Two Supreme Court judges have agreed that section 92 of the Adoption Act 2010 could provide a route for the High Court to consider an application concerning the adoptions of two children, subject to strict safeguards.
In a judgment delivered on 12 July 2018, Ms Justice Dunne and Ms Justice O’Malley said they agreed with the judgment of Mr Justice MacMenamin and the order he proposed. They noted that the judges were largely in agreement, with disagreement focused on the analysis and possible availability of section 92.
The case concerns JB and KB, both described in the judgment as minors, and applicants whose names are not given in this extract. The judges said there was uncertainty about the children’s legal relationship with the applicants and their status after they ceased to be dependent children. They said the court had to protect the children’s interests while upholding the legal safeguards intended to prevent the exploitation of children and their natural parents in inter-country adoptions.
The judges said neither the Adoption Act nor the Convention set out a procedure for innocent or mistaken non-compliance. Where such mistakes by applicants or State officials led to an invalid adoption, the authorities should explore whether official rectification was possible. If it was not, the court could consider whether a lawful mechanism existed to vindicate the children’s rights.
The judgment did not itself make an adoption order. It described how the High Court should approach a section 92 application if the parties chose to bring one. The applicants would have to establish that an order should be made and satisfy the court there had been no intentional circumvention of the law. Evidence would be needed about the applicants’ suitability and precisely how the children came to Ireland; the children’s relationship to PB might also be relevant.
The judges cautioned that the Supreme Court had relied on largely uncontested evidence from the applicants. The Adoption Authority was not in a position to contradict that evidence, and the HSE was not a party or notice party. The High Court might require further evidence about events in the country of origin, and issues addressed in the Supreme Court proceedings should not be treated as finally determined for any later application.
The High Court would need to examine carefully the circumstances of the statutory breaches and consider whether State agency error contributed to the applicants’ mistaken approach. It should refuse an order if not satisfied that the mistakes were completely unintentional or that the applicants were suitable. The judges said a rigorous approach was essential to ensure section 92 was not perceived as a way to avoid the statutory requirements.