 1
and 5, had
been repealed? This highlights the fact that the applicants’ arguments seem
necessarily to amount to a contention that they are entitled to maintain in
being the entire machinery of the 1991 Act, notwithstanding its repeal, for the
purposes of their applications. I have some doubt that such a right can be
said to be a vested right for the purposes of s. 27.
50. There are, moreover, further formidable hurdles to acceptance of the applicants’ arguments. The question of whether vested rights can be said to have accrued which it would be unfair to defeat has certain conceptual similarities to the type of argument which may, for example, arise if a challenge was made to the constitutional validity of legislation because of its impact upon particular citizens and their actions. But, in the present context, the argument is not a self-standing principle of law requiring a court to consider whether it would be unfair to deprive the applicants of the possibility of registration of the Mexican adoptions. It is, rather, a principle of interpretation of legislation contained in the Interpretation Act and sets out what is merely a default position which will apply unless clear language is used showing a contrary intention. As a matter of interpretation, at least, it would be perfectly permissible for the Oireachtas to repeal legislation and, in doing so, clearly and deliberately remove any entitlements which might be said to have vested and accrued under the previous legislation but not to have been acted on or brought to finality.
51.
The principle embodied in s. 27(1
)(c) of
the Interpretation Act is a sensible one. Legislation has a general
application intended to act prospectively and establish the rules for, and
legal consequences of, certain actions. Such legislation will not always
address transactions and activities which may have been in train as of the date
of the enactment of the legislation. Matters may have progressed to a point
under the pre-existing legal regime where it would be right to assume that the
Oireachtas did not intend, by the repeal of one piece of general legislation
and its replacement with another, to deprive the citizen of the benefits which
had been acquired under the prior legislation unless it uses clear language to
show that it has specifically considered not just the general question, but also
the issues arising in this specific class and has decided that it was
nevertheless necessary or appropriate to do so.
52. In this case, it is apparent that, on a number of occasions, the 2010 Act considered and made provision for transitional cases in being at the time of coming into force of the Act and the repeal of the 1991 Act. Thus, s. 57 of the Act deals with the recognition of intercountry adoptions effected before the establishment day, or if effected after the establishment day, which were effected by adopters habitually resident in the State at the time of the adoption, or in any other case, which were effected in accordance with the Hague Convention or with the bilateral agreement. This provision would apply in the present cases, for example, if the Mexican adoption orders had been made prior to the date of coming into force of the 2010 Act but had not yet been registered. Similarly, s. 176 provides for a saver in respect of an application for an adoption order or recognition of a foreign adoption made to An Bord Uchtála and not determined as of the operative date. Counsel also points to the provision of s. 63A of the Act as inserted by the Adoption (Amendment) Act 2003 giving continued force to certain Declarations of Eligibility and Suitability granted under the 1991 Act in respect of the Russian Federation which, it is argued, would be unnecessary if a DES had the legal effect contended for by the applicants. Of most significance, however, are the provisions of s. 63, providing for transitional arrangements in respect of foreign adoptions and processed immediately before the establishment day. That section provides as follows:-
“63 - (1
) In
this section, “foreign adoption” means a foreign adoption within the meaning of
section
1
of the Adoption Act 1991.
(2) If, immediately before the establishment day, a foreign adoption described in the Adoption Act as not yet effected but still in process as provided for under that Act–
(a) if the persons who applied under the Adoption Act 1991 had been issued with a declaration of eligibility and suitability before the establishment day, the adoption may proceed under this Act as if–
(i) it were commenced under the Act and the date of the issue of the declaration were that day,
(ii) the persons had applied under section 37 of this Act, and
(iii) section
40(1
)(b) of this Act read “in another contracting state or a state that,
in the opinion of the Authority, applied standards regarding the adoption
concerned that accord with those in the Hague Convention”,
and
(b) in any other case,
the adoption may proceed under this Act as if it were commenced under this Act.”
53. This section seems to address itself specifically to the factual situation arising in these cases: that is, where a foreign adoption had not yet been effected but where a couple had been issued with a DES under the 1991 Act. In such circumstances, s. 63 provides that the adoption is to proceed under the 2010 Act as if commenced under that Act.
54.
It was argued, however, in the High
Court in both O.C. and in this case that s. 63 did not amount to a clear
“contrary intention” for the purposes of s. 27 of the Interpretation Act. This
is because it was said: first, that the Register of Foreign Adoptions was continued
in force by virtue of s. 90 of the 2010 Act notwithstanding the repeal of the
1991 Act, and, in particular, s. 6 of that Act which established the register;
and, second, because it is said that the Act would have been much clearer had
it simply adopted the provisions of Article
41 of the Hague Convention in
respect to pending applications. That
Article
provides:-
“The Convention
shall apply in every case where an application pursuant to Article
14 has been
received after the Convention has entered into force in the receiving State and
the State of origin.”
55.
Depending on the difficulty of the
subject matter, the skill - or lack of it - of the drafter, and the
punctiliousness of the reader, it is perhaps possible to say that many pieces
of legislation or judicial decisions could be clearer or more accurate and
precise. The interpretation of statutes can be difficult, but should not be a
process which seeks ambiguity, confusion or lack of clarity, particularly if
the effect is to defeat the apparent legislative scheme. That goes to the
limit, and perhaps beyond the boundaries, of permissible interpretation. In
this case, it seems plainly arguable that s. 63 applies to these cases; they
were foreign adoptions in process at the time of the establishment day and
persons (the applicant adoptive parents) had applied under the Adoption Act
1991 and been issued with a DES. Accordingly, s. 63 appears to provide that
the adoption may proceed under the 2010 Act and that, therefore, the applicants
did not need to start again and seek a DES under that Act, but could proceed as
if they had obtained such a declaration. This appears, however, to be
inconsistent with the 1991 regime continuing once a DES was granted under that
Act. One consequence of the continuation of the application under the 2010 Act
is that the requirements of that Act (and the 1993 Convention to which it gave
effect) had to be complied with and, in particular, a certificate under Article
23 of the Convention provided. In truth, it appears that all the applicants
understood this and were aware that the law was changing. Indeed, it would be
surprising if it were otherwise. The difficulty in these cases was not the
requirement of compliance with the 2010 Act and the Convention, but rather that
the
Article
23 certification which the applicants in each case received is neither
valid nor effective.
56. I do not think that the continuation of the register on foreign adoption under s. 90 can have an effect, still less a decisive effect, on the interpretation of s. 63 or the Act more generally. It would seem entirely logical that the register should be maintained in existence since it is the entry in the register which gives the legal right to recognition to all foreign adoptions effected under the 1991 Act. Apart from performing that important public function, it is not inconceivable that some persons affected by the registration may, at some stage after 2010, wish to seek to alter, rectify, or perhaps challenge or expunge any particular entry. It is sensible public policy to maintain the register in existence and to provide for its seamless transition to a Register of Intercountry Adoptions.
57.
It is also correct that it is noteworthy
that the 2010 Act appears to take a different approach to transitional cases - or
at least the commencement of application of the Hague Convention rules - to
that adopted by the Convention itself under Article
41, which provides that the
Convention shall apply to any adoption commenced after the Convention comes
into force in both relevant states. If the Oireachtas had adopted that
provision then the law would not be clearer, but it would be different.
However, the Oireachtas was entitled to adopt the position that pending cases
should henceforth proceed under the 2010 Act, and there is some logic in doing
so, since that Act embodied up-to-date policy and provided enhanced protection
for the interests of children the subject of such adoptions. There is, however,
no reason to doubt the meaning of s. 63.
58. For many reasons therefore, I am reluctant to hold that s. 27 of the Interpretation Act can resolve these cases. However, it is not necessary to decide that issue definitively because it appears to me that these cases can be resolved without finally adjudicating upon the approach of the High Court in either this case or the O.C. case. In the particular circumstances, and given the possible impact on the lives and wellbeing of a cohort of people, I think it is desirable to refrain from doing more than indicating my views on the general question of the applicability of s. 27 of the Interpretation Act since that matter is one of more general importance.
59. The Authority, while appealing the decision of the High Court and arguing that O.C. was distinguishable - or, if not distinguishable, was incorrect - did not, however, argue that the legal consequence insofar as these cases were concerned should be that the children in question could neither have their foreign adoptions recognised nor themselves be adopted in Ireland. Instead, the Authority maintained the position it had taken initially: that the children could be the subject of a valid domestic adoption under Part 7 of the 2010 Act. It was, however, not possible to explore this possibility prior to the commencement of these proceedings because of the position adopted initially by the Child and Family Agency. The Authority, however, maintains that this is a viable route that would bring finality to these cases in a way which was consistent with the law. It appears that the Authority is concerned about the possible implications for further international co-operation if it were to register the foreign adoptions made in another Hague state but which did not comply fully with the requirements of the Convention.
60. It is obvious that there is no easy resolution to this case and, therefore, that any route suggested may cause difficulties whether practical, theoretical, or both. However, I am not convinced that Part 7 of the Act provides a ready path to a solution and that, if embarked upon, some further difficulties would not be encountered. Furthermore, if Part 7 was available in this case, it appears that it may open up the very possibility with which the Authority is correctly concerned: that is, that non-compliant Hague country adoptions would nevertheless be capable of giving rise to domestic adoptions and thus circumventing the requirements of the Convention itself.
61.
One striking feature of these cases is
the fact that the Authority did not merely not appeal the decision of O.C.,
and therefore accepted the decision as binding in that case, but went further
and applied it to a number of other Mexican adoptions which exhibit the same essential
features as these cases. The DES pre-dated and the relevant Mexican adoption post-dated
the coming into force of the 2010 Act. Although the applicants are
understandably critical of the approach taken by the Authority in
differentiating between their cases and the other cases, it cannot, in my view,
be characterised as giving rise to an abuse of process, estoppel, or legitimate
expectations. However, the very question posed by the Authority for resolution
by the court raises the question of whether, in effect, the ruling in O’C.
can be applied to these cases where the children were born prior to the 1
st
of November, 2010. The difference of treatment between the cases is stark, as
illustrated most tellingly by the differentiation between the position of Baby
F. and their sibling. The court therefore invited counsel to consider the
possible application of this court’s decision in McMahon v. Leahy [1984]
I.R. 525 (“McMahon”).
62.
In McMahon, the appellant sought
to challenge his extradition to Northern Ireland in respect of an offence of
escaping from lawful custody. He sought to invoke the political offence
exemption, which provided that extradition would be refused if the offence was
a political offence or one connected with a political offence. As is well
known, before the appeal in McMahon reached this court, this court had
ruled that that exception could not apply where the individual was a member of
an organisation that sought the overthrow of the State itself. However, prior
to that decision, four other persons who had escaped from custody in the same
incident had come before the courts and been the subject of similar extradition
requests. Extradition had been refused on grounds of the political offence
exemption and the State had not contested the individual claims in that
regard. The outcome was that extradition was refused in the case of four
persons whose surrender was sought in respect of an offence of escaping from
lawful custody in the same incident, but where it was now argued that the fifth
escaper, the applicant, should nevertheless be surrendered. The Supreme Court
unanimously refused to permit the State to argue that in the appellant’s case
the same offence was not a political offence. Henchy J. relied in particular
on Article
40.
1
of the Constitution and held that the differentiation between
the cases would be a breach of the guarantee under that
Article
to hold all
citizens as human persons equal before the law. He said:-
“[I]t would patently result in an unequal treatment, at the hands of the Courts, of citizens who, as human beings, are in equal condition in the context of the law involved. That unequal treatment would mean that four fellow-escapers would have been judicially held (with at least a tacit approval of the State) to be entitled to escape extradition on the ground of political exemption while the plaintiff, whose entitlement to that exemption cannot be differentiated on the basis of any relevant consideration, would have been invidiously chosen (at the instance of the State in the person of the defendant) for extradition to Northern Ireland where he would be liable to resumption of his imprisonment …”
This principle had been applied in a number of other cases. In Hanley v. The Minister for Defence [1999] 4 I.R. 392, Denham J. (as she then was) commented to similar effect and observed:-
“The
constitutional guarantee of equality (Article
40.
1
) requires that persons be
held equal before the law. There is an obligation of equal treatment. Thus,
similar cases should be determined in a constant and foreseeable pattern. The
concept of justice and fairness demand that the system not be a lottery”.
63. There are, however, significant limits to this approach which should be noted. Each case must be decided by a court as it considers just, having regard to the evidence and the applicable law. It would be impermissible to simply start from the result in a different case considered similar and insist upon the same result irrespective of the underlying merits of the case. That would be to make a reality of Dean Swift’s criticism of lawyers:-
“It is a maxim among these lawyers, that whatever has been done before, may legally be done again: and therefore they take special care to recall all the decisions formerly made against common justice and the general reason of mankind. These, under the name of precedence, they produce as authorities, to justify the most iniquitous opinions; and the judges fail of decreeing accordingly”.
64.
To reach the level of a breach of the
constitutional guarantee of equality before the law, the cases must be
essentially and intrinsically identical with no other features justifying a
departure or differentiation between them to a point where a different outcome
would be an affront to justice and where the differentiation does not merely
have effect in relation to a fact, but involves the essential equality of
citizens (and, for the reasons identified in N.v.H. v. The Minister for
Justice and Equality [2017] IESC 35, [2018] 1
I.R. 246, where relevant,
non-citizens) as human persons. Here, the differentiation which would be effected,
for example, between Baby K. and their sibling goes directly to the issue of
their respective legal statuses. In one case, the prospective adoptive parents
would be treated by the law as parents, and in the other as legal strangers
caring for a child or, perhaps, at best, as persons entitled to become
guardians of a child. Similarly, the law would distinguish between two
siblings as, on the one hand, a child of a family and, on the other, as a legally
parentless child being cared for by adults who could perhaps become guardians.
At a most basic level, it distinguishes between the persons having the status
of a family on the one hand and those living together and caring for each other
but who would be told that they nevertheless do not constitute a family on the
other. Where one child has a father and a mother, its sibling has two
concerned adults. Where one couple has a son or a daughter, another has a
child they are providing care to.
65.
Significant though these matters are,
the differentiation does not simply go to matters of legal status. The relationships
involved are essential to the human personality protected by the Constitution
in general, and in particular under Article
40.
1
. It is of the essence of an
individual’s sense of themselves to know who their parents are or were and who
their children are. These are among the most intimate relationships an
individual may have, not always happy, but which are intrinsic to their sense
of identity. Even the person who has, perhaps justifiably, rejected their own
family does not, however, doubt that the family relationships are of
significance in their life to who they are and who they have become.
66. It is important to recognise that there is a point of distinction between these cases and it can be said to be a legal difference. The cases are divided by a date having legal significance since it marks the date of repeal of the 1991 Act and the coming into force of the 2010 Act. In other circumstances, this distinction could provide a clear justification, and indeed obligation, for a differential legal treatment. But, for the reasons set out above, this difference cannot, in the language of Henchy J. in McMahon, be a distinction based on “any relevant consideration” between the applicants’ cases and those of the other Mexican adoptions which were registered by the Authority. In respect of those matters of fact relevant to the registration of the other adoptions pursuant to the decision in O.C., these cases are, I consider, identical. Together, they form 19 cases which constitute a cohort of cases where the application process was commenced and the DES granted under the 1991 Act and where the foreign adoption was effected after the date of coming into force of the 2010 Act. In my judgement, it would be a failure to hold the persons concerned equal before the law in such an important feature of their human personality if the law were to permit different outcomes in these cases. This provides sufficient justification for dismissing the appeal.
67.
I acknowledge that this outcome is one
that was resisted by the Authority. I apprehend that part of the Authority’s
concern may be that registration by the Authority of adoptions effected in Mexico
would not be congruent with Ireland’s obligations as a member of the community
of states which adheres to the Hague Convention of 1993: a Convention which,
moreover, requires a high degree of mutual trust and confidence and ongoing co-operation.
If so, these are legitimate concerns. However, I observe that the Authority
has already registered adoptions which are, in my view, functionally
indistinguishable in that respect. Second, to permit a domestic adoption would
likely have the same effect with, perhaps, more significant consequences for
future cases. Finally, I note that, if the argument advanced in relation to
the interpretation of Article
41 of the Convention is correct, then it would
appear that the application of Hague Convention criteria to this case is a
matter of Irish law alone, and it would not appear that the Convention would
apply by itself in its own terms to these adoptions. However, since that
matter was not addressed in argument in any detail, I would not rest my
decision on it. I would, however, dismiss this appeal.
Conclusion
68.
It is now necessary to return to the
issues posed by the Authority in its case stated. The only issue for this court
is the correct answer to the first question; Question 3 does not arise, and no
appeal was taken in relation to Question 2. Question 1
is set out out at
para. 28 above and is in very specific terms. It does not question the
possibility of pre-existing rights to adoption arising under the 1991 Act
and/or surviving the coming into force of the 2010 Act. Instead, it asks
simply if such rights are capable of arising where the minor child was born
after the commencement of the 2010 Act on
1
st of November, 2010.
For the reasons set out above, the correct, if not entirely illuminating,
answer to this question is, I consider, the following: if the pre-existing
rights to adoption are capable of arising under the 1991 Act and if such
rights are capable of surviving the enactment of the 2010 Act (and the
consequential repeal of the 1991 Act) then such rights are indeed capable of
arising where the minor to be adopted was born after the commencement of the
2010 Act on
1
st of November, 2010. Such a conclusion is, moreover,
required by the constitutional obligation to hold all persons as human persons
equal before the law. In the light of the necessarily qualified nature of this
response to the precise question posed, I think it appropriate to add that the
principle of equality before the law guaranteed under
Article
40.
1 of the
Constitution means that the Authority cannot lawfully refuse to register the
adoptions in this case in the Register of Intercountry Adoptions. I would
accordingly answer the question posed in this way, and would therefore dismiss
the appeal.
Result: Dismiss