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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> The Attorney General v Dowse & Anor [2006] IEHC 64 (13 January 2006) URL: http://www.bailii.org/ie/cases/IEHC/2006/H64.html Cite as: [2006] IEHC 64 |
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Judgment Title: The Attorney General v Dowse &
Anor Composition of Court: Mac Menamin J. Judgment by: Mac Menamin J. Status of Judgment: Approved |
Neutral Citation
Number: [2006] IEHC 64 FOR PUBLICATION ONLY IN ACCORDANCE
WITH THE JUDGMENT AND ORDER OF THE HIGH COURT DATED 31ST JANUARY
2006
THE HIGH
COURT
[2005 No.
1855 P] BETWEEN
THE
ATTORNEY GENERAL
PLAINTIFF
AND
JOSEPH N. DOWSE AND LALA DOWSE DEFENDANTS
AND
THE HIGH COURT [2005 No. 64
M] IN THE
MATTER OF TRISTAN DOWSE AN INFANT AND IN THE MATTER OF DIRECTIONS IN RELATION TO ENTRIES IN THE REGISTER OF FOREIGN ADOPTIONS AND IN THE MATTER OF SECTION 7 OF THE ADOPTION ACT 1991 AS AMENDED BY SECTION 15 OF THE ADOPTION ACT 1998 BETWEEN JOSEPH N.
DOWSE AND LALA DOWSE
APPLICANTS
AND
THE ADOPTION BOARD AND THE ATTORNEY GENERAL RESPONDENTS JUDGMENT of Mr. Justice John
MacMenamin delivered the 13th day of January,
2006.By way of plenary summons dated 30th May, 2005, the Attorney General commenced proceedings in his constitutional or legal capacity to protect the interests of Tristan Dowse born on 26th June, 2001, who is an Irish citizen. In those proceedings, the plaintiff claimed: 1. Declarations that the defendants had failed in their duty pursuant to Article 42.1 and 40.3 of the Constitution to care and provide for their son Tristan. 2. An order directing the defendants to carry out their constitutional duty pursuant to Article 42.1 and Article 40.3 of the Constitution to care and provide for their son Tristan and in particular (a) to provide suitable and appropriate accommodation for him. (b) to provide by periodic payment and/or lump sum for his support and maintenance. (c) to provide suitable care and facilities so that he receives religious and moral, intellectual, physical and social education appropriate to his needs. (d) to take such other steps as to this honourable Court might seem fit which would ensure that his needs were met and that his welfare was protected. In the course of those proceedings the Attorney General sought alternative relief namely an order directing that Tristan Dowse should be brought to Ireland so that accommodation facilities and care appropriate to his needs could be provided for him in this jurisdiction. By a further set of proceedings initiated on 5th August, 2005, the applicants Joseph N. Dowse and Lala Dowse sought: 1. An order for directions in relation to entries in the register of foreign adoptions 2. Cancellation of an entry of foreign adoptions namely entry number 1913, F139/00SM4 dated 17th day of December, 2001, relating to the adoption of Tristan Dowse in Indonesia on 10th August, 2001, by the defendants. 3. Such further order as to the Court might see fit in the best interest of Tristan Dowse pursuant to s. 7 of the Adoption Act 1991 as amended. 4. Such further or other orders relating to the guardianship custody maintenance of citizenship of Tristan Dowse as to this Court might seem fit. An application to Court in the first set of proceedings, brought by the Attorney General was made on 29th July, 2005. Thereafter cross proceedings were initiated; and interlocutory hearings took place for the purpose of obtaining evidence, filing affidavits and case management. These were heard on 24th August, 29th September, 18th October and 8th November, 2005. These hearings were necessary in order to ensure that the parties, and the Court, had full and up to date information as to Tristan’s custody and care and also to obtain evidence from Indonesia as to the circumstances of Tristan’s natural mother and her other family members. Thereafter an oral hearing took place on 9th December and counsel for both parties made legal submissions on 20th December, 2005. Mr. John Rogers SC made submissions on behalf of the applicants; Mr. Gerard Durcan SC on behalf of the Attorney General. The court thanks both counsel for their assistance in this case. Background These two sets of proceedings concern the adoption by Joseph Dowse and his wife Lala Dowse (“the applicants”) of Tristan Dowse born on 26th June, 2001. The applicants adopted Tristan by order of the South Jakarta District Court on 10th August, 2001 at which time the applicants were residing in Indonesia. In order to set matters in context it is necessary to deal first with the background of the applicants. The applicants in the second set of proceedings were married in Baku, Azerbaijan on 18th June, 2000. The first named applicant is a native of Ireland. He is an accountant and met his wife while he was working in Baku. Lala Dowse is a native of Azerbaijan. She qualified as a doctor. She had a daughter named T. from a previous marriage. In September, 1999 the applicants, who were then in a relationship, moved to Indonesia where the first named applicant had obtained employment with a large accountancy firm. He had previously been in employment in Azerbaijan. While there he engaged in voluntary work with orphanages. After the applicants were married in the year 2000 they were, for a time, unfortunately unable to conceive their own child. In the same year the applicants took steps to adopt a child while in Indonesia. The Court has been informed in an affidavit sworn by Joseph Dowse (the ‘first named applicant’), that Tristan was adopted by an arrangement made by a J. W., a Christian missionary, stated to be working in Jakarta. Tristan had previously been given a different name, apparently by Ms. W., and medical checks carried out on the young child were completed using this other name. The Court has not heard evidence from all witnesses as to the precise circumstances surrounding the adoption of Tristan nor as to how the applicants established contact with him or Ms. W. The Court therefore has insufficient evidence to make any adjudication as to the circumstances of the adoption. Suffice it to say that the applicants, having decided to adopt Tristan, brought an application to the South Jakarta District Court. An order was made by that Court in relation to the proposed adoption on 10th August, 2001. Thereafter Tristan was treated as having been properly adopted by the applicants subject to Indonesian law. He resided with them in their family home from August, 2001 until May, 2003. It is the applicant’s case that the adoption of Tristan did not succeed and was frustrated because, unfortunately they contend, very little or no bonding took place. The applicants state that this became clear even one month after the adoption. It is contended that Tristan did not react or bond in a positive way with the applicants, fretted and became aggressive and upset, and became disturbed in the presence of the second named applicant. The applicants say that one of the key reasons for the failure of the adoption was the absence of normal supports which would have existed had the adoption been undertaken in a jurisdiction which might have permitted long periods of time to be spent with the child pre-adoption. The applicants sought the assistance of a psychologist. They say that the advice was that the long term option of continuing the adoption was not in the best interests of Tristan. Ultimately, the applicants decided that the best option was that he should be re-adopted. Mr and Mrs Dowse state that they considered a number of options, including fosterage or finding the natural mother and replacing Tristan with her. The idea of fostering in Ireland was not considered either a suitable or a secure answer to the problem. The applicants state they were desirous of finding a more long term and stable solution other than fostering. They took further legal advice at that stage. The view of their Indonesian lawyers was, apparently, that it might be possible to have Tristan re-adopted under Indonesian law and furthermore the applicants were advised that the process would be relatively speedy. In May 2003, the applicants made a further application to the District Court in South Jakarta for an order relinquishing care of Tristan to nominated third parties. At the time, the applicants had it in mind to leave Indonesia to reside in Azerbaijan. They decided that it would be inappropriate to bring Tristan with them and that a better course of action would be to have him admitted to an orphanage in Indonesia. Arrangements were made whereby Tristan was admitted to the orphanage by the first named applicant and since that time neither the first nor second applicants have seen Tristan or had any contact with him. Tristan was placed in an orphanage called the E. O. This is situated in Bogor, South Jakarta, Indonesia. It is a long stay institution which provides a home for children of a variety of ages. Tristan was one of only two children under the age of five years in the home. The varied age-range of children in the home was considered somewhat inappropriate by the Indonesian authorities. The home is a voluntary organisation operated under the auspices of an endowment fund managed by E.L. a 25 year old university graduate who is a French citizen. While he has no formal childcare qualifications the Court has been informed that the home would appear to have a child centered focus. As a result of an initiative which will be described later, the home was visited by Patricia Smith, a Senior Social Worker with An Bord Uchtála, the Adoption Board. At the time of her visit in May, 2005 there were 23 children residing in the home. There were 9 staff members in total caring for the children, although none of the staff had any childcare qualifications. In July, 2005 when Ms. Smyth re-visited the orphanage there were 19 children in residence. Ms. Smyth considered that the home was warm friendly and child centered. She also considered that the home appeared to be reasonably well resourced with each child having their own bed, locker, clothes, and toys. The children have a garden and swimming pool in which to play. When Tristan was placed in the home he was very unsettled. He cried persistently and there were periods when he withdrew and did not engage. From the time that he was placed in the home onwards he was known as Erwin. He appeared to relate better to older children in the home. He also appeared to Ms. Smyth able to relate appropriately to staff in the home, and also was able to communicate his needs. He was described as being a bright child. Ms. Smyth’s view is that the attachment between Tristan and his adoptive family would have been firmly established and consolidated during the period of his residence with them. Tristan spoke only English and was used to being spoken to only in English upon admission to the E.H. He had to adapt to using Indonesian when he moved to the home, and in addition he had to adapt to his change in name. It is probable that Tristan developed a mistrust of adults as a result of what occurred to him. The Court has insufficient evidence to assess why a change of name was thought appropriate. In May, 2003 Ms. Smyth during the course of her involvement with this case, became aware of an American Christian family named the W. family who had expressed an interest in adopting Tristan and providing him with a long term home and family. They were a loving and capable family who would have had the resources to provide the care needed by Tristan given the traumatic circumstances of the earlier years of his life. However it became clear that as a result of recently promulgated Indonesian law, it would not be possible for the W.’s to adopt a child who was of the Muslim faith, as Indonesian law prohibits inter-religious adoptions. In May, 2005 as a result of action from the Indonesian government Tristan was moved from the E. O. to a state orphanage named the T. B. C., a home for Muslim children. The Indonesian government policy is to place Muslim children in Muslim institutions and Christian children in Christian institutions. Because of the fact that Tristan was designated a Muslim child (having been born of Muslim parents) it was seen as more appropriate that he should be moved to the latter institution. A further reason for Tristan being moved was that the E.H. is not a designated or licensed institution to allow for or arrange adoptions of children. It would appear that there was little preparation for the move. However, by the time it occurred Tristan’s situation had moved into the public arena. The state orphanage at C. accommodated approximately 64 children from infancy to five years of age. It was divided into a number of blocks, and children were divided according to age. This proved difficult for Tristan who was used to the company of children of diverse ages and who had appeared to have a formed particular bond with some older children while in the E. H. It appears that in the state institution there was a somewhat lower ratio of staff to children. The conditions were not of the same nature as the E.O. Tristan was placed in a unit of 35 children all of whom slept in the same room. This unit was managed by three staff members. In July, 2005 Tristan was described as being hurt confused and somewhat bewildered. In a form signed by the applicants for the purposes of the original adoption on the 25th July, 2001, they wrote that they wished to raise Tristan as if he was their “own flesh and blood”. What occurred is difficult to reconcile with that statement. It is hard to conceive of the effect which these traumatic changes must have had on this young child. The Applicants’ contacts with The Adoption Board The first named applicant herein first contacted the Adoption Board in Ireland by telephone on or about 13th August, 2001, indicating that he and his wife had recently finalised the adoption of their child Tristan in Indonesia, and indicating that they wished to have his adoption formalised under Irish law. A written request, enclosing a copy of the original Indonesian Court order and a certified translation, was received by the Board by fax the following day. By letter of 15th August, 2001, the applicants were informed of certain requirements to be fulfilled for the recognition of the Indonesian order in Ireland, namely that the couple must have been resident in Indonesia for at least one year prior to the making of the adoption order, and to that end they were provided with a sample of an appropriate affidavit to be sworn by them. Further correspondence took place, and the necessary documentation was furnished to the Adoption Board. This was furnished by way of letter of 5th September, 2001, and received by the Board on 11th of that month. A decision was made that Tristan’s adoption was entitled to be registered in the Register of Foreign Adoptions. It was so registered, and the applicants were so informed by letter of 18th September, 2001. By letter of 26th September, 2001, the first named applicant sought copies of the entry for Tristan in the Register of Foreign Adoptions indicating that he needed these to obtain an Irish passport for Tristan and for other immigration matters. No further contact took place for a period of two and a half years. On 19th April, 2004 the Board received a letter from the applicants’ solicitors Augustus Cullen & Son. This letter written on instructions, recited the family circumstances of Mr and Mrs Dowse. It recited that they had adopted T. who was by then eight years of age and living with the applicants. T. is the daughter of the second named applicant Mrs. Dowse from a previous marriage. Having recorded the details which have been earlier set out regarding Tristan’s registration, the letter stated that shortly after the entry in the Registry of Foreign Adoptions Joseph and Lala Dowse discovered that they were expecting a baby. This baby girl, S. was born on 29th May, 2002, in Indonesia. She has also been issued with an Irish passport. It was stated in the letter that, as was recited from the order of the Indonesian Court of 6th May, 2003, the adoption of Tristan had been interfered with by the pregnancy of Lala and the subsequent birth of S. Thus proper bonding did not take place. (This statement is at variance from contentions made elsewhere and oral evidence adduced at the hearing as to when the failure in bonding commenced). The letter further recited that the District Court of South Jakarta had accepted a petition of Joseph and Lala Dowse that their child be handed over to another couple as long as Tristan Joseph had not got any new adopting parent. It stated that Tristan Joseph was handed over as per the order and had ceased to live with Joseph and Lala Dowse or remain in their custody or care since the making of the order on 6th May, 2003. The purpose of the handing over was stated to be to facilitate a re-adoption of Tristan Joseph which had been done in association with the E. O. in Indonesia. As is evident therefore, in May, 2003 the applicants had gone to the Court in Indonesia in order to obtain an order in regard to Tristan. They had the benefit of legal advice in order to do this. On foot of this Court order, Mr and Mrs Dowse were permitted to hand over Tristan to a husband and wife named B. W. P. and M. P. who, it was stated in documents prepared for the Court in Jakarta were prepared to bring up Tristan Joseph as long as he did not have any new adoptive parents. Contrary to the contents of the letter of 19th April, 2004, aforesaid Tristan was not handed over to the couple referred to in the order made on 28th April and dated 6th May. He was not at anytime fostered or cared for by them. Instead, he was placed in the E. O. As has earlier being indicated the Orphanage does not organise adoptions, is not registered for that purpose under Indonesian law and did not offer any such facility to the applicants. The contents of this letter from the applicants solicitors were considered by the Adoption Board on 27th April, 2004. The Board decided it could not remove the entry in the Register of Foreign Adoptions, and that it would contact the Department of Foreign Affairs regarding the position of Tristan. The applicants’ solicitors were informed that there was no change in the adoption order and that it had not been revoked. Subsequent correspondence took place between the Board and the applicant’s solicitors arising from the Boards’ concerns as to Tristan’s wellbeing and also relating to the legal effect of the Indonesian Court order of 6th May, 2003. The Indonesian couple named in the order of 6th May, 2003, (actually made the 28th April of that year) were known to the applicants. The wife, M. P. is known as ‘L.’. She was Mr. Dowse’s assistant when he was working in Jakarta as an accountant. The order contains no provision allowing or permitting Tristan to be placed in an orphanage. The question of an orphanage is not mentioned in that order. In evidence to this Court, Mr. Dowse stated that the Indonesian Court was well aware that Tristan was not going to be placed in the care of B. P. (the husband) and L. (the wife) and that it was understood that he would be placed in the E.O. But this was not recited in the order of 6th May, 2003. In the same month, documents furnished by way of discovery to this Court recite that the Indonesian couple moved to have Tristan placed in care in the E. H. The grounds upon which they sought to make this application were set out in a form dated May, 2003. In the course of that form they stated “we cannot afford and are unable to care for the aforementioned child for internal family reasons”. It is very difficult now to understand the thinking behind the course of action adopted by the applicants in seeking to place Tristan in the E. H., and the procedure adopted. What is very clear however is that the contents of the documentation did not reflect the actuality, and that what actually occurred was that the applicants arranged for Tristan to be placed in the Home. Tristan was never going to reside with the Indonesian couple. There is no evidence that the couple assisting the applicants were unable to care for Tristan for “internal family reasons” or for any other reason. Within a short period of time of Tristan’s placement, the applicants travelled to Ireland in order to attend the first named applicants’ sister’s wedding. They travelled with their other children. They were resident in Ireland for a period of 10 days. During that time, no step was taken to inform the adoption authorities or any other authority of the actions which had been taken in relation to Tristan. Mr. Dowse has testified to this Court that from the time that Tristan was placed in the orphanage onwards, steps were being taken in order to have him re-adopted. However there is no documentary evidence available in relation to such steps. Mr. Dowse says that he discussed the matter with E.L. on a number of occasions by telephone. He testified that he sought to investigate the question of re-adoption among the expatriate community in Jakarta. At no stage during that time period did the applicants make known Tristan’s position to the Indonesian authorities. More specifically, it does not appear that the Social Welfare Department of the Indonesian government were made aware that Tristan had been placed in the orphanage. From early 2004 onwards, there are in evidence a number of emails between Mr. Dowse and E. L. A number of these emails concern the manner in which L. was discussing Tristan’s position with others and, apparently, seeking to find adoptive parents for him. On 10th April, 2004 Mr. L. sent an email to Mr. Dowse. Included in that email was the following:
It appears that between May and December, 2003 neither Mr nor Mrs Dowse made the fact of Tristan’s placement generally known to their friends or to anyone in expatriate community in Jakarta. However, Mr. Dowse testified that some people were given to understand that Tristan had gone back to his natural mother. As of late March, 2004 the question of Tristan’s whereabouts had become a matter of concern to persons outside the Dowse family. The Irish authorities were informed through the consulate in Jakarta. Early in April, 2004 Mr. Dowse was in Ireland for the reasons described. It was very soon afterwards and in the light of these developments that on 19th April, 2004 his solicitor wrote to the Adoption Board. The contents of the letter have been described earlier in the course of this judgment. On June 8th, 2004 Mr. L. contacted Mr. Dowse by email. In that email is the first mention of the W. family who were expressing a desire to adopt Tristan, if this could be done according with Indonesian law. It is clear from emails from the W. to which reference has been made during the course of this hearing that the family had Tristan’s welfare to the forefront of their minds and that their desires at all stages were to act in Tristan’s best interests. It will be seen however that the first reference to the W. family post-dates in sequence the time when Tristan’s placement in the orphanage had become more generally known both to the Irish Consulate in Jakarta and to members of the expatriate community in that city. Mr. Dowse testified to this Court that the apparent embargo on information relating to Tristan’s whereabouts was, in his view, in the child’s best interest. He stated that the applicants had always intended to do everything right for Tristan, and that adoption procedure is not a major issue in Indonesia. The applicants’ stated concern was that if they made public the fact had Tristan had been placed in the orphanage, people might conclude that there was “something wrong” with the child and that it would make it even more difficult for him to be re-adopted. It is difficult to reconcile this averment with earlier testimony tendered to this Court wherein Mr. Dowse stated that some members of the expatriate community who were friendly with the applicants were given to understand that Tristan had already returned to his natural mother, though it is possible that different things were said to different people. The first named applicant testified that while it was easy now to look back in hindsight, what he and his wife were trying to do was to make the best decision they could at the time in Tristan’s interest and they felt that if they could bring about his re-adoption while avoiding the matter becoming public that the child’s best interests would be protected. On 19th April, 2004, Tristan’s passport was returned to the Passport Office in Dublin. This took place approximately one year after Tristan had been placed in the orphanage and four months after the applicants and their other two children had left Indonesia to commence residing in Azerbaijan. Mr. Dowse testified that for the duration of time that Tristan was in the orphanage, he gave a number of donations to it. The first was in the sum of US $400 to $500. The second was in the sum of $1,000. These payments were both for Tristan’s upkeep and also for other children in the home. One of the factors which apparently created difficulties for any re-adoption of Tristan was the fact, referred to earlier that as a matter of Indonesian law from the year 2002 onwards, adoptions were not permitted if the child to be adopted was of a different faith from that of the adoptive parents. Mr. Dowse testified that his legal advice was that this position was not “set in stone” and might not prove an insurmountable obstacle to a re-adoption. In the year 2005, the applicants commenced further proceedings in the District Court of South Jakarta. The purpose of these proceedings was to revoke the adoption order which had been made in 2003. The order of the Jakarta Court, as translated and dated 28th July, 2005, recites at paragraph 5, in reference to Mr and Mrs Dowse:
“That to progress surrender of the child by The Applicants to the husband/wife pair of B. P. P. and M. P. The Applicants filed a petition to surrender the child legally with the South Jakarta District Court as to which petition South Jakarta District Court issued its order dated May 6 2003 No. 104/PDT. P/2003/PN. Jak.sel., in which it granted the petition of the applicants to surrender the male child named Tristan Joseph who had been adopted by the applicants to the husband/wife pair of P.P. and M.P. who were prepared to care for Tristan Joseph temporarily for so long as he did not have new adoptive parents”. While the order recites that Tristan was located at the state-run social orphanage for infant children T. B. C., it does not refer to the fact that Tristan had been in the E.O. previously. In evidence to this Court Mr. Dowse stated that he understood the full position was made known to the Jakarta Court and had been so informed by his lawyers although not present himself. Tristan’s location was changed from the E.O. to the state orphanage in very early May, 2005. This pre-dated only by a short number of days to visit by Ambassador Swift and certain other Irish government officials. The Involvement of the Department of Foreign Affairs and the Attorney General In or about 12th March, 2004, the Irish Honorary Consul in Jakarta became aware of Tristan’s situation from an unnamed person. Action was taken with some speed. On Monday 15th March a representative of the Irish Consulate visited the orphanage and saw Tristan (who was then known as Erwin) who from photographs he recognised. Investigations carried out by the Embassy at that time, confirmed that in the first week of April, 2004 a member of the expatriate community contacted Mr. Dowse to enquire from him why he had left Tristan in the orphanage. Subsequently the Irish Embassy in Ankara, Turkey (being the embassy that covered Azerbaijan) wrote to Mr. Dowse at his work address in Baku enquiring as to the steps which he had taken regarding Tristan. Just prior to the date of this letter, the applicants’ solicitors Messrs. Augustus Cullen & Company wrote their letter of 19th April to the Adoption Board and to the Passport Office in relation to Tristan. On 11th May, 2004, Messrs. Cullen & Sons replied to the Irish Ambassador in Ankara on behalf of their clients. A senior social worker Ms. Patricia Smyth employed by the Adoption Board visited Indonesia in May and July, 2005 to enquire into Tristan’s circumstances. The visits made by Ms. Smyth were at the request of the Attorney General. Thereafter, Mr. Hugh Swift, Irish Ambassador to Singapore and Indonesia visited Jakarta on a number of occasions. On two of these occasions, Mr. Swift was accompanied by James Kingston, Barrister-at-Law, Deputy Legal Advisor at the Department of Foreign Affairs. The Department of Foreign Affairs consulted with two firms of lawyers in Indonesia for the purpose of obtaining advice on Indonesian law. As a result of the interviews, meetings and enquiries, Mr. Swift was in a position to inform this Court in an affidavit of 18th August, 2005: of a great deal of background material as to Tristan’s legal and personal situation. At the time of the commencement of the Attorney General’s proceedings against the applicants, one possibility which was briefly considered was whether it might be in the best interest of Tristan to be brought to Ireland where he might be adopted by a couple who were members of the Muslim faith. As a result of enquiries carried out by the Irish Health Services Executive they were satisfied that there was no Muslim couple in Ireland who might be available to adopt Tristan. Moreover Ms. Patricia Smyth advised that it would not be in Tristan’s best interests that he be brought to Ireland for either adoption or fostering. Understandably, it was considered doubtful, whether having regard to the extensive media attention in Indonesia that the authorities there would be agreeable to his transfer in Ireland. Thus the practical options for Tristan being put in a loving and family environment were confined effectively to Indonesia. At the request of this Court, on 17th October, 2005, Ambassador Swift travelled again to Tegal, Indonesia to investigate the circumstances then obtaining in relation to Tristan Dowse. Mr. Swift was helpfully accompanied on his visit to Tegal by Dr. Afrinaldi, Deputy Director of Child Welfare Services of the Indonesian Ministry of Social Affairs, Ms. Maria Habsari, Indonesian Ministry of Social Affairs and also by Ms. Kristiani Salomo of the Honorary Consulate of Ireland in Jakarta. By this time Tristan had been, very fortunately, reunited with his natural mother and was living in the city of Tegal. No evidence was adduced as to how this re-uniting was attained. As matters were to prove, no matter how unusually this process may have occurred, it clearly was in Tristan’s ultimate best interests. Mr. Swift, who travelled to Ireland to testify, described the present situation. Tegal is a city in the north coast of Java approximately 350 kilometres from Jakarta. It has an approximate population in excess of 500,000 people. It is a port city. The traffic conditions were such that the journey there took approximately 7 hours by road. There is no airport convenient to the city. It is a relatively prosperous city with light industry and is a supply centre for the agricultural hinterland. It appears that numerous people from Tegal move to Jakarta where amongst other activities they operate food stalls. At one stage, Ms. S. the natural mother of Tristan was employed in such a food stall. Tegal displays a similar range of social circumstances that one would find in any medium sized Indonesian city. By the time that Mr. Swift arrived in Tegal, Tristan had been restored to the care and custody of his natural mother Ms. S. He is residing in Tegal in a house owned by his great grandmother. His mother, grandmother, great grandmother and one brother reside in the house with him. Ms. S. has two children from her marriage to her former husband, S. Under the separation arrangements one of the children resides with him and one son, named A., with her. Tristan, however was not a child of this marriage. After Ms. S.’s marriage ended, she commenced a relationship with another man and Tristan was born of that relationship. During the time that Ms. S. was in Jakarta, A. resided with his relatives and in particular his brother. Ms. S.’s brother S. lives nearby with his wife and was visiting the house when Mr. Swift arrived. Ms. S. and her mother impressed Ambassador Swift as being sensible and straightforward people. The house was one of a number scattered along laneways leading off the main road. The evidence in the Court suggests that Ms. S.’s family is above the level of poverty but is nonetheless far from well off. The Ambassador reported to this Court that Tristan appeared in apparent good health and good humour. He engaged easily and in a friendly manner. He appeared well adjusted to his surroundings. The fear and wariness of white people which he had demonstrated on other occasions was no longer noticeable. The house in which Tristan is residing was clean and well presented although in need of some repair. It has a tiled roof, glass windows and consists of three rooms. An electric pump has been installed which provides water. At the moment Ms. S. because she is living in her grandmother’s house, would appear not to have any accommodation costs. However it can by no means be presumed that Ms. S. would inherit the house in the event of the demise of her mother and grandmother. Simple housing maintenance costs arise in the short to medium term; but most likely actual housing costs will arise in the medium to long term as a feature for Tristan, his mother, and the remainder of her family. Ms. S. is not in employment. She accumulated a small amount of savings from her time in Jakarta. These savings were used, in part for the installation of the pump and were also used to supplement the income of the family. She and her mother do piecework for a local supplier, making up pillow cases and sheets. They receive the equivalent of 70 U.S. cents per day for this work. There is a sewing machine in the house which had been provided to Ms. S. by the Ministry of Social Affairs which she was learning to use. She makes some additional earnings from carrying out embroidery work. Ms. S.’s brother works as a cook at a food stall which results in some extra food being available. Bottled water and biscuits were provided for the visitors for the occasion but any other luxuries appeared sparse. Ms. S. indicated to Mr. Swift that the birth-father of Tristan was a man called Su. who left her when she became pregnant. She had not been married to him and had no subsequent contact with him. He would appear to have no current role in her life. There is no reason to believe he had any knowledge of the circumstances of Tristan’s birth or the subsequent separation of mother and child. However owing to the national and international media coverage focused on the family it may be that such information has become available to him. Ms. S. indicated to Mr. Swift that she was long separated from her husband prior to Tristan’s conception. She was not formally divorced but her husband has remarried. She has no contact with him. Ms. S. also does not have contact with her third child, the eldest, who is said to be with the father. She does not appear aware of the whereabouts of her former husband. There is available in Tegal a local government medical clinic which provides free medical attention. However access to a doctor might prove expensive. At present Tristan is currently enrolled in a local kindergarten school. Entry to such a school costs approximately $40 with a monthly fee of approximately $1. A., who is aged 8 years also attends a state run school and is in second grade. His monthly fees are $0.70. There is also an additional admission fee for him. Ms. S. had some success in having these fees reduced and/or deferred. Tristan’s school is privately run. In the future Tristan’s mother will face costs for uniform and educational supplies. There are many schools available in Tegal. In principle, education is free. However, in practice it may cost money to send a child to school. Mr. Swift was informed that monthly fees are approximately $1 and these increase at a rate of 10 to 15% per grade. There will in addition be the cost of books and uniform. Admission fees are also payable and these vary widely. It appears that the admission fee for Tristan to his present school was approximately $40 while A.’s was $7. Comparative to family incomes, education is expensive. In Indonesia, the minimum wage in formal employment is one million Indonesian Rupaya, that is approximately U.S. $100 per month. However those in informal employment may be paid less than this. Indonesia is undergoing a period of devaluation of its currency combined with domestic inflation. Services are presently in general under priced. Access to such services is not always easy and sometimes may only be achieved on a non-official basis, and at a cost. Tristan is living in a relatively comfortable home in Indonesian terms. It is clear however that his current standard of living would not compare in any way with that which prevailed when he was part of the Dowse household. At the moment he has been absorbed into a family which is unfamiliar with academic achievement. It would be unusual for local children to remain in school past their early teens. It is likely that the prognosis would be, that without any intervention, Tristan would obtain low paid casual employment either in Tegal or elsewhere. It is not impossible that if Ms. S.’s current savings are exhausted she may judge that it is in the best interests of all concerned that she would return to paid employment in Jakarta, leaving her two sons to be cared for by her two older female relatives and her brother. Ms. S. indicated that she had never met the Dowse family and that neither of the names given to her child (Tristan or Erwin) were chosen by her. She had been in contact with a woman known as Ms. R. from time to time over the years and was informed by her that the child taken from her was the child in the C. orphanage. It appears that Ms. R. may herself come to the attention of the Indonesian Court authorities within a relatively short time in relation to legal matters appertaining to Tristan’s becoming available for adoption. From the standpoint of the Indonesian government there would appear to be residual concern regarding Tristan’s continuing Irish citizenship. Dr. Afrinaldi stated that his Ministry was in communication with the Justice Ministry in order to achieve a position whereby, although Tristan might remain an Irish citizen, he would be regarded by the Indonesian administration as a citizen of that country. There would appear not to have been any determination on this issue at the present time. There had earlier been residual concern that there was an intention on the part of the Irish authorities to have Tristan taken to Ireland. Dr. Afrinaldi informed Mr. Swift that both Tristan and his mother continue to be the subject of close attention from journalists. Matters for determination In the light of Tristan’s resumed residence with his mother, the first set of proceedings taken by the Attorney General were adjourned generally. This was an entirely appropriate course of action in that Tristan is now placed back in the custody of his natural mother and in the custody of his own family. As was indicated in a number of the interlocutory hearings, this Court must now proceed on the factual basis of Tristan’s residence with his natural mother in Indonesia. There is no basis whatever for considering that Tristan should be removed to any other country, including Ireland. Nor is there any basis, on the evidence, for Tristan being again placed in the custody of Joseph and Lala Dowse. Under Article 42.1 of the Constitution of Ireland the applicants are obliged:
It is very clear however, and the Court will confine itself here to so finding, that on the undisputed facts, there has been a clear breach of the constitutional duty owed to Tristan by the applicants, who were his adoptive parents. It is now necessary to consider the legal consequences that flow from this finding on these facts which are both tragic and regrettable. The Law Applicable The Court must now consider the legal and procedural position which arises as a result of the evidence which has been adduced. So far as relevant, the Adoption Act, 1991 as amended by the Adoption Act of 1998 provides:
(b) on such commencement, whichever is the latter.” Section 4A provides:
In either circumstance since Tristan’s adoption has been registered in Ireland, his adoption is deemed to have been “effected by a valid adoption order” and a true copy of entry in the Register of Foreign Adoptions is evidence of same, pursuant to s. 6(7)(a) of the Adoption Act, 1991. Further, as Tristan is deemed to have been adopted pursuant to an Irish adoption order, he is considered in law to be the child of the applicants, having the same status as if born to them in lawful wedlock and his natural mother, prima facie, lost all parental rights and was freed from parental duties in respect of him pursuant to s. 24 of the Adoption Act, 1952 as amended. As he was in law then deemed to be their marital child, the applicants owed and owe constitutional duties to him and he in turn enjoys constitutional rights in respect of them. It is necessary then to consider the position under the Constitution. I am satisfied that, pursuant to Article 42.1 of the Constitution of Ireland, 1937 the applicants are obliged “to provide according to their means for the religious and moral, intellectual, physical and social education” of Tristan. If parents, “for physical or moral reasons fail in their duty towards their children” the State is obliged to endeavour “to supply the place of the parents” by appropriate means pursuant to Article 42.5 of the Constitution. In doing so, the State must do so “always with due regard for the natural and imprescriptible rights of the child”. If the Court accedes to the application brought by Mr. and Mrs Dowse and directs the cancellation of the registration of the adoption of Tristan, then such adoption “shall be deemed not to have been effected by a valid adoption order” pursuant to s. 7(2) of the Adoption Act, 1991. In such circumstances Tristan would be considered not to be the child of the applicants and they would be freed from the constitutional obligation to provide, according to their means, for the various different aspects of his welfare. Equally, he would no longer have the correlative right to have his welfare protected and his needs met by the applicants. In the Adoption (No. 2) Bill, 1987 [1989] I.R. 656, the Supreme Court made clear at p. 663 of the report of its judgment that parental duty extended not just to educate but also “to cater for the other personal rights of the child”. In short, therefore, on the making of an order, Tristan would cease to be a member of a constitutional family with all the rights and protections which accrue to such status. Since the effect of cancellation would be to end the inalienable rights and duties of the applicants to their son Tristan, and also to end his natural and imprescriptible rights in respect of them as his parents, I am satisfied that the Court should only make such an order if the provisions of Article 42.5 of the Constitution are satisfied. These provisions require not only a failure of constitutional duty by the parents but also that due regard be had for the “natural and imprescriptible rights of the child”. Failure of parental duty is satisfied if there has been a failure to carry out the normal day to day care of the child (see the comments of McGuinness J. in Northern Area Health Board v. An Bord Uchtála [2002] 4 IR 252 at p. 270). Amongst the natural and imprescriptible rights of Tristan to which this Court must have due regard is the right to have his needs, including his religious, moral, intellectual, physical and social education provided for by the applicants in accordance with their means. I accept these submissions as representing the legal position, and that these parameters are applicable on the facts adduced. Given this constitutional background and the profound effect on a child of the cancellation of the registration of a foreign adoption, it is not surprising that the legislature provided significant limitations and safeguards in regard to the exercise of the power to direct cancellation of a registration. This power can only be exercised pursuant to s. 7(1A) of the Act of 1991 as amended, if to do so “would be in the best interests of the person who was the subject of the adoption”. Further, if the Court directs such a cancellation, it is given power to make such orders as are necessary to protect the person affected and as are in his or her best interests. This is provided pursuant to s. 7(1B) of the Act of 1991. On behalf of the Attorney General, it has been submitted by Mr. Gerard Durcan S.C. that it can only be in the best interests of Tristan to end the obligation of the applicants to provide and cater for his needs, if suitable and appropriate alternative arrangements are put in place which will in fact so provide and cater for those needs. In this regard the arrangements must be such as to provide for his religious and moral, intellectual, physical and social education. Thus, such orders should be made pursuant to s. 7(1B) of the Act of 1991 as may be necessary to ensure that Tristan’s needs in these different aspects of his life are met. In deciding upon the terms of such orders, the Court must have regard to the conditions and lifestyle which would have been enjoyed by Tristan if the applicants had, and continued, to fulfil their constitutional obligations to him. The Court is obliged to take such an approach if it is to give due regard to the natural and imprescriptible rights of Tristan as a citizen of Ireland since the major legal right which he will lose in the context of the cancellation of the registration of his adoption is the right to be provided for by the applicants “in accordance with their means”. On the evidence I find that it is probable that Tristan would have enjoyed the following advantages had he remained a member of the Dowse family: (a) he would have been fed and clothed to a very high standard; (b) he would have lived in superior and comfortable housing accommodation; (c) he would have been educated to a high standard, probably to third level; (d) he would have been assisted in obtaining a start in life as an adult by the applicants, for example in acquiring a home. In this regard it may be observed that Mr. Dowse received assistance from his parents when purchasing property; (e) he would have obtained further capital assets from the applicants by way of inheritance. In the event that the registration is cancelled and absent orders pursuant to s. 7(1B) of the Act of 1991, it is likely that Tristan would suffer the following disadvantages:
(b) He will live in somewhat cramped accommodation very different in nature to that which he would have enjoyed had he been provided for by the applicants. (c) It is unlikely that he will receive a full second level education. (d) His future as a matter of probability, may be in rather poorly paid employment and it is unlikely that he would own significant property of his own. (e) He will have no relatives who are in a position to provide any financial support for him during his life, and it is highly questionable whether he will inherit any property of any kind. Pursuant to s. 7 (1B) of the Act of 1991 it is important to note that the Court has power to make such orders as are necessary to protect the best interests of Tristan. This section provides:
Guardianship The Court will make an order directing that the natural mother Ms. S. is to be the sole guardian of Tristan and granting her custody of him. The necessity for such order lies in the fact that it is unclear whether the cancellation of the registration of the adoption will in itself revise her guardianship and custody rights and which would have been extinguished on the registration of the adoption. These guardianship and custody rights would have been enjoyed pursuant to s. 6 and s. 10 (2)(A) of the Guardianship of Infants Act, 1964 (as amended). These rights were extinguished on the registration of the adoption pursuant to s. 24 of the Adoption Act, 1952 as amended. Such an order will now have the effect that Tristan’s status pursuant to Irish law will coincide with his status pursuant to Indonesian law, that is to say that his natural mother should be the sole guardian of Tristan and she should have custody of him. Maintenance I am satisfied that the Court should make an order providing for the maintenance of Tristan by the applicants. In so ordering, I consider that the Court must have regard not only to the needs of Tristan but also the means of the applicants having regard to the fact that the effect of the cancellation is to end the applicants’ duty to provide for him “according to their means” pursuant to Article 42.1 of the Constitution. Appropriate maintenance arrangements interpreting legislation in the light of the Constitution should have three aspects.
(b) An ongoing monthly payment. On behalf of the Attorney General it has been submitted that this should be broken into two parts, one part of which could be paid directly into the natural mother’s bank account and the other part of which will be payable into a capital fund which would accrue for the benefit of Tristan; (c) A further lump sum payable pursuant to Tristan achieving his majority which would supplement the capital which would have accrued on foot of prior payments, with the totality being available to Tristan when he reaches his majority. It will be of assistance however if I now set out certain additional principles which I think are applicable to the estimation of the sums which are appropriate for the protection of Tristan’s best interests having regard to the factors already outlined. a. The level of maintenance should not, as a general principle, be set against the background of the standard of living and cost of living in Indonesia. While this may be one factor to be weighed in the balance, against that must be placed the position in which as a matter of certainty Tristan would have been but for the events which have occurred. b. I do not consider that the statutory provisions applicable in this case are, insofar as applicable, to be distinguished from s. 16 of the Family Law Act, 1995 and s. 20 of the Family Law (Divorce) Act, 1996. They are to be construed “in accordance with the Constitution” and in particular Article 42.1 and Article 42.5 thereof. In the first instance it seems to me that the duty which is mandated upon this Court is to interpret the provisions of s. 15 having regard to the provisions of the Constitution which have already been outlined earlier. As is provided under s. 7 (1B) of the Act of 1991, where the Court gives a direction it may make such orders in respect with the person who is a subject of the adoption as appears to the Court to be necessary in the circumstances and in the best interests of the person, including orders relating to the guardianship, custody, maintenance and citizenship of the person, and any such order shall notwithstanding anything in any other act apply and be carried out to the extent necessary to give effect to the order. In this connection it may be pointed out that by letter dated the 12th day of December, 2005, the applicants’ solicitors put forward proposals to the respondents. This proposal comprised both the payment of monthly sums and also a series of lump sums, the first to be paid within 14 days, the second payable at the age of 12 years for secondary education, and the third payable at the age of 18 years for education training and to provide Tristan with a start in life.
Having regarded the foregoing I am satisfied that the applicants are in a relatively comfortable, mid-range, financial position, although not “wealthy” by the standards of today. At the moment they enjoy a relatively advanced remuneration regime, which together with a bonus places them in a position where they are, by any standard, “comfortable”. Having regard to the foregoing therefore it seems to me that appropriate sums for Tristan’s maintenance should be as follows, in euro: a. A lump sum of €20,000 payable within one month. b. Periodical payments of €350 per month being €175 paid into the bank account of the natural mother and €175 payable into a capital account to accrue to the benefit of Tristan which periodical payment should be increased in accordance with increases in the Consumer Price Index. c. Further I consider an additional lump sum should be payable, €25,000 on Tristan obtaining the age of 18 years. (The precise form of the order is appended to this judgment). I take the view that the sums which are ordered would certainly be no more than if the applicants had continued to look after Tristan, feed, clothe and house him and educate him to a similar standard to their other children. I will direct that the above sums, (other than the monthly payment which may be paid directly into a bank account to be held by the natural mother, should be paid into the High Court so that Tristan’s interests in the long term will be adequately protected and provided for. I consider that the powers of the Court pursuant to s. 7(1B) are sufficiently wide to accommodate such an order and that there is authority which demonstrates that, on previous occasions this Court has kept and administered funds for and to the benefit of a child living abroad (see the judgment of Johnson J. in Dharamal v. Lord Holmpatrick and Others [1935] I.R. 760 in relation to the principles applicable to the payment out of monies belonging to a minor with a foreign domicile who is residing in the country of his or her domicile). Having regard to the evidence of Ambassador Swift which I fully accept, I consider that this is the most appropriate way to protect the interests of Tristan in regard to any capital payments that may be required for his benefit. I note that the Attorney General has indicated that he would if necessary arrange with the Irish Diplomatic service to put the natural mother in touch with a lawyer in Indonesia and will give details to that lawyer of a lawyer or lawyers in Ireland who may make application to the Court for a payment out of funds in favour of Tristan. It has been submitted that it might be appropriate that the applicants ex-secretary L. should have a role or function in managing or distributing monies to the natural mother. I do not consider that such course of action would be appropriate. The involvement of L. as one of the persons in whose care Tristan was purportedly placed by reason of the order made in May, 2003 and her subsequent involvement in signing documentation to have him placed in the orphanage for reasons which were not borne out in fact do not render her a person suitable to carry out this suggested role. Finally, it will be necessary to put in place arrangements which will provide for Tristan, should through any misfortune the salary sources presently available to the applicants become unavailable. In this regard, the Court will direct that the applicant should put in place an insurance policy for the term of Tristan’s childhood to the age of 18 years of which he will be the beneficiary to the effect that will ensure him the payment of a sum of $120,000 should the first named applicant die during that period. Succession Rights As a further and residual form of protection, the Court will at this stage order that Tristan should continue after cancellation of the registration of adoption, to enjoy rights to the estates of each of the applicants pursuant to the Succession Act, 1965 as amended, including the right to bring an application in respect of either of their estates pursuant to s. 117 of that Act. The value of any such continuing right is of course dependant upon the extent of the estate left by the applicants. The contents of the open letter dated the 12th December, 2005, suggest that the applicants should have no difficulty with the preservation of the Succession Act rights of Tristan. Citizenship It is clear that the position regarding Tristan’s citizenship is complex. However, on balance it seems to me that the maintenance of Tristan’s Irish citizenship outweigh any disadvantage which may accrue to him. Apart from anything else the continuation of his Irish citizenship gives to the Irish authorities, and particularly the Irish Diplomatic Service a basis for taking such steps are as necessary for Tristan’s welfare and if necessary making appropriate interventions on his behalf. In the longer term, when Tristan becomes an adult his continued Irish citizenship will give him access to job opportunities in the European Community which would not otherwise be available to him. Clearly however it will be of advantage to Tristan if he is also entitled having regard to the circumstances to have and to maintain an Indonesian passport and citizenship. Having regard to the uncertainty as to Tristan’s future, I do not consider it will be appropriate to deal with this application by way of final orders. The Court will therefore put this matter in for review in 6 months time to ensure that such orders have been complied with and also to assess the circumstances of Tristan at such time. Counsel for the Attorney General has indicated that an updated report from the Irish Embassy in Singapore will be then obtained as to Tristan’s situation. Thereafter, if the Court is of the view that matters are in order, the application may be disposed of on the basis that the parties of the natural mother on behalf of Tristan should have liberty to re-enter the proceedings for the purpose of varying or discharging any of the orders made in the light of changed circumstances. The Court is entitled to make one further observation. In this case remarkable and effective steps were taken at the highest level in the office of the Attorney General by his officials, the Department of Foreign Affairs, an Bord Uchtála and the Indonesian officials, named earlier, in the interests of Tristan. One might instance Ms. Patricia Smyth, Senior Social Worker with the Adoption Board who on two occasions visited Indonesia in May, 2005 and July, 2005. Equally, the Court recognises the work carried out by Mr. James Kingston, Deputy Legal Advisor to the Department of Foreign Affairs who travelled to Indonesia in order to assist. But I must especially recognise the very particular contribution made by Ambassador Hugh Swift, who on a number of occasions travelled from Singapore to Indonesia and who, on request travelled to Tegal and thereafter to Dublin, so as to ensure that the Court was placed in possession of highly material evidence on foot of which it might proceed. Suffice it to say that they and other officials who involved themselves in this case have shown great dedication and have at all stages acted in Tristan’s best interest with speed and effectiveness. If there is just one redeeming feature from the evidence, it is the knowledge we now have as to Tristan’s current wellbeing, and the fact that he has now been happily restored to the custody of his natural mother. |
