The Adoption Authority cannot lawfully refuse to register the separate Mexican adoptions of two young children whose lives here involve “a legal limbo”, the Supreme Court has ruled. The adoptions of 15 other Mexican-born children in a similar position to the two children, including a sibling of one of them, have been registered by the authority in the register of intercountry adoptions, Mr Justice Donal O’Donnell noted.
It would be a failure to hold these two children equal before the law “in such an important feature of their human personality” if the law were to permit a different outcome for them, he said.
He was giving the five-judge court’s judgment on Monday dismissing an appeal by the authority over the High Court’s answers to legal questions raised in the authority’s proceedings concerning the status of the two children. Both have lived in “a legal limbo” here because their separate adoption processes began under the Adoption Act 1991, but were not complete before the coming into force on November 1st, 2010 of the Adoption Act 2010, when the 1991 Act was repealed.
Both children were born after November 1st, 2010, each was adopted in Mexico by an Irish couple and both are described as “happy and thriving” here. The separate adoption of a sibling of one of them, who was born before November 1st, 2010 but adopted after the 2010 Act came into force, has been registered.
The 2010 Act gave effect in Irish law to the Hague convention on protection of children and co-operation in respect of intercountry adoption.
Mr Justice O’Donnell said the 2010 Act altered the Irish system for recognition of intercountry adoptions and gave rise to the difficult legal issue in these cases.
Under the 1991 Act, a couple, after assessment, could obtain a declaration of eligibility and suitability (DES), travel abroad to pursue a private placement adoption and, on return here, seek to have that registered in the register of foreign adoptions.
The Hague convention created a more structured approach, requiring each signatory state to have a central authority. Article 23 stated that adopting a child from a signatory state requires co-operation of the central authority in the child’s state of origin and the state to which the child is being relocated.
In these two cases, the Mexican adoptions may have been sufficient under the 1991 Act but did not comply with the 2010 Act because neither adopting couple had an article 23 certificate from the designated central authority.
While the adoptive parents, the authority and the Mexican authorities had all acted conscientiously, the position is that, almost 10 years after both children were born, adopted and brought back to Ireland, they “remain in a form of legal limbo”.
They are unrelated by the law of their habitual residence to their de facto parents with whom they live and are unrelated by the law of Mexico to the people whom Irish law, their counsel argued, maintains are their parents.
The core legal question was whether pre-existing rights to adoption which survived the 2010 Act are capable of arising where the child to be adopted was born after the 2010 Act commenced on November 1st, 2010.
Mr Justice O’Donnell said the “not entirely illuminating” answer to that was, if the pre-existing rights to adoption are capable of arising under the 1991 Act, and “if” such rights are capable of surviving enactment of the 2010 Act (and repeal of the 1991 Act), then such rights are capable of arising where the child was born after November 1st, 2010.
That conclusion is required by the constitutional obligation to hold all persons as human persons equal before the law, he said.
Because of the “necessarily qualified” answer to the core question, it was appropriate to state the principle of equality before the law means the authority cannot lawfully refuse to register these two adoptions, he said. While noting the authority had legitimate concerns about the outcome, including for Ireland’s obligations as a signatory to the Hague convention, it has already registered Mexican adoptions which are “functionally indistinguishable”. Permitting a domestic adoption would likely have the same effect with “perhaps more significant consequences for future cases, he added.
