C.B. & anor v The adoption Authority of Ireland [2019] IEHC 779 (10 September 2019)

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JUDGMENT of Ms. Justice Faherty delivered on the 10th day of September 2019.

1. This matter comes before the Court by way of originating notice of motion dated 12th

A declaration pursuant to s. 92 of the Adoption Act, 2010 (“hereinafter the 2010

Act”) that an entry should be made in the Register of Intercountry Adoptions

(hereafter “the Register”) in respect of the adoption of the said J.B. and K.B. by the

An order pursuant to s. 92 of the 2010 Act directing the Adoption Authority of

Ireland (“the Authority”) to procure the making of the said entry in the register;

An Order that the authority shall issue to the second applicant pursuant to s. 91(1)

a certified copy of the said entry on payment to the Authority of the specified fee.

The application is resisted by the Authority and the Attorney General. The position of the

Authority is set out in an affidavit sworn on 22nd October, 2018 by Tara Downes, who is

the Authority’s Director of Operations. Her affidavit was sworn in response to the

grounding affidavit sworn by the first applicant on 12th October, 2018. As the dispute

between the parties is set in the judgment by reference to all parties’ submissions to the

Court, I did not find it necessary to otherwise recite the contents of the aforesaid

affidavits. Additionally, the Court has heard the oral evidence of the first and second

applicants. As will become clear in the course of this judgment, the adoptions in issue in

the within application already have a considerable litigation history in this jurisdiction.

2. The applicants are a married couple who were married in the UK in August, 2008. They

have resided in this jurisdiction since October, 2006 and December, 2007 respectively.

The first applicant holds citizenship of both the UK and Ireland, becoming an Irish citizen

in March, 2013. The second applicant holds citizenship of Country A and Ireland, having

3. The children, J.B. and K.B., were born in Country A and resided there until April 2012.

4. The first applicant is a business executive holding the position of group company

secretary in an international company. Previously, he worked as group company

secretary for a financial institution that operates extensively across a continent. It was

while in Country A in the course of his work that he met the second applicant who at the

time was working in Country A’s capital city having completed a university degree.

5. K.B. and J.B. are the niece and nephew of the second applicant by virtue of their natural

father being her brother. The natural father is not married to the children’s birth mother.

6. In November, 2006, the second applicant left her then employment and moved back to

her home province in Country A to work with her aunt in the family business. For this

(and other purposes) she bought a house in her home province. J.B. was born to the

second applicant’s brother and his partner on 24th November, 2006. The first applicant

stated that he first met the infant J.B. in December, 2006 when she was one month old.

At that time the second applicant’s mother, nephew (a son of the second applicant’s

deceased brother), brother and his partner (i.e. the natural parents of J.B. and K.B.) were

living and sleeping in a market where the second applicant’s mother was working. He

testified that he was shocked and concerned about the way the family were living and

was thus relieved when in January, 2007 the family unit (including the natural parents of

J.B.) moved to the house that the second applicant had purchased.

7. The second applicant remained living and working in her home province in Country A until

she moved to Ireland in December, 2007. While living in her home province, the second

applicant assisted her family financially, as did the first applicant. They both testified that

they continued to assist the family financially after the second applicant moved to Ireland

in 2007. They also stated that this assistance was not given to procure an adoption but

was rather to help the family, as is the norm in the culture of Country A.

8. K.B. was born to the second applicant’s brother and his partner on 30th September,

9. Following the second applicant’s move to Ireland in December, 2007, she and the first

10. The evidence before the Court is that in or about 2009/2010, difficulties arose in the

relationship between the second applicant’s brother and his partner. In early 2011, J.B.

and K.B.’s birth mother left the family unit in Country A, leaving behind her partner and

their children. It appears that by this time she had begun relationship with someone else.

11. The Court heard evidence from the applicants about their attempts, following their

marriage, to start a family. The first applicant already had three children from a previous

marriage. Following the birth of these children he had a vasectomy which he

subsequently successfully reversed. Despite this, the second applicant did not become

12. The applicants then began a series of fertility treatments. IVF treatments in January,

2011 and May, 2011 were not successful. The couple were advised that it was unlikely

that the second applicant would be able to conceive. It is the case that the second

13. To return however to the events of 2011. The applicants testified that the second

applicant’s mother was aware of the non-success of the IVF treatments. The first

applicant told the Court that by the time J.B. and K.B.’s natural mother left the family unit

in January, 2011 their natural father’s circumstances were that he was essentially long

term unemployed and reliant on the financial assistance which the applicants were

providing. He testified that both the children’s grandmother and natural father were

struggling to look after them by 2011. By this time both children were in school, the

younger in pre-school. Their grandmother’s daily work at the market necessitated the

children spending their post school time with her at the market which meant that it was

midnight before they could leave that place. This was the type of “desperate” situation

14. According to the applicants, the suggestion that they adopt JB and KB emanated from the

15. Subsequent to the second applicant’s mother having raised the issue of the adoption, the

applicants made the decision to adopt the children. They did so because they were

worried about the children’s safety and health, particularly in circumstances where their

parents were adolescents. The second applicant spoke to her brother who in turn spoke

to the natural mother. The evidence given by the applicants was that both natural parents

were receptive to the idea of the children being adopted. The first applicant testified that

by 2011 both he and the second applicant had an already established bond with the

16. The first applicant testified that he made contact with an adoption group connected to

Country A which he had come across on the internet. He was duly referred to the

Adoption Authority of Ireland (hereinafter “the Authority”). His first contact with the

Authority was on 16th June, 2011 by email under the subject heading “intercountry

17. The email summarised J.B.’s and K.B.’s then circumstances and the applicants’ desire to

adopt them. He advised the Authority that he and the second applicant were resident in

“My wife has a 4 year old niece and a 3 year old nephew (brother and sister) in

[Country A] who are available for adoption. Her brother’s 20 year old girlfriend

(mother of the children; they were not married) has left him and has left the

children with him. Unfortunately, he is long-term unemployed and so is finding it

very difficult to provide for the children and also to look after them in the absence

of their mother. He is helped by my wife’s mother at the moment but she is in her

late 50s and is herself not in good health and is also working in a market and

looking after another 13 year old grandson at the same time (another of my wife’s

brothers died in his late 20s a few years ago and the mother of the 13 year old boy

is away working and so his care is undertaken by his grandmother, my wife’s

mother. My wife’s father also died a few years ago at the same time as their son.

I have 3 sons…from my previous marriage who live with my ex-wife in England,

which we have regular contact with through visits to the UK and them visiting us in

With my wife being the Auntie of the two children, it would be very straightforward

for us to adopt them in [Country A] but obviously this is complicated by our living

19. The email concluded as follows: “we would appreciate any advice you can give on the

inter-country adoption process and whether it can be fast-tracked in any way, given that

the children are family members and my wife’s brother and her mother are really

struggling to cope looking after them, given their circumstances.”

20. The Authority’s response to the first applicant on 16th June, 2011 was in the following

“In order to adopt, prospective adoptive parent(s) must first be assessed by the

local HSE/Adoption Society and must be resident in Ireland legally for at least one

year. They would have information on the assessment process, costs and

timescales involved. Please contact your local HSE adoption service. If you are

living in Dublin the number for your nearest HSE adoption service is 01-6201100.

They will invite you to a meeting to explain the adoption process

I enclose some leaflets on intercountry adoption for your information. Please note

that these information leaflets contain some information which is NOT up to date,

therefore you should contact the HSE or the Adoption Board with any specific

21. The first applicant’s immediate reply to this email was to query whether it was the same

process for an adoption by relatives, to which the Authority replied that it was and that

22. Questioned by counsel for the Authority about the contents of the 16th June, 2011 email,

the first applicant reiterated that at the time he wrote the email he had not taken advice

from anyone and had spoken only to an adoption group from Country A (sourced on the

internet) who had referred him to the Authority. He denied that the reference in the

email to the straightforwardness of an adoption of the children in Country A encapsulated

that his and the second applicant’s intention from the outset was to effect a domestic

adoption in Country A. He stated that if they wanted all along to adopt the children in

Country A they would simply have gone to Country A without having made contact with

the Authority. However, they had from the outset made contact with the Authority who

duly referred them to the HSE from whom, it is alleged, they received misleading advice.

23. The evidence before the Court is that upon receipt of the Authority’s email the first

applicant commenced immediately to contact the HSE on the contact number he had been

given. His evidence was that all calls made went to voicemail. His first call back from the

HSE was on 5th July, 2011. He testified that prior to this call, on or about 25th June,

2011, he had made preliminary enquiries of lawyers and adoption agencies in Country A

which he sourced from the internet. He stated that he did this in order to understand a

little more about how one went about embarking on an intercountry adoption in

circumstances where the Authority’s website was out of date and where the HSE were not

24. Ultimately, on 5th July, 2011 the HSE made contact. The first applicant testified that the

advice he received on that date from a named official in the HSE official was to the effect

that in his and the second applicant’s particular circumstances they could not do an

intercountry adoption as this process was designed for “not known children”. He was also

advised that there was no means by which the HSE could establish his and the second

applicant’s eligibility in the context of “known children”, as opposed to children in an

orphanage. I note that the evidence given by the first applicant in this regard is

consistent with evidence given by him on affidavit in the Case Stated proceedings in 2016

(referred to more particularly later in this judgment) In his affidavit sworn 29th April,

2016, he avers that the official had advised that it was not possible to approve the

adoption of specific children. According to the first applicant, the information received

from the official was that the HSE had no way of assessing whether the children were

available for adoption or if adoption was in their best interests because the HSE could not

confirm the suitability of the children for adoption given they were resident in Country A.

The first applicant testified that in light of the advices given by the HSE official, the

25. In the course of his oral testimony in the within proceeding, the first applicant, stated that

the HSE official suggested two alternative routes to him; the first was to bring the

children into Ireland (perhaps for education purposes) and then for the applicants to

apply to adopt them in Ireland. The second alternative was for both applicants, or the

second applicant solely, to adopt the children in Country A and then bring them back to

Ireland. As there were immigration issues regarding the latter option, the HSE official

26. As to whether he had asked if the Country A adoption would be recognised in Ireland, the

first applicant testified: “I did clarify [with the HSE official], I said, if we adopted in

[Country A] would the adoption be recognised in Ireland, and I was told categorically,

27. It is common case that the applicants embarked on the second of the two options advised

by the HSE official. Questioned as to why he had not taken the first option suggested by

the HSE, the first applicant testified that in the course of discussions with lawyers (the

solicitor acting for him in the within proceedings and an Irish immigration lawyer) in this

jurisdiction in regard to option two, the first option had been discussed. He stated,

however, that the advice received was that in the absence of an adoption order, any

attempt by him and the second applicant to bring children who were not theirs into the

28. The first applicant testified that when in Country A for the purposes of the Country A

adoption he had looked into the possibility of establishing some kind of guardianship

relationship with the children but the advice from lawyers in Country A was that it was not

possible for persons to be appointed a guardian in Country A while the children’s natural

29. Under cross-examination by counsel for the Authority, the first applicant acknowledged

that the HSE official to whom he spoke had advised him to get a good lawyer. While

immediately after that call he spoke to his Irish solicitor, he did not, however, seek advice

in relation what had been said to him by the HSE official. Albeit that he had made initial

enquiries of his solicitor in July, 2011, the first applicant did not formally engage him until

December, 2011. This was in circumstances where he had no reason to question what he

had been told by the HSE official: he assumed that the HSE had knowledge of adoption

30. He testified that he understood the HSE official’s advice to get a good lawyer in the sense

of progressing the options which the HSE official had advised him to pursue. As far as he

was concerned, the HSE official was the expert to whom he had been referred by the

31. The first applicant categorically rejected any suggestion that he had engaged a lawyer in

July, 2011 in order to seek adoption advice, stating that he had only made initial inquiries

(in the context of pursuing the options advised by the HSE official) of his Irish solicitor in

the course of one meeting and intermittent telephone contact in July 2011. He only

formally instructed his solicitor in late 2011. He reiterated that the issue of seeking an

opinion in July, 2011 as to whether the HSE’s advice was correct did not arise. Thus,

albeit that he consulted two sets of lawyers in Ireland in or about July, 2011, these

consultations were informal and were for the purpose putting the advice given to him by

the HSE into effect. This was the extent of the conversations he had with lawyers in

Ireland at that time. He stated that the first written advice he received from his Irish

lawyers was in September, 2012, by which time the children were in Ireland following

completion of their adoption in Country A and when he and the second applicant were

seeking advice as to how to progress a joint adoption in Ireland.

32. Asked whether, in mid-2011, the issue of the provincial adoption authority with whom the

applicants proposed dealing not being the Central Authority in Country A had been raised

with either of his Irish lawyers, the first applicant stated that that issue had not come up

as he and the second applicant were dealing with the provincial authorities in Country A in

33. Following the interaction with his Irish solicitor in July, 2011, the first applicant did not

make contact again with the HSE official prior to embarking on the Country A adoption

process. He explained that he did not do so in circumstances where the HSE, to which he

had been referred by the Authority, had told him the way to proceed. Questioned as to

why, given the initial slowness of the HSE to respond to his queries in June, 2011 he had

not gone back to the Authority, the first applicant stated that ultimately the HSE had

responded to him and gave him advice upon which he acted, albeit that it had taken some

three weeks before his first contact with the HSE had been responded to. Given that the

children were in “a desperate situation” he proceeded on foot of the direction given by

“the State body”. In the view of the first applicant, he had been given a direction by the

State body to which he had been referred by the Authority. The advice from the HSE he

“thought reasonably, to be correct advice” and he “had no reason to question it”.

34. The first applicant testified that if the advice from the HSE had been to proceed with an

intercountry adoption he would have been happy to do that, stating: “there is no reason

why we wouldn’t have done that, that is what we wanted to do … we wouldn’t have been

in and out of court for the last four years if we had gone for an intercountry adoption”.

35. In the course of re-examination by his counsel, the first applicant reiterated that in July,

2011, the advice given to him by the HSE official was (1) to either bring the children into

Ireland and attempt a domestic adoption or (2) go to Country A and commence an

adoption there. To his mind, the HSE social worker was perfectly clear in July, 2011 that

he and the second applicant could not commence an intercountry adoption under The

Hague Convention. This information was duly conveyed by the first applicant to his Irish

solicitor shortly thereafter, the HSE official having told him to go to a lawyer. He duly

advised his solicitor that he wished to proceed on foot of the advice given by the HSE. In

that regard, his Irish solicitor advised him to instruct lawyers in Country A which he duly

36. He reiterated that he and the second applicant would have preferred to go down the

intercountry adoption route. At no point had they set their minds against this route. He

had not ignored any advice given or sought to circumvent the 2011 Act or the

37. In the course of her evidence, the second applicant confirmed that she herself did not

speak to anyone in the HSE or to any lawyer in Country A: all that was left to the first

38. The first applicant testified that upon taking up the second option (adopting in Country A)

as suggested to him by the HSE, he duly communicated with two legal firms in Country A

and ultimately appointed one of them at the end of July, 2011 to commence the process

39. He stated that his Country A lawyers explained the adoption process and the significant

amount of documentation that was required. The lawyers spoke to the relevant provincial

40. The first applicant testified that he and the second applicant had to produce, inter alia,

bank records, deeds to properties, a record of their assets, evidence of his employment,

letters of reference and medical records. His evidence was that although the authorities

in the province where the adoption was being processed would have preferred that he and

the second applicant adopt the children jointly, that proved not to be possible because the

provincial authorities wanted proof in advance of immigration clearance once the children

were adopted. In essence, the provincial adoption authority wanted proof of immigration

clearance for the children in Ireland in advance of the adoption process in Country A.

Proof of immigration clearance would have required the first applicant to be assessed in

Ireland. However, he had already been informed by the HSE that that was not possible as

the HSE had advised that an inter country adoption was not open to himself and the

second applicant. as the children were “known children”. He stated that albeit that he

was not to be an adopter of the children in Country A, he was nevertheless required to

furnish his consent to the second applicant’s application to adopt, as her spouse.

41. According to the first applicant, his Country A lawyers arranged for him and the second

applicant to attend on 7th September, 2011 at the City Hall in the relevant province of

Country A to apply for the adoption of the children. In attendance on that day also were

the natural parents, the children and some referees for the second applicant. According to

the second applicant’s evidence, the referees were her two aunts. The natural parents’

respective consents were obtained on 7th September, 2011. The first applicant’s

evidence was that the natural parents met independently and separately with the social

workers dealing with the case in order to provide their respective consents to the

adoptions. In the first applicant’s opinion, those consents were freely given. In the

course of his evidence he emphasised on a number of occasions that no inducement was

given or threat made to the natural parents to procure their consents.

42. The first applicant explained that neither he nor the second applicant were present when

the natural parents gave their consents. Nor were they present for the discussions which

took place between the Country A social workers and the natural parents, which were

conducted in private. The first applicant stated that he had no knowledge of what had

43. The first applicant was questioned as to why the consents which were obtained from the

natural parents in 2011 made no mention of the second applicant’s Irish address. He

stated that this was because the adoption was a domestic adoption in Country A. As

advised by her Country A lawyers, the second applicant used her Country A address for

the adoption application. The first applicant accepted that the Letter of Consent and

Letter of Approval, respectively, from the birth mother and birth father referred to

consent being given for J.B. and K.B. to be the adopted children of the second applicant

residing at her Country A home. The first applicant explained that the reason the consent

documents had listed the first applicant’s Country A address was because every citizen of

Country A had to have a house registration document and had to be registered at a

property. Therefore, as the natural parents’ consents documents were official documents

they had to include the address to which the second applicant was linked in Country A.

44. Asked whether he and the second applicant had canvassed with their Country A lawyers

the issue of habitual residence in Country A as a necessary requirement for the adoption,

the first applicant stated: “We specifically asked the question does a [Country A] citizen

have to be resident in [Country A] to adopt under a domestic adoption in [Country A] and

45. It was put to the first applicant by counsel for the Attorney General that nowhere in the

Letter of Consent signed by the natural mother on 7th September, 2011 is there any

indication given of the knowledge or information which was imparted to the natural

mother for the purposes of obtaining her consent to the adoptions. His response was that

the natural mother was always clear as to what she was consenting to. She had known

the applicants for many years and knew they lived in Ireland. Both birth parents knew

46. The second applicant’s evidence was that she was present at the office of the provincial

adoption Authority on the day on which the natural parents’ consents were obtained but

was not in the room where the consent process was undertaken. She was informed by her

mother that consent to the adoptions had been given. She was satisfied that the natural

parents had given their consents freely and that they understood what was happening.

She stated that she did not make any promise or threat before they gave their respective

consents. Nor did she offer the natural parents any money or financial reward.

47. It is the second applicant’s belief that the provincial adoption authority’s social workers

interviewed her brother and his former partner on 7th September, 2011 about the

proposed adoption. She had witnessed the natural parents in the company of some social

workers. However, she was not allowed into the room where the discussions took place.

48. It is put to the second applicant by counsel for the Authority that given that she was a

national of Country A, it would have been natural and expected that she would be the

person liaising with the lawyers in Country A in relation to the adoption. The second

applicant explained that in 2011 she herself had no discussions with lawyers in Country A

and that the first applicant had taken care of everything. This was despite the fact that he

49. Cross-examined by counsel for the Attorney General, the second applicant accepted that

the residential address given by her in the 2011 Country A adoption process was her

house in her home province in Country A. She did not list her Irish address because she

had an address in Country A, having purchased her house there. That fact

notwithstanding, she had advised the Country A officials that she was living in Ireland.

She stated that the officials had put her Country A address on the consent documents as

that was her address according to her Country A identity card. The officials, however,

50. The Court heard evidence that over a seven-month period from September, 2011 until

April, 2012 when the children came to Ireland, the applicants visited Country A for

extended periods, with the second applicant staying for longer periods than the first

applicant. The assessment of the second applicant by the Country A social workers took

51. The first applicant testified that social workers in Country A visited the second applicant at

her Country A home. He reiterated however that the Country A officials were not of the

impression that the children were to be raised by the second applicant in her home

province in Country A. He stated that the officials were aware from the documentation

which had been furnished to them that the second applicant was resident in Ireland.

52. The second applicant confirmed that she was interviewed by social workers in Country A,

both when they visited her house in her home province and via Skype when she was back

in Ireland. The purpose of the interviews was to see whether she could take care of the

children. To this end, they checked her financial affairs and did medical and psychological

checks also. They knew she was living in Ireland and were happy with that arrangement.

The whole process had taken six months. For half of that time period, she was resident in

53. The adoption by the second applicant of the children was approved by the provincial

adoption committee in Country A on 25th January, 2012. This was confirmed by letter

dated 6th February, 2012 which advised that the second applicant had six months to

and required the first applicant’s consent as the spouse of the adopter. On 23rd

February, 2012, the children’s change of family name was registered in Country A and

passports were issued to them in their new surnames. On 28th February, 2012, the

applicants applied to the Irish Consulate in Country A for visas for the children for the

54. The Visa Office of the Irish National Immigration Service (INIS) granted entry visas for

the children on the basis that they were dependants of the first applicant, a British

national, and, therefore, “permitted family members” in accordance with the EC “Free

Movement of Persons” Regulations 2006 and 2008. In this regard the first applicant

“Interestingly… at the time, [INIS] didn’t grant the visas on the basis of the

children being [the second applicant’s] children, they granted the visas on the basis

55. The children arrived in Ireland on 25th April, 2012. Since that time they have lived with in

Ireland with the applicants as a family unit. They have obtained Irish PPS numbers, and

also residency permits and re-entry visas under EU Treaty Rights.

56. The children’s residency in this jurisdiction has never received adverse attention from the

authorities. In 2017 they were granted permanent (ten year) residence cards.

57. The testimony of the applicants was that that children know they have birth parents. The

first applicant explained to the Court that the children know they have been adopted by

the second applicant and the reasons why this came to pass. Since their adoption the

children have travelled in the company of the applicants on a number of occasions to visit

their family (including their birth parents) in Country A. The children have a connection

with their birth parents. According to the first applicant, since 2012 the children have

travelled between five and ten times to Country A (where the applicants have a holiday

home). On each occasion they have met their birth father and grandmother. They have

also met with their birth mother on some of these occasions. He stated that the children

love these interactions. However, they regard Ireland as their home.

58. The second applicant advised the Court that the birth mother had sent her pictures of her

new baby for J.B. and K.B. to see. Moreover, the second applicant had given the natural

mother clothes for her new baby which she had brought with her when last visiting

Country A. The second applicant also testified that the natural mother is aware of the

present proceedings and has wished the second applicant “good luck”, albeit that she

does not understand the applicants’ present difficulties given her understanding that the

children have been adopted by the applicants. The second applicant also testified that,

equally, her brother, the children’s natural father, continues to be happy that the children

have been adopted. He knows that the children are loved. He gave his consent to the

adoptions freely as he wanted the children to have a future. The second applicant told the

Court that the children are happy. They know that they have two sets of parents and that

their natural parents could not take of them but that they love them.

Events subsequent to the children’s arrival in Ireland on 25th April, 2012

59. On 12th November, 2012, the first applicant wrote to the Authority advising that the

children had arrived in Ireland in April, 2012, having been legally adopted by the second

applicant in Country A on 21st February, 2012. The first applicant indicated his and the

second applicant’s intention to apply for a joint domestic adoption in Ireland. The letter

was copied to the HSE. He testified that the indication given in the letter was consistent

with the advice he had received from the HSE official in July, 2011.

60. The Authority acknowledged the letter on 14th November, 2012 noting its contents. The

first applicant was in telephone and email communication with the HSE on 13th

November, 2012. The first applicant testified to a number of emails and calls from him to

the HSE some of which were either not returned or were late being responded to.

61. By the time of this correspondence to the Authority and the HSE, the first applicant had

been told by his Irish solicitor (in September, 2012) that the advice he had received from

the HSE in July, 2011 (namely that an intercountry adoption of “known children” could

not be effected) was wrong. He testified that his solicitor’s advice as of September, 2012

was that there were still two options available to himself and the second applicant,

namely to apply for a domestic adoption of the children in Ireland once they were resident

in the country for twelve months, or to try to register the Country A adoption in Ireland.

He was advised that the best course of action was to go down the domestic adoption

route. He further stated that although his solicitor had informed him in September, 2012

that the advice received from the HSE in July, 2011 was wrong, the Authority and the

62. On 10th April, 2013, the first applicant apprised the HSE that he and the second applicant

were anxious to commence the process of a domestic adoption. On 3rd May, 2013, a HSE

official advised the first applicant that he could make an application to

63. Further to the communication with the HSE, the applicants were assigned a social worker

in and around the end of May 2013 or the start of June 2013. Over the months of June to

August 2013, there were numerous phone calls and emails passing between the first

applicant and the social worker for the purpose of providing background information,

including confirmation from the applicants’ Country A lawyers of the circumstances of the

Country A adoption and the provision of a certified copy of the consents of the natural

parents. On 13th June, 2013, the applicants met with the social worker in their home.

The social worker took copies of relevant documentation and advised that he would

64. Ultimately, the first applicant became aware of certain communications from the Authority

to the HSE which suggested that a domestic adoption of the children could not proceed.

The applicants learned of this via a letter of 23rd August, 2013 from their HSE-appointed

social worker who advised that the Authority’s position was that “the children do not meet

the criteria [set out in s.23 of the 2010 Act] and are therefore not eligible to be adopted”

and that the applicants “cannot make an application for the adoption of the children under

65. There followed a series of correspondence between the applicants’ solicitor and the

Authority. As of 2nd January, 2014, the Authority was advising that it was of the opinion

that s.45 of the 2010 Act, together with s.23 thereof, rendered the children ineligible to

be adopted. By letter of 3rd January, 2014, the applicants’ solicitor requested clarification

as to which part of s.23 of the 2010 Act debarred the children from being eligible for

adoption and why they did not comply with the s.23 criteria. In its reply of 8th January,

2014, the Authority’s position was that as the second applicant had already adopted the

66. It is common case that the Authority’s correspondence of January, 2014 contained a

series of factual errors. In March, 2014, the applicants commenced judicial review

proceedings against the Authority (High Court ref. no. 2014/196 J.R.). Leave was

granted on 31st March, 2014. The CFA, as the now statutory successor to the HSE, was a

notice party to those proceedings. Ultimately, the judicial review proceedings were

compromised. The terms of settlement included the Authority agreeing to withdraw its

prior correspondence of 13th December, 2013 and 8th January, 2014 and agreeing that

the applicants’ adoption application “will be considered and processed by the Authority in

the normal way once the assessment of the Child and Family Agency is complete”.

67. The CFA duly carried out the required assessment. On 16th March, 2015, the applicants

received a Declaration of Eligibility and Suitability from the Authority, valid for twenty-

four months, pursuant to s.40 of the 2010 Act. The first applicant testified that

throughout this assessment process, there was no suggestion from any State body that

either he or the second applicant had acted improperly at any stage.

68. On 25th May, 2015, the applicants were advised by the Authority that it had decided to

refer a Case Stated to the High Court pursuant to s.49 of the 2010 Act, to determine as a

matter of law whether it was possible for the Authority to make a domestic adoption order

in respect of J.B. and K.B. in circumstances where the second applicant had previously

69. By reason of the Authority appearing to waver in relation to the Case Stated, by letter

dated 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 2010 Act, which it did.

70. In the Case Stated the Authority asked the High Court to answer five questions. The High

Court delivered its judgment on 25th November, 2016. (C.B & Anor v. Udaras Uchtala na

In summary, the questions stated and the answers given by the High Court were: -

(a) Whether the Country A adoption was recognisable in Ireland under Part 8 of

the 2010 Act or the common law. To this, the High Court Judge responded

(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

incorporation of The Hague Convention into Irish Law, the common law

jurisdiction of the High Court, as identified in M.F. v. An Bord Uchtála

[1991] I.L.R.M. 339 remained? In light of her previous answers, the High Court

(d) Whether, on the basis that M.F. 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

(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 High Court

71. The High Court judgment was the subject of a “leap frog” appeal by the Authority to the

Supreme Court. The Supreme Court’s consideration of the matter is addressed below.

Events prior to the delivery of judgment by the Supreme Court on 12th July, 2018

72. On 15th August, 2017, the Authority wrote to the applicants advising, without prejudice

to its position in its appeal to the Supreme Court (and in the context where the Authority

was, without prejudice, progressing the applicants’ application for a domestic adoption in

Ireland), that it was attempting to address the issue of the natural parents’ consents to

the Country A adoption. For these purposes, the Authority sought the address of the

birth mother. The applicants were advised that the Authority proposed to appoint an

authorised person to oversee the signing of the consent by the birth mother.

73. On 25th August, 2017, the first applicant provided the Authority with the contact details

for the birth mother. On 7th September, 2017, the Authority advised that it had written

to the Central Authority (under The Hague Convention) in Country A seeking its

assistance in getting consent from the birth mother and notifying/consulting the children’s

74. On 11th October, 2017, the applicants provided the Authority with updated contact

numbers for the birth mother. On 8th March, 2018, their solicitor wrote to the Authority’s

solicitor requesting an update on progress in obtaining the consent, in particular as to

whether the Authority had been able to locate and contact the birth parents. The

Authority was advised that the applicants would be in Country A in the Spring of 2018 and

that they were willing to assist with the regard to the consents. The Authority was also

advised that the Declaration of Eligibility and Suitability previously obtained by the

applicants was about to expire and that a new Declaration was now necessary. The letter

“We are aware that in view of the history of this case, going on now for 7 years that

AAI have been keen to do all they can to fast track matters in the event the

applications for adoptions orders can proceed. Can AAI assure our clients that in

the event of a favourable outcome on the appeal that AAI will intervene on their

behalf with TUSLA to carry out the necessary work with a view to the issue [of] a

fresh declaration, as soon as a judgement is delivered by the Supreme Court.”

75. On 29th March, 2018, the applicants’ solicitor was advised that the Authority was liaising

with the Central Authority in Country A and that it had written to the CFA to enquire what

steps were necessary to obtain a fresh Declaration. On 9th April, 2018, Country A’s

Central Authority sought the Country A adoption registration papers (in Country A’s

language) as a perusal of Country A’s Central Authority records had failed to yield any

such record. The requested documents were duly provided by the Authority. On 25th

May, 2018, the applicants were advised that the Authority was continuing to liaise with

the Country A Central Authority with regard to the consents, and with the CFA with regard

to the Declaration of Eligibility and Suitability. The Authority’s solicitor enclosed a copy of

the correspondence which had been sent to the Central Authority in Country A. After

setting out the history of the matter, the letter read as follows:

“[The applicants] have now applied to jointly adopt [the children] under Irish law.

In order to do so Irish Adoption Legislation requires that the following steps must

1. The consent of the birth mother to the adoption must be given;

2. The giving and taking of the consent of the birth mother must be overseen by

3. The birth father must be notified and consulted with regard to the proposed

Accordingly, I am writing to request your assistance in obtaining the birth mother’s

consent, appointing an independent person to supervise the giving of that consent,

ensuring that the birth mother fully understands what she is consenting to and that

it is freely given and to notify and consult with the birth father in relation to the

proposed adoption of the children. I enclose contact details for the birth mother

and father if you require any further information please do not hesitate to contact

76. In the Case Stated proceedings before the High Court, and in their submissions to the

Supreme Court, the applicants and the Attorney General argued that it was possible

under the 2010 Act and The Hague Convention for the children to be adopted by way of

an Irish domestic adoption. The Authority disagreed with this proposition. The Supreme

Court delivered four judgments on 12th July, 2018. (C.B. and P.B. v. The Attorney

General [2018] IESC 30) The Supreme Court unanimously concluded that a domestic

77. The Supreme Court was also unanimous in holding that the adoption of the children in

Country A was not amenable to recognition under Part 8 of the 2010 Act, or at common

law. With regard to the Convention, McKechnie J. (at paras. 45 and 51) and MacMenamin

J. (at paras. 50-51 and 75) both emphasised that the facts of the case were clearly

captured by the Convention and that there was no compliance therewith. At para. 2 of his

“… the terms of the Convention had not been complied with … In fact the

applicants, who seek only a domestic adoption order in respect of the children

concerned, and not the recognition of an intercountry adoption, engaged with the

Convention in their submissions solely for the purposes of indicating how and why,

78. He referred to “myriad ways” in which the mandatory requirements for an intercountry

“this is not a case of mere non-compliance with a technical aspect of the

Convention regime; … it is common case that there has been practically no

engagement with the Convention scheme at all. Accordingly, each and every one

of the safeguards which ought to apply has effectively been stood down”. (at para.

79. McKechnie J. found total non-compliance with Article 4 of the Convention in that the

“48. Accordingly there was total non-compliance with articles 4 and 5 of the Convention,

Determine, after possibilities for placement of the child within Country A had

been given due consideration, that an intercountry adoption is in the

children’s best interests (Article 4(b)) (it being remembered that a foreign

adoption is not the preferred means of safeguarding a child’s welfare – such

is very much a subsidiary option (see Article 21(b) of the CRC and para. 120

the persons, institutions and authorities whose consent is necessary for

adoption had been counselled as may be necessary and duly informed

of the effects of their consent, in particular whether or not an adoption

will result in the termination of the legal relationship between the

such persons, institutions and authorities had given their consent

freely, in the required legal form, and expressed or evidenced in

the consents had not been induced by payment or compensation of any

Ensure, having regard to the age and degree of maturity of the children,

adoption and of their consent to the adoption, where such consent is

Consideration had been given to the children’s wishes and opinions

The children’s consent to the adoption, if required, had been given

freely, in the required legal form, and expressed or evidenced in

Determine that the prospective adoptive parents are eligible and suited to

Ensure that the prospective adoptive parents had been counselled as may be

Determine that the child is or will be authorised to enter and reside

50. Moreover, as a consequence on the non-involvement of the competent authorities

there was a failure to comply with many of the procedural requirements for an

80. That a common law jurisdiction regarding the recognition of adoptions no longer subsists

in this jurisdiction was also the unanimous conclusion of the Supreme Court. That was

“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

81. This view was echoed by McKechnie J. (at para. 144 of his judgment).

82. It was also the unanimous view of the Supreme Court that M.F. v. An Bord Uchtála did

not represent the law upon the enactment of the 2010 Act and, therefore, the Country A

83. In its written submissions to the Supreme Court entitled “next steps”, it had been

suggested by the Authority that the plight of the children might be remedied by either:

(1) An agreement between the Country A and Irish Central Authorities to

retrospectively perform their functions with a view to the Country A Central

Authority issuing an Article 23 certificate in respect of the Country A adoptions; or

(2) An application to the High Court under s. 92 of the 2010 Act for entry of the

84. These “next steps” were addressed by the Supreme Court. With regard to the first option,

the preference of all of the judges in the Supreme Court was that an attempt should be

made to effect the type of adoption envisaged under the Convention, in that an effort

should be made to procure an Article 23 certificate of compliance with the Convention.

Such an approach is contemplated in the Explanatory Report prepared by G. Parra-

Aranguren in relation to the Convention (“the Explanatory Report”) in situations where

85. In their respective judgments, MacMenamin J. and McKechnie J. agreed that if it were in

fact possible, a retrospective solution engineered between the two Central Authorities

would be the optimal solution. However, both judges expressed significant doubts and

concerns as to the feasibility of such “reverse engineering”.

86. In correspondence between the parties following the Supreme Court judgments, it was

acknowledged by the Authority that any such process was fraught with difficulties and

87. By letter of 16th July, 2018 the applicants’ solicitor advised the Authority that the

attempted engagement with Country A’s Central Authority would not assist the matters

and indicated the applicants’ intention to pursue an application under s. 92 of the 2010

Act. In a response of 19th July, 2018, the Authority noted the position with regard to the

s. 92 application. The Supreme Court were notified of the non-success of the “reverse

88. Effectively, the within s. 92 application comes before the Court on foot of the Majority

View of the Supreme Court that in “a truly exceptional” case, s. 92(1) of the 2010 Act

may afford a mechanism whereby an intercountry adoption, albeit that it is not in

compliance with the Convention and the 2010 Act, might be recognised and entered on

89. Before I embark on a consideration of s.92 issue, and the status of the Majority View in

the Supreme Court (in issue in these proceedings) it is apposite at this juncture to set out

the relevant statutory definitions and provisions which informed the varying views of the

Supreme Court on the interpretation s. 92(1) and as to whether s.92(1)(a) can be utilised

by the High Court to direct the Authority to enter the within adoptions on the Register.

The interpretation and application of s.92(1)(a) to the within adoptions is the crux of the

90. In s.3 of the 2010 Act, “intercountry 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

(a) after the child’s adoption in the state of origin, by a person or persons habitually

(b) for the purposes of an adoption, in either the receiving state or the state of origin

91. “Intercountry adoption effected outside the State” is defined as:

“(a) an adoption of a child effected outside the State at any time before the establishment day

that, at that time, conformed to the definition of “foreign adoption” in section 1 of the

(b) an adoption, other than an intercountry 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 30 May 1991, or

establishment day that, at that time, is in compliance with the applicable provisions of

92. Section 1 of the Adoption Act 1991 defines “foreign adoption” as:

“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

(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

(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,

be carried out, as far as was practicable, into the adopters, the child and the

(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,”.

“(1) The Authority may refer any question of law arising on an application for an adoption

order or the recognition of an intercountry adoption effected outside the State to the High

(2) Notwithstanding subsection (1), the Authority, unless it considers a question of law

arising on an application for an adoption order or the recognition of an intercountry

adoption effected outside the State to be frivolous, shall refer the question of law to the

(a) an applicant for the order or the recognition of the intercountry adoption effected

“90.— (1) In this section, “competent authority” includes a person serving in another

state in the capacity of a competent authority for the purposes of a bilateral

(2) The Register of Foreign Adoptions maintained until the establishment day under

section 6 of the Adoption Act 1991 by An Bord Uchtála shall, notwithstanding the

repeal of that section by section 7 (1), continue in being under this Act and, on and

(3) The following persons may apply to the Authority to enter particulars of an

intercountry adoption effected outside the State in the register of intercountry

(4) Not later than 3 months after the date when a child first enters the State after his

or her intercountry adoption in another state by parents habitually resident in the

State, the adopters shall ensure that an application to the Authority is made under

subsection (3) to enter particulars of the adoption in the register of intercountry

(5) If any of the persons referred to in subsection (3) apply in accordance with this

section to enter in the register of intercountry adoptions particulars of an adoption

(a) where the applicant is a person mentioned in paragraph (a) or (c) of

subsection (3), the application relieves both of the adopters of the duty under

(b) where the applicant is one of the adopters, the application relieves the other

(6) An application under subsection (3) shall be accompanied by the certificate referred

to in section 57 issued by the competent authority of the state of adoption.

(7) If the Authority is satisfied that the adoption is an intercountry adoption effected

outside the State that complies with the requirements of this Act in relation to such

an adoption, the Authority shall enter particulars of the adoption in the register of

intercountry adoptions, together with a copy of the certificate referred to in section

(8) If the High Court so directs under section 92 (1), an entry shall be made in the

(9) An entry in the register of intercountry adoptions shall be in such form and contain

such particulars as may be prescribed by regulations made under section 152.

(10) A person making an application to the Authority under subsection (3) is required to

furnish the Authority with such information as the Authority may reasonably require

and the information shall be in such form (if any) as may be specified by the

(11) An error in an entry in the register of intercountry adoptions may be corrected and,

if the High Court so directs, a specified correction shall be made in the register.”

“(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

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

(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

(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—

including orders relating to the guardianship, custody, maintenance and citizenship

(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.

the intercountry adoption effected outside the State shall not be recognised under

(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

may make submissions to the High Court in relation to the application, without

(8) If the High Court so determines, proceedings under this section shall be heard in

The differing views of the Supreme Court as to whether s.92(1)(a) could be employed

96. In C.B. and P.B. v. The Attorney General [2018] IESC 30, there was a marked divergence

of opinion on the meaning of s. 92 of the 2010 Act. The view of the majority (hereinafter

“the Majority View”) was elaborated by MacMenamin J. (Dunne, J. and O’Malley, J.

“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

97. After citing the provisions of s.92 of the 2010 Act and noting that the section was

contained in Part 10, Chapter 3 of the 2010 Act, which refers to “Directions of High Court

in relation to the Register of Inter-Country Adoptions”, MacMenamin J. went on to opine:

“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

“(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

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

(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.”

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 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

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.”

114. …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

98. In expressing their agreement with the view taken by MacMenamin J. as to the potential

availability of s.92(1) to the applicants, Dunne J. and O’Malley J. stated:

“…if innocent mistakes or misunderstandings by either the 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.

In our view, for the reasons stated by MacMenamin J. the procedure authorised

under s. 92 of the Act is capable of meeting this objective.” (at paras. 3-4)

99. The Majority View that the “slightly wider power” of the High Court under s.92(1) could be

employed in the present case was arrived at based on certain interpretive principles

derived from Article 42A of the Constitution, the Explanatory Report and the Guide to

Good Practice. These matters are discussed more fully later in this judgment.

100. Writing for the minority, McKechnie J. concluded that s. 92 did not confer a power on the

High Court that was wider than the power of the Authority under s.90. O’Donnell J.

agreed with McKechnie J., as a matter of statutory interpretation. (The views of

McKechnie J. and O’Donnell J. on s.92(1) will hereafter be referred to as “the Minority

101. When looking at the provisions of the 2010 Act, McKechnie J found the most critical

provision dealing with the power of the High Court to direct an entry in the Register to be

s.92(1)(a). He found subsections (2), (3) and (4) to be consequential measures “but only

on the Court directing the cancellation of an existing entry under subsection (1)(b).” With

regard to the comparison made by MacMenamin J. between s.92(1) and s.90(8) of 2010

Act for the purpose of concluding that s.92(1) conferred on the High Court a “broader” or

“slightly wider” power than that vested in the Authority, it was not clear to McKechine J.

that section 92(1) could be read independently of 90(8) so as to create a comparison

between the breadth of the respective powers of the High Court, on the one hand, and

the Authority, on the other. He took the view that a proper construction of the sections

“Section 90(8) opens by providing that “[i]f the High Court so directs under section

92(1)”, an entry shall be made in the register concerning a specified intercountry

adoption effected outside the State. Accordingly, when section 92(1) (and section

92(1)(a), in particular) refers to the Court directing the Authority to procure the

making of a specified “entry” in the register, this can only relate back to the entry

“concerning a specified intercountry adoption effected outside the State” referred to

in section 90(8). Rather than containing differing powers, the two sections are in

fact opposite sides of the same coin; the High Court directs the making of an entry

under section 92(1), but that entry takes effect pursuant to section 90(8), which

refers only to “specified intercountry adoption[s] effected outside the State”. Thus it

is not clear to me that the power of the Court to order the making of entry on the

intercountry adoption effected outside the State, as so defined in the Act, that can

be entered on the register using these provisions”. (at para. 125)

102. He went on to opine that even if he agreed (which he did not) with MacMenamin J.’s view

that definition (b) of “intercountry adoption effected outside the State” under section 3

was made out, the High Court would be able to make an order directing an entry of the

adoptions on the Register on the narrower construction of ss.90(8) and s.92(1) which he

103. McKechnie J. next turned to definition (b) of an “intercountry adoption effected outside

the State” as found in s.3 of the 2010 Act. He found the second element of definition (b),

namely, that the adoption was effected outside the State on or after the establishment

day, was clearly satisfied. For the third element, the five requirements of a “foreign

adoption” as defined under section 1 of the 1991 Act which must be satisfied, he thought

it “highly uncertain” whether the evidence in the case definitively establishes that these

criteria were met. He opined that even if they were met there was “a more fundamental”

difficulty with [MacMenamin J’s] reasoning, which centres on the first element of the

definition (b) of an intercountry adoption effected outside the State, which requires that it

must be “an adoption, other than an intercountry adoption”. In McKechnie J.’s view,

having regard to this definition of “intercountry adoption” and the wording of Article 2(1)

of the Convention which the definition replicates, the adoptions in question could not be

conceived of as other than an “intercountry adoption” under the 2010 Act, and thus as

“128 …Whichever view one takes of the facts of this case, it is clear that here the

children were habitually resident in Country A and were transferred to Ireland

either (i) after their adoption in Country A by Mrs. B, a person habitually resident in

Ireland, or (ii) for the purposes of an adoption in Ireland by Mrs. B. (On the facts it

seems that (i) is the better description of what occurred, but in the event that the

Country A adoption were to be disregarded, (ii) would kick into play and therefore

any subsequent adoption in Ireland would, in my view, still clearly be an

129. Thus to my mind it is an inescapable conclusion that what has occurred in this case

can only be described as an “intercountry adoption” for the purposes of the Act; I

do not believe that any other consideration, such as the passage of time or the

children’s current habitual residence, can change this position. It follows that,

because this is an “intercountry adoption”, as defined in section 3, it cannot be an

“intercountry adoption effected outside the State” as also defined in that section.

Accordingly, I am of the view that no entry in respect thereof can be made under

104. At paras.99-113 and para.135 of his judgment, McKechnie J. expressly disagreed with the

Majority View that in exceptional cases Article 42A of the Constitution, the Explanatory

Report and the Guide to Good Practice could be used as interpretative aids in construing

the extent of the power of the High Court under s.92(1)(a) of the 2010 Act. The reasons

given by the learned McKechnie J. for his disagreement with the Majority View are

105. As observed in the Supreme Court, the present case “from the outset always has been an

intercountry adoption situation: a Hague Convention case”. (McKechnie J. at para. 94)

The principal question which therefore arise for determination is whether, as a matter of

statutory interpretation, s. 92(1)(a) of the 2010 Act imparts what the Majority View in the

Supreme Court described as “a slightly wider power to the High Court than that vested in

the Authority” such that in a “truly exceptional case” the High Court may direct that “an

adoption” be entered on the Register even though it was not made in accordance with the

requirements of the Convention. If the Court does have such a power under s. 92(1),

then the question that arises is whether the applicants have discharged the onus of

satisfying the Court of the exceptionality of their circumstances such that an order

106. The first issue to be determined is the status of the Majority View.

107. It is the applicants’ submission, contrary to the submissions of the Authority and the

Attorney General, that as a matter of law, the majority in the Supreme Court held that

there is a slightly wider power in the High Court under s.92(1) than that of the Authority

under s.90 the exercise of which in respect to non-compliance with the Convention is

compatible with the objects of the Convention and the 2010 Act in “exceptional” cases.

108. The applicants contend that there are several indicia in the judgments of the Supreme

Court which would count against the Majority View being obiter. Counsel submits that the

“actual decision” of the Supreme Court was the answering of the five questions posed in

the Case Stated. That cannot be regarded as obiter, counsel submits, albeit that with

respect to some of the answers, the majority and minority view disagreed as to the

answers which should be given. It is submitted that the answers given to the five

questions are conspicuously the defining manner of the resolution of the issues that were

before the Supreme Court. It is thus for the Court here to find what was necessary and

essential in the Majority View of the Supreme Court as expressed by MacMenamin J.,

109. It is submitted that particular support for the applicants’ position is found in the answers

given by both MacMenamin J. and McKechnie J. to question (a) of the Case Stated. This

question asked whether the Country A adoptions were recognisable in Ireland under Part

8 of the 2010 Act or common law. The applicants submit that it follows that it was

“essential and necessary” in deciding that issue that the Court determine whether or not

the Country A adoption can be entered on the Register by a direction of the High Court

under s. 92. They contend that this is plain from the answer given to the first question by

“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 Central Authority of Country A. Subject to the outcome

of those contacts, are, 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 a then direct the adoption be

110. The answer given to the first question by the minority was: “No, the Country A adoption

111. It is submitted that it is impossible to conclude from these two answers that the question

of a proper interpretation of s. 92 was not “essential and necessary” for the “actual

decision” by the Supreme Court in the Case Stated. Citing Talbot J. (at p. 154) in Flower

v. Ebbw Vale Steel, Iron & Coal Company [1934] 2 KB 132, counsel contends that it is

manifest from the judgment of MacMenamin J. that his “deliberate pronouncements” on s.

92 were “all made expressly as reasons” – in conjunction with other arguments –for the

decision to which the majority came to in respect of the questions posed in the Case

112. The applicants contend that the references in para. 138 of MacMenamin J.’s judgment to

s.92 of the 2010 Act cannot be viewed as ancillary observations. Albeit that question (a)

of the Case Stated was not actually appealed by the Authority, the Authority’s own

written submissions to the Supreme Court proposed s. 92 as an alternative to a domestic

adoption. Thus, the issue of s.92 as a mechanism was before the Supreme Court. It is

thus argued that the Supreme Court, as guardians of the Constitution, had the issue of

s.92 before them in the context of what should happen to the children if a domestic

adoption was not available. Furthermore, what was before the Supreme Court was not an

ordinary lis inter partes but rather a Case Stated. In this context, given that the

individuals whose rights were most affected were not represented, it cannot be that the

fact that the Authority did not appeal question (a) could hamstring the Supreme Court

113. It is acknowledged by counsel that both McKechnie J. and O’Donnell J. described the

Majority View on s. 92 as obiter and that MacMenamin J. may also have thought this

himself. It is the applicants’ contention, however, that MacMenamin J.’s comments on the

114. The applicants further contend that even if the Majority View’s comments regarding s.92

are obiter the Court should express its view on Majority View. It is submitted that

whatever way the views of the majority of the Supreme Court are to be interpreted, they

must of necessity carry great significance and weight. Accordingly, the Court cannot be

uninfluenced by the Majority View on s. 92 even when considering the matter afresh.

Counsel contends that even if their judgments in this regard are obiter, they constitute at

the very least the sort of “considered ancillary observations” which “have been accepted

subsequently as anticipating developments in the law and expressing principals of value”.

(per Clarke J. in M. v. Minister for Justice, Equality & Law Reform at para. [2018] IESC

115. It is the submission of both the Authority and the Attorney General that the views

expressed in the judgments of the Supreme Court as to how s.92 is to be interpreted are

116. Counsel for the Attorney General submits that it is important to note that it was only in

the context of the five questions in the Case Stated that the Attorney General made

117. Counsel places emphasis on the fact that there was no appeal to the Supreme Court on

the answer given by the High Court to question (a) of the Case Stated. Nor was the

Supreme Court asked to rephrase the questions in the Case Stated. The Authority’s

notice of appeal referred to the mandatory nature of the Convention, the question of

consent and issues referable to the eligibility for domestic adoptions, with the remaining

grounds of appeal referring to the Authority’s jurisdiction. The notice of appeal did not

refer to either s. 90 or s. 92. Nor was there a reference to those provisions in the

Attorney General’s submissions in the Supreme Court or indeed the applicants’ response

to the appeal. It is accepted however that the Authority’s submissions made reference to

s. 90 and s. 92 in the context of appropriate “next steps” for the applicants.

118. In all the circumstances, therefore, it is the Attorney General’s position that the

interpretation of s. 90 and s. 92 was not teased out by the Supreme Court.

119. Albeit that MacMenamin J. went on to consider ss. 90 and 92 of the 2010 Act there was

no analysis by him as to why those provisions had a bearing on questions (b) and (d) of

the Case Stated. Moreover, his pronouncement in para. 81 would suggest that he had

120. It is the Attorney General’s contention that ss. 90 and 92 do not have any bearing on

questions (b) and (d) of the Case Stated. Those questions as framed were solely in the

context as to whether the Authority had jurisdiction to make an adoption order. There

were no properly framed questions before the High Court or the Supreme Court as to how

the children’s position was to be regularised by the application of Irish law. As a further

basis for the submission that the comments of the Supreme Court with regard to s. 92

were obiter, counsel for the Authority referred the Court to the judgment of Simons J. in

121. It is common case that both the majority and minority judgments of the Supreme Court

engaged at length with the merits and demerits of the competing views of s. 92.

122. Although there are references in three of the judgments to the subject matter of the

disagreement between the majority and minority being obiter, that is not determinative

for this Court as to whether the observations made on s.92 are in truth obiter. As per

Clarke J.in M. v. Minister for Justice, Equality & Law Reform [2018] IESC 14, “it is for later

courts to determine what portion of the judgment meets [the test of being] essential and

necessary for the actual decision in the case”. (at para. 10.24.)

123. Bearing in mind the legal test, it is my view, from a consideration of the issues that were

before the Supreme Court, and the judgments delivered by the Court, that a number of

factors lead to the conclusion that the views expressed both by the majority and the

124. Albeit that it was not the decisive factor having regard to the test set out in M. v. Minister

for Justice, I note the Supreme Court itself opined that its comments on s. 92 were obiter.

“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.”

125. At para. 86 of his judgment, there is further recognition on MacMenamin J.’s part that his

“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

126. In aid of his submission that the Majority View was not obiter, counsel for the applicants

asked the Court to note in particular the words “to an extent” and “to a degree” as appear

in para. 86. I do not find, however, that those qualifications are sufficient to transform

MacMenamin J.’s comments on s.92 into part of the ratio of the decision of the Supreme

Court. This is in light of the learned judge’s acknowledgement that his observations as to

the interpretation and application of ss. 90 and 92 of the 2010 Act “go beyond the issues

127. I agree with the submission of counsel for the Authority that if MacMenamin J. intended

his remarks on s. 92 to be binding he would have said so. I also note that Dunne and

O’Malley J.J. (who agreed with MacMenamin J. on the remit of s. 92) did not demur in

relation to MacMenamin J.’s comments that his views on s. 90 and s. 92 were obiter.

128. It is also of note that McKechnie J. (writing for the minority) stated that there was no

substantive legal argument before the Supreme Court on the meaning of s. 92. He

“Even though the discussions had on sections 90 and 92 is rightfully said by

MacMenamin J. to be obiter (para. 86), a view with which I fully concur, given that

no submissions were made on these provisions, nonetheless I feel I should make

some observations on the issue, if only to contribute to the ensuing debate.”

129. Moreover, O’Donnell J., in the course of his judgment, observed that “all members of the

Supreme Court agreed on the answers on the questions posed in the Case Stated” and

noted that the divergence in the Court centred on the “residual” issue of s.92, the

discussion of which, he noted, was accepted by all to be obiter. (at para. 2)

130. A more fundamental issue to which this Court has regard is that none of the questions in

(a) Whether the Country A adoption was recognisable under Part 8 of the 2010 Act,

which all of the members of the Supreme Court effectively held should be answered

in in the negative, given the non-compliance with the Convention. While I note that

the answer given by the majority of the Supreme Court to question (a) was framed

solely in terms of options that may be available by way of retrospective compliance

with the Convention, or alternatively an application under s. 92, that does not, to

my mind, detract from the fact that all members of the Supreme Court agreed that

the adoptions were not recognisable under Part 8 of the 2010 Act. Moreover, in the

answer given by the majority to question (a) of the Case Stated, I note that it was

for the High Court, if satisfied “on the evidence, and the law”, (emphasis added) to

direct the Authority to enter the adoptions on the Register. (See MacMenamin J. at

para.138) To my mind, this is further evidence that the majority considered their

(b) Whether on the facts disclosed the Authority had jurisdiction to make an adoption

order in respect of the children, a question which the members of the Supreme

survived the passing of the 2010 Act, a question also answered by the Supreme

(d) Whether, on the basis of a continuing common law jurisdiction and on the basis

that of the facts disclosed in the Case Stated, and assuming that the Country A

adoption was not recognised in Ireland, the original status of the children remained,

a question also answered in the negative by the Supreme Court; and

(e) Whether the children could be the subject of a domestic adoption based on their

habitual residence in this jurisdiction at the time of the applicants’ application to the

Authority, which the Supreme Court in the various judgments also answered in the

negative on the basis that at the critical time the children’s’ situation was captured

by the Convention and thus the Convention and the 2010 Act could not be

circumvented on the basis of any habitual residence established after they came

133. I acknowledge the references to s. 92 of the 2010 Act as appear in the answers given by

MacMenamin J. to question (a), (b), (d) and (e). Indeed, I note that in his answer to

question (e), MacMenamin J. describes the “main issue” in the Case Stated as “whether

an order may be made under s.92(1) of the Act by the High Court”. However,

notwithstanding the manner in which the answers given by the Majority are framed, to

my mind, a consideration of s. 92 of the 2010 Act was neither “essential” nor “necessary”

in order to answer the questions posed in the Case Stated. Accordingly, for the reasons

set out above, I find that the views expressed by the majority on s.92 are obiter.

134. I turn now to the critical issue in this case-whether the High Court is vested under

s.92(1) of the Act with jurisdiction to direct the Authority to enter the within adoptions on

the Register in circumstances such as present in this case. As envisaged by both the

Majority and Minority Views, this issue necessitates, inter alia, a consideration of

s.92(1)(a) and other provisions of the 2010 Act. In effect, this Court must address what

s. 92(1)(a) “properly means” (as opined by McKechnie J. writing for the minority in the

135. The 2010 Act is a piece of remedial social legislation; therefore, it can be interpreted

purposefully, in the manner described by McGuinness J. in NWHB v. An Bord Uchtála

“It is clear that the Act of 1998 is a remedial, social statute designed to permit the

adoption of children who had previously been denied the benefits of adoption. A

purposive approach should be applied to the interpretation of such a statute”.

136. In G. v. An Bord Uchtála [1980] I.R. 32, O’Higgins C.J. held that “the purpose of these

[Adoption] Acts that give to these children the opportunity to become members of a

family would have the status and protection which such membership entails.”

137. Thus, the 2010 Act falls to be interpreted, in the words of Walsh J. in Bank of Ireland v.

Purcell [1989] I.R. 327, “as widely and liberally as can be fairly be done.”

138. This Court also understands that it was the Attorney General’s submission to the Supreme

Court in the Case Stated that the 2010 Act is a socially remedial statute that should be

139. At para. 84 of his judgment in the Case Stated, MacMenamin J. opined that “a court may

legitimately adopt a flexible approach in a remedial statute such as [the 2010 Act].

However, he also stated: “even a court may only do so within the scope of the Act, as set

out in the long title.” The long title to the 2010 Act states, inter alia, that it is an Act “to

provide for matters relating to the adoption of children”, “to give the force of law to [The

Hague Convention]” and “to provide for the recognition of certain adoptions effected

140. Prior to being addressed by the Majority and Minority Views in the Case Stated, s.92(1)(a)

had already been the subject of judicial interpretative comment. In M.O’C v. Udarás

Uchtála Na hEireann [2014] IEHC 580, Abbott J., speaking of s. 92(1), referred to “the

less defined wording of the power of the High Court to enter a name on the Register on

Intercountry Adoptions”. He stated that from the Convention itself and from the

Explanatory Report to the Convention, it was “clear that in relation to ensuring the broad

objectives and fundamental principles of the Convention, co-operation and flexibility may

be required”. He concluded that “the more open-wording of the provision relating to the

power of the High Court to enter a name on the Register more fitting to allow for these

possibilities so as to allow the High Court to be a second guarantor of the interests of the

child and the proper administration of the Act in relation to intercountry adoptions, which

the general, standard, automatic registrations effected the Authority would not

141. In J.M. v. The Adoption Authority of Ireland [2017] IEHC 320, Reynolds J. noted the

findings of Abbott J. in M.O’C. and concluded that they were not applicable because M.O’C

142. J.M. arose out of an application by the applicant (J.M.) and his wife to the Authority to

enter an adoption in the Register of an adoption effected in a third country which was

signatory to Convention at the time of the adoption. The application was refused

recognition by the Authority on the basis that it was not compliant with Convention and

“The final issue for the Court to determine is whether or not the adoption is

substantially compliant with The Hague Convention such that would afford the

Court some degree of flexibility or discretion to direct the registration pursuant to

Section 92 of the Act. The wording of the 2010 Act is unclear as to whether the

powers of the Court under Section 92 are broader than the powers of the Authority

under Section 90. The respondent contends that Section 92 could not be

interpreted so as to confer a power to dispense with The Hague Convention

In the case of (MO’C and BO’C v. Udaras Uchtála na hEireann [2014] IEHC 580,

also known as the Mexico case, Unreported 30 May 2014), Abbott J. made an order

under Section 92 in relation to an adoption that did not comply with all the

necessary of The Hague Convention. This decision related to an adoption in Mexico

where the adopters had engaged with the Authority and had received the

appropriate declaration of eligibility and suitability before travelling to Mexico to

adopt a child. The child was placed with the adopters prior to 1st November 2010

but the adoption was not legalised until some months later when the law had

changed and The Hague Convention had been adopted into Irish law.

In determining the issue, Abbott J. concluded that some flexibility could be adopted

with a view to addressing technical issues but only if the adoption sought to be

recognised fulfilled the broad objectives and fundamental principles of the

Abbott J. directed the registration of the adoption under Section 92 on the basis of

vested rights under the law as it was before adoption of The Hague Convention and

in circumstances where the applicants had compiled in all respects with the

requirements of a foreign adoption and had secured a declaration of eligibility and

The approach adopted by Abbott J. recognised that some flexibility could be

adopted by the Court in situations where the requirements of The Hague

Convention are broadly met. However, clearly the facts of that case must be

distinguished from the facts in the instant case in circumstances where the

applicants had no prior engagement with the Authority and where no declaration of

eligibility and suitability had been obtained. In the circumstances, it is simple

untenable to suggest that the broad requirements of The Hague Convention have

been met or indeed that the Court could properly direct the registration pursuant to

The applicant’s tenacity in pursuing this application is to be commended but for the

144. While MacMenamin J. in his comments in the Majority View distinguished the facts of J.M.

from those then known to the Supreme Court regarding the present situation, he took the

view that certain statements of the judgment of Abbott J. in M.O.C. “cast the net far too

145. Before embarking on an analysis of the meaning of s. 92(1) there are some general

observations that can be made regarding the Convention and the statutory scheme for

the making of adoption orders (including intercountry adoptions) and the entry of

146. Section 9 of the 2010 Act provides that “The Hague Convention has the force of law in

the State”. Article 2(1) of the Convention is unequivocal in that the Convention must

“The Convention shall 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

for the purposes of such adoption in the receiving State or in the State of origin.”

147. The Convention reflects best practice in the area of intercountry adoptions.

148. I do not consider it necessary to recite the relevant Articles of the Convention such as

applied to the within adoptions. I have already cited McKechnie J. in this regard. I also

149. As regards the 2010 Act and entries of intercountry adoptions onto the Register, the first

thing to be observed is that it is the Authority who records such entries. To the degree

that the High Court (whatever the extent of its powers) grants relief under s. 92 it is in

the form of a direction to the Authority to make an adoption order or not, or to make an

entry in the Register or not, or to make such amendment as may be required.

150. The legislature has designated the Authority as an entity with specialist knowledge and

expertise to carry out the functions created by the 2010 Act in the context of adoptions

and intercountry adoptions, with the High Court carrying out a designated statutory role.

There is no jurisdiction vested in the High Court itself to make an adoption order or to

make an entry in the Register. In both cases, it must direct the Authority to do so.

151. It is trite law to state that as a creature of statute conferred with express powers the

Authority cannot operate beyond the provisions of 2010 Act. The central question posed

in the present application is whether there exists a greater discretion vested in the High

Court when called upon, in the context of an application under s. 92, to direct that an

entry be made in the Register where the Authority itself is not enabled to make such an

The submission of the Authority and the Attorney General on the meaning of ss.90

152. In their submissions in the present case, the Authority and the Attorney General both

agree that there is some jurisdiction in the High Court under s.92(1) beyond that

conferred on the Authority under s.90. There is however a difference in emphasis on their

part. The Authority accepts that there is case law support for the proposition that s. 92(1)

confers a slightly wider jurisdiction on the High Court than that conferred on the Authority

153. In the view of the Authority, this power is confined to technical or minor substantive non-

compliance with the Convention which the Authority itself cannot excuse, such as for

example using s. 92 for a breach of time deadlines or confined to a minor breach of a

substantive matter. It endorses the view of Reynolds J. that the power under s. 92(1) is

one which can be utilised where “technical issues” arise but where “the broad

requirements of The Hague Convention have been met”. Counsel submits that it is for

the Court to say whether the level of non-compliance in the present case was significant

or whether it was more the nature of a technical or minor breach. The Authority’s primary

submission is that the Oireachtas could not have intended that s. 92 would be used the

circumvent the Convention or excuse major non-compliance with it. Albeit that any

finding as to the nature of the breach in the present case is for the Court, it is the

Authority’s submission that the non-compliance as occurred here does not come within

the realm of a technical or minor breach or a minor substantive breach.

154. Regarding the Authority’s position, counsel for the applicants contends that there is

nothing in the 2010 Act regarding non-compliance, be it technical or minor substantive

155. The distinction drawn by the Authority between technical/minor substantive non-

compliance and major non-compliance crystallises the difference between the Authority’s

and the Attorney General’s respective positions. The Attorney General’s position is that

s.92 does not admit of any degree of non-compliance with the substance of the

Convention. It is contended by the Attorney General that insofar as non-compliance can

be excused it can only relate to the process in the State domestically and not any non-

compliance with the Convention. The Attorney General’s position is that the Convention

itself has no wriggle room or escape clause. I will return to the above arguments in due

156. The CFA’s submission is that s.92(1) admits of a slightly wider power than that vested in

the Authority. As support for this contention, counsel points to the wording of s.92(1)

which refers only to "adoption" and "the register of inter-country adoptions".

157. With reference to the actual text of s. 92(1), the Attorney General’s position can be

summarised as follows. There is nothing expressly set out in s.92(1) to suggest that the

High Court has a jurisdiction over and above that which is vested in the Authority under

s.90 in respect of entries on the Register. It is submitted that had there been such intent

on the part of the Oireachtas to confer such jurisdiction, either expressly or by

implication, same would have been made subject to conditions set out s.91(1), which has

not been done. By way of comparison, counsel points to the provisions of s. 92(2) and

(3) where conditions attach to the powers given to the High Court. With regard to s.

92(1) there are no conditions put in place to explain the basis upon which the High Court

might exercise any residual jurisdiction. It is submitted that the silence in this regard

suggests that it was not intended that the High Court would have any implied jurisdictions

158. It is thus submitted that the jurisdiction vested in the High Court can be no greater than

that contained in the Act, without an express provision to that effect.

159. It is also contended on the part of the Attorney General that for the purpose of

understanding the parameters of ss. 90 and 91 of the 2010 Act, it is necessary to have

regard to the provisions of s.57(1) and (2) of the 2010 Act, in particular s.57(2)(b)(i) and

“(1) In this section, “competent authority” includes a person serving in another state in

the capacity of a competent authority for the purposes of an intercountry adoption

(2) Subject to subsections (3) and (4), an intercountry adoption effected outside the

(i) is an adoption that, at that time, conformed to the definition of

“foreign adoption” in section 1 of the Adoption Act 1991, and

(ii) has been certified under a certificate issued by the competent

(b) if effected on or after the establishment day, has been certified under a

certificate issued by the competent authority of the state of the adoption—

(i) in the case of an adoption referred to in paragraph (b) of the

definition of “intercountry adoption effected outside the State” in

(ii) in any other case, as having been effected in accordance with

unless contrary to public policy, is hereby recognised, and is deemed to have been

effected by a valid adoption order made on the later of the following:

(II) the date on which, under section 90, the Authority enters particulars of the

161. As can be seen, for the purpose of s.57(2) of the Act and the power of the Authority to

give recognition to intercountry adoptions effected outside the State, adoptions comprise

three categories. First are what can be called “legacy adoptions” which predate the

establishment day of the 2010 Act, and which must conform with the legal definition of a

foreign adoption under the 1991 Act. (Section 57(2)(a)) It is accepted that s. 57(2)(a)

has no applicability to the present case given that the adoptions were made after the

162. The second category of recognisable adoptions are those effected on or after the

establishment day which, as per s.57(2)(b)(i) of the 2010 Act, occur in another country

and which must also conform with the 1991 Act definition of “foreign adoption” and which

relate to situations where the adopting parties were habitually resident in that country at

the time of the adoption and where the adoption was made in accordance with the law of

that country. The definition of this category is achieved by identifying what it is not,

which is to say that it is not an adoption covered by the definition of “intercountry

adoption”. An “intercountry adoption” is defined in s. 3 of the 2010 Act by reference to

the fact that the child and the adopting parents habitually reside in different countries.

163. The third category of recognisable adoptions are those under s.57(2)(b)(ii), namely

Hague Convention compliant adoptions or adoptions explicitly provided for in the Act such

as those based on a bilateral agreement or with reference to a specific child as provided

for in s. 81 – to which Hague Convention standards must also apply.

164. Counsel for the Attorney General submits that for the purposes of the Court making an

order under s. 92(1)(a), the applicants must establish that the adoptions in question

come within s. 57(2)(b)(i) or (ii) of the 2010 Act. He states that s. 57(2)(b)(i) can be

excluded from consideration as it is not suggested that the second applicant was

165. Section 57(2)(b)(ii) provides that in order for the adoptions in the present case to be

recognised they must be in accordance with the Convention or the bilateral agreement or

an arrangement referred to in s. 81 of the 2010 Act. As Country A is a contracting State

for Hague Convention purposes, the bilateral agreement or the s. 81 arrangement cannot

apply here. Again, all concerned acknowledge that the applicants cannot satisfy s.

57(2)(b)(ii) as the adoptions did not comply with the Convention requirements. Counsel

thus submits that in the absence of the applicants being able to satisfy the requirements

of s. 57(2)(b)(i) or (ii) of the 2010 Act, the relief under s.92(1)(a) is not open to them.

166. The Attorney General’s principal argument is that there is no power to dispense with the

requirements of s. 57 of the Act, whether on the part of the Authority or on the part of

the High Court. It is the Attorney’s contention that a plain reading of the provisions of ss.

167. Certain provisions of s. 90 of the 2010 Act are crucial to the position being adopted by the

Attorney General as to how s.92(1)(a) is to be interpreted. Section 90(3) and (4) provide:

“(3) The following persons may apply to the Authority to enter particulars of an

intercountry adoption effected outside the State in the register of intercountry

(4) Not later than 3 months after the date when a child first enters the State after his

or her intercountry adoption in another state by parents habitually resident in the

State, the adopters shall ensure that an application to the Authority is made under

subsection (3) to enter particulars of the adoption in the register of intercountry

168. It is contended by the Attorney General that s. 90(3) and s. 92(1) must be read in

conjunction with each other. Section 90(3) identifies the scope of persons who may apply

to register intercountry adoption effected outside the State. Section 92(1) provides that

those persons who are entitled to apply under s. 90(3) may also apply for a direction

from the High Court. As to what s. 92(1) is directed towards, counsel cites, by way of an

example, a circumstance where the adopters do not apply to the Authority within the time

limit provided for in s.90(4) and where the Authority refuses to consider the application.

It is suggested that pursuant to s.92(1)(a), the High Court could in effect extend the time

by directing an entry in the Register, assuming all proofs are in order. Counsel draws a

distinction between major and minor contraventions of the adoption requirements. A

minor contravention could be logistical, such as missing the aforementioned three-month

deadline, in particular if it was unavoidable or inadvertent. It is also suggested that a

further example of a minor contravention in respect of which the High Court could direct

an entry would be if the adopters provided the required information but not in the form

required. A major contravention would be that the adoption itself did not comply with

Hague standards or other requirements under the 2010 Act which, it is submitted, cannot

169. It is further contended that the words “… a person who may make an application to the

Authority under s. 90(3)” as contained in s.92(1) refer to the list or category of persons

who are eligible to make an application under s. 90(3); thus, the words are descriptive

rather than temporal in nature. I note that counsel for the applicants agrees that the

170. It is also submitted on the part of the Attorney General that the words “should be made,

cancelled or corrected” as set out in s. 92(1) suggests that the import s. 92(1) is that it

encompasses a supervisory jurisdiction in the High Court over the Authority and the

jurisdiction of the High Court as against that of the Authority. It is contended that the

High Court jurisdiction in s.92(1) is “supervisory” and that such jurisdiction is not “extra-

171. Counsel contends that the supervisory jurisdiction of the High Court is underscored by the

provisions of s. 92(2) and (3) such that in the event that the Authority was directed to

procure the cancellation of the entry in the Register, the High Court could in the exercise

of an express statutory power make necessary provision in the best interest of the child

172. Based on the contention that the range of persons who may apply under s. 92(1) are the

persons listed in s. 90(3), it is the further contention of the Attorney General that the

power of the High Court under s. 92(1) is to direct the entry on the Register of an

“intercountry adoption effected outside the State”. It is submitted this is what a cohesive

173. Counsel points to s. 20(2) of the 2010 Act which provides that the Authority is

empowered to make an adoption order for a child who has been “adopted in an

intercountry adoption effected outside the State” and that once satisfied as to the

relevant certification from the State of adoption the Authority may recognise such

adoption and register same. Thus the Authority’s power to recognise an intercountry

adoption is confined only to intercountry adoptions effected outside the State. It is

argued that the list of persons who may apply to the Authority under s. 90(3) to enter

particulars on the Register is inextricably tied to an application based on an “intercountry

174. It is submitted that it is of significance that the High Court’s power to entertain an

application to direct the Authority to make an entry on the Register pursuant to s. 92(1)

is by reference back to the list of persons in s. 90(3). Counsel suggests that reference to

the range of persons who may apply under s. 92(1) must refer to the list or category of

175. The Attorney General’s contention is that the necessary implication of this is that no such

application to the High Court pursuant to s.92(1) is available to that list of persons if

176. He asserts that in order for the applicants to avail of the jurisdiction of the High Court

under s. 92(1) to direct the Authority to make an entry in the Register, the adoptions

must first of all come within the classification to which s. 90(3) relates.

177. In further support of his argument that the powers of the Authority and High Court are

coterminous, counsel refers to s. 90(7) and (8) of the 2010 Act. With regard to s. 90(7)

(which empowers the Authority to enter an intercountry adoption effected outside the

State on the Register once satisfied that it complies with the 2010 Act), counsel posits

that the need for the power vested in the High Court under s. 92(1) could be if for

example the Authority was not satisfied to direct an entry into the Register. Thus a

person dissatisfied with that decision may seek an order from the High Court under s.

92(1) directing the Authority to enter the adoption on the Register.

178. It is thus contended that the power of the High Court under s. 92 is a corrective/advisory

jurisdiction and is not a broader/wider power than that of the Authority. It is

acknowledged that the description of the High Court’s powers as suggested by the

Attorney General are more akin to an appeal jurisdiction, which is not provided for in the

179. The applicants’ position can be summarised as follows: they acknowledge that there is an

interpretative question for the Court to answer with regard to s.92. It is accepted that

s.92 is not so self-explanatory and obvious that it alleviates the necessity for

interpretation of the section. They urge the Court to adopt the Majority View of the

Supreme Court as to how s.92(1)(a) is to be interpreted. They contend that the High

Court’s remit under s.92(1) is not just to duplicate or mirror the powers of the Authority

180. They also argue that the jurisdiction conferred on the Court under s.92(1) is not an

appellate one. Nor is it there to correct the Authority in circumstances where judicial

review would be the more appropriate remedy. They further submit that insofar as the

Attorney General concedes a wider jurisdiction for the High Court under s.92(1) than that

afforded to the Authority under s.90 but argues that such jurisdiction is confined to

instances of minor non-compliance in respect of procedural matters in the 2010 Act, that

approach creates its own difficulties. Counsel for the applicants poses the question as to

where does one draw the line between major and minor non-compliance?

181. While the Attorney General places much emphasis on the language used in s.92(1) as to

who may apply under the subsection, it is the applicants’ contention that the reference in

s.92(1) to the list of persons who can apply under s.90(3) is there only to circumscribe

the list of people who may apply under s.92(1). Clearly, the applicants fall within the

range of persons permitted to make such an application. Counsel argues that there is no

requirement under s.92(1) that the applicants also be people who are applying to the

Authority to register an inter-country adoption effected outside the State.

182. Notably, the phrase “an intercountry adoption effected outside the State” is not used in

either s. 92(1) or s. 92(2) of the 2010 Act. This is in contrast to its repeated use in s. 90

and in s. 92(5). Counsel for the applicants also point out that ss. 92(1) and 92(2) speak

only of “an adoption” rather than “intercountry adoption effected outside the State”, an

observation also made by MacMeniman J. in the Majority View. It is thus submitted on

behalf of the applicants that, in effect, s. 92(1) allows for a foreign adoption as defined by

the Adoption Act, 1991 to be entered on the Register on the direction of the High Court.

183. Counsel contends that the reason for and legal significance of the omission of the phrase

“an intercountry adoption effected outside the State” from s. 92(1) is neither clear nor

obvious. It requires an exercise in statutory interpretation. Such an exercise has been

carried out, with divergent outcomes, by the learned judges of the Supreme Court. The

Majority View is that there is a slightly wider power granted to the High Court under s.

92(1) than is granted to the Authority under s. 90. It is argued that no similar power to

that granted to the High Court under s. 92(1) has been granted to the Authority under

184. In aid of his submission as to the wider remit given to the High Court under s.92 as

opposed to that of the Authority under s. 90, counsel points to s. 92(2) which provides

that the High Court (in the best interests of the children) has the power to leave on the

Importantly, this is a wide power which the Authority does not have.

185. The applicants dispute the Attorney General’s assertion that in order for the within

adoptions to be able to be entered on the Register they must conform to s.57(2)(b)(i) or

(ii) of the 2010 Act. It is not the applicants’ case in the within proceedings that the

adoptions fall within the definition of an inter-country adoption effected outside the State.

If the adoptions fell within s.57(2)(b) (i) or (ii), then there would be no need for an

application under s.92(1); the applicants would merely have to apply to the Authority

186. With regard to the provisions of s.90(8) of the 2010 Act, counsel urges the Court not to

accept the view expressed by McKechnie J. in the Supreme Court, and submits that if ss.

92(1) and 90(8) are to be read “as opposite sides of the same coin” then the question

must be asked as to why the High Court was given a power at all under s. 92(1)?

187. It is submitted that the three paragraphs in s. 92(1) conferring powers on the High Court

cannot be read as merely correlative (or mirror provisions) to the subsections which

confer duties on the Authority or otherwise qualify the powers of the Authority as set out

in ss. 90(8), 90(11) and 92(5) of the 2010 Act. The applicants contend that that if s.

92(1) was intended to be merely a correlative provision then one would expect to find a

related provision in s. 90 expressly authorising or requiring the Authority to cancel an

entry on the Register. However, no such provision exists save as directed by the High

188. Counsel queries the point of s.92(1) of the 2010 Act if not to permit scope for the

Authority to be directed by the High Court to register the adoptions in issue here in the

particular exceptional circumstances in which the applicants find themselves.

189. With regard to the statutory provisions in issue in this case, in the first instance, I agree

with counsel for the applicants’ submission that a plain reading of s. 90(3) and s.92(1) of

the 2010 Act does not lend support to the Attorney General’s argument that an applicant

under s.92(1) has to establish that the adoption in respect of which the application is

made is an “intercountry adoption effected outside the State”. What s.90(3) does is to

identify the persons entitled to apply to the Authority seeking the exercise by the

Authority of its powers under s.90(7). Insofar as s.92(1) refers to s.90(3), to my mind it

does so for the purpose only of identifying the range of persons who may make an

application to the High Court under s.92(1). I do not find, therefore, a basis solely upon a

comparison of s.90(3) and s.92(1) by which it can be concluded that the powers of the

Authority and the High Court regarding entries on the Register are coterminous.

190. I turn now to a comparison of provisions of s.90(7) and (8) with s.92(1).

191. In the Supreme Court’s judgment in the Case Stated, McKechnie J. (the Minority View)

opined (at para. 125) that s.92(1) and s.90(8) of the 2010 Act must be read together.

This is also the submission of the Attorney General in the present proceedings.

192. It seems to me that the basic premise of the learned McKechnie J.’s analysis (his being

satisfied that the adoptions in issue were “intercountry adoptions”) is that as s.92(1)(a)

and s.90(8) are “opposite sides of the same coin” the power of the High Court under

s.92(1)(a) is restricted to what is prescribed in s.90(8) of the 2010 Act, namely that the

High Court is vested with the power to direct the Authority with regard to an entry in the

McKechnie J. found could not be satisfied in this case given his finding that the adoptions

in issue conformed to the definition of “intercountry adoptions”.

193. I do not believe, however, that the fact that McKechnie J. classified the adoptions in issue

here as “intercountry adoptions” or that he identified the scope of s. 90(8) as confined to

the High Court directing the Authority to register a specified intercountry adoption

effected outside the State necessarily defines the scope of s.92(1) of the 2010 Act.

Clearly, s.90(8) has to be read in light of s.90(7), the section which empowers the

Authority to register intercountry adoptions effected outside the State.

194. The Authority has an express statutory obligation under s. 90(7) to enter on the Register

“an intercountry adoption effected outside the State”, once satisfied that it complies with

the requirements of the 2010 Act. To my mind, the direction provided for in s.90(8)

harkens back to the Authority’s statutory power as set out in s.90(7).

195. Thus, the rationale for the High Court to have a power under s. 92(1)(a) to direct the

making of an entry on the Register in respect of “an adoption” would be unclear, and the

power redundant, if that power was confined to directing the entry of only an intercountry

adoption effected outside the State made with full compliance with the Act. To my mind,

counsel for the applicants’ query as why there would be a need for such a power in the

High Court when such power exists within the Authority is well made. The 2010 Act

provides that if the requirements of s. 90(7) are satisfied then the Authority is already

obliged to make the entry before and without any direction from the High Court.

196. I agree with the interpretation put on s.90(8) by MacMenamin J., namely that s.90(8)

may refer to a specified intercountry adoption 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

2010 Act. I will return to such further meaning as s.90(8) may have in due course.

197. To my mind, the salient element of the remit of the powers of the High Court under

s.92(1), compared to those of the Authority under s.90, has to be the manner in which

the provision is framed. As observed by MacMenamin J., s.92 is found in a different

chapter of Part 10 of the 2010 Act to that which provides for the Authority’s power to

make entries on the Register. Unlike s. 90(8), s.92(1) does not make reference to

“intercountry adoptions effected outside the State”. As was the case with MacMenamin J.,

I accept that were s.92(1) to refer only to “intercountry adoptions effected outside the

State” its scope would be much more narrow. However, s.92(1) refers only to an entry of

“an adoption” in the “register of intercountry adoptions”.

198. The phrase “intercountry adoption effected outside the State” is a somewhat cumbersome

one. Counsel for the applicants submits that its use wherever it appears in the 2010 Act is

clearly deliberate. I find merit in the applicants’ submission in this regard. In my view, in

circumstances where the 2010 Act is replete with references to the phrase “intercountry

adoption effected outside the State”, where this phrase is omitted in the 2010 Act, or a

different phrase is used, that has to be plainly construed as the deliberate intent of the

legislation. I also consider it noteworthy that the powers of the High Court under s.92(1)

equate to those which the Court had under s.7(1) of the 1991 Act. I note that the

Oireachtas did not see fit to alter the provisions of s.92(1) in any way consequent on

199. At para. 111 of his judgment (already quoted herein), MacMenamin J. found support for

the slightly wider power of the High Court regarding entries in the Register than that

vested in the Authority by looking to s.92(2) and (3) of the 2010 Act. He noted the

reference therein that any directions given by the High Court must have regard to the

best interests of the adopted person. While I note that McKechnie J. found no basis in

ss.92(2) or (3) to support a freestanding power in the High Court under s.92(1) to direct

an entry in the Register, and found the omission of any reference to best interests in

s.92(1) “highly surprising”, I nevertheless agree with the observations of the learned

200. In Part 4 of the 2010 Act, entitled “Domestic Adoptions and Intercountry Adoptions”, s.

19(1) provides that in “any matter, application or proceeding” under the 2010 Act “the

Authority or the court, as the case may be, shall regard the best interests of the child as

the paramount consideration in the resolution of such matter application or proceedings”.

Section 19(2) sets out the relevant factors or circumstances to be considered, including,

inter alia, “the child’s views on his or her proposed adoption”. Noting that s. 19 is

applicable to any order the High Court might make under s.92(1)(a), I do not regard the

observation of the learned McKechnie J. with regard to the omission of “best interests”

from s.92(1) as a necessarily persuasive factor when construing the breadth of the

201. I also adopt the view of the learned MacMenamin J. as expressed in para. 111 of his

judgment in relation to s.92(5) of the 2010 Act. Section 92(5) provides that if the High

Court refuses to give a direction under s. 92(1)(a), or gives a direction under s.92(1)(b),

the intercountry adoption effected outside the State shall not be recognised under the

Act. The learned judge opined that this did not prevent an order being made under

s.92(1)(a) “in the event 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’”. To my mind, from the interpretation perspective, the learned judge’s conclusion

in this regard logically follows from his observation that s. 92(1) of the 2010 Act speaks

only of “an adoption” and not “an intercountry adoption effected outside the State”.

202. I also accept the applicants’ submission that if the Oireachtas intended merely to grant

applicants a right of appeal under s.92(1) against the Authority where “an intercountry

adoption effected outside the State” should have been registered by the Authority under

s. 90(7) but it erroneously fails to do so, then that would have expressly been set out.

However, s. 92(1) is not framed as a power of appeal from a failure by the Authority to

satisfy its obligation under s. 90(7); it is formulated as a stand-alone power to direct an

entry on the Register – and one which makes no mention of “an intercountry adoption

effected outside the State” but speaks rather of “an adoption”.

203. Moreover, I am also satisfied that the purpose of s.92(1)(a) cannot be for the purpose of

corrections since s.92(1)(c) expressly provides the High Court with such power.

204. I now turn to the view expressed by MacMenamin J. (at para. 110 of his judgment) that if

the requirements of a “foreign adoption” as defined in s.1 of the 1991 Act were found to

complied with as regards the adoptions in issue here, the children are prima facie eligible

205. Counsel for the Attorney General contends that the learned judge’s view in this regard

was based on an incomplete assessment of the relevant provisions of the 2010 Act.

206. A “foreign adoption” as defined in s.1 of the 1991 Act means an adoption where the child

is under eighteen and the adoption is in accordance with the laws of the place where it is

effected in relation to which a number of conditions are required to be satisfied, as set out

in the definition. All of the proofs therein contained are mandatory. It is the Attorney

General’s submission that the sine qua non, according to the requirements under s.

57(2)(b)(i) of the 2010 Act, is that as well as each of the requirements of the definition of

“foreign adoption” having to be complied with, it must also be established that the

adopter or adopters were habitually resident in the State granting the adoption at the

time the adoption order was made, that the adoption order accorded with the law of that

State and that that State certifies the adopters’ habitual residence. As acknowledged, the

applicants cannot satisfy the requirements of s.57(2)(b)(i) as the second applicant was

not habitually resident in Country A at the time of the adoptions. Accordingly, the

Attorney General’s position is that the applicants cannot rely on the concept of “foreign

adoption” as defined in s. 1 of the 1991 Act without also satisfying the habitual residence

requirement of s.57(2)(b)(i), which they cannot satisfy. Counsel submits that there is no

power either in the Authority or the High Court to dispense with the requirements of s.

57(2) of the 2010 Act. In essence, it is contended on behalf of the Attorney General that,

in the absence of the applicants being able to satisfy the habitual residence requirement

of s. 57(2)(b)(i), MacMenamin J.’s conclusion that the children are prima facie eligible to

be made the subject of an order under s.92 if the adoptions conform to the definition of

“foreign adoption” as it stood in 1991 cannot be considered as a correct interpretation of

207. I accept counsel for the Attorney General’s submissions on this issue insofar as they

relate to the power of the Authority under s.57(2) to recognise intercountry adoptions

effected outside the State. It is clear from a reading s.57(2)(b)(i), in conjunction with s.

20(2), s. 90(7) and s.90(8) of the 2010 Act, that the Authority cannot recognise or enter

on the Register the particular intercountry adoption effected outside the State which

s.57(2)(b)(i) provides for unless all of the requirements of the latter subsection are met,

208. Do these strictures necessarily prevent the High Court (on the assumption, for the

purposes of the present argument, that the adoptions in issue here come within the

definition of s.1 of the 1991 Act) from making an order under s.92(1)(a)? In my view this

question has to be answered in the negative. To my mind, the Attorney General’s

argument is predicated on the High Court’s power under s.92(1)(a) being coterminous

with the powers of the Authority under s. 90. This Court, for the reasons already stated,

has found this not to be the case. Accordingly, from a perusal of the relevant provisions, I

do not find, on a plain reading of the Act, the type of interaction between s.92(1) and

s.57(2) of the 2010 Act as contended for by the Attorney General in his submissions.

209. I am satisfied that a plain reading of the relevant provisions of ss.90 and 92 do not

suggest that the power granted to the High Court in s.92(1)(a) is coterminous with the

powers of the Authority under s.90 (3), (7) or (8) and/or s.57(2), or that the power of the

High Court under s.92(1) is otherwise curtailed or constrained by those provisions.

210. I am also of the view that the learned MacMenamin J.’s reliance on the concept of a

“foreign adoption” as it read on 30th May, 1991 does not equate to a finding by the

learned judge that the definition of “intercountry adoption effected outside the State” is

made out in this case. If an “intercountry adoption effected outside the State” was made

out, then there would be no need to consider, for the purposes of this case, whether there

was a wider power in the High Court under s.92 than that vested in the Authority as the

applicants could apply to the Authority for recognition and registration of the adoptions,

or in the event of a refusal of recognition concerning a specified intercountry adoption

effected outside the state, invoke s.92(1) for the High Court to direct the Authority to

enter the adoptions on the Register in accordance with the Authority’s obligation to do so

211. If the High Court so directs, then the Authority must enter the intercountry adoption

effected outside the State on the Register. (Section 90(8) refers)

212. To my mind, in the knowledge that any recognition of the adoptions in question would be

“outside the Convention” the basis of the learned MacMenamin J.’s focus on the definition

of “foreign adoption” as it read as of 30th May, 1991 was to ascertain if a prima facie

basis for the within adoptions to be considered under s.92 could be established.

213. For all of the reasons set out above, upon a plain reading of the relevant provisions, I am

in agreement with, and find more persuasive, the Majority View (albeit obiter dicta) that

s.92(1) admits of “a slightly wider” power with regard to the entry of adoptions on the

Is this “slightly wider” power of the High Court under s.92(1)(a) capable of being used in

this case without doing violence to the objects of the 2010 Act or the Convention?

214. The essential question which now arises in this case is whether in light of the overall

objective of the 2010 Act (the incorporation of the Convention into Irish law), the slightly

wider power vested in the High Court under s.92(1)(a) can be construed so as to allow

s.92(1)(a) be utilised to direct the Authority to enter the within adoptions on the Register

notwithstanding the wholesale non-compliance with the Convention evident in this case.

The Majority View of the Supreme Court was that if the High Court was itself satisfied that

an entry should be made, pursuant to s.92(1)(a) it could “exceptionally” direct the

215. Albeit that the varying views of the Supreme Court in the Case Stated on the interpretive

tools available to a court when construing s.92(1)(a) were obiter dicta, this Court takes as

its starting point those views as they encompass the issues with which this Court must

grapple in considering whether the slightly wider power which I have found the High

Court has, as compared to the Authority, allows for the utilisation of s.92(1)(a) in the

216. The Majority View of the Supreme Court (in reliance on HI v. MG (Child Abduction):

Wrongful removal [1999] IESC 89) was that the proper starting point in ascertaining

whether s.92(1) could be utilised in an exceptional case was that the Court should

interpret the 2010 Act in a manner informed by the Convention and the Explanatory

Report, bearing in mind the need to protect “the spirit and wording of the Convention.”

(MacMenamin J. at paras. 88, 98) While MacMenamin J. noted the Authority’s

submission that the Oireachtas had laid down that all children’s best interests rights

should be vindicated through the 2010 Act and the Convention, the learned Judge did not

believe that this meant that the 2010 Act or the Convention “is a legally self-contained, or

ring fenced, area of law, immune from constitutional interpretation or analysis.” This was

because the Convention “has the status of domestic statutory law enacted under Art. 29.6

of the Constitution” and was “subordinate to the Constitution”. (at para. 88)

217. Thus, the Convention “could not be elevated to a quasi-constitutional status”. (at para.

88) This being so, in the view of MacMenamin J., Article 42A of the Constitution came into

play and “the courts are bound to observe the best interests test for children in adoption

cases.” He accepted however that any process of constitutional interpretation had to be

conducted in harmony with the Convention so as to ensure that “it does not run the risk

of defeating the object of the legislation, which is itself intended to protect the best

218. Noting the provisions of s.10 of the 2010 Act which provides that “judicial notice shall be

taken of the Explanatory Report”, MacMenamin J. first considered this instrument in his

quest to find harmony between a constitutional interpretation of s.92(1) and the

mandatory nature of the Convention to which pursuant to Article 40 thereof no

reservation is permitted. In the first instance, he noted that the Explanatory Report was

replete with references to “best interests”, citing in particular paras. 63 and 64 of the

Report. Para. 63 states that one of the main objects of the Convention is “the

establishment of safeguards to ensure the best interests of the child and the respect for

his or her fundamental rights, as recognised by international law” (found in the Preamble

to the Convention). MacMenamin J. also cited para. 65 of the Explanatory Report which

recognised that “the Convention does not pretend to solve all the problems related to

children’s intercountry adoption, in particular, to determine the law applicable to the

219. The learned Judge found para. 411 of the Explanatory Report “directly relevant”. It

“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 such conduct may give rise the complaint permitted by

Article 33, [the reporting function of the Authority in cases of breaches of the

Convention] but the question of the recognition would be outside of the Convention

and the answer should depend on the law applicable in the recognising State,

220. MacMenamin J. noted the contents of para. 412, where the Explanatory Report describes

a concrete case where in a situation of non-compliance with the Convention denial of

recognition of an intercountry adoption might not be in the best interests of the child.

“412 Working document No 104, submitted by Spain when discussing Article 22,

suggested to add a new paragraph prescribing: “Equally, any Contracting State

may declare to the depository of this Convention that child adoptions will not be

recognised in that State unless the functions conferred on the Central Authorities

have been carried out in conformity with the first paragraph of this Article”. The

idea behind the proposal was the guarantee that has to be made by the State of

the habitual residence granting the adoption, to prevent the risks of fraud.

However, it was observed that such denial of recognition may not be in the best

interests of the child, as is exemplified by Canada with the case of a Spanish

professor habitually resident in the United States who obtains a legally valid

intercountry adoption without the intervention of the Central Authorities, continues

to reside there for ten years or more only afterwards returns to Spain, and the

proposal failed. Undoubtedly, it would be very difficult to accept the denial of

recognition of the adoption, just because the Central Authorities did not intervene.’”

222. MacMenamin J. understood the observation in para. 412 that it “would be very difficult to

accept the denial of recognition of the adoption” as “giving effect to the best interests test

223. MacMenamin J. next considered whether the Guide to Good Practice, albeit that that

instrument is not referred to in the 2010 Act, could be a “helpful ‘signpost’” as to the

approach to be adopted by a court when, as in the present case, there is non- compliance

with the Convention. He noted the contents of para. 531-533 of the Guide, which consider

what might be done when mistakes are made, for example where courts in a receiving

country “perhaps because of unfamiliarity with the Convention” have made national

adoption orders where the Convention procedures and safeguards should have applied

(para. 531) thus leading to a circumvention of the safeguards in the Convention (para.

“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 17c) has been satisfied retrospectively, that the

appropriate authorities would be in a position to make out the certificate referred to

225. As already referred to, the pragmatic approach referred to in the Guide to Good Practice

was attempted in this case in the aftermath of the Supreme Court judgments, without

226. While MacMenamin J. accepted the Authority’s argument that a constitutional

interpretation of the 2010 Act cannot be utilised to defeat the Act’s clear legislative intent

(i.e.to give effect to the Convention) especially where the Act is itself “informed by the

best interests test”, he was of the view that the facts of the within case could be viewed

from the perspective of para. 411 of the Explanatory Report and paras. 531-533 of the

Guide to Good Practice. He considered that had the provisions of the Convention been

adverted to by the HSE, and the Authority, when contact was first made in June 2011,

then the applicants could have been assessed as to their eligibility and suitability. He

opined that at that time there was “clearly” unfamiliarity with the Convention, in the

manner articulated by para. 411 of the Explanatory Report and paras. 531-533 of the

Guide to Good Practice. On the basis of the affidavit evidence then before the Supreme

Court, MacMenamin J. opined that there was nothing to suggest had the Convention

procedure been adverted to, that declarations would not have been made in the usual

way and that, thereafter, the applicants’ application to jointly adopt the children “could,

on the face of things, have been dealt with by the Authority and the Country A Central

“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

228. As earlier referred to, at para. 111 of his judgment, MacMenamin J. opined that the

“slightly different and broader power” of the High Court from that found in s. 90 “is to be

operated in accordance with the object of the [2010 Act], as informed by the Explanatory

229. As is also clear from his judgment, MacMenamin J.’s support for the proposition that the

powers of the High Court under s.92(1)(a) could be applied to meet the exigencies of the

present case was informed by Article 42A of the Constitution. He stated:

“122. 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] IR 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

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

concerning the adoption, guardianship or custody of, or access to, any

the best interests of the child shall be the paramount consideration.”

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

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.”

228. I turn now to the Minority View, firstly as expressed by McKechnie J.

229. As with MacMenamin J., McKechnie J. opined that the question of statutory interpretation

involved was one which must be seen “through the prism of its international context”. (at

para. 42) With regard to the MacMenamin J.’s focus on the Explanatory Report,

McKechnie J. saw no reason for reliance thereon and opined that both the Convention and

the 2010 Act of and by themselves recognised the best interests of the child.

230. Furthermore, McKechnie J. did not believe that it was necessary to have regard to Article

42A of the Constitution as an “external source” for the protection of the best interests of

the child. In his view, the Convention and the 2010 Act “provide the framework through

which the best interests of the child are to be protected in a given case”. (at para. 107)

Thus, he found the constitutional obligation contained in Article 42A.4.1 and Article

“109. Furthermore, I do not believe that it is appropriate, for interpretive purposes, to

import a totally free-standing concept of “the best interests of the child” from an

external source, even from the Constitution itself. To permit this single

consideration to stand removed from the system put in place by the Act and

Convention, with the capacity to supersede all of the other requirements contained

in those instruments, would be to open the entire regime up to abuse. “Paramount”

consideration cannot mean “sole” consideration. As the Authority has stressed,

allowing the best interests of the children to become the only consideration in a

given case runs the risk of setting at nought the protections of the Convention and

of encouraging non-compliance therewith by adopters who feel that their actions

will not be met by adverse consequences. This would have the capacity to

jeopardise the entire structure of the Convention. Although the bona fides of C.B.

and P.B. are not in doubt, the Court must be vigilant not to decide these

proceedings in a way which rewards, even encourages, inappropriate conduct on

future occasions, or which undermines the Convention. Accordingly, whilst ever

mindful of the best interests of the children, meaning these children specifically, I

am of the view that the same must nonetheless be achieved within the ambit of the

110. These observations do not, in my view, stand down Article 42A of the Constitution.

That Article cannot, of course, be rendered obsolete, nor would I endeavour to do

so. Neither can it be subjugated to the requirements of either the Convention of the

Act. It retains its place at the top of our legal hierarchy. Rather, the point is that

what the Constitution commands has in fact been complied with: laws have been

put in place to secure the best interests of the child, and to ascertain the views of

the child, in all adoption proceedings. The relevant provisions of the Constitution

require no more than that. The duty so imposed having been discharged, I believe

that the focus must remain on the Act, which gives effect to this obligation and

which governs adoption law in this country. By this I mean that as the legislation

faithfully corresponds to the constitutional requirement, it is not necessary to

consider Article 42A as an additional layer or further test to be navigated. To

otherwise characterise my views on Article 42A, as MacMenamin J. has, is to

231. With regard to paras. 63 and 64 of the Explanatory Report and the reference therein to

“best interests”, he did not accept “any suggestion of a free standing right over and above

the Convention or the 2010 Act by which the situation of these children can be

determined on the basis of their best interests”. (at para.113)

232. On the question of a purposive approach to s.92(1), McKechnie J. opined:

“130. Even with a purposive approach, the High Court, before it can exercise the powers

under subsection (1)(a) of section 92, must be “satisfied that an entry with respect

to an adoption in the register of intercountry adoptions should be made” (emphasis

added). The most obvious question is how and on what basis it can be so satisfied

in the circumstances of this case. This Court unanimously agrees that the making of

a domestic adoption order is foreclosed upon: it is not an option. It is therefore the

recognition of an intercountry adoption, or nothing. There must be real uncertainty,

at least, as to how the High Court can in practice be “satisfied that an entry …

should be made”. The section is silent as to what factors the Court must take into

account. How would it approach the evaluation required under the section? Indeed,

what is the evaluation required? Would it be necessary to make any further findings

or will the situation be assessed as is? Unlike sections 92(2) and 92(3), section

92(1) makes no specific reference to the best interests of the adopted person, so is

the Court to be primarily guided by that criterion alone or do other considerations

come into play? As stated, there is, at best, serious ambiguity as to how the High

Court is to carry out the function entrusted to it under section 92(1).”

233. The learned Judge went on to state that s.92(1)(a) should operate “in a manner which

reflects the general aims and objectives of the 2010 Act as a whole”. He found no scope

to operate its provisions in a manner “which would be likely to undermine the scheme of

234. Like McKechnie J., O’Donnell J. did not believe that the invocation of Article 42A.4.1 could

usefully be called in aid in the case. He agreed with McKechnie J. that the obligation

contained in that Article had been complied with by the 2010 Act. He went on to opine:

“6. …The best interests test involves both broad societal judgments and individualised

determinations in a particular case. In the context of a statute, it does not

authorise the court to exceed the statutory limitations of the decision making

process: rather, it means that, within the area in which a court has to make a

decision, where there is a discretion, the decision should be made on the basis that

the paramount consideration should be the best interests of the child, rather than

the interests of parents, relatives, or the State itself. Article 42A.4.1° now

underpins that. However, the area for decision making in which those

7. If it were otherwise, then the effect of Article 42A.4.1°, far from being modest,

would be dramatic, since it would mean that in the area of adoption, guardianship,

custody and access, the legislation could be reduced to a simple provision that

orders may be made or refused whenever it would be in the best interests of the

child to do so, in the view of a court. This would be undesirable at a practical level,

and also at the level of principle, since it would remove the Oireachtas almost

235. He further opined that he did not understand the Majority View to give support to such an

“The fact that the Court has expressed differing views on the question of the

breadth of the jurisdiction under s. 92 should not obscure the fact that all

judgments conceive of such jurisdiction as narrow, and as not extending to

permitting the Court to make an order recognising a foreign adoption which does

not comply with the requirements of the Convention and the Act, simply on the

basis that the Court considers it would be in the interests of the children to do so. If

so, it does not appear to me that Article 42A.4.1° is a necessary or, indeed, a

236. Counsel for the applicants submits that as the 2010 Act enjoys a presumption of

constitutionality. It must thus be presumed that all proceedings, procedures, questions

and adjudications permitted or prescribed by the 2010 Act are intended to be conducted

in accordance with the principles of constitutional justice. First and foremost, where there

are two interpretations of s. 92(1), the one consistent with the Constitution is to be

preferred, especially in the context of the vindication of the best interests of children. It

is submitted that the best interests of the child principle is the constitutionally paramount

237. It is submitted that the above interpretative rules must be borne in mind when the Court

weighs the merits of the competing views of the Supreme Court regarding the

interpretation of s. 92(1) and, in particular, the very different outcomes which they have

for the vindication of the best interests and rights of the children in this case.

238. The applicants urge the Court to adopt the view of the majority in Supreme Court that

s.92(1)(a) when construed against Article 42A, the Explanatory Report and the Guide to

Good Practice, allows the Court to make the order sought in the present case, if satisfied

that the applicants’ case is exceptional. By following the Majority View the Court does not

derogate from The Hague Convention as it is posited by the Majority View that given the

exceptional circumstances of the present case, an order under s. 92(1)(a) would protect

the wording and spirit of the Convention and would be consistent with the spirit of the

239. It is submitted that while the Convention is silent on the issue of the consequences of

non-certification, on the facts of the within case, that does not bar the remedy which the

applicants seek. This is clear from the Explanatory Report, to which the Court must have

regard when interpreting the Convention, pursuant to s.10 of the 2010 Act.

240. Counsel points to para. 410 of the Explanatory Report which states that Article 23 of the

Convention does not provide for automatic recognition of a decision to refuse recognition

of the adoption. It was considered that such a ruling would diverge too far from the

241. By virtue of what is contained in paras. 411 and 412 of the Explanatory Report, the Court

is not precluded by the Convention from adopting the Majority View. Equally, the Court is

not required by the Convention to adopt the Minority View. As put by MacMenamin J.,

recognition of the Country A adoption by way of an Order under s. 92 would be done

“outside of the Convention but in accord with the type of situation envisaged in the

[Explanatory Report] to which this Court should have regard”. (at para. 114)

242. It is thus the applicants’ contention that s. 92(1) provides the Court with ample scope to

direct the entry of the Country A adoptions on the Register as s. 92(1) is the provision

that applies where the adoption is not in accordance with the Convention. As stated in the

Explanatory Report, such situations are a matter for the domestic law of the Contracting

State in question. This is in circumstances where the Explanatory Report states that a

denial of recognition even where the functions conferred on the Central Authorities had

not been carried out may not be in the best interests of the children in question.

243. Counsel also points to para. 529 of the Guide to Good Practice which states: -

“Non-recognition of the adoption would be an extreme sanction for very exceptional

cases, for example, where there has been a violation of fundamental rights of the

natural family. Recognition may be refused, under Article 24, only if the adoption is

manifestly contrary to public policy, taking into account the best interests of the

244. As stated in the Supreme Court, the Guide to Good Practice can be looked to as a helpful

“signpost” as to the approach to be adopted by a court where there is non-compliance

245. It is the applicants’ contention that the Majority View of the Supreme Court does not

breach Article A 40 of the Convention. Article 40 does not debar a “purposive and flexible

construction” of the Convention. It is submitted that support for this argument is found in

the dictum of Keane C.J. in H.I. v. M.G. (Child Abduction – Wrongful Removal) [2000] 1

I.R. 110 at p. 132 where the objects of the Convention are therein set out to be:

“(a) to establish safeguards to ensure that intercountry adoptions take place in the best

interests of the child and with respect for his or her fundamental rights as

recognised in international law; (b) to establish a system of co-operation amongst

Contracting States to ensure that those safeguards are respected and thereby

prevent the abduction, the sale of, or traffic in children; (c) to secure the

recognition in Contracting States of adoptions made in accordance with the

246. Given the objects of the Convention, Article 40 cannot be invoked to exclude the

possibility of a purposive construction of the Convention’s silence on the question of

recognition of non-compliant intercountry adoptions. The interpretation of s. 92(1) as

advocated by the applicants would ensure that the Convention is given effect in

accordance with its objects and not in a way that would undermine them, for example, by

needlessly prejudicing the interests or rights of the particular children affected in an

247. It is further submitted that the Court in interpreting s. 92(1) must take into account not

only 42A of the Constitution but also Articles 40, 41 and 42. Article 42A.1 requires a court

to prefer where possible an interpretation of s.92(1)(a) that will at least permit some

scope in exceptional cases for consideration of the best interests and constitutional rights

of children over an interpretation which will preclude such protection and/or severely

prejudice such children. Counsel emphasises that he is not advocating a question of

results – driven jurisprudence whereby Article 42A.1 obliges the Court to interpret s.

92(1) contra legem, rather the approach advocated is that in a choice between two

possible interpretations of the statutory text, the question that must be asked is that

whether it could ever have been the intention of the Oireachtas that the Court would be

248. As endorsed by the Majority View in the Supreme Court, Article 42A.1 is not “a free-

standing concept”. Thus, s. 19 of the 2010 Act, which the Court must take account of in

adoption cases, must vindicate the natural and imprescriptible rights of the children. It is

submitted that if the Court finds that it cannot direct the Authority to make an entry in

the Register with regard to this case under s. 92(1) this means that s. 19 of the 2010 Act

has failed to observe the constitutional requirements of Article 42A.1. It is submitted

however that s. 19 has to be read consistent with Article 42A.1, as the Majority View in

249. In interpreting and applying s. 92(1), regard must be had, inter alia, to the rights of J.B

and K.B. under Article 8 of the European Convention on Human Rights (ECHR). In this

regard counsel refers to s. 2(1) of the European Convention on Human Rights Act, 2003.

250. In aid of his Article 8 argument, counsel cites the decision of the UK High Court in S. v. S.

251. Albeit that it is not concerned with adoption, reliance is also placed on Mennesson v.

France (65192/11) 26th June, 2014 where the European Court of Human Rights (ECtHR)

“The Court can accept that France may wish to deter its nationals when going

abroad to take advantage of methods of assisted reproduction that are prohibited

on its own territory … having regard to the foregoing, however, the effects of non-

recognition in French law the legal parent – child relationship between children thus

conceived the intended parents are not limited to the parents alone, but chosen a

particular method of assisted reproduction prohibited the French authorities. They

also affect the children themselves, his right to respect for their private life – which

implies that everyone must be able to establish the substance of his or her identity,

including the legal – parent child relationship – is substantially affected.

Accordingly, a serious question arises as to the compatibility of that situation with

the children’s best interest, in respect for which must guide any decision in their

252. It is submitted that there are echoes of the foregoing reasoning the judgment of

“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 allows for one answer, the children’s rights,

even taking into account, as one must the actions of the applicants.”

253. It is also the applicants’ contention that the Majority View is consonant with English case

law on the recognition of non-compliant intercountry adoptions. In this regard, reliance is

placed on Re R. (a child) (adoption abroad) [2012] EWHC 2956 (Fam) and Re J. (a child)

254. Counsel for the Attorney General contends that allowing the applicants to use the 2010

Act when they are outside the Convention would constitute a backhanded and collateral

slap in the face to the integrity of Convention and the Contracting States. This is in the

context of Article 40 of the Convention which admits of no reservation.

255. Insofar as the applicants seek to rely on Article 42A of the Constitution, and the best

interests of the children, it is submitted that such reliance would run counter to the spirit

of Ireland having entered into and signed up to the Convention. It would set at nought

the establishment of the Convention and the Convention adoption architecture put in

place by the 2010 Act. Any deviation from this would have significant repercussions for

the reciprocity that forms the bedrock of the Convention system internationally.

256. It is noted that the applicants urge upon the Court that it is unfair that the children in this

case, and their circumstances, are not covered by the legislation. While that may be a

difficult for the applicants to accept, that is in fact the case. What the applicants are

contend for is that if the High Court is satisfied that the adoptions in question are broadly

in terms of domestic legislation and broadly in terms of the Convention, and that their

circumstances are exceptional, then the High Court should direct the Authority to enter

the adoptions on the Register. It is submitted, however, there is no such “catchall”

provision in the legislation which permits such a direction by the Court.

257. As already referred to, the Authority’s core submission is that on no view of s. 92 can it

be said that the Oireachtas intended that s. 92 would be used to circumvent or override

the Convention. It is submitted that the elaborate scheme for the regulating of

recognition of adoptions as set out in the 2010 Act is inconsistent with a remedial power

in the High Court to excuse a fundamental departure from compliance. Counsel submits

that if indeed such a power exists, the question to be asked is what are the limits and

258. It is submitted that there are alternative rights mechanisms available to the applicants

and the children in this case, not least the provisions of the Guardianship of Infants Act,

1964 as amended by the 2015 Act, and the Succession Act 1966, as observed by

259. In reliance on the dictum of MacMenamin J. (para. 98), counsel for the CFA submits that

there can be compliance with the spirit and wording of the Convention by the application

of s. 92 of the 2010 Act. It is submitted that the purpose of s.92 is to cure difficulties

that may have arisen, bearing in mind the obligation to look at the best interests of the

children as the paramount consideration. The Court can take account of the 2010 Act, the

Explanatory Report, the Guide to Good Practice and the overarching requirements of the

Constitution, in conjunction with the best interests of the children in granting the relief

sought in this very particular case. This route has been set out for the Court by the

260. It is accepted by the CFA that the interpretation and application of s. 92 of the 2010 Act

must be in line with the Convention and with the Explanatory Report and with the Guide

261. Counsel further submits that the provisions of Article 42A of the Constitution enhance the

argument that the best interests of the children should be the focus in this case, all other

matters being equal and provided that other legal tests and requirements have been

satisfied such that the Court could then exceptionally direct the Authority to procure the

making of a specific entry in the Register regarding the children.

262. Having given due consideration to the obiter views expressed by the Supreme Court in

the Case Stated, and the submissions of the parties in these proceedings, overall, I find

the Majority View, that in a “truly exceptional case” s.92(1) of the 2010 Act is capable of

being invoked for the purposes of recognition of an intercountry adoption which is not in

compliance with the Convention, to be more persuasive that the view expressed by the

minority, or indeed the submissions made by the Authority and the Attorney General in

263. I am in agreement with the Majority View that the Explanatory Report and the Guide to

Good Practice provide assistance in interpreting the scope of s.92(1) for recognition

purposes where there is, in the words of MacMenamin J., a “truly exceptional case”.

264. As noted by MacMenamin J., paras. 65 and 66 of the Explanatory Report, together with

paras. 531-533 of the Guide to Good Practice, acknowledge that the Convention is not the

answer to all issues that may arise in intercountry adoptions. To my mind, contrary to the

view expressed by the learned McKechnie J., the focus of the Majority View was not just

on the best interests references in these instruments, but, more fundamentally, on the

recognition by the authors of the Explanatory Report that the Convention itself is silent on

the question as to whether an adoption granted in a Contracting State and falling within

the scope of the Convention (but not in compliance therewith) could be recognised by

another Contracting State “whose internal laws permit such recognition”. (emphasis

added) As noted by MacMenamin J. (and indeed at para. 411 of the Explanatory Report),

any recognition given by a court in a Contracting State would be “outside the

Convention”. It would thus constitute a resolution in accordance with the internal law of

265. For the reasons already set out in this judgment, I have found from a reading of the

relevant provisions of the 2010 Act that “an adoption” other than “an intercountry

adoption effected outside the State” is capable of being the subject of an order under

s.92(1)(a). Thus, the type of recognition envisaged by the Explanatory Report for

exceptional cases is not foreclosed on by the manner in which the 2010 Act is framed.

Applying a purposive approach to s.92(1), and bearing in mind the provisions of s. 10 of

the 2010 Act, it seems to be that the framers of the 2010 Act left in place a mechanism

available in the domestic law of the State capable of giving effect to recognition of a non-

Hague compliant adoption, which recognition would be, in the words of the Explanatory

Report, “outside of the Convention” and “always taking into account the best interests of

the child”. It bears repeating, however, given the objects of the Convention and the 2010

Act, that s.92(1) must be construed narrowly, hence the formulation by the Majority View

of the “a truly exceptional case” test, which this Court endorses.

266. Any domestic resolution of a “truly exceptional case” must thus ensure that, in the words

of MacMenamin J., “it does not run the risk of defeating the object of the legislation”. As I

read his judgment, the learned judge took the repeated references to the best interests’

principle in the Explanatory Report as an indication that the objects of the Convention

(including Article 40), or the legislation, would not be defeated if recognition “outside the

Convention” of a non-compliant intercountry adoption was to be afforded to “a truly

267. There is no suggestion in MacMenamin J’s judgment that the best interests principle

trumps every other consideration. Were that the case, I would have to respectfully

disagree with the obiter comments of the learned judge in order to ensure the efficacy of

the Convention system in cases of intercountry adoptions; but that is not the case, as

indeed noted by O’Donnell J. in his judgment where he opines that he does not

understand the Majority View as promulgating a best interests trumps all approach.

268. Clearly, MacMenamin J.’s invocation of the best interest principle is predicated on there

being exceptional circumstances of a very high order surrounding the adoptions in

question against which a court, in considering what is to be done, will, inter alia, weigh

the best interests of the child or children concerned. This being my understanding of the

approach of the majority in the Supreme Court, I am satisfied to adopt such an approach

in interpreting s. 92(1) of the 2010 Act as capable of being utilised in the present case,

subject to the Court being satisfied that the circumstances surrounding the adoptions of

the children concerned meet the truly exceptional test demanded by the Majority View.

269. There was much debate in the Supreme Court on the invoking of Article 42A of the

Constitution as an interpretative aid when construing s.92(1) of the 2010 Act. The

Minority View observed that the obligations contained in Article 42A.4.1 and Article

42A.4.2 have been given legislative effect in the 2010 Act (via ss.19 and 24(2) of the

2010 Act), and that it was thus not necessary to refer back to Article 42A (McKechnie J.

at para. 106). However, I am minded to agree with the Majority View that Article 42A

cannot be “stood- down or placed at nought” by a statute, even one that implements an

270. While I accept that the provisions of Article 42A.4.1 and Article 42A.4.2 have been

enacted in legislation, it is nevertheless the case that MacMenamin J. also placed reliance

on “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

practible, by its laws, protect and vindicate those rights in the resolution of all

271. I agree with the learned MacMenamin J. that the word “all” in Article 42A includes the

children in this case. The circumstances of these children is that their status as the

adopted children of the second applicant is not capable of recognition under the

Convention because the adoption was properly one to which the Convention applied and

where all agree there was no compliance with the Convention. By the same token, the

non-compliance with the Convention did not render the Country A adoption a nullity, as

found by the Supreme Court. The consequences are that the legal relationship between

the second applicant and the children remains in limbo for the purposes of recognition in

this jurisdiction (short of an entry of the adoptions on the Register). The first applicant as

the spouse of the second applicant cannot apply to the Authority to adopt the children of

foot the present adoptive relationship between the second applicant and the children

because the Authority, in the words of MacMenamin J., is bound to give “faithful

adherence” to the Convention in cases of intercountry adoptions.

272. Noting the constitutional promise that “the State will, in so far as practicable, by its laws,

protect and vindicate [the natural and imprescriptible rights of all children] in the

resolution of all proceedings”, (emphasis added) to my mind, there is a constitutional

imperative on the Court when construing the limits of its residual discretion under

s.92(1)(a) to have regard to the welfare principle that permeates Article 42A of the

Constitution. I so find given that the applicants and the children are living as a family unit

in the context of an adoption the consequences of which, as found by the Supreme Court,

are that the children’s pre-adoption status no longer remains, and where no one doubts

273. I am, however, conscious of the duty on this Court to construe s.92(1) in a manner that

will not “stand-down” or “place at nought” an international Convention to which the State

has given the force of law and which permits of no reservation. As already stated, the

powers of the High Court under s.92(1) must be construed narrowly, ensuring that any

interpretation or application of such powers is not to interpret the 2010 Act “contra-

legem”. To my mind this can be achieved by setting a “high bar” for the applicants to

overcome in seeking to establish that their case is “truly exceptional”, as envisaged by

MacMenamin J. at para.113 of his judgment. Assuming the aforesaid conditions are met,

and the Court itself being satisfied that an entry should be made, it is, I believe, also

noteworthy that any recognition given in this case would not be a Convention recognition

but one rather in accordance with the laws of the State, as indeed envisaged by the

Explanatory Report. To my mind, this approach would ensure harmony with the objects of

274. I am satisfied that any concern (such as that expressed by McKechnie J.in the Case

Stated proceedings) as to how the Court is to carry out an assessment of this case for the

purposes of considering making an order under s. 92(1)(a) is alleviated by the guidance

found in the Joint Judgment of Dunne and O’Malley J.J., and in the respective judgments

of MacMenamin J. and O’Donnell J. The respective judgments outline the factors to which

the Court should have regard for the purpose of establishing whether the within case is “a

truly exceptional case” such as might allow the Court to direct an entry of the adoptions

on the Register without fear of impugning the integrity of the Convention system.

275. Drawing on that guidance, I am satisfied that the applicants (who, in the words of Dunne

and O’Malley J.J., “bear the onus of satisfying the court that an order should be made”)

(ii) That there was no intentional circumvention of the law and that the mistakes

made were completely unintentional. A “rigorous” approach to these issues is

required. (If the above requirements are not satisfied then the Court should

Furthermore, the Court must have regard to the following matters:

(iii) The circumstances surrounding the breaches of the statutory requirements;

(iv) The role of official error on the part of a State Agency in potentially

(vi) he general excusability of the deviation from what was contemplated by

(ix) Whether the adoption satisfies the requirements of a foreign adoption under

(xi) The best interests of the children affected and their constitutional rights.

276. I now turn to a consideration of the evidence in this case, against the backdrop of the

foregoing factors and bearing in mind that, pursuant to s.92(1), the Court must itself be

277. The criteria for determining eligibility and suitability to adopt are set out in s.34 of the

2010 Act. There is no dispute but that the second applicant (the sole adopter in Country

A) and the first applicant were deemed eligible and suitable by the Authority in 2015 to

adopt the children. They underwent an assessment under the 2010 Act following which

they were issued with a Declaration of Eligibility and Suitability dated 16th March, 2015.

This Declaration was renewed for the maximum time permitted under the Act. It expired

on 16th March, 2018. It is common case that the applicants have applied for a fresh

assessment. As I understand matters, the CFA have deferred the continuation of that

assessment until the outcome of the within proceedings. Without trespassing on the

statutory functions of the CFA, on the basis of the evidence before the Court there is

nothing to suggest that the applicants would not again meet the criteria set out in s.34.

Factors (ii), (iii), (iv) and (v) Can the Court be satisfied that the circumvention of the

278. The first and most fundamental question with regard to factors (ii), (iii), (iv) and (v) is

whether the Court can be satisfied as a matter of high probability that there was no

intentional circumvention of the law, and that the mistakes which were made in this case

279. Both applicants have testified that they had no intention or reason to seek to circumvent

the requirements of the Convention or the 2010 Act. I accept this to be the case. First

and foremost, I have had regard to the fact that within a short time after deciding to

adopt the children the first applicant advised the Authority of this intention. Accordingly, it

cannot be said that the applicants as prospective adopters sought to evade the relevant

Irish authorities. The Court is also satisfied that there is no question that the applicants

were involved in any of the activities which it is an expressly stated object to prevent,

namely, “the abduction, the sale of, or the traffic in children.”

280. Moreover, the first applicant’s email of 16th June, 2011 to the Authority is headed

“intercountry adoption guidance please”. He sought advice from the Authority on the

intercountry adoption process. The contents of the email suggest that the applicants’

focus was on the correct process for an intercountry adoption. Quite properly, after doing

some general internet enquiries, the first applicant’s first port of call was the Authority.

281. Albeit that by return email of 16th June, 2011, the Authority properly directed the first

applicant to the HSE, I note that at the same time it also suggested that the applicants

consult an Adoption Agency, advice that was not correct. This would appear to be the first

of a series of errors made by officials in State authorities in this case. It is also the case

that websites to which the first applicant was referred by the Authority were out of date.

In fairness, this was brought to the first applicant’s attention by the Authority and he was

advised to contact the HSE or the Authority if he had any queries in this regard. It would

certainly appear to be the case that the message being given to the first applicant vis a

vis the HSE was that the HSE would have the answers to any queries the applicants had

282. It is not in dispute but that having been directed to the HSE, the first applicant

immediately made contact with this Agency. When he finally got to speak to a HSE official

on 5th July, 2011, he was advised that he and the second applicant could not adopt

“known” children who were resident in another Hague Convention country (Country A

being such a country). Accordingly, the applicants were advised by the HSE official that

they could not be assessed by the HSE. It is accepted by all concerned that the HSE

official’s advice that the applicants could not adopt “known” children within the

Convention framework was wrong. The evidence given by the first applicant as to what

the HSE official advised in this regard has not been challenged, either in cross-

examination, or by calling the HSE official concerned or any other witness to give

283. It is clear to me that from the word go, the applicants were set on the wrong path. This

was not, however, the extent of the erroneous advice given to the applicants by the HSE

official on 5th July, 2011. The first applicant was further advised that two options were

open to him and the second applicant. Firstly, they could bring the children into Ireland,

perhaps for education purposes, and then apply to adopt them in this jurisdiction.

Alternatively, either both applicants, or the second applicant solely, could adopt the

children in Country A and then bring them back to Ireland. As observed by MacMenamin

J. in the Case Stated proceedings, these advices ran expressly counter to the provisions

of the Convention and the 2010 Act. Again, the first applicant’s evidence that he received

such advice has not been challenged, either in cross-examination or by the calling of

evidence to counteract his version of events. Accordingly, I am satisfied to accept the

evidence which the first applicant has given as to what was advised to him by the HSE

284. I accept that the mistaken advices given by the HSE official occurred at a time when the

2010 Act had only recently commenced (November, 2010). As already noted, much of the

information available to the public in 2011 was out of date and had not been updated. It

is the case that the Authority’s Country A information pack as recommended by the

285. As stated by MacMenamin J., “one might surmise that officials charged with [the Act’s]

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.” (at para.

1) To my mind, it is highly unlikely that such mistaken advice as was given to the

applicants would ever again arise. This is so given the time that has elapsed since the

2010 Act was commenced. One can reasonably assume that by this stage, all relevant

State agencies are familiar with the provisions of the Convention and the 2010 Act and

286. It is by this stage well-rehearsed in this judgment that the applicants acted upon the

second option advised by the HSE official and thus put themselves on a collision course

with the requirements of the Convention and the 2010 Act, the consequences of which

are that unless this Court is satisfied to grant relief under s.92(1)(a) of the 2010 Act,

287. Could the collision course with the Convention to which I have adverted have been

avoided at any time between 5th July, 2011 and the making of the Country A adoption

orders? The first applicant has testified that he was counselled by the HSE official on 5th

July, 2011 to get “a good lawyer”. His evidence was that he understood this advice in the

context of the two options which the HSE official had advised were open to him and the

288. In oral evidence to this Court, the first applicant testified that although he did not

formally engage his current solicitor until December, 2011, he did have some discussion

with his solicitor, and indeed with an immigration lawyer, in July, 2011 in the aftermath of

the advices given by the HSE official on 5th July, 2011. He testified that the discussion

with his solicitor (and the immigration lawyer) concerned how the two options advised by

the HSE official could be progressed. The first applicant testified that he had not asked for

legal advice as to the correctness or otherwise of the advices he had been given by the

HSE official, hence his discussions with his lawyers did not address whether the HSE

289. With regard to the contact he had made with his Irish solicitor in July, 2011, the first

“I was referred to my solicitor by one of the adoption agencies and I explained the

direction or the advice I had been given by the HSE. What I was getting advice on,

you know, was basically how we adopt in Ireland after we have gone down the

route that the HSE had proposed to us. His advice to me was that I should instruct

[Country A] lawyers obviously. I would need to get immigration advice, which I

did, and that it should be possible once the children had been resident in Ireland for

290. In the course of legal submission, counsel for the applicants conceded that it was highly

regrettable that the HSE official’s errors were not identified in the course of the first

applicant’s meeting with his solicitor in July, 2011. He submits, however, that the first

applicant’s evidence makes it clear that he had no reason to doubt the correctness of

291. It is undeniably the case that the first applicant had discussion with his current solicitor

and an immigration lawyer prior to the applicants embarking on the Country A adoptions.

Counsel for the Authority points to para. 49 of MacMenamin J.’s judgment where the

learned judge was clearly of the belief at the time of the judgment that the applicants had

not sought legal advice from a lawyer familiar with adoption law before embarking on the

Country A adoptions. The learned judge opined that this omission was “foolish and

unfortunate”, noting that by his own business experience the first applicant should have

been familiar with the need to take legal advice “in an area of doubt and uncertainty”.

292. Clearly, the learned MacMenamin J.’s belief that the applicants had not consulted lawyers

in this jurisdiction was based on the contents of the affidavit sworn by the first applicant

on 29th April 2016 in the Case Stated proceedings. That affidavit did not specifically set

out that the first applicant had discussions with Irish lawyers in July 2011. Insofar as the

affidavit refers to actions taken by the applicants in the immediate aftermath of the

“Following [the HSE official’s] phone call, I looked into the feasibility of bringing JB

and KB to Ireland. I discovered that there would be problems securing immigration

clearance for JB and KB in the absence of an adoption order. That appeared to us to

In respect of the second option suggested by the HSE, we corresponded with the

two [Country A] legal firms in which we had the greatest confidence on foot of our

preliminary inquiries…We reported to them the HSE’s representation to us that an

intercountry adoption would not be possible in Ireland in our circumstances. Both

firms confirmed to us that, with my consent as spouse and the consent of the

natural parents, it would still be possible for [the second applicant] solely to adopt

JB and KB in [Country A] in accordance with [Country A] law.” (at paras. 22-23)

293. In light of the first applicant’s oral testimony that he in fact had discussions with lawyers

in this jurisdiction prior to embarking on the adoption process in Country A, this Court

must consider whether its finding that the HSE official’s erroneous advice set the

applicants on a collision course with the Convention should now be tempered in light of

the fact that the first applicant accessed lawyers in this jurisdiction, as he had been

294. Albeit that in July, 2011 there was an opportunity for the applicants to set themselves on

the right path vis a vis the proposed adoptions had they queried with their Irish lawyers

the correctness of the advice given by the HSE official, I am satisfied that the first

applicant has adequately explained why this was not done. I accept his evidence that post

5th July, 2011, his and the second applicant’s focus was on how to process one or other

of the two options advised to them by the HSE official. To my mind, post 5th July, their

focus was no longer on an intercountry adoption, they having been diverted from that

path by the erroneous advices received from the HSE; rather their attention turned to the

pros and cons of either bringing the children to this country and adopting them here, or

adopting in Country A and then bringing the children into the State. In circumstances

where the first applicant had in the first instance been referred to the HSE (a State

agency) by another State agency (the Authority) and where the Authority had told him

that the HSE would “explain the adoption process” and that the HSE would be able to

address “specific queries he had”, I am not persuaded that the first applicant’s failure to

raise with his Irish lawyers the validity or otherwise of the advice received from the HSE

official is of such magnitude as to detract from the exceptionality of this case, all other

295. In arriving at my conclusions, I took into account the fact that the first applicant is a

highly experienced executive used to dealing with corporate lawyers and is someone who

appreciates the role corporate law plays in the discharge of his executive functions. Thus,

it could be said that seeking legal advice in the face of an unfamiliar legal sphere would

be something which would have been in the first applicant’s contemplation. However, for

the reasons already stated, the first applicant cannot be criticised for the fact that he did

not seek legal advice on the options given to him by the HSE official.

296. In all the circumstances, I am satisfied that official error in this jurisdiction was a

substantial factor in the applicants’ (who had commenced their endeavours by seeking

advice from the Authority and the HSE on intercountry adoptions) non-compliance with

297. I am also satisfied that the applicants’ non-compliance was further caused or contributed

to by the willingness of Country A’s authorities to process the adoptions, contrary to the

requirements of the Convention. As a Contracting State, Country A should not have

allowed a domestic adoption in all of the circumstances which were known to them,

including that the adopter, the second applicant, was resident in Ireland at the time of the

adoptions. (I will return to the issue of the second applicant’s residency later in the

judgment) Accordingly, the Country A lawyers and the authorities should have directed

the applicants to the Irish and/or Country A Central Authority, which was not done.

298. It was the first applicant’s belief that the lawyers had in fact spoken to the Central

Authority in Country A. His understanding, however, of the reason for contact with Central

Authority in Country A having been made was that his Country A lawyers wished to get

guidance on the issue of whether, although the children’s birth father’s name was on their

birth certificates, it was necessary for the birth father to be legally registered as their

father. While the provincial adoption authority was of the view that the birth father had to

be legally registered (and had stated that this registration process would take a number

of months) the applicants’ lawyers were of the view that Country A’s Central Authority

299. Having regard to the first applicant’s testimony, on balance, I am satisfied insofar as

contact with Country A’s Central Authority might have occurred, that it was made in the

course of the domestic Country A adoption then underway and in the context of an

enquiry about a procedural rule regarding the registration of birth fathers in Country A.

Certainly, as of 9th April, 2018, Country A’s Central Authority did not appear to have

record or knowledge of the adoptions, as is clear from email correspondence it sent to the

300. It is also the case that the Country A provincial authorities knew that the applicants

wished to adopt jointly. The evidence given by the first applicant is that this would have

involved an assessment of his eligibility and suitability by Irish authorities as part of

immigration clearance requirements of the Country A authorities. He testified that he

considered that assessment process closed to him because of the advice received from

the HSE, namely that the applicants could not be assessed in Ireland in respect of

“known” children resident in Country A. I have already stated that I accept his evidence in

301. The evidence from the applicants is that they first became aware that the Country A

adoptions were not Convention compliant in September, 2012, when they received

written advices from their solicitor to this effect. I accept that to be the case.

302. As already referred to earlier in this judgment, in November, 2012, by which time the

children were in this jurisdiction for a number of months, the applicants intimated to the

Authority their intention to apply for a joint domestic adoption of the children, an

application actually commenced by letter of 3rd May, 2013 to the HSE. It is noteworthy

that in the period November, 2012 to June, 2016 the Authority did not raise with the

applicants their non-compliance with the Convention (the Court accepting of course, on

foot of the first applicant’s testimony, that the applicants were advised of the position by

their solicitor in September, 2012). The first mention of non-compliance by the Authority

was in written submissions dated 1st July, 2016 in the Case Stated proceedings.

303. Furthermore, notwithstanding that a domestic adoption was ultimately found by the

Supreme Court not to be open to the applicants, it is again noteworthy that in the

intervening period, the applicants had, it would appear, engaged faithfully with whatever

was being asked of them with regard to the domestic adoption process then ongoing,

including subjecting themselves to the assessment process required by s. 34 of the 2010

Act. I refer to these matters as further evidence of the applicants’ bona fides vis a vis

304. By reason of all of the foregoing, the Court is satisfied that that there was no intentional

circumvention of the law by the applicants and that such mistakes as can be ascribed to

them were unintentional in circumstances where they were expressly pointed towards the

305. This was not a case where from the outset the applicants went on a frolic of their own.

Moreover, it is not a case of ignorance of the law on their part. To my mind, ignorance of

the law per se could not fall under the type of truly exceptional circumstances whereby a

court might be minded to make an order under s. 92(1)(a) of the 2010 Act. As already

stated, the applicants in this case were alert to the concept of an intercountry adoption

from the beginning but were diverted from that route by misguided advice from a State

agency. That is the salient feature in this case for the purpose of considering the

excusability of the circumvention of the Convention which occurred in this case.

Accordingly, to my mind, the applicants’ circumstances can be distinguished from those of

JM v. The Adoption Society of Ireland [2017] IEHC 320, where not only were the

applicants in that case unaware of the Convention, but no engagement with State

Factor (vi) The general excusability of what occurred in this case from what is

306. In urging upon the Court the general excusability of the myriad ways in which the

Convention was not complied with in this case, counsel for the applicants, in addition to

pointing to the breadth of official error which permeated the circumstances of the within

adoptions, also contended that the circumstances of the within case of themselves

preclude the possibility of any relief granted by the Court presenting a precedent, which,

in the words of McKechnie J. “rewards, even encourages, inappropriate conduct on future

occasions, or which undermines the Convention.” (at para. 109) Having regard to the

applicable test as formulated by the Majority View in the Supreme Court, and the findings

I have made, I am satisfied that this case is unlikely ever to be regarded as a precedent

for judicial acceptance of disregard for the Convention, or the 2010 Act.

307. Counsel also submitted that there is no reason to doubt, had the applicants not been

misdirected by the HSE in July, 2011, and had the HSE processed their request for an

intercountry adoption as it should have done at the time, that the Convention process

would have proceeded without event and the applicants would have been successful in

adopting J.B. and K.B. in accordance with all of the requirements of the Convention and

the 2010 Act. Based on the factual matrix as presents in this case, I am satisfied as a

matter of high probability that had the applicants not been misdirected in the manner

described, the adoptions would have proceeded and been approved under the Convention

308. Albeit the adoptions in issue here are not Convention compliant, there is no suggestion

that there was anything underhand in the way the children were brought into the State.

An application for visas for the children was made on foot of the Country A adoptions. I

am thus satisfied that the applicants processed the children’s entry visas applications in

an open and forthright manner, including by the provision of the Country A adoption

309. It is common case, however, that the children came into the jurisdiction on the basis that

they were “dependants” of a British EU citizen (the first applicant) and therefore

“permitted family members” in accordance with the European Communities (Free

Movement of Persons) (no. 2) Regulations 2006 and 2008 (as they then stood). It is the

case that INIS was not satisfied to deem the children “qualifying family members” i.e. “a

direct descendant” of the second applicant notwithstanding she was the spouse of the first

310. The second applicant is the children’s natural aunt who has effected a domestic adoption

of the children under Country A law. Prior to their adoption in February, 2012, both

applicants were involved in the children’s lives. The second applicant had provided

housing for the children, their birth parents and other family members. This was done

within a couple of months of J.B.’s birth as a token of familial love and affection. I am

satisfied that adoption of J.B. was not in the contemplation of the applicants at that time.

The applicants provided financial assistance to the second applicant’s family prior to the

question of the adoption of the children ever arising. The second applicant testified that

she had a close bond with her family and wanted to help them. I accept her evidence in

this regard. I also accept that both applicants had developed a close bond with the

children prior to the adoptions. The Court has earlier set out the applicants’ evidence as

to the circumstances in which the question of the adoption of the children first arose. I

311. I have also heard the applicants’ evidence in relation to life with the children since their

coming to Ireland. It is patently clear that the applicants love and provide for all of the

needs of the children, including bringing them to Country A for holidays where they meet

with their natural father, their grandmother and their natural mother.

312. Altogether, there is no question but that for the past seven years or so, the children have

a loving home with the applicants where all of their needs, physical, psychological,

emotional, educational and otherwise are being met. The Authority, the Attorney General

Factor (ix) Whether the Country A adoptions conform to the definition of “foreign

313. Pursuant to the guidance given by MacMenamin J., the Court must consider whether the

adoptions effected in Country A satisfy the requirements of a “foreign adoption” as

defined in s. 1 of the 1991 Act. That definition has been set out earlier in the judgment.

314. Counsel for the applicants submits that the Court should regard as persuasive the

approach of the English courts when considering whether Country A’s laws substantially

complied with the requirements of “foreign adoption” as defined in s.1 of the 1991 Act. He

cites In Re J. (a child) (foreign adoption order) [2012] EWHC 3353 (Fam).

315. In Re.J., the factual position was that an Indian couple living in the UK were unable to

conceive a child of their own. They offered to adopt the husband’s relatives’ new baby

who was born in India. They took part in a religious adoption ceremony, in India, with

the child’s biological parents. Four days later the adoption was registered by deed by the

Registrar in the local court. The child travelled to the UK with the birth parents on a

visitor’s visa and when they returned to India the applicant couple took over the child’s

care in the UK. They then applied pursuant to the UK court’s inherent jurisdiction for

recognition of the Indian adoption, in order to apply for the child’s indefinite leave to

316. Moor J. addressed the issue of recognition in the following manner:

“This is a non-Convention adoption but I can recognise it pursuant to the common

law. I must apply the adoption welfare test in s. 1 of the Adoption and Children

Act, 2002 in which AJ’s welfare throughout her life is paramount. As a result of Re

Valentine’s settlement [1965] 1 Ch 831, [1965] 2WLR 1015 I am not entitled to

recognise a foreign adoption order unless the adopting parents were domiciled in

India at the relevant time. Pursuant to the decision of Hedley J. in Re T and M

(Adoption) [2010] EWHC 964 (Fam), [2011] 1FLR 1487, when I have to consider

the question whether to recognise a foreign adoption under the common law, there

Was the adoption order obtained wholly lawfully in the foreign jurisdiction;

did the concept of adoption in that jurisdiction substantially conform to the

(iii) If so, was there any public policy consideration should mitigate against

317. In the light of a legal opinion which had been provided on the validity of the adoption in

India, Moor J. was satisfied that the concept of adoption in that jurisdiction substantially

conformed to the English concept. He opined that although the Indian adoption did not

exactly conform to the way adoption was done in the English system, he found that

following the Indian adoption, the children were deemed to be children of the adopting

parents and that the legal ties regarding, for example, inheritance rights as between the

birth parents and the children had been severed. (at paras. 13-16)

318. It is the applicants’ contention that the criteria to which Moor J had regard are not unlike

319. McKechnie J., writing for the minority in the Supreme Court in the Case Stated, was not

prepared to rely on Re T or Re J. Having discussed them for some length, he found that

the basis for the decisions had not been fully explained and that the results arrived at in

the cases may have their basis in complicated provisions within the relevant English

legislation “which may well relate to the relationship England has, inter alia, with

“overseas countries”, as understood in English constitutional law…” (at para.58)

320. Counsel for the applicants contended that the views expressed by McKechnie J. have to

be seen in their context, namely the argument made by the applicants to the Supreme

Court that the Country A adoptions could be recognised here by the application of

common law, which was rejected by the Supreme Court. Counsel submits, however, that

the English case law nonetheless provides clear support for the majority view in the

Supreme Court, namely that recognition of non-Hague compliant country adoptions in

exceptional cases can be permitted under the domestic law of this State, in effect via

321. Notwithstanding the applicants’ arguments, I consider that it would be unwise to regard

Re T or Re J. as persuasive authority for the purposes of the exercise upon which the

Court is presently embarked. This is so because under the “truly exceptional case” test

formulated by the majority in the Supreme Court, compliance by the Country A domestic

adoption with the requirements of the definition of “foreign adoption” is but one of the

myriad factors to which this Court must have regard in determining whether an order

322. I now turn to the question whether the Country A domestic adoption can be said to meet

the requirements of a “foreign adoption” as defined in s.1 of the 1991 Act. Consistent with

that definition, based on the factual matrix in this case, the task of this Court is to

(a) Whether the consent of every person whose consent to the adoption was,

under the law of Country A, required to be obtained, was obtained;

(b) Has the adoption in Country A essentially the same legal effect as respects

the termination and creation of parental rights and duties as an adoption

(d) Whether Country A’s laws required due consideration to be given to the

(e) That the adopters have not received, made or caused to be given any

323. The applicants have furnished evidence of adoption law in Country A by way of two Legal

Opinions. No application was made by either the Attorney General or the Authority to

cross- examine the author of either Legal Opinion, albeit that certain submissions were

made by the Authority in relation to same, which are referred to below.

324. The first Legal Opinion is dated 25th October, 2018 and emanates from the Country A

lawyer who acted for the second applicant with regard to the adoptions of J.B and K.B.

This Opinion was furnished in response to four queries posed by the applicants’ Irish

325. Query 1 related to whose consent to the adoptions was required according to the

relevant law in Country A. The Legal Opinion set out that the relevant provisions of the

Civil and Commercial Code (CCC) in Country A required the consents of the natural

parents. It makes reference to what has to occur if either parent is deceased or has had

his or her parental power revoked. It refers also to the powers of a Country A court to

grant approval in circumstances where the natural parents cannot give consent. The

Country A court may also grant approval where there is a refusal to give consent, if the

court is satisfied that such refusal is unreasonable and detrimental to the health, interest

“In this matter, the father and mother of the two adopted children…gave their

consent to [the second applicant’s] adoption of them; [the second applicant] is also

the aunt of these two children. The father of the children is the younger brother of

[the second applicant]. Thus, the said adoptions have been completed in

326. Query 2 asked what was the legal effect of the adoptions as respects the termination of

the parental rights and duties of the natural parents and the creation of parental rights

and duties of the adopter. The Opinion advised that the parental rights and duties of the

natural parents terminated on the date of the adoption and passed to the adopter, in

327. Query 3 asked what, if any, enquiries were required under the laws of Country A relating

to (a) the adopter, (b) the children and (c) the natural parents prior to the adoptions.

328. The Opinion advised that Country A required a prospective adopter to be deemed eligible

and suitable pursuant to the relevant provisions of the CCC. It referred to the criteria

that the adopter be married, have secure financial status and “live in a good environment

and have time to take care of the adopted child.” The rules also provided for probationary

placement of the child for a period of six months. This requirement could be waived where

the adopter was a family member and that, therefore, this rule had been waived in the

case of the second applicant. The Opinion stated that children over fifteen years of age

were required to give their consent to the adoption. It stated that the law also provided

that before the Child Adoption Committee would consider the adoption application, the

adopter, the children and the natural parents were required to be interviewed by the

Provincial Office of Social Development and Social Security. It is also required that the

relevant officer visit where the child is to be raised by the adopter and interview the

adopter’s neighbours following which a report is submitted to the Child Adoption

Committee, which considers whether to approve the adoption application or not.

329. Query 4 asked whether the applicable laws governing adoptions in Country A required

the courts or other authorised parties to give due consideration to the interests and

welfare of the children. The Opinion stated that only the Department of Social

Development and Welfare can grant approval of an adoption. That department authorises

the Child Adoption Committee of the Office of Social Development to “conduct interviews,

and examine the facts concerning the interests and welfare of the children to determine

whether the child adoption shall be approved”. The Opinion goes on to state:

“In this case, the Child Adoption Committee has approved [the second applicant’s]

330. In the course of the Authority’s written legal submissions dated 16th November, 2018,

issue was taken with the Legal Opinion. Counsel for the Authority cited McGrath on

Evidence (2nd ed., 2014) that expert evidence “is mandatory in respect of matters of

foreign law” and that “foreign law can only be proven by the evidence of a suitably

qualified lawyer”. Although not taking issue with the qualifications of the author of the

Legal Opinion dated 25th October, 2018, counsel queried the independence of the author

given that the applicants had tendered a Legal Opinion from the lawyer who had acted for

the second applicant in relation to the Country A adoptions. Counsel further submitted

that the Legal Opinion diverted on occasion into giving pure factual evidence rather than

expert opinion. Counsel also noted that the issue of whether Country A law required an

adopter to be habitually resident in order to effect a domestic adoption had not been not

331. On 30th November, 2018, the applicants’ solicitor wrote to a named lawyer in a named

law firm situated in Country A’s capital city, requesting her professional opinion on the

same four queries as previously made of the second applicant’s Country A lawyer. He

further requested that that the Legal Opinion address the legal requirements as regarding

citizenship and/or place of habitual residence that are required to be satisfied by a

prospective adopter in order to avail of a domestic adoption under Country A law. As with

the earlier request, the applicants’ solicitor enclosed the Country A adoption papers

332. The second Legal Opinion is dated 21st December, 2018. In her “Affidavit of Foreign

Law”, the author of the Legal Opinion sets out her professional qualifications and areas of

expertise, which include adoption law. She avers that she is “independent of the parties in

this matter”. She avers that her Legal Opinion constitutes her evidence in the case.

333. By and large, the second Legal Opinion aligned with the first Legal Opinion in its response

to queries 1 and 2 of the applicants’ solicitor’s letter. Accordingly, I am satisfied that

Country A’s laws required the consent of the natural parents to the adoption of the

children in this case. As regards query 2, it is clear that Country A’s laws are in line with

the laws of this State as to the legal effect of an adoption order vis- a-vis the termination

and creation of parental rights and duties on foot of an adoption. Accordingly, I am

satisfied that requirement (b) of the definition of “foreign adoption” as set out in s.1 of

334. In answer to query 3 (whether Country A’s laws required an enquiry to be carried out into

the adopters, the child and the parents), the response set out in the second Legal Opinion

was more expansive than in the first. As regards the adopter, it confirmed that the law

required an examination of the living conditions and suitability of the adoption applicant.

This was to be ascertained by examining the adopter’s family history, living conditions,

career and economic situation, psychological and mental state. A criminal background

check is also required. The ability of the adopter to look after the child and provide him or

her with an education is also to be examined. The Legal Opinion also confirmed the

requirement for a probationary placement of the child with the adopter but confirmed that

this requirement is not required where the adopter is a relative of the child, for example

an aunt. As regards the natural parents, the Legal Opinion confirmed that upon receipt of

an application for adoption, the relevant officials must enquire into the natural parents’

living circumstances, their ability to give consent and the reasons for giving the child up

for adoption. With regard to the child to be adopted, the Legal Opinion referred to the

requirement for the relevant official to ascertain the history of the natural family, examine

the living conditions of the child and his or her suitability for adoption and ascertain the

335. The second Legal Opinion’s response to query 4 (whether Country A’s laws required the

court or the adoption authority to give due consideration to the interests and welfare of

the children) is, to my mind, somewhat opaque. By and large, the response reprises the

law as to who are the relevant decision-making bodies in adoption cases and again

reiterates that enquiries are to be made of and about the adopter, the natural parents

and the child before the adoption is submitted for approval. It is not expressly stated that

the relevant law provides for due consideration to be given to the interests and welfare of

336. However, I note that it is expressly stated in the first Legal Opinion that the Child

Adoption Committee has to “conduct interviews, and examine the facts concerning the

interests and welfare of the children to determine whether the child adoption shall be

approved” (emphasis added). I am satisfied, therefore, that consideration of the best

interests principle is part of Country A’s adoption laws. Therefore, requirement (d) of the

definition of “foreign adoption” as set out in s.1 of the 1991 Act has been met.

337. The second Legal Opinion’s answer to query 5 (whether habitual residence in Country A

was a requirement in order for a prospective adopter to avail of a domestic adoption) was

“The laws of [Country A] do not restrict a foreigner or a person whose domicile or

Therefore, an adopter does not have to be a [Country A] citizen or [have] a

338. I am satisfied that the evidence before the Court, as given in the second Legal Opinion,

is, therefore, that the second applicant did not have to establish habitual residence in

Country A in order to adopt the children. I note that the first applicant testified on Day 3

of the hearing that he had asked his Country A lawyers whether it was necessary for the

second applicant to show habitual residence in Country A in order to adopt and that his

lawyer’s response was that habitual residence was not required. Thus, the evidence

tendered by the first applicant is consistent with the second legal Opinion.

339. The second Legal Opinion response to query 5 also includes the following:

“However, some legal requirements and documentations are different for an

adopter who has a domicile in [Country A] and who has a domicile in foreign

country such as required documents and the authority to accept the adoption

Please note that under Section 5/1 of the Child Adoption Act, a child adoption in

foreign countries, which is a party to [the Convention], in which a competent

authority of that country certifies that the child adoption complies with the

Convention and such child adoption is not conflicted with the law, public order or

good morals, shall be considered as the adoption made in accordance with the Child

340. I do not regard the first part of the above extract as germane to the within case since as

the probationary placement requirement did not apply to the second applicant given that

341. As regards the latter part of the extract, there, the author of the second Legal Opinion is

clearly outlining that Country A (itself a Hague Convention country) will recognise

Convention compliant adoptions effected outside Country A. It is thus clear that there was

awareness by the author of the second Legal Opinion of the Convention.

342. As is well rehearsed at this stage, the second applicant’s adoption of J.B. and K.B. was

one to which the Convention applied. The evidence given by the applicants to this Court

was that in the course of the adoption process in Country A, neither their Country A

lawyers nor the Country A provincial authority with whom they dealt adverted to the fact

that the adoptions fell within the remit of the Convention. As already indicated, I am

satisfied to accept the applicants’ evidence in this regard. Given their approach at the

outset of the adoption process (which was to immediately seek the advice of the relevant

Irish agencies), I have no reason to not to believe that had they been alerted by their

Country A lawyers or the Country A provincial authority that the adoptions fell within the

Convention that they would not have reverted to the relevant agencies in this jurisdiction,

or gone to Country A’s Central Authority, or at that point sought legal advice as to the

Were enquiries made and consents obtained in the present case in 2011, in line with

343. The Court has heard the evidence of the applicants as to the enquiries made by the

Country A authorities of the second applicant (and indeed of the first applicant) over a

six-month period between September 2011 and March, 2011. The applicants have

outlined the nature of the enquiries made of the second applicant and the documentation

which they both were required to produce. This evidence is set out in detail earlier in this

judgment. I am thus satisfied that the enquiry into the second applicant (and the first

applicant) which Country A’s law required has been completed. I note that these enquiries

included not just financial checks but also checks with the police in this jurisdiction (as

required by Country A’s adoption law) in relation to the second applicant. The enquiries

also included visits to the second applicant at her Country A home. I am also satisfied as

a matter of probability that the necessary enquiries into the natural parents were

completed. The applicants testified that the natural parents met with the Country A

provincial adoption authorities on 7th September, 2011. I also accept as a matter of

probability that the enquiries carried out by the Country A authorities encapsulated the

children and their particular circumstances as they stood in 2011. Accordingly, I am

satisfied that requirement (c) of the definition of “foreign adoption” as set out in s.1 of

344. The question which next falls to be addressed is whether for the purposes of requirement

(a) of the definition of “foreign adoption” as set out in s.1 of the 1991 Act, the consents of

every person whose consent was required under Country A’s laws was in fact obtained.

The Court must also satisfy itself that such consents were informed consents and fully and

freely given. On this latter issue, I note that the Authority’s written legal submissions

advance the argument that if a natural parent thought they were consenting to a

domestic adoption, but in fact the adoption was an intercountry adoption, such consent

would not be full, free and informed. In fairness to the Authority, it did not argue that

that is what occurred here, rather it left the issue of consent for the Court to consider on

the evidence. For the purposes of the Court’s assessment, however, I took note of the

Authority’s submission. This was in circumstances where consents of the natural parents,

on their face, made reference to the second applicant residing at a named address in her

home province (in fact the house she had purchased in late 2006). However, for reasons

more particularly set out below, I have concluded that the natural parents were not of the

impression that the second applicant intended to reside in Country A with the children

345. It is of course the case that the domestic adoption effected in Country A on 25th

January, 2012 (and made law on 21st February, 2011 on foot of the registration of the

adoptions) was properly an intercountry adoption that fell to be processed substantively

and procedurally with the Convention, which was not done. That being so, it follows that

the parental consent process mandated by the Convention was not adhered to in this

case. The fact of non-compliance with the Convention does not, however, negate the

efficacy of ascertaining whether there was compliance with Country A laws on the giving

of parental consent in domestic adoptions. It is into this which the Court must enquire,

using the definition of “foreign adoption” as set out in s.1 of the 1991 Act.

346. The applicants’ evidence as to the giving by the natural parents of their respective

consents to the adoptions is set out earlier in this judgment. In essence, they state that

the natural parents’ consents were obtained on 7th September, 2011, an occasion when

they were independently interviewed by the relevant social workers of the provincial

authority that was processing the second applicant’s application. Both applicants testified

that they saw the natural parents in the company of the officials but that the applicants

themselves were not present in the room where the consents were obtained.

347. Counsel for the Authority points to the following exchange which took place between the

“Q. Right. Can you tell me when the question of adoption was raised did you have an

opportunity, or to your knowledge did [the second applicant] have an opportunity

to speak to the natural mother and father about it and the ramifications of it?

A. I understand, and again she will clarify, because obviously I don’t speak [the

language of Country A] …After her mother had raised [the issue of the second

applicant adopting the children] with her I understand that [the second applicant]

spoke to her brother who in turn spoke to the natural mother. Now I don’t know,

you know, if we…when we visit [Country A] if we want to get in contact with the

natural mother normally we have to do that through her mother because that is the

one constant in terms of phone number and things like that. So the natural

mother…changes her phone very regularly. So if we ever wanted to…I don’t know

how [the natural father] contacted the natural mother, but he did, they discussed

it, they were agreeable and understood the ramifications as I understand it and

after that [the second applicant] spoke directly to the natural mother.”

348. Albeit noting the hearsay nature of some of this evidence, overall, I am satisfied as a

matter of high probability that the consents furnished by the natural parents on 7th

September, 2011 were informed consents which were provided willingly. In the first

instance, there is the evidence tendered by the applicants that the natural parents were

agreeable to the second applicant adopting the children. Secondly, the Court has before it

a certificate from the Office of Social Development and Human Security of the relevant

provincial authority which certifies that the natural parents “have signed the Letter of

Consent from the Authorized Person in front of the officer on the 7th of September 2011

willingly, without being threatened, tricked or induced by obtaining wages or

compensation as well as not being forced in any other unlawful practice by [the second

applicant] or any other persons”. As is clear from the Legal Opinions, the consent of the

natural parents is a legal pre-condition for the Country A adoptions unless dispensed with

by court order). Thirdly, the Court has before it certified copies of the natural parents’

respective consents. Having regard to the evidence given in the second Legal Opinion as

to what Country A’s laws required with regard to consent to domestic adoptions, I am

satisfied as a matter of probability that there was compliance with the legal requirements.

349. While I note that it was put to the first applicant in cross-examination by counsel for the

Attorney General that the consent document signed by the natural mother does not give

any indication of the knowledge or information which was imparted to her for the

purposes of obtaining her consent to the adoptions of the children by the second

applicant, I am satisfied on balance of probability, given the involvement of the officials of

the provincial authorities and the nature of the document signed by the natural mother,

that the natural mother knew the import of the document she signed, namely that she

was giving her children up for adoption. I also take into account the applicants’ evidence

as to their periodic ongoing contact with the natural mother and their evidence that she

350. It is the case that the consent documents signed by the natural parents described the

second applicant as resident in the house in her home province which she had purchased

some years earlier. The consents made no mention of the fact that as September 2011,

the second applicant’s habitual place of residence was Ireland.

351. Both applicants were questioned by counsel for the Attorney General as to why this was

the case. They both testified that the reason for the inclusion of the second applicant’s

Country A address was because pursuant to Country A’s laws, every Country A citizen had

to be registered at an address in Country A. The evidence of the second applicant was

that the officials had put her Country A address on the consent documents as that was

her address according to her Country A identity card. They also testified that at all

relevant times, both the natural parents and the Country A officials knew that they were

resident in Ireland and that the children would be residing in Ireland following the

adoption. I am satisfied to accept the applicants’ testimony in this regard. As a matter of

high probability. I am satisfied that the natural parents were aware since December, 2007

the that second applicant was resident in Ireland. I note in particular the evidence given

by the second applicant that she left her home province for Ireland in December, 2007.

This was a time when the birth parents were residing in the house which the second

352. Moreover, there is evidence that, thereafter, she and the first applicant only returned to

Country A for holidays, a fact that must have been known to the natural mother as well

as the natural father, at least up to early 2011 when the natural mother left that

residence. I am also satisfied that it was the understanding of the Country A officials

dealing with the adoptions that the second applicant was resident in Ireland.

353. The applicants have given uncontroverted evidence regarding the range of

documentation which they were obliged to provide as part of the second applicant’s

assessment process. There can be no doubt but that the officials were aware from this

documentation that she was resident in this State. I also take account of the fact that

during half the assessment process the Country A officials communicated with the second

applicant at her Irish address, via Skype. Furthermore, given that the laws of Country A

do not restrict a person whose domicile or habitual residence is not that of Country A from

adopting a child, I am satisfied that there was no ulterior motive for the inclusion of the

354. In August 2018, the applicants were instrumental in procuring further consents to the

adoptions from the natural parents. The first applicant’s evidence was that this step was

taken in order to assist the Authority in circumstances where the Authority had been

seeking to obtain the consents of the natural parents as part of its efforts to progress the

applicants’ application in this jurisdiction to jointly adopt the children. I accept the first

applicant’s evidence in this regard in so far as it relates to the period prior to the delivery

of the Supreme Court’s judgment in the Case Stated. As set out earlier in this judgment,

the contents of correspondence between the Authority and applicants in the period

August, 2017 to May, 2018 disclose that the Authority (on a without prejudice basis,

given its appeal of the High Court judgment in the Case Stated) was attempting, for the

purposes of the applicants’ domestic adoption application, to appoint an authorised

person to oversee the signing of the consent by the children’s birth mother. To this end,

in August, 2017 and October, 2017, the applicants provided the Authority with contact

details for the birth mother. In March, 2018, the applicants’ solicitor was told that the

Authority had written to Country A’s Central Authority seeking its assistance in procuring

the birth mother’s consent and notifying and consulting the birth father. The first

applicant testified that the HSE social worker who had been assigned to the applicants

had asked if he and the second applicant could assist with regard to effecting contact

between the Authority and the birth mother. In this regard, the first applicant’s evidence

355. It is however the case that post the delivery of the Supreme Court’s judgment on 12th

July, 2018, there was no basis for the Authority to pursue the natural parents’ consents in

the context of a domestic adoption in this jurisdiction, albeit the Authority at that time

was continuing to try and liaise with Country A’s Central Authority for the purpose of the

“reverse engineering” solution which the Authority had suggested to the Supreme Court,

356. While the procuring of the August, 2018 consents could on one level be said to be

something of a solo run by the applicants, I accept that the 2018 consents were obtained

against a backdrop whereby the applicants had been requested by the Authority to

provide assistance in this regard in the period October, 2017 to May, 2018 (for the

357. The first applicant told the Court that in August, 2018, he and the second applicant were

in Country A on holiday and accordingly in a position to procure consents from the natural

parents. In the course of his evidence he stated that when first contacted by the HSE

social worker in the context of the domestic adoption application, he had been asked if “it

would be possible to have the [2011] consents redone in the Irish form…” He stated that

the form used in August, 2018 was that which Authority had outlined in its letter of 29th

358. The consent forms which were provided to the natural parents in August, 2018 by the

first applicant consisted of a document entitled “Form 1 The Adoption Society of Ireland

Affidavit of Consent to Adoption” which the first applicant had endeavoured to translate

into in Country A’s language for the benefit of the natural parents.

359. The “Affidavit of Consent to Adoption” document was signed by the birth mother on 19th

August, 2018 in the presence of a notary. The notary was verified by Country A’s Ministry

of Foreign Affairs. A similar document was signed by the birth father on the same date,

again in the presence of a notary. Both documents included a paragraph that the

respective signatories understood the nature of an adoption order and that they would

lose all parental/guardianship rights upon the adoption. Moreover, the 2018 documents

contained a statement that the birth parents had been informed that their respective

consents could be withdrawn at any time before the making of the adoption order. These

were caveats which were absent from the “Letter of Consent from the Authorized Person”

360. Under cross-examination by counsel for the Attorney General, it was the first applicant’s

belief that notwithstanding the absence of the aforesaid safeguards in the 2011 consent

form which the natural mother as the “Authorised Person” under Country A law had

signed on 7th September, 2011, the consent of the birth mother had been fully and freely

obtained. He stated that this was evidenced by the fact that in August, 2018, both birth

parents could have refused to consent to the adoptions when again requested to do so

but they had not refused. As further proof that the birth mother had freely provided her

consent in 2011, the first applicant referred to a text message which the second applicant

received from the birth mother on 25th October, 2018 thanking the applicants for

everything they have done for the children and sending a video of her new baby for J.B.

361. In the course of his evidence, the first applicant acknowledged that the consent forms

which were provided to the birth parents in August, 2018 were prospective in nature and

not a ratification of an earlier adoption process. The first applicant explained that he had

used this format in order to follow and emulate the steps which the Authority had outlined

in its letter of 29th March, 2018 to Country A’s Central Authority.

362. Notwithstanding my view that the applicants’ actions in August, 2018 added a further

layer of complication to the adoptions in issue in these proceedings, I am satisfied that

the applicants’ actions were not a retrospective attempt to obtain consents from the

natural parents which should have been obtained in September, 2011. For the reasons

already set out, I am satisfied that the natural parents gave their consent to the

adoptions in September 2011 and that those consents were freely given. I am fortified in

this conclusion by the natural parents’ readiness to assist the applicants in August, 2018.

On balance, I accept the first applicant’s evidence that the 2018 consents were obtained

in an effort by the applicants to emulate what the Authority had previously proposed. The

applicants clearly believed that it would assist if the birth parents signed the consents

again “in the Irish form”. Furthermore, I find no reason to disbelieve the first applicant’s

testimony that the natural mother position in August 2018 was that the children had been

363. In all the circumstances, I am satisfied that requirement (a) of the definition of “foreign

adoption” as set out in s.1 of the 1991 Act has been established in this case.

364. For the purposes of requirement (e) of the definition of “foreign adoption” as set out in

s.1 of the 1991, I should say at this juncture that I am satisfied from the evidence

adduced, that the applicants “have not received, made or given or caused to be given any

payment or other reward…in consideration of the adoption…” of J.B. and K.B.

365. There is one aspect of this case where there is perhaps less factual clarity that might have

been. I note that in the first Legal Opinion it is stated that the adopter, the child and the

natural parents are required to be interviewed by the Provincial Office of Social

Development and Social Security. It is also required that the relevant officer visit where

the child is to be raised by the adopter and interview the adopter’s neighbours following

which a report is submitted to the Child Adoption Committee, which then considers

whether to approve the adoption application or not. I have already stated that I am

satisfied, on balance, that appropriate enquiries were made of the second applicant and

the birth parents for the purposes of the Country A domestic adoption process. However,

there is no evidence before the Court as to whether the second applicant’s neighbours

were spoken to. This may be because of the fact that they provincial authorities were

aware that the second applicant resided in Ireland. I note, however, her evidence that she

had referees (her two aunts) in attendance on 7th September, 2011. No evidence was

given by the applicants as to whether the provincial authorities interviewed the children,

as appears to be required by Country A law. At the time of the Country A domestic

process, J.B. was five years old and K.B. was three years old. It may be that interviews

with the children were not pursued because of their young ages at the time of the

adoptions. I hasten to add that this is just surmise on my part. In any event. given that

the children have by now lived well more than half their lives with the applicants, the

issue as to whether they were spoken to in 2011 cannot be the determining factor as to

whether the domestic adoption comes within the parameters of “foreign adoption” as

366. In summary, for all the reasons set out above, I am satisfied the Country A domestic

adoption substantially complies with the definition of “foreign adoption” as set out in the

367. For the purposes of the within application, the Court has heard informally from J.B. and

K.B. about their wishes for the future. They presented as extremely happy, bright and

articulate children whose description of their home, school and social life reflect their view

of themselves as the children of the applicants. They talked about their half-brothers who

are the sons of the first applicant from his first marriage and their baby brother born to

the first and second applicant in 2017. They are aware of and know their birth parents

(their other “mum and dad”) and extended family in Country A whom they visit. They

talked about their birth mother’s new baby, their half-sister. It is clear to the Court,

however, that these children do not see themselves as other than as the children of the

368. The Court has heard the evidence of the applicants regarding their life together with the

children since the children’s arrival in this jurisdiction in April, 2012. I have also heard

369. The prejudice to the adoptions not being recognised in this jurisdiction was identified by

“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 lapse of five years or

more. The two adults, who see themselves as the children’s parents are not…their

parents in the eyes of the law, or the State generally.” (MacMenamin J. at para.

370. I accept the above dictum as a correct reflexion of the legal dilemma that arises in this

case. It arises, in the first instance, consequent on the fact that the adoptions did not

conform to the Convention rules, as they should have. The dilemma arises also by reason

of the fact that, for all the reasons set out by the Supreme Court, neither a domestic

adoption in this jurisdiction nor a return to the children’s original legal status is possible.

371. Submissions have been made by the Authority to the effect that any present or future

difficulties regarding the children’s status in this jurisdiction could be alleviated by

alternative rights mechanisms such as non-parental guardianship, as provided for in s.6C

of the Guardianship of Infants Act 1964, and by provision being made for the children in

the applicants’ wills. This was also the view of the minority in the Supreme Court. (See

O’Donnell J. at para. 9 and McKechnie J. at para. 148.) I note however that while

O’Donnell J. did not believe that “a humane decision-maker” would determine that the

children leave the country once no longer dependent on the applicants, he acknowledged

that the spectre of the children being required to leave the country when they are no

372. Counsel for the applicants submits that when in 2027 the children’s current residency

permits expire, at that point they will be two adult Country A citizens with no clear legal

relationship with any Irish or EU citizen, save being the natural niece and nephew of the

373. Overall, while I agree with the view expressed by O’Donnell J. that it is neither “desirable”

nor “sensible” to use the law of adoption to solve problems which may or may not occur

regarding the children’s future residency status, what presents here is, to my mind, a

more fundamental issue, namely that, as matters stand, the children’s and the applicants’

recognisable legal status remains “in limbo”. This is so given that a domestic adoption in

this jurisdiction cannot be tolerated and because the Country A domestic adoption (which

should have been treated as an intercountry adoption under the Convention) is not

considered a nullity (by reason of non-compliance with the Convention) and thus remains

extant. This is all in the context where, as stated by MacMenamin J. “the human reality

[is] that the children see the applicants “as their father and mother, based on the bonds

of attachment which have been formed over the last six years.” (at para. 140)

374. In all the circumstances, therefore, I accept as considerably more persuasive the

applicants’ arguments that it would be in the best interests of these children that the

Country A adoption would be entered on the Register, as opposed to their best interests

being met by means of other legal mechanisms such as guardianship. My reasons for this

conclusion are further set out below. I wish to emphasise that I am not saying that the

best interests principle of itself is sufficient to trump the Convention. In the absence of

truly exceptional circumstances, the best interests of the children of itself could not be a

sufficient basis for an order to be made under s.92(1)(a) where there has been wholesale

or substantial non-compliance with the Convention. This is so in light of the State’s

commitment to implementing the Convention and upholding the integrity of the

intercountry adoption process provided for in the Convention and the 2010 Act. Any

contrary approach would be tantamount to judicial forgiveness of non-compliance, which

375. What distinguishes the present case is firstly, the series of unfortunate events which I

have described earlier in this judgment which, I am satisfied, diverted the applicants from

the path they had initially embarked on, namely their invocation of the assistance of

agencies of this State for the purpose of an intercountry adoption of the second

applicant’s niece and nephew. Secondly, the Court is satisfied as to the applicants’ bona

fides at all relevant times. Thirdly, during the entirety of the processes which the

Authority sought to put in place in the period 2012 to 2018 (including a domestic

adoption in this jurisdiction), the applicants co-operated willingly and wholeheartedly.

Moreover, this Court has found that the Country A domestic adoption meets the criteria

for a “foreign adoption” as set out in s.1 of the 1991 Act as it read on 30th May, 1991.

This being so, there is an “adoption” for the purposes of any order the Court might make

under s.92(1)(a) of the 2010 Act. As earlier referred to, pursuant to Article 42A of the

Constitution, the State recognises the natural and imprescriptible rights of all children and

undertakes so far as practicable, by its laws, to protect and vindicate those rights in the

resolution of all proceedings concerning, inter alia, the adoption of a child. Bearing this

constitutional promise in mind, this Court, in considering whether to direct an entry of an

“adoption” in the Register in all the exceptional circumstances of this case, is impelled to

conclude that the vindication of these children’s rights requires some mechanism to give

legal recognition to their status as the adoptive children of the second applicant. Such

mechanism is available to the Court via s.92(1)(a) of the 2010 Act.

376. The Court has considered factors (i) to (xi) above for the purpose of determining whether

the circumstances of the within case meets the test of being, in the words of the Majority

View in the Supreme Court “a truly exceptional case”. In view of the findings of this

Court under the relevant headings, as set out above, I am satisfied that the applicants

377. The Court, therefore, proposes to make an order pursuant to s. 92(1)(a) of the 2010 Act

directing the Authority to enter the adoptions of J.B. and K.B. on the Register. I am

satisfied that such an order will not give rise to any public policy concern. The Court is

cognisant of the public policy criterion. A decision to effect recognition of “an adoption”

which was properly an intercountry adoption to which the Convention was not applied

raises an issue of public policy. There is public interest into maintaining the State’s

commitment to the Convention. In particular, I note the Attorney General’s submissions

in this regard. I am satisfied however that the order the Court proposes to make can exist

in harmony with both the letter and spirit of the Convention. This is so by virtue of the

careful test formulated by the majority in the Supreme Court which this Court had

adopted in assessing the evidence in this case, in order to ascertain whether the

circumstances met the “truly exceptional” test, and by reason of the guidance set out in

378. Furthermore, in my consideration of the public policy concern, I also take into account

para. 529 of the Guide to Good Practice which states, inter alia, that “[r]ecognition may

be refused, under Article 24, only if the adoption is manifestly contrary to public policy,

taking into account the best interests of the child.” As is clear from the findings of fact

made by this Court, there is no suggestion in the present case that the children were

trafficked into this jurisdiction or adopted by the second applicant for any nefarious

379. I will hear the parties’ submissions on the timing of the proposed order,

given that the applicants’ current application to the HSE for assessment remains on hold

pending the outcome of the within proceedings. I will also hear submissions on the exact

wording to be used for the purpose of entry on the Register, to reflect the “truly

380. By way of postscript, I should acknowledge that in their legal and oral submissions to the

Court, the applicants argued that in interpreting and applying s.92(1)(a) of the 2010 Act,

the Court should have regard to the children’s rights under Article 8 ECHR. Counsel for

the Authority resisted any reliance on Article 8 on the basis that there was no violation of

Article 8 rights given the range of alternative remedies (other than recognition of the

381. In view of the findings made by this Court with reference to the Constitution, I did not

find it necessary to consider the parties’ respective arguments with regard to Article 8

ECHR.

Result: Applicants granted relief by way of Order under s.92(1)(a) of the Adoption Act 2010.

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	High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> C.B. & anor v The adoption Authority of Ireland [2019] IEHC 779 (10 September 2019) URL: http://www.bailii.org/ie/cases/IEHC/2019/2019_IEHC_779.html Cite as: [2019] IEHC 779

High Court of Ireland Decisions