Judgment: 2022-07-29 · Court archive

Court of Appeal orders registration of Philippine adoption after finding exceptional circumstances

The court allowed an appeal over an adoption whose timing could not be established on the available evidence, then used its limited statutory discretion to direct that it be entered on Ireland’s intercountry adoption register.

Court of Appeal · [2022] IECA 171

Who, what, where, when and why

Who
  • J.M. (Appellant)
  • Adoption Authority of Ireland (Respondent)
  • A
What

The court allowed an appeal over an adoption whose timing could not be established on the available evidence, then used its limited statutory discretion to direct that it be entered on Ireland’s intercountry adoption register.

Where

No place detail is included in this summary.

When

Judgment:

Other dates in the report
  • 1 November 2010

    The Court of Appeal found that Philippine law treated the adoptive parents’ rights as effective from the filing of the petition once a decree was issued. But the evidence did not establish when A’s birth parents’ rights ended. The Philippine court had not required a Deed of Voluntary Commitment, and the available evidence did not show whether their rights ended automatically after three months or at another point. The appeal court therefore could not find, on the balance of probabilities, that both the termination of the birth parents’ rights and creation of the adoptive parents’ rights had occurred before 1 November 2010. It held that the statutory test for recognition of a pre-commencement adoption was not established.

Why

Reasons reported in the judgment

The Court of Appeal found that Philippine law treated the adoptive parents’ rights as effective from the filing of the petition once a decree was issued. But the evidence did not establish when A’s birth parents’ rights ended. The Philippine court had not required a Deed of Voluntary Commitment, and the available evidence did not show whether their rights ended automatically after three months or at another point. The appeal court therefore could not find, on the balance of probabilities, that both the termination of the birth parents’ rights and creation of the adoptive parents’ rights had occurred before 1 November 2010. It held that the statutory test for recognition of a pre-commencement adoption was not established.

The Court of Appeal has directed the Adoption Authority of Ireland to enter a Philippine adoption on the Register of Intercountry Adoptions, allowing an appeal by J.M. The court relied on the exceptional circumstances of the case, although it could not conclude that the adoption had been effected before the Adoption Act 2010 commenced.

J.M. and his wife began the Philippine court process in November 2009, seeking to adopt A, the wife’s niece. A Philippine court granted the petition in March 2011 and issued a Certificate of Finality in July 2011. The Authority had refused their application to register the adoption, and the High Court declined to direct registration. The appeal concerned the timing of the adoption and the court’s power under section 92 of the 2010 Act.

The Court of Appeal found that Philippine law treated the adoptive parents’ rights as effective from the filing of the petition once a decree was issued. But the evidence did not establish when A’s birth parents’ rights ended. The Philippine court had not required a Deed of Voluntary Commitment, and the available evidence did not show whether their rights ended automatically after three months or at another point. The appeal court therefore could not find, on the balance of probabilities, that both the termination of the birth parents’ rights and creation of the adoptive parents’ rights had occurred before 1 November 2010. It held that the statutory test for recognition of a pre-commencement adoption was not established.

The court then considered section 92, which permits the High Court to direct an entry where it is satisfied that one should be made. It stressed that this discretion is limited and cannot be used simply to override adoption law or the Hague Convention in the name of a child’s best interests.

In this case, the court considered that the petition had been formally begun with the birth parents’ consent a year before the 2010 Act took effect; the process was conducted through the Philippine courts; and delay arose from the illness and replacement of the judge. It also noted the unusual evidential gap, the absence of an attempt to evade the legal requirements, and the Authority’s view that further proof might have supported registration. The court concluded that directing registration on these particular facts would not defeat the Act’s purpose.

The appeal was allowed, and the court directed the Registrar to enter the adoption on the register. It proposed making no order as to costs unless the Authority notified the Registrar within 14 days that it wished to make representations. The judgment does not state whether such representations were made.

Read the original court judgment

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