The Supreme Court has dismissed the Adoption Authority’s appeal in a case concerning two children adopted in Mexico, holding that their later birth did not prevent pre-existing adoption rights from arising under the repealed Adoption Act 1991. The Court said the Authority could not lawfully refuse to register the adoptions on that basis.
The case arose from a case stated by the Authority under section 49 of the Adoption Act 2010. The parents had received declarations of eligibility and suitability under the 1991 Act before it was repealed on 1 November 2010. The children, identified in the judgment as K. and F., were born in Mexico after that date and adopted there in 2011. The adoptions lacked valid Article 23 certificates under the Hague Convention, which the Authority considered necessary for registration under the 2010 regime.
The High Court answered that pre-existing rights could arise even where a child was born after the 2010 Act began, and that the Child and Family Agency could not insist that eligibility for adoption be confirmed before assessing a child under section 37. The Authority appealed. The Supreme Court noted that no appeal had been taken on the second case-stated question, while the third question did not arise.
The Supreme Court did not finally decide whether rights under the 1991 Act had accrued or survived its repeal. It considered that issue difficult and of wider importance, and said it was unnecessary to determine it definitively. Instead, it focused on equal treatment: the Authority had registered other Mexican adoptions with the same essential features following an earlier High Court decision, while refusing these because the children were born after the 2010 Act took effect.
The Court concluded that, if rights under the 1991 Act were capable of arising and surviving the 2010 Act, they could arise even when the child was born after commencement. It added that equality before the law required consistent treatment of this cohort and that the Authority could not lawfully refuse registration in these cases. The appeal was dismissed.
The judgment records that the children were settled with the adults who adopted them under Mexican law. It did not decide the separate question about assessment under section 37, or determine the unappealed question concerning a possible domestic adoption route under Part 7.