O’Donnell J. has cautioned against reading the Supreme Court’s decision in a case concerning two minors’ adoptions as establishing a general principle for future cases.
In a judgment delivered on 12 July 2018, he said he agreed with the judgment of McKechnie J. The Supreme Court judges agreed on the answers to questions stated by the High Court, but differed on a residual issue: whether section 92 of the Adoption Act 2010 could allow P.B.’s adoptions of the children in Country A to be entered in the Register of Intercountry Adoptions.
O’Donnell J. said the discussion of that residual issue was obiter. He emphasised that the differing views concerned the breadth of section 92 and that the majority’s conclusion rested on statutory interpretation. He said no constitutional issue arose and considered Article 42A.4.1° unnecessary to that analysis.
The judgment explains that section 19 of the 2010 Act already requires the child’s best interests to be treated as paramount in the relevant proceedings. In O’Donnell J.’s view, that test applies within the decision-making area defined by statute; it does not allow a court to exceed statutory limits. He warned that treating the constitutional provision as a broad power to make adoption orders whenever a court considered them to serve a child’s interests would remove the Oireachtas almost entirely from the field.
He described any jurisdiction under section 92 as narrow. The judgments, he said, did not support recognising a foreign adoption that failed to meet the Convention and statutory requirements solely because a court considered recognition to be in the children’s interests. He identified the innocence of any error, the degree of official culpability and the excusability of a departure from the Convention and Act as matters that could be relevant in proceedings seeking relief under section 92.
O’Donnell J. acknowledged practical concerns about the children’s legal position, including financial matters and their residency status after they were no longer dependent on the adult notice parties. He said guardianship law and wills could address some issues, while recognising that uncertainty and expense might be reduced by adoption. He concluded that adoption law should not be used to resolve possible residency problems.
The supplied judgment is O’Donnell J.’s discussion of the case. It does not set out the full operative order or the separate judgments’ complete reasoning.