IESC 30 · Supreme Court

THE SUPREME COURT

[Supreme Court Record No. 2017/000020]

[High Court Record No. 2016/325SS]

O’Donnell J.

McKechnie J.

MacMenamin J.

Dunne J.

O’Malley J.

IN THE MATTER OF THE ADOPTION ACT, 2010, SECTION 49(2), AND IN THE MATTER OF JB (A MINOR) AND KB (A MINOR)

BETWEEN:

CB AND PB

NOTICE PARTIES

V. THE ATTORNEY GENERAL

NOTICE PARTY

Judgment of Mr. Justice John MacMenamin dated the 12th day of July, 2018

Introduction

1. The 1993 Hague Convention on the Protection of Children and Co-operation in respect of Inter-Country Adoptions (“the

Convention”) became part of domestic Irish law by virtue of the Adoption Act, 2010 (“the Act”). Inevitably, when complex legislation

such as the 2010 Act is brought into effect, as it was on the 1st November of that year, there may be initial problems. The series of

events described in this judgment were set in motion within six months of the Act becoming law. In hindsight, one might surmise that

officials charged with its administration were not as familiar as they might have been with the meaning and effect of the new

legislation on what was in issue in this case: inter-country adoption. These events, now more than six years ago, culminated in the

present appeal against a High Court judgment delivered in this matter by O’Hanlon J. on the 25th November, 2016 ([2016] IEHC 738),

and the consequent order perfected on the 13th January, 2017.

Proceedings

2. The Adoption Authority (“the Authority”) brought this case stated to the High Court on issues of law, pursuant to s.49(2) of the

Act. Those proceedings, and this appeal, concern the manner in which CB and PB, a married couple, engaged in adoption procedures

relating to two children, JB and KB, who were born in a different country. The precise questions raised are to be found under the

heading “The Questions in the Case Stated”, at para. 77 of this judgment. The Authority, concerned as to the potential

consequences of the answers given by the High Court, applied for leave to appeal directly to this Court under Article 34.5.4 of the

Constitution. In a determination issued on the 10th March, 2017 ([2017] IESC DET 25, Clarke J., MacMenamin J., Laffoy J.), this Court

acceded to that application.

3. While it was the Authority that “applied” to the High Court under s.49(2) of the Act, CB and PB will, although notice parties, for

ease of reference be referred to as “the applicants”, as it was they who applied to the Authority for an order registering the adoption

of JB and KB.

The Attorney General

4. Prior to the High Court hearing, the Attorney General was joined as a Notice Party to these proceedings, which concern the proper

application and interpretation of the Act of 2010 to this case.

Redaction

5. At this appeal, counsel for the applicants applied to this Court for parts of this judgment to be redacted. Thus, the judgment

neither identifies the names of the children, nor their country of origin, which is referred to as “Country A”.

The Children

6. This case is centred around the legal status of two children: JB, now an 11-year-old girl, and KB, her younger brother, aged 9.

They were born in Country A. They have now been living with the applicants in Ireland for over six years. The children are settled in

their home and school environments. Their wish is to remain with the applicants, whom they now see as parent-figures. No party to

these proceedings is proposing that the “adoption process”, described in this judgment, should now be entirely reversed, or that the

children should be sent back to Country A. Insofar as the evidence in this case involves consideration of the conduct of the

applicants, I take the view it should also take into account the actions and decisions of the State agencies concerned.

7. As described later, PB went through an adoption procedure for both children in Country A. The Authority does not recognise that

procedure as a valid adoption, and, as matters stand, CB cannot legally adopt them either. There is an impasse. The reasons for this

are complex, as are the legal issues arising from them.

The Factual Background in Summary

8. CB, the first named applicant is a business executive. He was born in the United Kingdom. His work involves regulatory and legal

compliance. He was married previously, and has grown up children from that marriage. In 2006, his work brought him to Ireland. He

began a relationship with PB, who was born in Country A. She came to live in Ireland in 2007, and the couple married in the United

Kingdom in 2008. They have lived here since then. CB now holds citizenship of the United Kingdom and Ireland. PB now holds

citizenship of Country A and Ireland. After the marriage in 2008, the couple unsuccessfully tried to have a family. Later, they chose to

explore the possibility of adoption.

9. JX, PB’s brother, was born, and continued to live, in Country A after his sister left. He had been involved in an informal relationship,

which ended. JB and KB were the two children of that relationship. The break-up of their natural parents’ relationship left the children

in an uncertain situation. CB and PB thought they could adopt the children and give them a good life and stable home in Ireland. What

followed has been a very lengthy legal dispute. This time constitutes a protracted period in these children’s lives. As of now, many

years after they were brought to Ireland, their legal status still remains unresolved.

The Scope of this Appeal

10. In general, a case stated to the High Court is often brought on agreed facts or findings of fact by a judge. In this instance,

however, there was extensive correspondence and disagreement between the Authority’s solicitors and those now acting for the

applicants. The Authority’s lawyers considered a narrative of the facts touching more directly on the legal issues raised in the case

stated was sufficient. The applicants and their advisors, on the other hand, thought that it was necessary for the High Court to have

a fuller understanding of what had transpired in the engagement between the applicants, the HSE, and the Authority in Ireland, and

what happened in Country A.

11. At one level, the Authority was, of course, correct: what is at issue here is indeed simply a question of statutory interpretation.

But the questions here are neither simple in themselves, nor simply abstract legal propositions: they have a concrete application in

the case of these children. This is a truly exceptional case, and as a result, this judgment addresses the legal issues as to

interpretation of the Act and the Convention in the context of these two children, and these two children alone. There may be other

cases of a similar type. I emphasise that this judgment is confined to the specific facts of the instant case. This means that whether

this ruling comes to influence other cases will turn solely on the facts arising in those circumstances.

12. Due to the impasse between the solicitors, CB swore an affidavit in the proceedings giving an account of the couple’s various

actions in trying to adopt the children. The then Director of Operations, now Chief Executive of the Authority, swore a replying

affidavit. This highly relevant evidence in both applications is considered later. It forms an important part of the background, and the

approach proposed in this judgment.

An Underlying Issue: The Question of Bona Fides

13. The Authority does not contend in this appeal that these applicants acted dishonestly. But, it insists the law must be fully

complied with in this area. Its particular concern is the possibility that other persons, this time acting mala fides, might use

procedures which are the same as, or similar to, those employed by the applicants which would have the effect of circumventing the

intent and text of the Act of 2010. This is but one of the reasons why the case has acquired its many ramifications.

Inter-Country Adoption

14. As well as raising difficult legal questions in itself, inter-country adoptions can give rise to complex human situations. Among other

things, the 2010 Act was enacted to further regulate such procedures. The applicants contend that the Authority’s earlier refusal to

enter the children’s adoption on the register of domestic adoptions resulted from an approach which was at once indecisive, dilatory

and over-rigid. This domestic register is one of two operated by the Authority. The second register concerns inter-country adoptions.

For its part, the Authority maintains that it is duty-bound rigorously to uphold each of the precautionary pre-adoption procedures laid

down in the Act of 2010, which give expression to the Convention rules, described later. The Authority argues that what occurred in

this case cannot be seen as a domestic adoption, but rather as a flawed inter-country adoption which cannot be registered. It

contends further that failure to maintain the integrity of the process of registration, would, itself, result in a breach of the

Convention, with potentially serious consequences. The Authority’s concerns are understandable. But no matter how difficult the legal

issues may be, the passage of time is an inherent and undeniably significant factor in decisions regarding the fleeting nature of

childhood. Time spent in deliberation and litigation must be measured against the inevitability that young children will form bonds of

attachment during early stages of development.

The Adoption Experience in Ireland

15. One need not delve too far into Irish social history to identify the necessity of further legal regulation regarding the international

aspects of this issue. In the last two decades, serious questions emerged as to how a significant number of young Irish children were,

in the past, regularly sent abroad for adoption. (See Milotte, M., Banished Babies: The Secret History of Ireland’s Baby Export

Business (Updated and Expanded Edition, New Island 2012. See also McCaughren, S. and Powell, F., “The Fate of the “Illegitimate”

Child: An Analysis of Irish Social Policy 1750-1952” in Howlin, N. and Costello, K. (eds), Law and the Family in Ireland 1800-1950

(Palgrave 2017)). It might be said the initiators of these schemes were motivated by what they felt were good intentions, but what

happened then can only be understood in light of the secretive and conservative mores of yesterday’s Ireland. From today’s

perspective however, what occurred is not only now seen as morally and legally questionable, but raises issues regarding the legal

and constitutional rights of both the mothers and children. Full consent to adoption, and the right to know one’s birth-identity, are

two of the various questions which arose in many of those sad cases. This was not the only problem. On at least one other occasion,

a breakdown in an “inter-country adoption” registered in Ireland created legal issues in this State. (Dowse v An Bord Uchtála [2006]

IEHC 64, [2006] 2 I.R. 507).

International Context

16. It is common knowledge that the number of foreign children adopted by Irish people has radically declined since 2010. This

reflects international trends. (Selman, P., ‘The Global Decline of Intercountry Adoption: What Lies Ahead?’ Social Policy and Society,

11(3), July 2012, 381-397). Since 2010, foreign or “inter-country” adoptions are only permitted to take place in this State with other

“Contracting States” as identified under the Convention, which, since its inception, has attracted widespread praise, though

occasional criticism. Its many supporters make the persuasive case that, by its very rigour and universality, the Convention acts as a

deterrent to the exploitation and abuse of children adopted in one country and then brought to another. A minority of scholars

contend, however, that because of the Convention’s rigidity and all-encompassing framework, thousands of children are consigned to

live in institutions, orphanages, and on the streets in economically disadvantaged countries, and, as a result, denied the human right

to a caring home and stable family upbringing. (See, by way of illustration of this view, Dillon, S., ‘Making Legal Regimes for

Intercountry Adoption Reflect Human Rights Principles: Transforming the United Nations Convention on the Rights of the Child with the

Hague Convention on Intercountry Adoption’ 21 B.U. Int'l L.J., 2003, 179-258).

The Hague Convention

Reasons for a New Convention

17. The Convention is an international instrument, promulgated by the Hague Conference on Private Internal Law. An earlier

Convention seeking to address the issue on jurisdiction and adoption was promulgated in 1965 (Convention on Jurisdiction, Applicable

Law and Recognition of Decrees relating to Adoptions, 1965). But, by the late 1980s, this instrument was seen as no longer

addressing the global dimension of the issues. The complexion had entirely changed, particularly as a result of the increased

placement of children from less well-off countries with families in industrialised countries. On one authoritative estimate, approximately

20,000 children were at one stage being moved annually, largely from developing countries to Western Europe, North America, Israel

and Australia. While this change undoubtedly opened up new vistas of permanent care for many of those children, it would, if it had

remained unregulated, have increased the risk of ill-prepared adoptions or of potential abuse of the system. (See Van Loon, J. H.,

‘Hague Convention of 29th May 1993 on Protection of Children and Cooperation in Respect of Intercountry Adoption’ 3 Int'l J. Child.

Rts., 1995, 463-468).

The Objects of the 1993 Convention

18. The philosophy of the Convention is immediately apparent from its Preamble. The signatory-states recognised that, for the full and

harmonious development of his or her personality, a child should grow up in a family environment and in an atmosphere of happiness,

love and understanding. As a matter of priority, each State-signatory pledged to take appropriate measures to enable the child to

remain in the care of his or her family of origin. The framers recognised however, that, for some children, inter-country adoption might

offer the advantage of a permanent family to a child for whom a suitable family could not be found in his or her state of origin. The

contracting states acknowledged the necessity of taking measures to ensure that inter-country adoptions are made in the best

interests of the child, in a manner respecting his or her fundamental rights, and with the aim of preventing the abduction, sale or

trafficking of children. The United Nations Convention on the Rights of the Child, 1989, underpins this thinking. The Authority’s stance

in this case must be understood as being actuated by the national and international aspects of its statutory remit, where it has a

monitoring function in this State, and which it argues requires faithful adherence to the spirit and word of the Convention. The

drafting of the Convention involved lengthy international negotiations in which the Irish legal representative, W. R. Duncan, played a

leading role.

19. The task facing the initiators of the Convention was to create a legal instrument which would span a variety of legal systems. The

earlier Hague Convention on Child Abduction formed a useful template. (Hague Convention of the 25th October, 1980, on the Civil

Aspects of International Child Abduction). Just as in the Child Abduction Convention, the authors of this Adoption Convention decided

that a new system of judicial and administrative co-operation could best be achieved through “Central Authorities” to be designated

within each state. The negotiations involved almost 70 states and 20 international organisations. The Convention did not pretend to

unify the rules of conflict of jurisdiction, or the applicable law amongst contracting states. Rather, its intention was to provide a

procedure for the recognition of adoptions which were effected in accordance with its principles. (cf. Van Loon, op.cit Int'l J. Child.

Rts. 463-468 (1995)). It goes without saying that the Convention should not be undermined by an ill-considered process of creating a

series of individual exceptions to its rules.

20. The text of the Act of 2010, among other things, sets out focused national procedural requirements in more detail than the

Convention, the latter’s principles understandably being phrased in more general terms. The issues in this case are more easily

understood by reference to those general Convention principles. Article 2 and Article 4 of the Convention are key provisions.

Article 2

21. Article 2 sets out the document’s scope. The Convention is to apply where a child, “habitually resident” in one contracting state

(“the state of origin”), has been, is being, or is to be, moved to another contracting state (“the receiving state”), either after his or

her adoption in the state of origin, by spouses or a person “habitually resident” in the receiving state, or where a child is moved for

the purposes of such an adoption, to be effected either in the receiving state, or the state of origin. The Convention only covers

adoptions which create a permanent parent-child relationship.

22. The term “habitual residence” may be understood as being the place where a child has his or her close family and social and

cultural interactions. A system of welfare-safeguards is to operate on a reciprocal basis between the Central Authority of an

applicant’s habitual residence and the Central Authority of the child’s country of origin. In the first instance, applications are generally

to move from one national authority to the other. In the case of JB and KB, therefore, the initial application should have been made to

the Adoption Authority in Ireland. Neither the Irish nor the Country A authorities processed this inter-country adoption. The couple’s

explanation is set out in the section of this judgment entitled “The Narrative”.

Article 4

23. Article 4 sets out the preconditions of a child’s eligibility for adoption. Prior to consideration of a placement, there must be a

determination in the state of origin that inter-county adoption is in the child’s best interests. There must be counselling of the natural

parents, both parents must freely consent, and the natural mother’s consent must be given after the birth of the child. Article 4 lays

down requirements for counselling of the child, and for the child’s consent, having regard to his or her age. Finally, any financial

inducement to the natural parents is prohibited. It cannot be said with certainty that these principles were fully observed either.

Article 5

24. Article 5 sets out mirror compliance requirements to Article 4 for potential adopters to be applied by the Central Authority of the

receiving state. This includes an assessment which must consider how the inter-country adoption will protect the child’s best

interests.

Articles 6 to 13

25. Articles 6 to 13 set out the functions and duties of the Central Authorities. These bodies are to monitor, regulate, collect and

preserve information and accreditation of bodies within a state by the competent Central Authority. Central Authorities may recognise

other “accredited bodies” within their State, which may themselves engage in inter-country adoptions. The designated Central

Authorities and other accredited bodies are to be registered with the Permanent Bureau of the Hague Convention on Private

International Law (“the Permanent Bureau”).

Article 14

26. Article 14, in Chapter IV, provides that persons wishing to engage in inter-country adoption must apply to the Central Authority of

their state of habitual residence. The intention behind this Article was, so far as possible, to eliminate the exploitative practices of

some international “adoption agencies” which financially benefited from directly arranging such adoptions with vulnerable natural

parents in another state.

Articles 15 to 22 Generally

27. Articles 15 to 22 deal with the duties of the receiving-state Central Authority. That Authority is primarily responsible for

determining that the prospective adopters are eligible and suited to adopt, and that they have been appropriately counselled. The

Authority is also charged with ensuring that the child will be allowed to enter and reside permanently in that State. The Convention

deals next with two documents which are particularly important.

Article 17 Placement Approval Notices

28. Article 17 provides that a child may only be removed from a country of origin to a receiving state when there is agreement or

consent from the adopters, when the receiving state (through the Central Authority) has approved the decision, and once eligibility

has been determined. Thereafter, the Authority may issue a document called a “Placement Approval Notice”.

Article 23 Certificate

29. Chapter V of the Convention deals with recognition by operation of law by the Central Authority of a certificate of adoption. An

“Article 23 adoption”, certified by the competent authority of the state of adoption as having been made in accordance with the

Convention, shall be recognised by all other contracting states. This “certification” must specify when, and by whom, the agreements

under Article 17 were given. This is, in effect, a form of international “licence” that the adoption may proceed, and must be

recognised in all other contracting states.

Article 24: Exceptions

30. Exceptions are dealt with in Article 24. These may arise, for example, were it to be found that a mother had been induced to give

consent by fraud, duress or financial gain. The system hinges, therefore, on a system of mutual and reciprocal recognition of

certification.

Article 29: Evasion

31. In order to avoid circumvention of the Convention, Article 29 contains a general prohibition on contact between prospective

adoptive parents and the child’s natural parents before it is decided that the child is free to be adopted and that the applicants are

eligible and suited to adopt. The intention here is to thwart the activities of local adoption “brokers”. There is, however, an exclusion

to this rule in the case of intra-family adoptions, in circumstances such as those pertaining to this case, where PB is the sister of the

children’s father.

Article 32

32. Under Article 32, the country of origin is obliged to maintain information regarding the child’s origin, identity and medical history.

Article 35: A Duty of Expedition

33. Article 35, mentioned earlier, falls to be considered later in this judgment. It requires that competent authorities of contracting

states act “expeditiously” in the process of an adoption. The importance of this provision to the authorities concerned should be self-

evident. Delays can themselves be a form of passive “decision-making”, giving rise to consequences. Such delays are unfair to all

parties, but especially the children involved.

Article 40

34. Importantly, Article 40 provides that “no reservation to the Convention shall be permitted”.

Relevance of Convention Provisions

35. The applicants did not comply with many of these rules, and should have done so. The exact failures that arose on the facts will

be set out under the heading of “The Narrative”.

The 2010 Act

Long Title

36. After the Convention text, the relevant provisions of the 2010 Act fall next to be analysed. Among other things, the long title

identifies its purpose as being to give the force of law to the Convention. It is also to provide for the making and recognition of inter-

country adoptions in accordance with bilateral agreements or other arrangements.

Section 3

37. Section 3 distinguishes between two categories only: “domestic adoptions” and “inter-country adoptions”. In s.3, the former is

defined as the adoption of a child who is habitually resident in this State before his or her adoption by a person or persons habitually

resident in the State. By contrast, and by reference to other definitions contained in the same section, an “inter-country adoption”

means the adoption of a child, habitually resident in the “state of origin”, who is to be transferred into the “receiving state” by a

person or persons habitually resident in that state. An “inter-country adoption effected outside the State”, is one which is, by

necessary implication, in compliance with the provisions of the Convention.

38. There can be no doubt that what was in contemplation in this case was, from the very outset, an inter-country adoption. The

applicants in Ireland were seeking to adopt the children from Country A and bring them to this State. This procedure could never have

been a “domestic adoption”. The Act and the Convention cannot be circumvented by bringing a child to a “receiving state”,

establishing the child’s habitual residence there, and then seeking to have the application treated as a domestic adoption. This would

defeat the entire object of the Convention.

Sections 9 and 10

39. Section 9 of the Act provides that the Convention has “the force of law” in the State. It is, therefore, directly applicable as part

of national law. The consequences of this fact are considered later. Section 10 of the Act provides that when interpreting any

provision of the Convention, a court, or the Authority, as the case may be, “shall pay due regard to” the explanatory report prepared

by G. Parra-Aranguren in relation to the Convention. This, too, is an important element in the equation.

Section 19

40. The Act recognises that the welfare of the child is paramount in any question relating to the arrangements for the adoption of a

child, for the making of an adoption order, or for the recognition of an inter-country adoption effected outside the State. (s.19). The

duty of observing this broad and vital principle is imposed on the Authority and on any court dealing with such questions.

Section 20

41. By s.20 of the Act, the Authority is empowered to make an adoption order for a child who has been “adopted in an inter-country

adoption effected outside the state”. It is in those circumstances that the Authority may recognise such an adoption, and, once

accompanied by a certificate issued by the competent authority of the “state of adoption”, identified by s.57 of the Act, the

Authority may register an inter-country adoption effected outside this State that complies with the requirements of the Act in relation

to such adoption. (s.90(7)).

42. Section 20 sets out qualifying criteria for eligibility to adopt. The applicants are a “married couple” and, therefore, comply in that

regard with s.20(2). However, a real difficulty arises with the remainder of that section. Section 20(4) provides that, in making an

adoption order, the Authority is required to take into account relevant assessment reports prepared under s.37 (that is, as to

eligibility). There were no such reports. The Authority is also required to take into account relevant declaration(s) of eligibility and

suitability if these have been issued under s.40 of the Act. These relate to a declaration of eligibility and suitability of prospective

adopters. There were no such declarations. The effect of these is that the Authority can only recognise an inter-country adoption,

which, inter alia, is compliant with Article 17 and Article 23 of the Convention.

Sections 23, 24 and 45

43. It will be helpful here to refer in detail to ss. 23, 24 and 45 of the Act as the Authority later sought to rely on these provisions as

grounds for non-recognition of the adoption. Section 23(1) provides:

“23(1) The Authority shall not make an adoption order unless the child -

(a) resides in the State,

(b) at the date of the application, is not more than 7 years of age,

(c) is an orphan or is born of parents not married to each other, and

(d) has been in the care of the applicants for the prescribed period (if any).”

Next, s.24(1) states that:

“24(1) Notwithstanding section 23 (1)(b), if satisfied that in the particular circumstances of the case it is desirable to do

so, the Authority may make an adoption order in relation to a child who was more than 7 years of age at the date of the

application for the order.”

Finally, s.45 of the Act sets out the following:

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

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

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

These provisions are considered in a later section of the judgment: “The Narrative”.

Section 57

44. The Act sets out the means of recognition of inter-country adoptions (s.57). In respect of the question of interpretation and

application, s.57(2)(b)(ii) of the Act empowers the Authority to recognise an adoption “as having been effected in accordance with

the Hague Convention …” unless “contrary to public policy”. An inter-country adoption, effected outside the State, is recognised and

deemed effected by a valid adoption order which has the result of terminating a pre-existing parent/child relationship. (s.57(3)). As

will be seen, there may be a question mark as to whether the procedure in Country A, described below, did, in fact, have that effect.

In any event, this is not directly relevant to the steps later proposed in this judgment in answer to the questions raised.

Other Provisions of Note

45. The Authority is identified as the “Central Authority”. (s.64). The Authority holds non-delegable functions as to declarations of

eligibility. (s.66(3)). The Act gives statutory effect to Article 14 of the Convention (s.67), and sets out, in legislative form, the

Convention’s requirements of a receiving state. (s.68). An adoption which does not have the effect of terminating a parent/child

relationship may be converted to a full adoption if the requirements of Article 4 are complied with. (s.69). The Act requires that

adopters shall inform the Authority within three months of bringing an adopted child into the State. (s.82). It sets up a register of

inter-country adoptions to be maintained by the Authority, on presentation of a certificate pursuant to s.57 of the Act and Article 23

of the Convention. (s.90). Other sections, especially s.92, are considered later, insofar as they touch on interpretation.

The Narrative

First Contact

46. What follows next must be described as being a “narrative”. It is necessary to emphasise very clearly that the evidence in this

case has never been tested in court. As will be seen, the Authority does not challenge the veracity of what is deposed to by CB in his

affidavit. The case stated in the High Court proceeded by hearing on affidavit and legal submissions. What follows is drawn from the

affidavits sworn for the High Court. From these, it can be said that the first contact between the applicants and the Adoption

Authority took place on the 16th June, 2011. In an email, CB asked the Authority for information regarding inter-country adoption. He

briefly summarised the position regarding JB and KB, and the applicants’ desire to adopt the children. In response, an official of the

Authority informed CB that the couple would have to be assessed by a local HSE adoption assessment body, and made clear that the

applicants must have been resident in Ireland for one year. CB confirmed compliance with the legal residence requirement, and

enquired whether the same “inter-country” adoption procedure should be used despite his wife being a blood-relative of the children.

The official of the Authority indicated that the same procedure should be used, and that the couple should contact their local HSE

social services.

47. What is said to have occurred from then on in 2011 may, perhaps, best be explained in the context of officials and social work

professionals faced with new legislation with which they may not have then been entirely familiar. The applicants knew and were

acquainted with the children, and informed the HSE social worker of this fact. But on the 5th July, 2011, CB deposes the social worker

gave erroneous advice to the applicants, to the effect that, under the 2010 Act, the couple could not adopt an identified or known

child who was resident in another Hague Convention country. If given, this advice was incorrect in the applicants’ case, as what they

proposed was an intra-family adoption, which as outlined above is an exception to the general rule of Article 29.

48. Unfortunately, this was apparently followed by further incorrect advice. The HSE advised the applicants that they should either

adopt the children in Country A and then bring them to Ireland, or alternatively, bring the children to Ireland and then apply to have

them adopted here. Such advice would have run directly counter to the Act and Convention, which, in fact, required the applicants

to apply to the Authority in Ireland as the first step.

49. There is evidence that the applicants were counselled by the HSE to seek legal advice from a lawyer familiar with adoption law.

There is no evidence that they did. This omission was foolish and unfortunate. By his own business experience, CB should have been

familiar with the need to take legal advice in an area of doubt or uncertainty. On CB’s account, the couple wished to move quickly. CB

says that, acting on the erroneous advice received from the HSE, the applicants thereafter went to Country A and there obtained

legal advice from a reputable legal firm. It is said this information was yet again incorrect. At variance with the Convention, the

applicants did not establish contact with the Central Authority in Country A. Instead, they went to the Social Protection Authority in

PB’s own native province of Country A. The authorities there were apparently aware that the applicants wished to adopt jointly. They

specifically asked for CB to get an assessment of his eligibility and suitability from Ireland. However, because the HSE refused to give

an assessment (presumably for the reasons outlined earlier), it is said PB then proceeded to herself adopt the children on her own. As

a consequence, the evidence shows that the applicants were not only set on the wrong track in Ireland, but also in Country A, where

they did not engage with the Central Authority. None of this evidence has been controverted.

Procedures Not Complied With

50. The step-by-step procedures outlined in the Convention and the Act were not followed. The couple should have been assessed in

Ireland. The children should have been assessed in Country A, and consideration given to an inter-country adoption. An Article 17

“placement approval notice” should have been issued by the Irish Central Authority. Once satisfied that all the procedures as to

assessment and consents had been completed, the Country A Central Authority could then have issued an Article 23 Certificate

recognisable by the Adoption Authority in this State. Thereafter, the adoption could have been registered as an inter-country

adoption. None of these steps were complied with, but there is no evidence to indicate that the adoption could not have gone ahead

if these procedures had been followed.

51. According to CB, the Country A “provincial” application was processed on the 7th September, 2011. The evidence before the

Court is that the children’s natural mother and father attended at the provincial office, met with the Country A social worker dealing

with the case, and freely gave their consents. CB says he attended the office along with the lawyers from Country A, who had been

retained, together with PB’s referees, who gave references in person to the social worker. Other documents were filed, including

records of financial means. Thereafter, between September, 2011, and January, 2012, the relevant Provincial Office completed an

assessment of PB’s suitability to adopt, apparently including a visit to her Country A home, at which the children and CB were

present. The adoption was approved by the Provincial Adoption Committee on the 25th January, 2012. This was confirmed by a letter

dated the 6th February, 2012, which advised the applicants that they had six months to register the adoption in Country A. That

adoption was registered on the 21st February, 2012, and required CB’s written consent as spouse of the adopter. On the 23rd

February, 2012, the children’s change of family name was registered in Country A and passports were issued to them in their new

names. Soon after, on 28th February, 2012, the couple made an application to the Irish Consulate in Country A for visas for the

children.

Legal Advisers in Ireland

52. The applicants’ case is that, in fact, they only retained a firm of solicitors in Ireland in or about December, 2011, which was after

the application for adoption had been made. CB says that he did this for the purpose of receiving advice in Ireland as to the steps to

take once the adoption process had been complete. The legal firm then retained, only acted in that immigration process.

Subsequently, the couple retained a different law firm for this litigation.

53. CB explains that the couple did not jointly adopt the children, because the Country A authorities required him to be assessed in

Ireland in order for him to be eligible to adopt, but that he had previously been advised that the HSE would not assess him as the

children were known children and therefore could not be adopted under the provisions of the Convention. CB deposes that, as he was

a non-Country A national, the Country A authorities would have needed confirmation of the immigration clearance of the children to

enter Ireland. This was not possible to secure in advance of the adoption process, which, in turn, could not commence on his part

without the assessment. He deposes that he was caught in what he termed a “Catch-22” situation, and that, upon this basis, the

couple decided it would be best for PB to adopt the children on her own.

54. The evidence is that the applicants’ then solicitor was informed by letter dated the 30th March, 2012, that the Visa Office of the

Irish Naturalisation & Immigration Service has granted entry visas to the children on the basis that they were dependants of CB, a

British national, and therefore, were “permitted family members” in accordance with the European Communities (Free Movement of

Persons) Regulations, 2006 and 2008.

Arrival in Ireland

55. On the 25th April, 2012, CB and PB arrived in Ireland with JB and KB. Since that time they have lived together. The evidence

indicates that, even prior to 2012, the two children knew PB as she had looked after them from time to time in Country A, and that

they had become accustomed to her as a carer in that time.

56. The children now refer to PB as their mother, and to CB as their father. They call their natural, Country A father, by his first

name. It is said that they have visited Country A on a number of occasions, and have met their natural mother there. The children

have obtained Irish PPS numbers, and obtained residency permits and re-entry visas under EU Treaty rights. They have obtained

residence cards from the Irish Immigration Authorities which were contingent on their dependency and connection with CB.

Contact with the Authority and the HSE

57. CB states that, by letter dated the 12th November, 2012, he notified the Authority of the Country A adoption, the arrival of the

children into Ireland, and of the couple’s intention to apply jointly for a domestic adoption. He set out also that his wife had adopted

her niece and nephew via domestic adoption on the 21st February 2012, and that the children had come to live with them in Ireland

on the 25th April, 2012. The letter went on to state that it had “now” been brought to their attention that it was necessary to notify

the Authority that the children had entered the State, and that it was proposed to apply for a joint domestic adoption in Ireland. A

copy of this letter was sent to the HSE. The Authority acknowledged receipt of this correspondence by letter dated the 14th

November, 2012. This reply came from an official of the Domestic Adoption section. There was also telephone contact with the HSE.

58. The applicants’ case is that they were advised by their new Irish solicitor in September, 2012, that JB and KB would not be eligible

to be the subject of a domestic adoption order until they had resided in Ireland for a period of at least twelve months from their

arrival in the State. However, this would have been correct only if the children were eligible for a domestic adoption in the first place.

59. From November, 2012 to May, 2013, there were inconclusive contacts between the applicants and the HSE. It is unnecessary to

set out this correspondence in detail. Suffice it to say that the initiatives appear to have largely, if not entirely, come from the

applicants.

60. By email dated the 3rd May, 2013, CB and PB, made a joint application to the Authority for a domestic adoption. CB states that all

the relevant details were provided, and that they received an acknowledgement on the same day. Thereafter, a further series of

contacts regarding adoption procedures took place between CB and the HSE. The couple were invited to attend information meetings

on adoption. It is said this invitation was subsequently withdrawn on the basis that these procedures were not suitable in their case.

It appears that the HSE wished, at that stage, to process the application as a “step-family adoption”, and that the envisaged

timescale was of nine to twelve months. In the background, there would appear to have been some overlap, and perhaps uncertainty,

concerning roles between the HSE, The Child and Family Agency, and the Adoption Authority.

61. A social worker employed by the HSE and, thereafter by the HSE’s statutory successor in this context, the Child and Family

Agency, was assigned to the applicants in or about the end of May, or start of June, 2013. The social worker informed the applicants

that they were unable to commence an assessment of suitability to adopt without the agreement of the Authority. Ultimately, the

applicants were advised that they could not adopt. Shortly after the 6th August, 2013, the social worker received a letter from an

official of the Domestic Adoption Unit within the Authority. The Authority noted that the children had been adopted by PB as a sole

applicant, although she was married at the time. The letter referred to ss.23 and 24 of the Act of 2010, quoted earlier, with s.23 by

inference, one presumes, dealing with residence, age and parental status requirements. How these matters were a problem is unclear.

62. The letter concluded: “The children in this case do not meet the criteria, and are therefore not eligible to be adopted.” There

was no mention, at that stage, of the Hague Convention. In hindsight, if, instead of s.23 of the Act, the letter had referred to Article

23 of the Convention, which deals with adoption certificates, it might have been more to the point. Possibly there was some internal

miscommunication. The social worker was asked to inform the applicants that they could not make an application for adoption under

current legislation. The applicants say that they were unable to understand this letter. On their understanding, they satisfied all the

conditions specified in s.23. They say they were “dumbfounded”, and had met a dead end. Thereafter, their solicitor took up direct

correspondence with the Authority.

63. Subsequent correspondence indicates that an official of the Authority did indeed appear to have misunderstood the factual

situation. The official erroneously wrote in another letter that PB had adopted the children “prior to her marriage”. That letter then

said that, if the children were already adopted, they could not be re-adopted until the death of their adopted parent, or parents. The

official referred to s.45 of the Act, quoted earlier in this judgment, which deals with the possibility of adoption where a child’s

adopters have died.

64. How these misconceptions arose is not clear, in that, however incorrect procedurally and legally, the applicants had made it plain

that the application was for a domestic adoption of children who were related to PB, who was, in turn, married to CB. It is doubtful

how s.45 could have been relevant. Again, with the benefit of hindsight, it seems the Authority was in a quandary in deciding whether

or not to treat the children as having been validly adopted in Country A. In later correspondence, the applicants’ solicitor inquired why

s.45 of the Act might be relevant, and why it was said the applicants did not comply with s.23 of the Act. The Authority accepted

that it had been incorrect to say the children had been adopted prior to the couple’s marriage. However, its stance remained to the

effect that the children were already adopted and could not be re-adopted. It is hard to see how this particular position complied

with the spirit, still less the word, of the Convention, which should surely have militated against any recognition of the Country A

provincial adoption by a non-recognised body. It is, perhaps, possible to draw a distinction between a “recognisable” adoption, and a

legally valid adoption, but this is a thin and very indistinct line.

65. The correspondence reflects further misunderstandings. In one letter, the Authority official referred to an entirely different

country than Country A as being the children’s state of origin. One has the sense, perhaps wrongly, that the officials found the

overall position confusing and had not quite found the root of the problem; which was, in fact, non-compliance with the fundamental

requirements of the Convention itself, beginning with, but not confined to, Articles 2 to 5.

The Information Brochure

66. The Authority may be taken as having been aware of the general background to this case as and from the 12th November, 2012,

when CB first applied for adoption. Among the exhibits to the present appeal is an information leaflet published by the Authority which

was accessed by CB on the 24th March, 2013. The brochure made these six points. First, that prospective Irish adopters should

satisfy themselves that persons acting on their behalf in Country A were duly authorised by the appropriate national Central

Authority. Second, that such prospective adopters should seek independent legal advice prior to effecting an adoption abroad. Third,

that these adopters should not take custody of a child, or accept a placement, prior to the Authority issuing an Article 17 placement

approval notice. Fourth, that when a child enters the State for the first time after adoption, the adopters must notify the HSE and

the Authority as soon as practicable, and, in any event, not later than three months after the date of entry, with failure to so notify

being a criminal offence. Fifth, that not later than three months after the date when a child first entered the State, the adopters

must apply to the Authority to have the particulars of the adoption entered into the Register of Inter-Country Adoptions (RICA), and

that failure to do so was a criminal offence. Finally, insofar as relevant, applications for entry to the State were to be accompanied

by an Article 23 certificate issued by a Central Authority, or by an accredited body duly authorised to do so by the Central Authority.

It is unclear when this information was published, but its contents tend to indicate that, by then, the Authority was alive to the

issues raised in this case.

Further Correspondence

67. In subsequent correspondence on the 30th January, 2014, the Authority’s solicitors made the following observations. First, that

there was then no application before the Authority to effect an adoption in Ireland. Second, that there had been no application by PB

to have the children’s adoption recognised and entered on the RICA. One might interpret this letter as conveying that the applicants

had not made any application at all to the Authority, but this would be incorrect. Undoubtedly, the applicants had applied, but for a

domestic adoption. The solicitors acting for the Authority also stated that PB had committed an offence under s.147(4) of the Act,

that offence being that she had failed to comply with s.90(4) of the Act to ensure that an application to enter the particulars of an

inter-country adoption be made within three months of entering the State with the children. Section 48 lays down significant

penalties for breach of the Act, either by an “accredited body” or an individual.

68. In later letters, the Authority’s solicitors repeated that it had not received any application in respect of the two children, despite

the applicants having lodged an application for assessment as to their suitability and eligibility to adopt with the HSE, a function by

then devolved to the Child and Family Agency. Perhaps this was the distinction the Authority’s solicitors had sought to make in its

earlier letter. Nonetheless, the Authority’s solicitors correctly maintained there was no application for entry onto the RICA, the inter-

country register, before the Authority. This remained the Authority’s legal position.

Litigation

The Judicial Review Proceedings

69. The applicants were entitled to be at least concerned by the errors in the Authority’s letters regarding the children’s country of

origin and PB’s matrimonial status. They “brought” a judicial review challenge against the Authority (High Court Reference No.

2014/196 JR). Leave was granted by the High Court on the 31st March, 2014. The Child and Family Agency, as statutory successor of

the HSE, was a notice party to those proceedings, but, as is obvious, were not notice parties to the present case. There were

subsequently “without prejudice” discussions between counsel and the matter was compromised, as expressed in agreed terms of

settlement, signed, dated, and filed in court on the 27th June, 2014. The Authority confirmed by letter that the erroneous letters

which had been sent by one of its officials would not be relied on, or form part of, its future consideration. The letter went on to

state that “[y]our clients (sic) adoption application will be considered and processed by the Authority in the normal way once the

assessment of the Child & Family Agency is complete.” (Emphasis added). Unfortunately, this did not resolve matters. Things did not

proceed “normally”. A Child and Family Agency social worker had carried out further assessments of the couple. These were

favourable. By the 5th January, 2015, CB wrote to the Domestic Adoption Section of the Authority enquiring about the application. He

says he received no acknowledgment to this letter. Then the Authority indicated that the recommendation forms had been found to

be incomplete. Ultimately, by letter dated the 16th March, 2015, the Authority indicated that the Declaration of Eligibility and

Suitability to Adopt had been approved according to s.40 of the Act of 2010. There was then correspondence about errors contained

in that declaration, which are not relevant.

The Case Stated to the High Court

70. But on the 25th May, 2015, the Authority indicated that it had decided to state a case to the High Court, pursuant to s.49 of the

2010 Act. It can hardly be said that this step, at this time, was, in any sense, processing the application in “the normal way”. The

purpose of this procedure was to determine whether, as a matter of law, it was possible to make domestic adoption orders in respect

of the two children in circumstances where PB had previously adopted the children in Country A. The case stated was not mentioned

before the High Court until the 8th April, 2016, following further lengthy correspondence regarding the scope of issues to be

canvassed. At one point, on or about the 19th August, 2015, the Authority appeared unsure whether it would, ultimately, follow the

case stated procedure. By letter of the 24th September, 2015, the applicants’ solicitor called on the Authority to refer the matter to

the High Court, pursuant to s.49(2) of the Act, which it did.

Assessment of the Affidavits

71. It is necessary to re-emphasise that the course of action proposed later in this judgment depends on the courts remaining

satisfied as to the applicants’ bona fides. While in his replying affidavit, Mr. Ciaran Gildea, then Director of Operations and Corporate

Services of the Authority, disagreed with CB’s characterisation of certain of the events, he accepted that, broadly speaking, the first

applicant’s affidavit appeared to be a true and accurate record of the adoption processes to date. However, Mr. Gildea contested

that much of the material was relevant. The question is, then, what is relevant for the proper resolution of these issues? It may very

well be that what is said is not “relevant” in a case stated on a matter of law. But there is a real risk of too narrow a focus. However,

Mr. Gildea’s general acceptance of what happened can only be seen as having been made after due deliberation and research, and

having had access to the best legal advice.

72. A number of points emerge from that affidavit. First, the Authority’s position was that, in the context of an inter-country

adoption, no application had been made to recognise or enter the adoptions in Country A in the RICA. Next, Mr. Gildea deposed that

the applicants have never applied for recognition of the Country A adoption, nor had the Authority been invited to determine that

issue. This was a matter to be determined in the case stated. One must again assume this is to be seen in the context of the fact

that the applicants sought to avail of the domestic adoption procedure. Mr. Gildea deposed that the Authority was a stranger to any

representation which might have been made to the applicants by the HSE, or by their Country A lawyers, or by the Country A

authorities. He stated that any representations which had been made by the HSE were made without any engagement with, or

involvement on the part of, the Authority. One may again be sure that the Authority’s position, as just set out, was on the basis of

due deliberation and having taken the best legal advice. Specifically, one notes the Authority has not challenged the evidence

regarding the HSE’s erroneous advice to the applicants. There was no cross-examination on the applicants’ affidavit in the High Court.

73. Next, while accepting that the applicants had been informed by the Authority that applications for assessment had to be made to

the HSE in the first instance, Mr. Gildea confined himself to disputing that the applicants had acted in reliance on any “direction” by

the Authority in taking their decision not to submit an application for assessment prior to, and in seeking to process, the Country A

“adoption”. While accepting that the letters which formed the subject matter of the judicial review proceedings had been sent, Mr.

Gildea contested the proposition that these were “decisions” which had been judicially reviewable, and contended that those

proceedings had been premature. This is now water under the bridge. Mr. Gildea emphasised that the terms of settlement had not

given any assurance to the applicants as to the substantive outcome of their adoption application, or the Authority’s ultimate view

regarding the “adoptability” of the children. Finally, Mr. Gildea disputed an assertion by CB that the questions raised in the case

stated would have been addressed in the judicial review proceedings had it proceeded to trial. He denied that the Authority was guilty

of any unacceptable or unnecessary delay in the preparation of the case stated.

Non-Compliance

74. A number of broad legal questions arise. What is the consequence of the significant non-compliance with the Convention for these

applicants, and for these children? Are the children to face an uncertain future legally? But a further question flows from those two. It

is whether there may come a point when, even in the case of significant non-compliance, and absent evidence of deliberate

conscious breach of the Act, or culpable recklessness as to compliance with its provisions, the best interests of an individual child, or

children, may require some kind of formal legal decision, in circumstances where the paramountcy or best interests principle may

become a real factor, and even where statutory non-compliance might normally be a bar to registration of an adoption? The Authority

strongly submits that, whatever the applicants’ reason or motivation, the potential legal consideration of evasion or circumvention in

other cases could have serious “downstream” consequences. The various courses of action they suggest to vindicate the best

interests of these children are set out later in this judgment.

75. Inescapably, the unfortunate facts are that there was a clear want of compliance with a range of Convention procedures in this

case. Article 40 of the Convention prohibits any reservations, for the good reason that exceptions may be exploited. By way of

illustration, the fundamental requirements of Articles 2 to 4 were not complied with. None of the preliminary steps were properly

complied with in accordance with the Convention and the Act. The Central Authorities in Ireland and Country A played no role in these

proceedings prior to the Country A adoption. The Central Authorities did not determine the eligibility, consent or any of the other

essential requirements laid down by the Convention, and which form part of the law of the State.

Balancing Considerations

76. On the other hand, the children have been with the applicants for many years and see them as their parents. What was in

contemplation was an intra-family adoption. There is no evidence of financial inducement or lack of consent. There is no indication

that the adoption would not have been registered if it had been processed in accordance with the Act. It is not in issue here that on

a number of occasions, in Ireland and in Country A, the couple were given incorrect advice, and that there were a number of

administrative errors. A great deal of time has passed. There has been much litigation. Can one ignore the broader picture, and the

apparent wrong advices and delays which have occurred in this unfortunate and concerning case?

The High Court Decision under Appeal

The Questions in the Case Stated

77. In the case stated, the Authority asked the High Court to answer a number of questions. The text of these questions has been

slightly modified and redacted without altering their meaning. By way of explanation, the third question below, that is (c), relates to a

judgment of the High Court, MF v. An Bord Uchtála [1991] ILRM 399, which the Authority considers, might provide authority for the

proposition that the courts retain a jurisdiction to make adoption orders under the common law. The issue is dealt with toward the

conclusion of this judgment. The questions raised in the case stated were, in summary:

(a) Whether the Country A adoption was recognisable in Ireland under Part 8 of the Act of 2010, or the common law. To

this, the High Court judge responded “no”.

(b) Whether, on the facts disclosed, the Authority had jurisdiction to make an adoption order in respect of the children

having regard to the pre-existing Country A adoption, s.45 of the Adoption Act, 2010, and any other relevant provision?

The High Court judge answered “yes”.

(c) Whether, following the passage of the Act of 2010, and specifically the incorporation of the Hague Convention into

Irish law, that common law jurisdiction, as identified in MF, remained? In light of her previous answers, the High Court

judge considered it unnecessary to answer this question.

(d) Whether, on the basis that MF remained good law, and on the facts disclosed in the case stated, and assuming that

the Country A adoption was not recognised in Ireland, did the original status of the children remain? To this, the High

Court judge “yes”.

(e) Finally, whether the children were eligible for adoption under s.23 of the Act of 2010, having regard to s.9 and s.45 of

the Act of 2010? To this the High Court judge answered “yes”.

The Reasoning in the High Court Judgment

78. While one can understand and sympathise with the motivation and thinking behind the High Court judgment, that is to create

certainty for the children, I must respectfully disagree with the approach adopted there, and especially, perhaps, with regard to the

response to question (b). The Authority is properly concerned as to the “downstream”, and possibly open-ended, effects of the

answers. The concern must be that there could be circumvention of the Act by others, as described earlier.

79. The High Court judgment proceeds on the basis that it was accepted as common case that the Country A adoption was not

recognisable in this jurisdiction, as the various requirements of the Convention had not been met. The High Court appears to have

accepted the proposition that what occurred could not be a “re-adoption” prohibited under s.45, because there had never been an

“adoption order” within the meaning of the 2010 Act.

80. The judgment records that counsel for the applicants, and counsel for the Attorney General, both submitted that the Country A

adoption should not be recognised here, and, thus, the children’s present status was to be understood as being that which pertained

prior to the foreign adoption. Accordingly, the judge held the children were to be regarded as the un-adopted children of unmarried

natural parents, and who were consenting to the adoption.

81. The High Court appears to have accepted the submission that the children were eligible for a domestic adoption under s.23 of the

Act. The judge was persuaded that it was permissible to adopt a “flexible” approach to interpretation of the statute, consistent with

the broad and generous approach permissible in respect of a remedial statute, such as the Act of 2010. But there are limitations to

such an approach. Even a broad and generous interpretation of a remedial Act cannot proceed beyond the objects of that Act. I do

not think the answers to the case stated given by the High Court can stand in law. They do not sufficiently have regard to the true

intent of the Act or the Convention, nor do they sufficiently address the problem that what happened here might permit

circumvention of the Act and the Convention elsewhere. I would set aside the order of the High Court, and substitute the responses

to the case stated set out later in this judgment, at para. 138, bearing in mind the obiter dicta observations made here.

Submissions in the Appeal before this Court

82. The submissions to this Court identify one area of common ground: that what occurred in Country A falls within the definition of

an “inter-country adoption”, whether or not that “adoption” was lawful and Convention compliant. Thus, if it were to be registered at

all, this should properly have been processed in accordance with the “inter-country adoptions” requirements of the Convention, as

provided for in the 2010 Act. The applicants say that they were prevented from availing of this procedure by advices given by the

HSE on legally incorrect grounds. They accept that the Country A “provincial adoption”, although obtained in good faith, falls outside

the Act’s definition of an “inter-country adoption effected outside the State”. (s.3(1)).

The Authority’s Case

83. The Authority’s headline-concerns are succinctly summarised in the application for leave to appeal directly to this Court. It

submits the High Court judgment is incompatible with the mandatory nature of its duties, and those of the State, under the Hague

Convention. If applied more generally, it is said, the approach would create an “ad hoc” parallel adoption regime, whereby, in

countries which had signed the Convention, prospective adopters could adopt children otherwise than in accordance with the

Convention itself, repatriate the children to their home country and then adopt the children domestically on the basis of habitual

residence. In that scenario, the Authority submits that, notwithstanding its statutory role as a Central Authority in Ireland under the

Convention, it would be compelled to make adoption orders in breach of the very terms and purpose of the Convention itself. It

contends that this is a matter of both national and international importance, and that the decision of the High Court might constrain it

to process adoptions which fall four-square within the scope of the Convention as being de facto domestic adoptions without any of

the Convention’s procedural safeguards. The Authority emphasises that the Convention has the force of law in the State under s.9 of

the 2010 Act; and that Article 2 and Article 4 of the Convention apply in this case. It submits that the High Court’s finding that “some

latitude” is compatible with the Hague Convention is impossible to reconcile with Article 40 of the Convention, which provides that

“[n]o reservation to the Convention shall be permitted”. Further, it is said that the judgment would give rise to “real world”

difficulties, by requiring the Authority to process adoptions outside the Convention procedures, and where natural parents were

domiciled in another Hague Convention state. There would be logistical difficulties in obtaining consents from overseas, as well as

ensuring that such consents were free and informed. Equally, it is said, it might be impossible to reach the requirements for

consultation with the natural father. The Authority submits that an unstated assumption in the High Court judgment was that there

were valid parental consents in place in respect of the minors, but that this appeared to be based on a recital in the Country A

adoption order, which that court had found could not be recognised under Irish law. The Authority argues that there is an

inconsistency in this. Finally, it is said the High Court judge erred in, effectively, following MF v. An Bord Uchtála, notwithstanding the

passage of the 2010 Act, which, by implication, no longer remains good law.

Submissions by Counsel for the Applicants and Counsel for the Attorney General

84. Counsel on behalf of the applicants, and counsel for the Attorney General, both respectively submit to this Court that this

situation is now met by the children’s present “habitual residence”, and that they are now eligible thereby for a domestic adoption.

The former submission reflects the applicants’ desire to progress things almost on the basis of the original wrong advice received from

the HSE. The latter submission indicates an entirely understandable wish, on the part of the Attorney General representing the State,

to bring some certainty, and for there to be a resolution of the status of these children. I am unable to accept this submission. The

Authority was duty bound to deal with the situation as being a non-compliant inter-country adoption. To ask the Authority to apply

such a “flexibility” would, in effect, be to ask it to ignore the basis of the Convention and to act outside the terms of its governing

statute. The Authority cannot be asked to proceed ultra vires. While a court may legitimately adopt a flexible approach in a remedial

statute, such as this, even a court may only do so within the scope of the Act, as set out in the long title. As a creature of statute,

the Authority must operate within the terms of the Act of 2010. To allow an “inter-country adoption” to be re-characterised as a

“domestic adoption” simply by dint of establishing habitual residence in this country, would be to defeat the intent of the Oireachtas,

and the clear terms of the Convention. It was precisely that type of “mischief” or wrongdoing, which the Act and the Convention

were designed to prevent.

A Question of Interpretation

85. The process of legal analysis and interpretation of the Act and Convention must start with the nature of the procedure which was

actually used by the applicants. The intent of the Act and the Convention is to avoid circumvention. The most obvious form of

circumvention would be to ‘morph’ the factual context of an “inter-country adoption” into a “domestic adoption” simply by the act of

establishing habitual residence. But this would entirely defeat the Act’s purpose.

Obiter Dicta

86. I preface what follows with a recognition that certain observations as to the interpretation and application of ss. 90 and 92 of the

Act, and other legislation referred to below, are, to an extent, obiter dicta, insofar as, to a degree, they go beyond the issues falling

for determination here. What is said in this section of the judgment, however, does have a bearing on a response to questions (b) and

(d) in the case stated. Thus far, the judgment has considered the Authority’s statutory remit. It is necessary, in my view, bearing in

mind all the available evidence, on matters before the Court, to consider what a court can do, and whether the powers of the Court

are coterminous with the Authority?

87. The appropriate principles of interpretation to apply in respect of an international convention, incorporated by statute into Irish

law, were considered by this Court in HI v. MG (Child Abduction): Wrongful removal [1999] IESC 89, [2000] 1 I.R. 110. The Court

should interpret the statute in a manner informed by the Convention, and the explanatory report therein referred to. But I do not

think this is a legally self-contained, or ring-fenced, area of law, immune from constitutional interpretation or analysis.

88. But the Convention has the status of domestic statutory law enacted under Art. 29.6 of the Constitution of Ireland. Therefore, I

consider it to be subordinate to the Constitution. The Court must, of course, have regard to legislative intent, but the Convention

cannot itself be elevated to a quasi-constitutional status. The situation here, consequently, is in contrast with the manner in which

European Union law is incorporated at a constitutional level by virtue of Article 29(4) of the Constitution. Under Article 42A of the

Constitution, referred to and quoted later, the courts are bound to observe the best interests test for children in adoption cases. But,

in so saying, I accept it is necessary that any process of constitutional interpretation be conducted harmoniously, ensuring that it

does not run the risk of defeating the object of the legislation, which is itself intended to protect the best interests of children.

89. However, the question of where the best interests of these children lie is not in dispute in this case. The Authority itself does not

appear to query that, setting legal considerations to one side, it is now in the best interests of JB and KB to have their family life in

this State with the applicants. But the Authority says that, by the Act of 2010, the Oireachtas has laid down how, defined

collectively, all children’s best interests rights should be vindicated: that is, through the Act and the Convention.

The Explanatory Report

90. A question which then arises is as to whether the Explanatory Report, or some other source, can provide interpretative assistance

in this truly exceptional case? As provided for in s.10, the Explanatory Report may inform interpretation of the Act. That Report is

replete with references to the best interests principle. At para. 63, it makes clear that: “one of the main objects of the Convention,

that is, the establishment of safeguards to ensure the best interests of the child, and the respect of his or her fundamental rights,

as recognised by international law.” The same concept is also included in the fourth paragraph of the Preamble to the Convention,

and, consequently, “the best interests of the child” shall be understood as a paramount consideration, i.e. taking into account the

rights of other persons involved in the adoption. (See also Article 21, United Nations Convention on Rights of the Child, 1989).

Paragraph 64 of the Report expresses a similar philosophy.

91. At para. 65, however, the Report recognises that the Convention “does not pretend to solve all problems related to children’s

inter-country adoption, in particular, to determine the law applicable to the granting of the adoption or to its effects”. The author

accepts that, nevertheless, some jurisdictional problems are dealt with indirectly, e.g. by making a distribution of responsibilities

between the state of origin and the receiving state. Subsequent paragraphs reaffirm the Convention’s mandatory nature (paras. 70,

76, 111 and 173). Paragraph 289 accepts that the formal requirements of the application are to be set by the law of the adopters’

habitual place of residence.

92. Paragraph 411 of the Report is, however, directly relevant. The expert author acknowledges an area where the Convention text

remains silent. The reference to “Article 33” in the passage now to be quoted concerns the reporting function of the Authority in

cases of breach of the Convention:

“411. The Convention does not specifically answer the question as to whether an adoption granted in a Contracting

State and falling within its scope of application, but not in accordance with the Convention’s rules, could be recognised

by another contracting state whose internal laws permit such recognition. Undoubtedly in such a case the contracting

state granting the adoption is violating the Convention, because its provisions are mandatory, and such conduct may

give rise to the complaint permitted by Article 33, but the question of the recognition would be outside of the

Convention, and the answer should depend on the law applicable in the receiving state, always taking into account

the best interests of the child.” (Emphasis added)

93. In the following paragraph, the Report addresses the hypothetical situation where the “habitual residence” might otherwise have

militated against recognition. The author describes a concrete case where denial of recognition may not be in the best interests of

the child, that is:

“... the case of a Spanish professor habitually resident in the United States who obtains a legally valid inter-country

adoption without the intervention of the Central Authorities, continues to reside there for 10 years or more, and only

afterwards returns to Spain, and the proposal failed.” On this, the author humanely commented, “[u]ndoubtedly, it

would be very difficult to accept the denial of recognition of the adoption, just because the central authorities did

not intervene.” (para. 412) (Emphasis added).

This observation can only be understood in the context of giving effect to the best interests test in a truly exceptional case.

The Guide to Good Practice

94. In the year 2008, the Hague Conference on Private International Law issued “The Implementation and Operation of the 1993

Intercountry Adoption Convention: Guide to Good Practice”. While the Guide is not specifically referred to in the Act as a point of

reference for interpretation, based on the experience of administering the Convention, it may act nonetheless as a helpful “signpost”

as to the approach which might be adopted by a court when, as here, there is non-compliance with the Convention. It states:

“531. Cases have arisen where, perhaps because of unfamiliarity with the Convention, courts in a receiving country

have made national adoption orders in circumstances where the Convention procedures and safeguards should have

been applied. The courts may have taken the view that, because the children were resident in the receiving country at

the time of the application, national adoption procedures should apply. In fact, where children are brought from a

country of origin to the receiving country for the purpose of adoption, the cases clearly fall within the scope of

the Convention, as set out in Article 2.” (Emphasis added)

But the Guide continues:

“532. Where a mistake of this kind occurs, the authorities in the receiving country are not in a position to certify,

under Article 23, that the adoption has been made in accordance with the Convention, and as a result the adoption is

not entitled to recognition in other Contracting States under the Convention. In effect the safeguards set out in the

Convention have been circumvented.” (Emphasis added)

Referring to the Hague Convention and the United Nations Convention on the Rights of the Child, the Guide then poses the question:

“533. Can the situation be rectified? It would be in the spirit of the Convention, and of the Convention on the Rights

of the Child, as well as in the best interests of the child concerned, for the two countries involved to try to find a

pragmatic solution. They might wish to consider healing the defects which occurred by trying to do what should

have been done, had the provisions of the Convention been respected. If it were possible for the Authorities of

the country of origin to make the determinations required by Article 4 of the Convention, and those of the

receiving country to verify if the provisions of Article 5, in particular Article 5 a) and b), have been respected, and

if the two authorities could agree to an exchange of the required reports under Articles 15 and 16, then the two

countries might agree that the requirement of Article 17(c) has been satisfied retrospectively, so that the

appropriate authorities would be in a position to make out the certificate referred to in Article 23(1) of the

Convention.” (Emphasis added)

Application of the Explanatory Report and the Guide to Good Practice

95. Is there, then, a potential route whereby, in accordance with Article 42A of the Constitution, the best interests of children might

be vindicated in a manner which is in close accord with the spirit of the Convention, albeit not coming within its ambit? I pause to

observe that the issues in this appeal bear some similarities to, but also procedural and other distinctions from, the issues considered

by this Court in M.R. & Anor. v. An tArd Chláraitheoir [2014] IESC 60, [2014] 3 I.R. 533. It should be said that, by contrast to M.R.,

arguments based on the Constitution were largely confined to Article 42A of the Constitution. No significant reliance was placed on

any other Article of the Constitution in the context of rights-vindication.

96. Both Article 42A of the Constitution, and the Convention itself, reflect and seek to give effect to the best interests test. (See

also the ECHR case of Neulinger and Shuruk v. Switzerland, App. No. 41615/07, [2010] ECHR 1053 (6 July 2010), on the question of

“best interests” in the context of the Child Abduction Convention). In this appeal, counsel for the Adoption Authority has urged that

the best interests test is protected by giving full effect to the provisions of the Convention, as reflected in the Act. It is submitted by

the Authority that such an approach is the explicit legislative intention, as only such interpretation prevents a circumvention of the

Act. I accept this argument, insofar as it conveys that a constitutional interpretation of the Act cannot be utilised to defeat the

Act’s clear legislative intendment, especially where, as here, the legislation is itself informed by the best interests test.

97. But one can, in my view, nonetheless usefully view the facts here, first, from the perspective of para. 411 of the Report, and

paras. 531-533 of the Guide. One may proceed on the basis that, if the provisions of the Hague Convention had been adverted to by

the HSE, and the Authority, when contact was first made in June and July, 2011, then an assessment of the applicants could have

taken place. There was, at the time, clearly, as articulated at para. 411 of the Report, and paras. 531–533 of the Guide,

“unfamiliarity” with the Convention. There is nothing, at present, to indicate that declarations would not have been made in the usual

way. Thereafter, the couple’s application jointly to adopt the children could, on the face of things, have been dealt with by the

Authority and the Country A Central Authority. The resolution of these issues, the “healing of the defects”, to use the phrase at para.

533 of the Guide, would, of course, provide the most obvious route to allow the children a stable family background, and legal

certainty, to which they are entitled.

98. There are certain consequences which must be acknowledged. If there is to be some legal recognition of this adoption, it would

be, “outside the Convention”. In my view, it would also necessarily take place against the background of an acknowledgement of a

constitutional duty imposed on this Court under Article 42A of the Constitution, described below. It would recognise that, to

paraphrase para. 412 of the Report, the continued denial of recognition of the adoption of these two children would not be in their

best interests. It would take place in an area where the framers of the Convention have actually chosen to remain silent. Any judicial

resolution of the issues, if it can be done, must, insofar as possible, protect the “spirit and the wording” of the Convention. The

questions in the case stated must be answered both as issues of law, having broader application, but also in the concrete

circumstances of this case. The question, therefore, comes down to whether the Act of 2010, properly interpreted and applied,

provides a route forward which guarantees the future status and wellbeing of the children, in accordance with the Constitution? In my

opinion, it can. I consider the way forward involves a number of steps, each having regard to the legislation, the Report, the Guide to

Good Practice, and the overarching requirements of the Constitution. I do not conceive these objectives as being divergent.

An Uncertain Future?

99. Before going further, it is useful to consider first the possible alternative, and the consequences of giving a more confined answer

to the questions in the case stated. In the absence of a clear identification of their legal status, the children may encounter

difficulties once they are no longer dependent on CB in obtaining passports, in the area of succession law, and possibly their

continuing long-term right to residency status. Moreover, a question may arise as to whether, at present, even PB enjoys a parental

relationship with the children which is legally cognisable as a matter of Irish law. CB has no such status, even after the elapse of five

years or more. The two adults, who see themselves as the children’s parents, are not be their parents in the eyes of the law, or the

State generally.

Potential Remedies: The Authority’s Proposed Solution

100. Counsel for the Authority has very responsibly put before the Court a number of proposals which might, potentially, remediate

the children’s situation. It is suggested that there might be further engagement with the Central Authority of Country A, so as to

allow for retrospective recognition of the adoption by the Central Authority of Country A, thereby allowing recognition in Ireland.

Counsel indicated that some preliminary contact has taken place between the Authority and the Central Authority of Country A. It is

unclear how far this has gone. If this can succeed, it is by far the optimal path. It is, in any case, a necessary first step. So, too, is

informing the Permanent Bureau. But, as is pointed out by my colleague, McKechnie J., in his judgment, it is strange that this was not

done before now.

101. Counsel for the applicants, in turn, makes the point that the question of the Authority engaging with its Country A counterpart

so as to secure the issue of an Article 23 certificate by that Country A Authority, only first arose by way of legal submission delivered

on the 10th June, 2016, after proceedings in the High Court had finally commenced. Counsel raises the question as to why the

Authority did not address this issue beforehand, that is, in the period of more than a year which elapsed between the Authority’s

declaration regarding the applicants’ eligibility and suitability to adopt the children, and the subsequent delivery of the Authority’s High

Court submissions? There is also, perhaps, a question mark as to whether such “remedial healing measures” came to fruition in other

cases, or came to nothing?

102. In truth, there are intractable obstacles and hazards to every possible remedy. Addressing the Authority’s proposals, even if

they were to be progressed in the way suggested, questions would be raised as to precisely how that “healing” might be effected?

Would it now be necessary for the children to be reassessed for adoptability by the Country A Central Authority? Would they now be

required to return to Country A and, potentially, even again resume habitual residence in that country, if that could be established?

Would the Country A Central Authority even be in a position to certify the children as adoptable, for the purposes of an inter-country

adoption, in circumstances where they already are the subjects of an adoption order that is said to be valid as a matter of Country A

law, if not Irish law?

103. Accepting the bona fides of the Authority’s proposals without hesitation, there must, at minimum, still be a question of whether

any of the remedies which are presently proposed – and what might be entailed by them – would, at this stage, necessarily be in the

children’s best interests? What is to be hoped for is, of course, that the process could be completed simply by way of exchanging

declarations and certificates on a retrospective basis. Two things, to my mind, are clear: it can safely be concluded that, in the long

term, uncertainty cannot be in these children’s best interests. Additionally, there must now be an early resolution of this very long

running case. Accepting, as one must, that the matter can only proceed as an inter-country adoption, is the legislation quite as rigid,

and “monolithic”, as is submitted in this truly exceptional case?

A Preliminary Step

104. I would propose, therefore, that as a preliminary step, the Authority should correspond with the Central Authority of Country A,

with a view to identifying whether or not, within a reasonable, set period of time, the necessary procedures, by way of “healing” the

defect in the procedure here can be complied with. But there must now be a time limit. Article 35 of the Convention requires inter-

country adoption decisions to be made “expeditiously”. The children have been in this State now for many years. It is questionable

whether the facts have changed much since the year 2013. This, in itself, begs a question to which I revert later: how, in law, can

this be done? If this course of action fails, I now seek to outline another route forward.

An Alternative Approach

Section 90 of the Act

105. Consideration of a second “fall-back”, or alternative, approach begins with ss. 90 and 92 of the Act. Section 90 is contained in

Part 10, Chapter 2 of the Act, which is headed “Register of Intercountry Adoptions”. This particular chapter deals with the powers

and functions of the Authority regarding the Register of Foreign Adoptions. Generally, it sets out that, once the Authority is satisfied

with compliance with the Convention, it shall enter particulars of the adoption in the Register of Foreign Adoptions concerning a

specified adoption effected outside the State. Section 90(8) of the Act provides that, if the High Court so directs under s.92(1), an

entry shall be made in the register of inter-country adoptions concerning a specified inter-country adoption effected outside the

State. I interpret this as referring to a specified inter-country adoption which has been effected outside the State, which may have

been referred to the High Court under the case stated procedure set out in s.49(2) of the Act.

Section 92 of the Act

106. Section 92, however, is contained in a separate chapter, Part 10, Chapter 3. This refers to “Directions of High Court in relation

to the Register of Inter-Country Adoptions”. It is necessary to refer to the provision in some detail. It provides:

“92(1) If, on application to the High Court in that behalf by a person who may make an application to the Authority

under section 90 (3), the High Court is satisfied that an entry with respect to an adoption in the register of intercountry

adoptions should be made, cancelled or corrected, the High Court may by order, as appropriate -

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

(b) subject to subsection (2), direct the Authority to procure the cancellation of the entry concerned in the

register of intercountry adoptions, or

(c) direct the Authority to make a specified correction in the register of intercountry adoptions.” (Emphasis added)

Can a court make an order under s.92(1)(a) in this case? This is addressed below. First, it is necessary to consider the rest of the

section.

Sub-section 2 goes on to state:

“(2) Unless satisfied that it would be in the best interests of the adopted person to do so, the High Court shall not give a

direction under subsection (1) (b) based solely on the fact that, under the law of the state in which an adoption was

effected, the adoption has been set aside, revoked, terminated, annulled or otherwise rendered void.”

Sub-section 3 provides:

“(3) Where the High Court gives a direction under subsection (1) (b), it may make orders in respect of the adopted

person that appear to the High Court –

(a) to be necessary in the circumstances, and

(b) to be in the best interests of the person,

including orders relating to the guardianship, custody, maintenance and citizenship of the person.”

Sub-section 4 states:

“(4) An order under subsection (3), notwithstanding anything in any other Act, applies and shall be carried out to the

extent necessary to give effect to the order.”

Sub-section 5 provides:

“(5) If the High Court -

(a) refuses to give a direction under subsection (1)(a), or

(b) gives a direction under subsection (1)(b),

the intercountry adoption effected outside the State shall not be recognised under this Act.”

Sub-section 6 provides:

“(6) The High Court -

(a) may direct that notice of an application under subsection (1) shall be given by the person making the

application to such other persons (including the Attorney General and the Authority) as the High Court may

determine, and

(b) of its own motion or on application to it by the person concerned or a party to the application proceedings, may

add any person as a party to the proceedings.”

Sub-section 7 provides:

“(7) The Attorney General -

(a) of his or her own motion, or

(b) if so requested by the High Court,

may make submissions to the High Court in relation to the application, without being added as party to the application

proceedings.”

107. One may then proceed to the definition of “inter-country adoption effected outside the State”, contained in s.3, the “definitions”

section of the 2010 Act. Included in those definitions is to be found the following:

“(b) An adoption, other than an inter-country adoption, of a child effected outside the State at any time on or after the

establishment day that conforms to the definition of “foreign adoption” in section 1 of the Adoption Act, 1991 as it

read on the 30th May, 1991 …”. (Emphasis added)

108. In s.3 of the 2010 Act, “inter-country adoption” is defined as:

“the adoption of a child habitually resident in a State (the “state of origin”), whether a contracting State or non-

contracting State, who has been, is being, or is to be transferred into another State (“the receiving state”) –

(a) after the child’s adoption in the State of Origin by a person or persons habitually resident in the Receiving

State; or

(b) for the purpose of an adoption in either the receiving state or the state of origin by a person habitually

resident in the receiving state.” (Emphasis added)

109. It is self-evident that the present situation can no longer be properly defined as a classical “inter-country adoption”, in the

sense that the children are now habitually resident in the receiving state, Ireland. But, the question arises as to whether it can be

said that the procedure actually adopted in Country A does correspond with the definition of a “foreign adoption” contained in the

Adoption Act, 1991. There, “foreign adoption” is defined in s.1 as meaning:

“an adoption of a child who at the date on which the adoption was effected was … under the age of 18 years, which was

effected outside the State by a person or persons under and in accordance with the law of the place where it was

effected and in relation to which the following conditions are satisfied:

(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 was 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 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 enquiry to be carried out, as 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 interests 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 reward

(other than any payment reasonably and properly made in connection with the making of the arrangements for the

adoption) in consideration of the adoption or agreed to do so,”. (Emphasis added)

There is no doubt that Country A is a “place” which comes within that definition.

110. On the basis of the evidence, it would appear, therefore, that the requirements of a foreign adoption, as set out at s.1 of the

Act of 1991, might be complied with. The children are prima facie eligible to be made the subject of an order under s.92 of the 2010

Act. That being so, can an order be made under s.92(1) of the Act, it being accepted that the adoption procedure in Country A was

in accordance with the laws of that country?

111. I would interpret s.92(1) as vesting in the High Court a slightly different and broader power from that to be found in s.90. But

this power is to be operated in accordance with the objects of the Act, as informed by the Explanatory Report. In fact, s.92(1) does

not make reference to “an inter-country adoption effected outside the State”, as in the case of s.90(8). Were the section to refer

only to “inter-country adoptions effected outside the State”, its scope would be more narrow. In fact, it refers simply to “the

Register of Intercountry Adoptions”. One may conclude then, that s.92 imparts a slightly wider power to the High Court than that

vested in the Authority. This is, in my view, illustrated by the fact that, under s.92(2), the court shall not give a direction to procure

the cancellation of an entry based solely on the fact that, under the law of the State in which an adoption was effected, that

adoption has been set aside, revoked, terminated, annulled, or otherwise, and is void. This is a power the Authority itself does not

have. The intent of that sub-section is, plainly, to protect the safety and best interests of children who have been the subject

matter of previous adoption orders. That same intent is, in my view, illustrated by s.93(3), which allows a court to make such orders

as may be necessary in the circumstances, which are in the best interests of the person, and relating to the status of the child,

including guardianship, custody, maintenance, and citizenship. Undoubtedly, s.92(5) provides that if the High Court refuses to give a

direction under sub-section 1(a), or gives a direction under sub-section 1(b), the inter-country adoption effected outside the State

shall not be recognised under the Act. However, I do not believe this prevents an order being made in the event that the High Court

determines that a “positive” order may be granted, to the effect that an entry with respect to “an adoption” in the Register, “may be

made”. It seems to me that the intent of the legislature can hardly have been that, in circumstances such as this, children, in the

position of JB and KB, should be left in a position where they are denied legal certainty as to their status.

112. Having regard to the interpretative principles applicable, does this allow for an area of residual discretion in an exceptional case?

The question of the ambit of that provision arose in a High Court action, M.O’C and B.O’C, applicants, v. Udaras Uchtála na hÉireann,

delivered on the 30th May, 2014, [2014] IEHC 580, [2015] 2 I.R. 94 (See, inter alia, pp. 110-112, 121-125 and 129).

113. The facts of MO’C and BO’C are distinct from those in the instant case, and do not require recitation. It is sufficient to say that,

there, the High Court appears to have accepted the proposition, at p. 125, para. 33, that, in very exceptional cases, s.92 may

express a somewhat broader jurisdiction than that held by the Authority. Abbott J. seems to have concluded that any broader power,

exercised by the High Court, might be employed with regard to the Constitution, and without “invidious discrimination” (At pp. 128-

129, paras. 35-36). Such a broad statement would cast the net far too widely. The section must be interpreted narrowly, and with

great care. No interpretation can be relied on to, as it were, interpret the Act “contra legem”, or contrary to its clear purposes. On

one reading, the judgment in MO’C might be understood as saying that s.92 could be interpreted having regard to Article 40.1

considerations, such as invidious discrimination between categories of person. Such a wide-reaching proposition is too broad. The

best-interests guarantee contained in Article 42A is not to be seen as some form of interpretative Trojan horse which can undermine

the intent of the Act. The Act effectively sets a very high bar against any categories of persons who seek to circumvent the

adoption process. The requirement is to protect the welfare interests of all children who may be involved in inter-country adoptions.

114. But on the facts of this exceptional case, informed by the provisions of Article 42A of the Constitution, set out later, I would

take the view that, all other things remaining equal, and the other legal tests and requirements being satisfied, the High Court, if itself

“satisfied” that an entry should be made, might, exceptionally, direct the Authority to procure the making of specified entries in the

RICA regarding these two children. This would do no violence to the best interests test. It would be consistent with what I conceive

to be the spirit of the Convention in dealing with exceptional cases such as this one. The resolution would be in accordance with

internal law of the State. The recognition would be outside the Convention, but in accord with the type of situation envisaged in the

Report, to which this Court should have regard.

115. I would, therefore, propose the Court should hear submissions from counsel as to whether, if necessary, the subsequent steps

envisaged here, first, as to “healing”, and, if necessary, second, by Court proceedings, can lawfully be taken within the framework of

this case stated, or whether, rather, as seems more likely, new High Court proceedings would now be necessary in light of the fact

that this Court may be confined to questions asked in the case stated? It is to be hoped the matter can, ultimately, be determined

with finality, so as to accord with the requirements of the Convention on expedition in decision-making.

A Different View

116. There are, therefore, aspects of this case where I regret that I differ from the observations contained in the judgment to be

delivered by my colleague, McKechnie J., where he sets out in clear terms his reasons for his disagreement. The areas of difference

arise both at the level of principle and on the evidence. As the questions in this case may not, unfortunately, be finally determined by

this appeal, a brief response is appropriate. The following observations are made with great respect, and with due regard to my

colleague’s entirely legitimate concerns as to maintaining the integrity of the 2010 Act. I deal with the significant issues he raises

sequentially and, I hope, without any decontextualising.

Pragmatic Solution

117. It is true that this judgment makes mention of the words “pragmatic solution”. Lest it be misunderstood, that term is, in fact, the

one used in the explanatory report to the Convention, considered earlier. What is proposed here is not, I suggest, “pragmatic”, but is

actually to be seen at the level of real principle, including a consideration of what is said in Article 42A of the Constitution.

118. What is offered in this judgment sets a high bar, and regrettably may require further litigation. I do not share the view that this

would jeopardise the structure and legal certainty of the Convention. This is not a question of finding a resolution to the uncertain

situation for the children “at any cost”. It is, rather, an attempt to arrive at an interpretation of the Act itself by reference to the

Report, its Guide and the Constitution, which pays due regard to its aims, and seeks to vindicate the children’s constitutional rights by

paying due regard to their welfare and interests, and which recognises the fact that, in this case, the children concerned have not

been well served by what has happened. Undoubtedly, the applicants must shoulder their part of the responsibility, but what occurred

both before and after the children were brought from Country A must give rise to concerns. I go no further because there has not

been a full plenary proceeding where perhaps a broader range of constitutional considerations might become part of the framework of

reference, as well as an identification of what precisely occurred during the applicants’ interactions with the state agencies involved.

I think it is fair to say that, in brief, what is needed is a sharper focus and a broader lens. As I conceive it, these exceptional

circumstances together give rise to a particular duty on the Court. There is now, in my view, a duty to vindicate these children’s

rights as far as is “practicable”.

Article 42A of the Constitution

119. In essence, I think it is fair to say, my colleague expresses the view that the Court should not have regard to the provisions of

Article 42A of the Constitution as an “external source”, capable of nuancing the interpretation of the Convention or the Act away

from what it would otherwise be, or, at the other end, of overruling the requirements of the Convention and/or the Act entirely; and

that what is proposed introduces a totally “free-standing” concept of the best interests of the child. (c.f. paras. 107-109 of

McKechnie J.’s judgment).

120. The Convention has the “force of law in the State”. (c.f. ss. 8 and 9 of the Act and Article 29.6 of the Constitution). Under

s.19, the Court is placed under a duty to ensure that in “any matter” relating to the arrangements for the adoption of a child, for the

making of an order, or for the recognition of an inter-country adoption, the Court, in deciding the question, shall have regard to the

interests of the child as the first and paramount consideration.

121. But the areas of difference, in part, I think go back to how this case may properly be characterised. I briefly mention some of

the problems. First, much depends on perspective, and the breadth of the material to be considered. It might be said that this case

stated procedure, without fact finding or a thorough consideration of all the constitutional rights which may be engaged, is very inapt

one for a proper assessment of the entire canvass presented to the Court. Second, should the courts place greater weight on a more

retrospective analysis of the applicants’ actions and failures, or, rather, a more prospective approach, at once taking into account

the broader picture, but laying greater weight on the children’s future legal status? In my view, the latter analysis is now to be

preferred in law. Third, the difference in our two approaches may best be defined, in my view, by posing a rhetorical question based

on duties and rights. The applicants did not comply with the Act or the Convention. The agencies on the face of things have not

performed as they might have. But, having regard to the philosophy and intention of the 2010 Act: whose rights are now most

affected by the outcome of this case? I think this only allows for one answer, the children’s rights, even taking into account, as one

must the actions of the applicants. It is in my view at least unfortunate that the children were not joined as notice parties to the

proceedings at the outset, that no guardian ad litem was appointed and that the views of the children were not fully and directly

ascertained and presented to the High Court.

122. For the reasons now set out, I am unable to agree that the Constitution should be regarded as an “external source” in the

interpretation of this statute, nor do I consider that the application of Article 42A is a “free standing” concept. The Convention may

be seen as an international agreement, which became part of the law of the State, as determined by the Oireachtas pursuant to

Article 29.6 of the Constitution. It was, in my view, thereby taken from the realm of foreign relations and, by Act of the Oireachtas,

rendered as part of domestic law. An article of the Constitution, such as Article 42A, cannot be “stood-down” or placed at naught by

a statute simply because the statute translates an international agreement into part of domestic law. The Act cannot circumscribe,

or derogate from, the Constitution, or any part of it. Nor can this statute “free” the Oireachtas from the constraints of the

Constitution, or any part of it. (See the statements to this effect in the judgments of Walsh and Henchy JJ. in Crotty v. An Taoiseach

[1987] IESC 4, [1987] I.R. 713, as approved and applied by this Court in Pringle v. Government of Ireland [2012] IESC 47, [2013] 3

I.R. 1). It is the function of the courts to interpret and apply the Constitution and the law, including this Act, which has no

connection with measures necessitated by membership of the European Union. If it had been the intention to elevate the Convention

to a constitutional status, this would have required a decision of the People. It is, therefore, to my mind, entirely constitutionally

proper that the Constitution should at least be an interpretative point of reference. As such, one cannot, I consider, set to one side

the explicit provisions of Article 42A, which not only recognise and affirm the natural and imprescriptible rights of all children, but

guarantee that the State will, so far as practicable, by its laws, protect and vindicate those rights in the resolution of all proceedings

of this type. (Article 42A.1). Nor can one ignore the wording of Article 42A.4.1º, which provides that:

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

…

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

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

(Emphasis added)

The emphasised words speak for themselves, and require no explanation.

123. The provisions of Article 42A.4.2º must also be borne in mind:

“Provision shall be made by law for securing, as far as practicable, that in all proceedings referred to in subsection 1° of

this section in respect of any child who is capable of forming his or her own views, the views of the child shall be

ascertained and given due weight having regard to the age and maturity of the child.” (Emphasis added)

124. This case does concern “adoption”. The Act, and Article 42A, refer to the paramount consideration of “best interests”; the

Constitution refers to the child, as an individual, not in the collective sense of children as a category of person. The duty is in my

view specific to each case. Even though the children were not separately represented, there is no controversy as to what their views

are. These views are to be given “due weight”, having regard to their ages. The jurisprudence of the courts makes clear that

considerable weight should be given to the views of children of their ages, absent any indication of some other countervailing factor.

125. The Act makes extensive reference to the “best interests” principle. I do not, in fact, accept that there should be a conflict

between the Constitution and the principles set out in the Act, and in the Convention when interpreted in light of the Report and its

Guide. Even if there were such a conflict, the provisions of the Constitution should be seen as informing the interpretation of the Act.

The question, as it arises, is not, I think, one of some absolute, interpretative, “exclusionary principle”, but rather whether Article 42A

speaks to the interpretation of this adoption statute in this adoption case? Of course, as the corollary to that, a court must engage

in a harmonious interpretation of the Constitution.

126. The invocation of Article 42A of the Constitution in this judgment is neither without limits, nor open-ended in its effect. What is

envisaged can only take place under the supervision of the courts. It derives essentially from the Guide referred to earlier in this

judgment, acknowledging, as one must, that the situation here is factually different and more extreme than that described there. But,

do these differences, in fact, alter the principle that, in some circumstances, remediation, or “healing” is legally permissible? If this is

permissible in principle, why should it be precluded in this case, based on the experiences of the Guide and having regard to what the

great United States judge Oliver Wendell Holmes pointed out more than a century ago, “[t]he life of the law has not been logic; it has

been experience”. He went on to point out that the law “cannot be dealt with as if it contained only the axioms and corollaries of a

book of mathematics”. It is difficult to see that, as a matter of statutory interpretation and application, there would be any true

distinction in principle, between the “healing process”, such as that envisaged in the Guide, and that which is proposed in this

judgment. This is addressed later.

127. I, too, would entirely deprecate a reliance in isolation on one Article of the Constitution, when, as is well-established, a

harmonious interpretation of all the provisions is necessary. But the word “all” in Article 42A would include this individual case. I take

the view that this places an obligation on the Court to have particular regard to the welfare principle in this case, without it becoming

a means of defeating the objective of the Act.

128. What is proposed, as the “second alternative” in this judgment, therefore, is simply a route whereby, applying certain principles

of interpretation, in this exceptional case, questions may be determined in law which can, ultimately, protect and vindicate the rights

of the two children, insofar as is “practicable”. The children, the persons most affected by the present situation did nothing wrong,

but have been entrapped in what can best be described as an administrative and legal web for the past six years. The Report,

referred to earlier, itself envisages that there are exceptional circumstances where the denial of recognition of an adoption would not

be in the best interests of a child.

The Totality of the Evidence

129. Looking to the evidence, and the material before the Court, a relevant question, surely, is what is to be done – now? On the one

side, as must be acknowledged, the applicants took a series of steps which were non-compliant with the Convention, and the Act. On

the other side, one might begin by posing the question, why did this process begin this way? Undoubtedly, one can say the applicants

were precipitate and should have sought legal advice. Some might think that the applicants’ description of what happened was “all

too convenient”, but this is not the Authority’s case to this Court. There is evidence, so far uncontroverted, that the adoption

process was set in motion after incorrect advice from the HSE. There is the broad consideration that this issue has, as described

earlier, been before the Authority, in one form or another now, for more than half a decade. Does there not come a point in time

where, as well as having regard to the duty of expedition expressed in Article 35 of the Convention, the balance is tipped, and the

courts should now lean toward the interests of these children in this case? Obviously, there may be evidential issues still to be

resolved. But, subject to that proviso, in my view, the answer to this rhetorical question should be that the law, and the courts,

should address the full realities of this situation, having regard to the broader picture, which of course includes protecting the

integrity of the Convention.

Reverse Engineering

130. At para. 114 of his judgment, McKechnie J. acknowledges that, were it now possible to obtain the co-operation of the Country A

authorities, and so fashion afresh a Convention compliant inter-country adoption, then it would be the best outcome that could be

achieved for CB and PB, and the children, in this most unsatisfactory situation. But I think this begs a question.

131. There is no doubt that some form of “reverse engineering” was proposed, or at least suggested, by the Adoption Authority, in

the course of argument. But can it be said such a resolution would itself be in strict and faithful compliance with the Convention and

the Act? Would the adoption of such an approach not, arguably, in itself, be a form of “pragmatic resolution”, potentially raising the

question as to how such a process might be achieved under the Act? Could it be that this itself could only be brought about by an

application under s.92 of the Act, where the High Court might direct that the “inter-country adoption” be registered? Would this now

necessitate a court engaging in a “flexible” interpretation of the Act, again in the interests of the children? I am very conscious of,

and respect, the issues my colleague properly emphasises, but perhaps then the differences between our judgments are ones of

degree rather than of firm and rigid principle.

The Distinctions between this case and JM v. The Adoption Authority

132. Two other briefer observations may be made. The first of these relates to the judgment of Reynolds J. in the High Court in JM v.

The Adoption Authority of Ireland [2017] IEHC 320, where she declined to register an adoption under s.92 of the Act of 2010. It is

quite true that there are similarities between JM and the instant case. But there are other distinctions which are, to my mind,

important. Nowhere in JM is there to be found any of the unfortunate series of errors in advice and delays which, on the face of

things, occurred in this case, and which, inter alia, render it so truly exceptional. The applicants in JM were not even aware of the

Hague Convention. They did not engage with any State Agencies, as the applicants did here. There is no evidence that the

applicants in JM sought legal or other advice, either in the place where they were habitually resident, Northern Ireland, or in the

Philippines. One must be guarded, because of the state of the evidence, but even based on what is not in dispute, there are

indications that these children have been let down in the statutory process. It is this these deficiencies which, all other things being

equal, in my view create a reciprocal duty to these children to now redress what occurred, in circumstances where, if proper

procedures had been correctly followed, the outcome might have been so very different.

The Law in the United Kingdom

133. My colleague draws attention to the applicants’ citation of authority from the courts of England and Wales. What appears to be

the case is that, in fact, the United Kingdom has, by choice, not directly incorporated the Convention into domestic law. (See

Cabeza, R. and others, International Adoption (Family Law (Jordan Publishing Ltd) 2012). Instead, the United Kingdom, rather, has

regard to obligations created under the Hague Convention, which are set out in domestic legislation. Moreover, the United Kingdom,

while remaining a contracting party to the Convention operates what are called two “parallel” legal processes for the purpose of inter-

country adoptions. As that textbook points out, “[o]ne system governs the movement of children in and out of the U.K., where either

the child or the adopters are actually resident in a Convention country, and another governs non-Convention countries”. (Cabeza,

para. 2.3). While the textbook deals comprehensively with the Hague Convention, it also devotes an entire chapter (Chapter 7) to the

subject of “adoptions from non-Hague Convention countries: legal recognition”. The text describes a situation where the United

Kingdom courts continue to operate a significant jurisdiction regarding the registration of such non-Convention adoptions. The

hitherto common law jurisdiction of those courts is now recognised by statute, but continues to subsist. (See Chapter 7, and the

extensive discussion therein of Re Goodman’s Trusts [1881] 17 Chancery 266, and Re Valentine’s Settlement [1965] Chancery 831, as

well as In Re T and M (Adoption) 2011, 1 FLR 1487). The book sets out a range of decisions, where the facts are of considerable

complexity, and which deal with concerns for recognition of adoptions from non-Convention countries to the United Kingdom. While

some of this situation may, indeed, exist for historical reasons, the range of adoptions discussed and considered by the U.K. courts,

are not confined to countries within the British Commonwealth, or other states which have had some close historical relationship with

the United Kingdom. The United Kingdom is, and remains, a signatory to, and operates, the Convention in the manner outlined. I turn,

finally, to a matter arising more immediately for consideration in the case stated.

MF v. An Bord Uchtála [1991] ILRM 399

134. The Court is asked to give consideration to the judgment of the High Court in MF v. An Bord Uchtála [1991] ILRM 399. For

completeness, it is necessary to consider that judgment in a little detail. To an extent, the issue bears on whether the issue of

adoption is now definitively and entirely addressed by this Act, and amending legislation. It may be summarised in accordance with

the headnote.

135. The case of MF was brought to the High Court by way of case stated. MF, the mother of the child to whom the application

related, became pregnant and moved to England in March, 1973, although she had lived in Ireland up to that time. She intended, at

all material times, to return and live in Ireland. The child was born in England on the 7th August, 1973, and was given the name of the

natural father, to whom MF was not married, but with whom she then had a stable relationship. Subsequently, after the birth of the

child, the relationship came to an end, and MF applied for an adoption order in England in respect of the child. An adoption order was

made by the Manchester Crown Court in October, 1974. In the meantime, in or about February, 1974, MF returned to live in Ireland.

In August, 1977, MF was married. In February, 1980, she and her husband, who was not the father of the child, applied to the

Adoption Board for an adoption order in respect of the child. The effect of the then law (s.10 of the Adoption Act, 1952), was that an

adoption order should not be made unless the child to whom the application related resided in the State, and was illegitimate or an

orphan. Due to the fact that the adoption order in respect of the child had been made in England, the Board concluded it was unable

to make an order. It, therefore, stated a case to the High Court, on the question of whether it had jurisdiction to make an order in

respect of the child, having regard to the adoption order made in England in October, 1974, and whether, in the absence of any

statutory provisions contained in the then legislation dealing with the recognition of foreign adoptions, the Board had jurisdiction to

determine whether the order would be recognised in Irish law as constituting the infant in question as the adopted child of MF.

136. It was in these circumstances that the High Court (MacKenzie J.) explained that there were, then, no statutory rules providing

for the recognition of adoption orders made in foreign jurisdictions ([1991] ILRM 399, 402), and that the common law rules on

recognition must apply. The common law position was that a valid adoption made in another jurisdiction and according to its law,

would be recognised in the State, if at the time of the adoption the adopter was domiciled in the foreign jurisdiction. The judge held

that there had been no intention on the part of MF to reside permanently in England, and she was, therefore, to be regarded as

having at all times retained her domicile of origin. As a consequence of this, the adoption order made in England in October, 1974, was

not recognisable in Irish law as at the time of the adoption the adopter was not domiciled in that jurisdiction. As a consequence, the

Adoption Board had the jurisdiction to make an adoption order in respect of the child.

137. The position is now entirely altered as a consequence of the enactment by the State of the 2010 Act. While strictly speaking

the issue may not arise for consideration, it is not possible to conceive of a situation where it could be held that a common law power

of adoption continues to subsist, in light of the existence and content of that Act. Insofar as there was some form of legislative

“vacuum”, it has been filled.

Answers to the Questions raised in the Case Stated

138. I would, therefore, answer the questions posed in the following manner:

(a) Is the Country A adoption recognisable in Ireland under Part 8 of the Act of 2010, or common law?

Answer: The “Country A adoption” may, in the first instance, be recognisable on foot of decisions arising from the timely

conclusion of remedial measures between the Adoption Authority and the Central Authority of Country A. Subject to the

outcome of those contacts, or, if necessary, otherwise, the High Court may alternatively, if satisfied, on the evidence

and the law, direct the Authority to register the adoptions, pursuant to s.92 of the Act. The High Court may, on the basis

of the evidence before it, then, consider what order best gives effect to the provisions of the law generally, s.92 of the

Act, the Explanatory Report, the Guide, and in light of the requirements of Article 42 of the Constitution. Only if the

conditions of s.92(1) are in the opinion of the High Court satisfied may it then direct the adoption be registered pursuant

to s.92.

(b) On the facts disclosed in this case stated, does the Authority have jurisdiction to make an adoption order in respect

of the children, having regard to the pre-existing Country A adoption, s.45 of the Adoption Act, 2010, and any other

relevant provision?

Answer: To that I would respond No. The Authority does not have such a jurisdiction under those sections. It must not

be asked to exercise a power contrary to its governing statute. This does not preclude the possibility of a proceeding

under s.92 of the Act.

(c) Does MF v. An Bord Uchtála [1991] ILRM 399 remain good law, following the passing of the 2010 Act, and specifically

the incorporation of the Hague Convention into Irish law (s.9)?

Answer: No, not with regard to inter-country adoptions.

(d) If so, and on the facts disclosed in this case stated, and assuming that the Country A adoption is not recognised in

Ireland, does the original status of the children remain (per MF)?

Answer: MF is no longer good law; but the original status of the children remains, as the adoption in Country A cannot be

recognised in Irish law by the Authority. This does not preclude the possibility of a proceeding under s.92 of the Act.

(e) On the facts disclosed in this case stated, are the children eligible for adoption under s.23 of the 2010 Act, having

regard to ss. 9, 10 and 45 of the 2010 Act?

Answer: Sections 23 and 45 are not directly relevant to the main issue in the case stated, which is whether an order may

be made under s.92(1) of the Act by the High Court. Sections 23 and 24 address qualifying criteria which may be relevant

to this process. Section 45 is not at all relevant in this case. Sections 9 and 10 require the court to interpret the Act in

accordance with the Report. How it is suggested that this might be done is set out in this judgment.

Conclusion

139. I recognise that, absent a satisfactory response from Country A, even what is proposed as the second alternative in this

judgment, may well itself involve a further application to court under s.92(1) of the Act. It would necessitate yet one more legal step

in what, for the applicants, must be a nightmare of interminable litigation. But the rights of this case are not all on one side, as this

judgment, and that of my colleague, make clear. The applicants should not, in my view, be exposed to further legal costs, unless

some new facts emerge which undermine the evidential basis on which this judgment is based. As explained in this judgment, the more

fundamental issue is if, and if so, how, these children’s rights can now be vindicated?

140. This judgment does not ascribe personal “blame”. It is not useful to personally blame officials or social work professionals who

were trying to do their job, and endeavouring to advise on a new and unfamiliar Act. But what seems to have occurred and the sheer

time span of this process must give rise to concern. What is proposed is subject to a number of steps, and the courts being satisfied

on compliance with these. There is now, I think, a particular responsibility or obligation to these children. While I consider it is possible

to take another view on the interpretation of the Act, and the evidence, there is the real risk, if not inevitability, that such an

approach will have the effect of indefinitely rendering the status of the children uncertain, even though they were not at fault. I do

not think this could have been the intent of the framers of the Convention, or of the Oireachtas. I do not consider that, in principle, it

would be an injustice for the law to now provide what the Constitution calls a “vindication”; that is, a way to recognise, in substance,

and in legal form, the human reality that the children see these applicants as their father and mother, based on the bonds of

attachment which have been formed over the last six years. Subject to the strong conditions and reservations expressed in this

judgment, I would allow the appeal, set aside the judgment and order of the High Court, and answer the questions in the form

contained in this judgment.