The High Court ruled that an Irish couple’s acquired rights in an adoption process begun before the Adoption Act 2010 survived the change in law. It said the Mexican adoption of their child should be entered in Ireland’s Register of Inter Country Adoptions under section 92 of the 2010 Act.
The judgment, delivered by Mr Justice Henry Abbott on 30 May 2014, arose from the couple’s application after the Adoption Authority of Ireland refused to register the adoption. The couple had begun their Irish eligibility assessment in 2007, received approval in 2009, and travelled to Mexico in October 2010. The child was placed in their care four days after birth. A Mexican court made an adoption order in March 2011.
The 2010 Act took effect on 1 November 2010 and brought the Hague Convention on intercountry adoption into Irish law. The Authority said it could not recognise or register the Mexican adoption because the couple had no valid Article 23 certificate. The Mexican Embassy had said the Mexican central authority could not issue such a certificate in the circumstances. It also said the children concerned should remain in Ireland, and that their wellbeing should prevail.
The couple argued that the High Court could direct registration under section 92 and that their rights had accrued under the previous law. The Authority initially opposed that interpretation, but during the hearing accepted that section 92 gave the court discretion that could, in an exceptional case, exceed the Authority’s own powers. The Attorney General made submissions without becoming a party.
Justice Abbott found that the couple had acquired rights through the eligibility declaration, an official letter enabling them to seek a child abroad, the birth mother’s consent, the child’s placement in their care, and the steps towards adoption and registration. He concluded that the transitional provisions had not clearly extinguished those rights. He also noted the child’s positive progress and bond with the couple, while rejecting the argument that welfare considerations alone could override the Convention’s requirements.
The court rejected the claim that the Mexican court’s adoption order contained a valid Article 23 certificate. It said the purported certificate could not bridge the gap between the private adoption pursued in Mexico and the Convention’s required process involving agreement under Article 17 and certification under Article 23.
At this stage, the court stated it was prepared to order registration under section 92 and invited further submissions on the form of the order. The judgment does not record the final form of that order.