Before 1952, legal adoption did not exist in Ireland. The 1952 Act placed conditions on the categories of persons who were qualified to adopt or be adopted in terms of age, religion and other criteria.
The legislation evolved, with various amendments throughout the 1960s and ’70s. A significant number of cases were heard by the higher courts on adoption, particularly applications to dispense with the consent of the party who had agreed to placement but refused to consent to the adoption order.
The social context of adoption has changed significantly since the 1970s. Adoptions are now much less common. Inter-country adoptions have proliferated.
The Adoption Act 2010 consolidated and modernised Irish Adoption Law. It implements an international convention on inter-country adoption. Under the new legislation, legal adoption abroad must take place with countries that have ratified the Hague Convention.
Adoption is a process by which a child whose natural parents are not prepared to look after him or her voluntarily give up the child to adoptive parents. Upon legal adoption, the legal obligations of the natural parents to the child cease, and the adoptive parents assume the child as if he were their natural child.
Legally the child is the child of the adopted parents and not the natural parents. This applies for all purposes of the law.
Once an adoption goes through, it is irrevocable. Adoption may be contrasted with fostering, which is a temporary boarding out arrangement of children in the care of the health authorities to families for payment. Conversely, adoption does not involve payment either by or to the parents or the adoptive parents.
Effect of Adoption
The effect of adoption is that from a legal status perspective, the child becomes the child of the adopting parents and ceases to be the child of the natural parents. An adopted child is, from a legal status perspective, the child of the adoptive parents in all respects.
Where a child is adopted by one of his parents, and his parents subsequently marry, the child is legitimated under the Legitimacy Act 1931. The adoption order ceases to have effect.
It is possible, in principle, for a person to be re-adopted where the adoptive parents have died. Adoptive parents may be deprived of parental responsibility on almost the same grounds as natural parents.
Adoption orders must be unconditional. A child under 6 weeks may not be adopted.
Parental Rights and Duties
Upon an adoption order being made, or the recognition under the Adoption Act of an intercountry adoption effected outside the State the child concerned shall be considered, with regard to the rights and duties of parents and children in relation to each other as the child of the adopter or adopters.
With respect to the child—
- the mother or guardian of the child, and
- every interested non-guardian of the child,
shall, lose all parental rights and be freed from all parental duties in respect of the child.”.
This above shall not apply where the adopter of a child is a step parent of the child and, in that case, upon an adoption order being made—
- the child concerned shall be considered, with regard to the rights and duties of parents and children in relation to each other, as the child of the adopter and the adopter’s spouse, the adopter and the adopter’s civil partner, or the adopter and the adopter’s co-habitant,and
- with respect to the child the mother or guardian, unless such mother or guardian is a person so referred to in, and
- every interested non-guardian of the child, shall, lose all parental rights and shall be freed from all parental duties in respect of that child.
This does not affect the legal parent-child relationship of a person, being a mother or guardian secondly referred to with regard to his or her child, who is the subject of the adoption order.
Any reference (whether express or implied) to a person related to the adopted person in any degree shall be read, unless the contrary intention appears, as a reference to the person who would be related to the adopted person in that degree if the adopted person were the child of the adopter or adopters, and not the child of any other person.
Where the adopters are a couple, in the below sense and the other person is the child or adopted child of that couple, both persons, are deemed brother or sister of the whole blood.
References to adopters who are a couple means adopters who are—
- married to each other,
- civil partners of each other, or
- a cohabiting couple,
as the case may be, and any such references shall be construed as including references to adopters who were married to each other, civil partners of each other or living together as a cohabiting couple, as the case may be, at the time the adoption order concerned was made or the intercountry adoption effected outside the State concerned was recognised, as the case may be, but who are no longer married to each other, civil partners of each other or living together as a cohabiting coup le, as the case may be, at the time of the disposition of the property concerned.”.
For the purposes of the stamp duties chargeable on conveyances or transfers of land, an adopted person, shall, subject to section 58A, be regarded as the child of the adopter or adopters and not the child of any other person..
Orders Set Aside
An adoption order is deemed valid until specifically invalidated by a court. It may not be invalidated until the court has heard all appropriate persons and considered whether it is in the best interests of the child to do so. The interests of the child remain paramount.
Adoption may be revoked only on serious grounds in limited circumstances. Adoption orders can only be set aside by courts where there is some fundamental invalidity.
Adoption orders may be corrected by amendment of particulars where there has been a minor slip or error.
A child may be adopted whose parents are not married to each other. The child must be resident and be in the care of the applicants for the prescribed period.
Children of married parents or children who have not been placed for adoption may be adopted in very exceptional circumstances if the High Court so permits and authorises. There must be a failure of parental duty sufficient as to constitute an abandonment of rights.
The child must be not more than 7 years. A child over 7 years may be adopted if the Authority is satisfied that the particular circumstances make it desirable that an adoption order be made.
The Authority is to give due consideration to the wishes of the child, having regard to his age and understanding. In matters concerning adoption, the welfare of the child is the first and paramount consideration.
Applicants for adoption must habitually reside in the state. In the case of an inter-country adoption, an order may be made in favour of the applicants habitually resident in another state party to the Hague Convention.
Applicants must be over 21 years of age. The Adoption Authority must be satisfied that the applicants for adoption are suitable persons to assume parental rights and obligations. They must be of good moral character and health.
Applicants must be of sufficient age to be able to support the child, have a reasonable expectation of good health and ability to promote the development of well-being of the child throughout his childhood.
They must have the capacity to promote the development and well-being of the child. They must have adequate financial means to support the child. The applicants must be capable of valuing and supporting the child’s needs in relation to their identity, ethnicity, religious and cultural background.
Categories of Eligible Adopters
The following categories of persons may adopt. Nobody has the right to adopt. Adoption is determined by order of the Adoption Authority.
- A married couple living together may adopt jointly.
- A married person alone may adopt with the prior consent of the other spouse. This does not apply if they are separated under a deed of separation or by reason of desertion or constructive desertion.
- The mother, father and certain relatives of the child may adopt. Relatives include uncles, aunts, grandparents or their spouses.
- A widow or widower may adopt.
- A sole adopter, not within the above, not being a widow, widower or relative, may only adopt if in the circumstances of the case it is desirable to grant an order.
The following persons and groups are eligible to adopt under the 201o Act:
- A married person may adopt with the consent of the other spouse unless the spouses are separated or have deserted;
- Parents and relatives of the child, these include grandparents, siblings, uncles and aunts and their spouses.
- Widows or widowers.
- Single applicants may only adopt where the Board is satisfied that it is desirable in the circumstances.
It is impermissible under the case law interpreting the European Convention on Human Rights to deny a single homosexual person the right to adopt.
In accordance with the European Court of Human Rights case law, the 2010 legislation allows for consultation with the unmarried father. Convention case law requires the matter to be considered where there is a family tie with the child.
Children born outside marriage and children whose parents are deceased are eligible for adoption. A child must reside in the State, be between six weeks and seven years old and have been in the care of the applicants for a certain period. This latter requirement may be dispensed with.
An adoption can be made with respect to a child over seven years of age if the Authority is satisfied that it is desirable to do so.
The Authority has regard to the wishes of the child, taking into account his age and understanding. The Authority need not follow the wishes of the child.
In very exceptional circumstances, the High Court may make an order authorising the adoption of a child of married parents where the parents have failed in their parental duty in circumstances which amount to abandonment.
The parent may place a child for adoption with a relative or her spouse. It is an offence for any person to place or to receive a child for adoption other than from a relative in this way, from an accredited adoption society or from the HSE/Health Authority.
The 2017 Act amends the Adoption Act 2010 (the 2010 Act) to provide that married parents may place a child for adoption, on a voluntary basis, in circumstances where both parents place the child for adoption and where both parents consent to the making of the adoption order. The Act also changes the criteria under which the High Court may, in a case of parental failure, make an order authorising the adoption of a child without parental consent.
The revised criteria provide that where an application to adopt a child is made in respect of a child who is in the custody of and who has had a home with the applicants for a period of at least 18 months, and where that child’s parents have failed in their parental duty towards that child for a continuous period of not less than 36 months, the High Court may dispense with parental consent and authorise the Adoption Authority to make an adoption order in respect of that child.
Civil partners and co-habiting couple & Stepparents
Part 11 of the Children and Family Relationships Act 2015 amended the 2010 Act to provide for the adoption of a child by civil partners and cohabiting couples. The 2017 Act repeals Part 11 of the 2015 Act.
The provisions providing for the adoption of a child by civil partners and cohabiting couples are being provided for in the 2017 Act by way of bringing forward the relevant sections (amended as necessary) from Part 11 of the 2015 Act into the Act.
Provisions allowing for step parent adoption without the requirement for the other parent to adopt his or her own child are also included in the 2017 Act.
2017 Adoptable Children
The Adoption Act 2010 provides that an adoption order may not be made if a child is more than 7 years of age. 2010 Act provided for an exception to that age requirement whereby an adoption order may be made where a child is older than 7 years if the Authority is satisfied that it is desirable to do so in the particular circumstances, and provides that due consideration must be given to the wishes of the child, having regard to his or her age and understanding.
The 2017 Act amends the 2010 Act to provide that an adoption order may be made where the child is, at the date of the making of the adoption order, less than 18 years of age. As a consequence of the amendment to section 23, the exceptional circumstances provided for in the 2010 Act are no longer applicable.
The 2017 Act clarifies that an adopted child is eligible for adoption in the same way as any other child.
The Adoption Authority is an independent body which makes adoption orders. It includes a legally qualified person, a trained psychologist, a social worker and a medical practitioner. The Chairman and Deputy Chairman are judges or a solicitor or barrister of 10 years standing.
The Authority grants or refuses applications for adoption orders. It also registers and supervises Adoption Societies. It plays a role in declaring eligibility and suitability in international adoptions.
The Adoption Authority must publish notices of adoption orders in Iris Oifigiúil, the Official Gazette.
Adoption bodies/societies have always played a significant role in adoption. Adoption societies must be registered with the Adoption Authority. The 2017 legislation provides for accredited bodies.
The Health Service Executive provides an adoption service. It may provide services to accredited bodies. Only the HSE or authorised adoption societies are entitled to place children for adoption. This is to ensure that the adoption process is not abused or commercialised.
Formerly the natural father of a child born outside marriage was not consulted in relation to adoption. It was decided that this breached the natural father’s rights under the European Convention on Human Rights.
The natural father may notify the Authority of his wish to be consulted in relation to the placement or the application for an adoption order. Once it has been so notified, the body must explain the legal implications of adoption to him and ascertain whether he proposes to object to the placement. Where there is no objection, the child may be placed.
Where the father objects to placement, the body must notify the father and mother that the matter is being deferred for up to 21 days. The purpose is to allow the father the opportunity to apply to court to be appointed guardian. The child must not be placed until the proceedings have concluded.
If an accredited body cannot locate the father, it must notify the Authority. If the Authority is satisfied that all reasonable steps have been taken to consult with the father, it may authorise the placement for adoption, provided there has been no objection from the natural father in the meantime.
There are circumstances where, with High Court approval, consultation with the father is not necessary. This may occur where:
- the nature of the relationship between mother and father makes it inappropriate.
- the mother confirms she does not know the identity of the father.