Supreme Court dismisses appeal; foreign adoption non-compliant with Hague Convention cannot be registered domestically.

AN CHÚIRT UACHTARACH

THE SUPREME COURT

[Supreme Court Record No. 2017/20]

[High Court Record No. 2016/325 SS]

O’Donnell J.

McKechnie J.

MacMenamin J.

Dunne J.

O’Malley J.

In the matter of Section 49(2) of the Adoption Act 2010 and in the Matter of J.B. (a minor) and K.B. (a minor)

And /

C.B. and P.B.

Notice Parties

-and-

THE ATTORNEY GENERAL

Notice Party

Judgment of O’Donnell J. delivered the 12th of July 2018

1. This is undoubtedly a difficult case as a matter of law, but also at a human level. It has been made more complex by a combination

of confusion, possible misinformation, and protracted proceedings, which nevertheless in their structure have limited the matters

which can be decided by this Court.

2. It is only fair, however, to observe that the difficulties in this case cannot be ascribed totally, or indeed perhaps even mainly, to

domestic sources. It appears to me that, while the 1993 Convention on Protection of Children and Co-operation in respect of

Intercountry Adoption (“the Hague Convention”) was and is an impressive achievement, it did not squarely or clearly address the

consequences which were to follow where there has been non-compliance with its terms, particularly in difficult cases such as the

present, when it is contended that any such non-compliance was both innocent and was caused or contributed to by the errors of

others. While the range of the judgments in this case illustrate the fact that the Court is not of one mind on the proper approach to

the future treatment of the difficult issues posed by this case, it should not be overlooked that there is substantial agreement on the

issues which are the subject matter of the proceedings in the High Court and the appeal to this Court. All members of the Court agree

on the answers to the questions posed in the Case Stated. Where there is divergence is on a residual question: whether s. 92 of the

Adoption Act 2010 provides a route whereby the adoption by P.B. of the children in Country A could be directed to be entered in the

Register of Intercountry Adoptions. Moreover, it is accepted that the observations in this regard and the discussion of them in the

respective judgments are obiter. While fully accepting the outcome of the Court’s decision, I would therefore caution against reading

the decision, and the majority judgments, as establishing any principle of more general application.

3. I am reluctant to add any further observations on an issue which has already been well canvassed in the substantial judgments to

be delivered in this case. Having considered the matter, I have concluded that I agree with the judgment to be delivered by

McKechnie J. Nevertheless, I entirely sympathise with the concerns which have led the majority to come to a different conclusion,

and recognise the force of the observations contained in the judgment of MacMenamin J. Indeed, if the only issue in this case was

the future status of the individual children, I would be happy, indeed relieved, to adopt the possible route to a solution proposed by

MacMenamin J.

4. However, few cases in this field reach this Court, and inevitably the judgments in the cases decided may be relied on in a number

of different contexts. For that reason, I think it is desirable to observe, from my perspective at least, that the issue on which differing

views are expressed is not only obiter, but that the fundamental conclusion of the majority also rests on a question of statutory

interpretation, namely the breadth of s. 92 of the Act of 2010. This is important at a number of levels. If the limited jurisdiction

envisaged by MacMenamin J. is considered undesirable at a policy level, then it can be altered by the Oireachtas. By the same token,

if the solution is considered necessary and appropriate, it can be retained with or without qualification. In either case no

constitutional issue arises. For my part, therefore, I do not think that the invocation of Article 42A.4.1° adds anything to the analysis

of the Act, and, indeed, if this approach was adopted more widely, it could lead to further problems which could not be readily

addressed, and which may not have been anticipated.

5. Article 42A was introduced into the Constitution by the 31st Amendment, and came into force on 28 April 2015. Article 42A.4.1°

provides that:-

“Provision shall be made by law that in the resolution of all proceedings—

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 in J.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 in J.M.. However, the aspects which loom large in this case, and which were correspondingly absent in J.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.