Supreme Court allows adoption rectification via s.92 Act if non-compliance was innocent and applicants suitable.

THE SUPREME COURT

[Supreme Court Record No. 2017/20]

[High Court Record No. 2016/325 SS]

O’Donnell J.

McKechnie J.

MacMenamin J.

Dunne J.

O’Malley J.

In the Matter of Section 49(2) of the Adoption Act 2010 and in the Matter of JB (a Minor) and KB (a Minor)

And /

CB and PB

Notice Parties

-and-

THE ATTORNEY GENERAL

Notice Party

JUDGMENT of Ms. Justice Dunne and Ms. Justice O’Malley delivered on the 12th day of July, 2018.

1. As O’Donnell J. has pointed out, there is a large measure of agreement between the members of the Court on the issues in this

case. However, while we acknowledge the validity and strength of the concerns expressed by McKechnie J., and accept that the area

of disagreement relates only to the analysis and potential availability of s.92 of the Act, we wish to express agreement with the

judgment of MacMenamin J. and the order he proposes.

2. This Court is tasked with implementing a constitutional and legislative regime aimed at promoting the welfare of children. In

particular, it must be borne in mind that the legislation under consideration is intended to prevent the exploitation of children and their

natural parents, in the context of inter-country adoptions. However, the Court is also obliged to protect, insofar as it can, the

interests of the particular children involved in this case. There are clear reasons for concern in this case, arising from the uncertainty

as to the legal relationship between the children and the applicants, and what their status may be when they are no longer

dependent children. It may be that, on the facts of any given case, there is nothing that can be done. However, the Court must do

its best to achieve a lawful solution, with the tools available to it, that achieves the purpose of protection while not jeopardising the

principles and legal enforceability of the Convention.

3. The problem here is, of course, that neither the Convention nor the Act prescribe any procedure to be followed where there has

been what might be termed “innocent” or mistaken non-compliance. We agree with MacMenamin J. that if innocent mistakes or

misunderstandings by either applicants or State officials result in an invalid adoption, it is incumbent on the authorities to explore the

possibility of official rectification. If that is simply impossible, the question is whether the courts of this State have any mechanism

available under which they can vindicate the rights of the children without breach of the Act and Convention.

4. In our view, for the reasons identified by MacMenamin J., the procedure authorised under s. 92 of the Act is capable of meeting

this objective. However, we wish to make the following observations as to how that procedure ought to be operated by the High

Court, should the parties in this case decide to make the appropriate application.

5. In such proceedings, the applicants would bear the onus of satisfying the court that the order should be made. In discharging that

onus, they would have to satisfy the court that there was no intentional circumvention of the law. For that purpose, we would

envisage that there must be evidence that satisfies the court, not only as to the suitability of the applicants as adoptive parents, but

as to how exactly the children came to be in this jurisdiction. The relationship of the children to PB would be a factor which may have

to be borne in mind in this context.

6. The decision of this Court has been based on the largely uncontested evidence of the applicants, in circumstances where the

Authority was hardly in a position to contradict it and the HSE was not a party or notice party, and it may well be that the High Court

would require further evidential material relating to the events in the country of origin. It would not be appropriate to treat any

evidential issue dealt with in these proceedings as res judicata.

7. It would be necessary for the High Court to give particularly careful consideration to the circumstances surrounding the breaches

of the statutory requirements. Should the court not be satisfied that the mistakes made were completely unintentional, or should it

for any other reason not be satisfied as to the suitability of the applicants, it should in our view refuse to make the order sought. The

role of official error on the part of a State agency in potentially contributing to the mistaken approach of the applicants would have

to be considered. A rigorous approach on all of these issues is essential in order to avoid any perception that this is a method of

avoiding the strict application of the statutory requirements. The Convention is, and must be implemented as, the fundamental

instrument in the safeguarding of children who may be the subject of inter-country adoption.