International Adoptions
Cases
The Eastern Health Board v. An Bord Uchtala
[1994] 3 IR 311
Carroll J. 211
H.C.
10th March, 1992
In this case there is a preliminary question of jurisdiction to be decided, namely, whether the provisions of the Adoption Acts, 1952 to 1988, apply to a child of alien parents.
The facts of the case are as follows. Mr. and Mrs. M., resident and domiciled in Ireland, applied to Delhi Council for Child Welfare in India in November, 1979, to adopt a child. They registered with the Council in March, 1980, and were told in August, 1980, that there was a baby girl born on the 5th July, 1980, whom they might be interested in adopting, which they were. A petition presented by Mrs. Chandra Lekha Soin as attorney for Mr. and Mrs. M. and on her own behalf to appoint Mr. and Mrs. M. and Mrs. Soin (Honorary Joint Secretary of the Delhi Council for Child Welfare) as joint guardians was granted on the 11th September, 1980, by the District Judge in Delhi. The order was signed and sealed on the 18th September, 1980. A passport was issued on the 25th September, 1980, in Delhi to the child in which Mr. M. was named as father. The passport expired on the 25th September, 1985. Mr. and Mrs. M. travelled to India in October, 1980, and took the child back to Ireland with the consent of the Department of Justice. She has resided with them since then in company with another adopted daughter of Mr. and Mrs. M.
A certificate of naturalization under the Irish Nationality and Citizenship Act, 1956, was granted by the Minister for Justice to the child on application by Mr. M. as parent (not guardian) on the 21st June, 1985. The child now holds an Irish passport.
Mr. and Mrs. M. applied for adoption in May, 1982. An Board Uchtala is satisfied as to the appropriateness of them as proposed adoptive parents and made a declaration pursuant to s. 2 of the Adoption Act, 1988, on the 13th March, 1990, that if an order is made under s. 3, sub-s. 1 of the Adoption Act, 1988, it will, subject to s. 2, sub-s. 2 of the said Act, make the adoption order sought.
It appears from correspondence with the Delhi Council for Child Welfare in 1988 (produced by the Registrar of An Board Uchtala) that Mrs. Soin was no longer Honorary General Secretary. That post was then held by Mrs. A.V. Kumar.
On a motion for directions in pursuance of Order 70 A, rule 8 (3) of the Rules of the Superior Courts (No. 1), 1990, the order of Mr. Justice Murphy dated 14th December, 1990, recites that the Delhi Council for Child Welfare did not wish to be heard or represented a
the hearing of the proceedings and it was ordered that the case be heard on oral evidence.
The first point to be made is that this case does not concern a foreign adoption. The order made in Delhi on the 18th September, 1980, was an order for joint guardianship and not an adoption order.
Section 10 of the Adoption Act, 1952, enabled an adoption order to be made in respect of a child resident in the State aged not less than six months nor more than seven years and who was either illegitimate or an orphan. Section 2 of the Adoption Act, 1964, provided for the adoption in certain cases of legitimated children. The Status of Children Act, 1987, removed the distinction between legitimate and illegitimate children. The Adoption Act, 1988, allowed for the first time an application to be made for the adoption of children whether their parents were married to each other or not. Under s. 2 of the Act of 1988, if An Board Uchtala, on application made, is satisfied that if an order is made by the court under s. 3 in favour of the applicants, it would be proper to make the adoption order, it can make a declaration to that effect. The matter then comes before the court for an order authorising An Board Uchtala to make the adoption order in favour of the applicant.
Section 3, sub-s. 1 provides that if it is shown to the satisfaction of the court:
“(I) that-
(A) for a continuous period of not less than 12 months immediately preceding the time of the making of the application, the parents of the child to whom the declaration under section 2 (1) relates, for physical or moral reasons, have failed in their duty towards the child,
(B) it is likely that such failure will continue without interruption until the child attains the age of 18 years,
(C) such failure constitutes an abandonment on the part of the parents of all parental rights, whether under the Constitution or otherwise, with respect to the child, and
(D) by reason of such failure, the State, as guardian of the common good, should supply the place of the parents,
(II) that the child –
(A) at the time of the making of the application, is in the custody of and has a home with the applicants, and
(B) for a continuous period of not less than 12 months immediately preceding that time, has been in the custody of and has had a home with the applicants,and
(III) that the adoption of the child by the applicants is an appropriate means by which to supply the place of the parents,
the Court may, if it so thinks fit and is satisfied, having had due regard for the rights, whether under the Constitution or otherwise, of the persons concerned (including the natural and imprescriptible rights of the child), that it would be in the best interests of the child to do so, make an order authorising the Board to make an adoption order in relation to the child in favour of the applicants.”
In relation to evidence, s. 4 provides inter alia:
“(1) Subject to the provisions of this section, the Court shall not make an order under section 3 (1) without having heard the parents of the child concerned and any other persons who, in the opinion of the Court, ought to be heard by it.
(4) Notwithstanding subsection (1), where the Court is satisfied –
(a) that the identity of the parents concerned (or of either of them) is not known to the persons applying for an order under section 3 (1) and is not known to the Board and that all appropriate measures have been taken to ascertain that identity, or
(b) that the whereabouts of the parents concerned (or of either of them) at the time of the making of the application for such order, and their whereabouts during the period of 12 months immediately preceding such time, are not known to the parties making the application and are not known to the Board and that all appropriate measures have been taken to ascertain those whereabouts,
the Court may, if it so thinks fit, notwithstanding the absence of the evidence of the parents concerned or, as the case may be, of either of them, make the order.”
Therefore for the first time, it became possible to adopt foundlings by virtue of s. 4, sub-section 4.
The constitutionality of the Adoption Act, 1988, was referred as a Bill to the Supreme Court under Article 26 of the Constitution ( The Adoption (No. 2) Bill, 1987 , [1989] I.R. 656). The provisions of the Constitution which the Supreme Court said were particularly relevant to the issues before it were Article 41, s. 1, sub-ss. 1 and 2 (dealing with the family); Article 42, s. 1 (dealing with the family as primary educator); Article 42, s. 3, sub-s. 2 (dealing with the State as guardian of the common good requiring minimum education); Article 40, s. 3, sub-ss. 1 and 2 (dealing with the State’s guarantee of personal rights); and Article 42, s. 5 which provides:
“In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.”
Finlay C.J. said at p. 662 of the report that the terms of Article 42, s. 5 were reflected in the long title of the Bill (now the Act) and in many of the provisions of section 3.
The long title reads as follows:
“AN ACT TO PROVIDE, IN EXCEPTIONAL CASES, WHERE THE PARENTS FOR PHYSICAL OR MORAL REASONS HAVE FAILED IN THEIR DUTY TOWARDS THEIR CHILDREN, FOR THE SUPPLYING, BY THE ADOPTION OF THE CHILDREN, OF THE PLACE OF THE PARENTS AND FOR THAT PURPOSE AND OTHER PURPOSES TO AMEND AND EXTEND THE ADOPTION ACTS, 1952 TO 1976.”
Finlay C.J. said further at p. 663 of the report:
“Article 42, s. 5 of the Constitution should not, in the view of the Court, be construed as being confined, in its reference to the duty of parents towards their children, to the duty of providing education for them. In the exceptional cases envisaged by that section where a failure in duty has occurred, the State by appropriate means shall endeavour to supply the place of the parents. This must necessarily involve supplying not only the parental duty to educate but also the parental duty to cater for the other personal rights of the child.
Article 42, s. 5, does not in any way mean that the children whose parents have failed in their duty to them become children of the State or that they are to be disposed of as such.”
It is clear from the judgment that the Supreme Court’s consideration was directed towards the adoption of a child whose parent(s), apart from any natural rights, had rights and duties under the Constitution. It is obvious that the Supreme Court did not consider the constitutionality of the Act in the context of the failure of parents outside the jurisdiction to carry out their duties. Parental duties may vary from civilisation to civilisation and what are perceived as parental duties in one society may be very different from what are considered parental duties in another.
Alien parents not within the jurisdiction could not have constitutional duties under the Irish Constitution. There is no common good involved in the State supplying the place of alien parents.
Therefore even though alien children were not expressly excluded from the Act of 1988, it is obvious that the Oireachtas did not intend to legislate to take away the rights of alien parents.
The requirement in s. 4, sub-s. 4 that all appropriate measures should be taken to ascertain the identity or whereabouts of the parents concerned makes no sense when a child has been born out of the jurisdiction.
The fact that the child is now an Irish citizen is irrelevant in considering the application of the Act. Regardless of her present status, her parents were alien parents and the State did not intend to abrogate the rights of those parents.
Insofar as it may be relevant, it appears to me that the certificate of naturalisation is one which might be liable to be revoked under s. 19 of the Irish Nationality and Citizenship Act, 1956. Under that section a certificate of naturalisation may be revoked by the Minister on the grounds (inter alia) of misrepresentation, whether innocent or otherwise. The description of Mr. M. on the face of the certificate as “parent”of the child is clearly incorrect thus rendering the certificate liable to be revoked.
I am satisfied that the Adoption Act, 1988, does not apply to the case of a foundling born abroad whether Irish citizenship has been conferred on such child or not.
By notice of appeal dated the 27th March, 1992, the plaintiffs appealed the judgment and order of the High Court to the Supreme Court.
–
Finlay C.J.
8th March 1993
This is an appeal by the plaintiffs against an order made in the High Court by Carroll J. on the 10th March, 1992, dismissing the claim made by the plaintiffs in this special summons for an order pursuant to s. 3, sub-s. 1 of the Adoption Act, 1988, authorising the defendant to make an adoption order in relation to the infant A.N.M.
The facts
The plaintiffs T.M. and A.M. are both Irish citizens domiciled in Ireland and were married on the 13th April, 1977. In November, 1979, they applied to the Delhi Council for Child Welfare in India, proposing that they might be in a position to adopt an Indian child. They registered with the Council in March, 1980, and in August, 1980, were informed that there was a baby girl born on the 5th July, 1980, whom they might be interested in adopting. A petition was then presented by Mrs. Chandra Lekha Soin as attorney for Mr. and Mrs. M., and on behalf of herself to appoint Mr. and Mrs. M. and Mrs. Soin herself as joint guardians of the infant. This was granted by the Delhi District Judge after a full hearing, specifically for the purpose of enabling Mr. and Mrs. M. to bring the child back to Ireland in order, if possible, to have it adopted by them according to the laws of Ireland. An Indian passport was issued to the child on the 26th September, 1980, in which Mr. M. was named as the father of the child. Mr. and Mrs. M. travelled to India in October, 1980, and took the child back with them to Ireland, with the consent of the Irish Department of Justice. She has since that time resided with them in company with another adopted daughter whom they have adopted in this country and has been reared and brought up by them. A certificate of naturalisation under the Irish Nationality and Citizenship Act, 1956, was granted by the Minister for Justice to the child, on the application by Mr. M. as a parent, on the 21st June, 1985, and the child is now the holder of an Irish passport.
The evidence which was before the court in Delhi prior to the making of the order in September, 1980, was to the effect that the child had been left by a person or persons unknown at the orphanage conducted by the Child Welfare Service in Delhi, that the authorities there were unaware of the identity of the parents of the child or as to whether they were married or unmarried. Subsequently, upon communication with the authorities in Delhi, after the commencement of these proceedings, it was apparent that they had since been unable to obtain any further information concerning the identity of the parents of the child, and that no person on behalf of the child, or seeking to be or to act for the parents, had made any claim in respect of the child or made any communication to the orphanage.
Mr. and Mrs. M. applied to the defendant for permission to adopt the child in May, 1982, but in the absence of proof that the child was either a child born out of wedlock or an orphan it was not possible for the defendant to entertain an application for adoption at that time.
Upon the passing of the Adoption Act, 1988, which became law on the 26th July, 1988, Mr. and Mrs. M. renewed, or revived, their application to adopt the child: that Act, of course, having made possible for the first time in our law the adoption of children whether born in or out of wedlock.
On the 13th March, 1990, the defendant, having examined the position of the applicants and, of course, also having made a careful examination concerning the welfare of the child, made a declaration pursuant to s. 2 of the Adoption Act, 1988. That declaration was to the effect that the Board having complied with the provisions of s. 2, sub-s. 1 (c) of the Act of 1988, adjourned the application and declared that if an order was made by the court under s. 3, sub-s. 1 of that Act it would, subject to s. 2, sub-s. 2 make the adoption order.
Proceedings in the High Court
On the 17th July, 1990, these proceedings were instituted by a special summons in which the Eastern Health Board, the health board concerned, and Mr. and Mrs. M. were plaintiffs and An Board Uchtala was defendant. The summons was supported by an affidavit filed on behalf of the Eastern Health Board by E.C., a social worker, and an affidavit filed by T.M. on behalf of both himself and A.M. In these affidavits and in the exhibits referred to in them, the entire history of the matter was set out in considerable detail and, in particular, the affidavit of E.C. indicated a most careful and comprehensive investigation of the situation, interests, and welfare of the infant and of the position and capacity of Mr. and Mrs. M. to look after her. In that affidavit and in an affidavit of T.M. the history of the proceedings in the Indian courts, a full copy of the order made in Delhi in September, 1980, and the circumstances under which the child came into the orphanage in Delhi are all fully set out.
By notice of motion which came for hearing on the 14th December, 1990, and was supported by a further affidavit of E.C., directions were sought as to the trial of the proceedings seeking an order from the court pursuant to s. 3, sub-s. 1 of the Act of 1988. In that further affidavit and the exhibits set out in it, confirmation was obtained that the Delhi Council for Child Welfare, which had originally been responsible for the child when it had been abandoned by unknown persons at the orphanage in Delhi, did not wish to be represented or to make any representations in the application before the court. An order was accordingly made by Murphy J. on the 14th December, 1990, the material portion of which is in the following terms:
“And upon reading the said notice, the affidavit of E.C. filed on the 11th December, 1990, and the exhibits therein referred to from which it appears that the natural parents of the infant referred to as A.N.M. in these proceedings are unknown and that the Delhi Council for Child Welfare, the honorary secretary of which having been appointed joint guardian with the second and third named plaintiffs to the said infant, has indicated by letter dated the 14th September, 1990, that it does not wish to be heard or represented at the hearing of these proceedings and upon hearing said counsel, it is ordered that the special summons herein which is listed for hearing on Wednesday the 16th January, 1991, be heard on oral evidence.”
The matter then came on for hearing before Carroll J. on the 16th January, 1991, and on the 10th December, 1991, and on the latter date the learned trial judge reserved her judgment, which was delivered by her on the 10th March, 1992.
It appears that, though there were no formal pleadings nor any affidavit filed on behalf of the defendant the defendant felt obliged to raise before the learned trial judge a question as to whether the Act of 1988, applied to the child in the title named in these proceedings. The learned trial judge decided to try that as a preliminary issue and apparently came to the conclusion that the Act of 1988, did not apply to the child of “alien parents”. It is against that decision that this appeal has been brought.
Relevant statutory provisions
Section 9 of the Adoption Act, 1988, provides as follows:
“9. – (1) This Act may be cited as the Adoption Act, 1988.
(2) The Acts and this Act may be cited together as the Adoption Acts, 1952 to 1988.
(3) The Acts and this Act shall be construed together as one.”
By virtue of s. 1, sub-s. 1 of the Act of 1988,
(a) “the Acts” means the Adoption Acts, 1952 to 1976,
(b) “parents” includes a surviving parent and, in the case of a child in respect of whom an adoption order is in force, means the adopters or the adopter or the surviving adopter under the order,
(c) “the Principal Act” means the Adoption Act, 1952.
By s. 6 of the Act of 1988, it is provided as follows:
“6. – (1) Subject to subsection (2), section 3 of the Principal Act is hereby amended by the substitution of the following definition for the definition of ‘child’:
‘”child means (save where the context otherwise requires) any person who is under the age of 18 years;’
(2) Notwithstanding subsection (1), the Acts shall apply and have effect in relation to any person whatsoever who is under the age of 21 years and as respects whom an application for an adoption order was made and was not determined before the commencement of this Act as ifsubsection (1) had not been enacted.”
Section 3 of the Adoption Act, 1952, provides as follows:
“‘Adoption order’ means an order under section 9;
‘child’ means (save where the context otherwise requires) any person under 21 years of age;
‘parent’ does not include the natural father of an illegitimate child.”
Section 9 of the Act of 1952, provides that the Adoption Board may on the application of a person desiring to adopt a child, make an order for the adoption of the child by that person, and provides at s. 9, sub-s. 2, where the applicants are a married couple, the order should be for the adoption of the child by them jointly.
Section 10 of the Act of 1952 provides:
“An adoption order shall not be made unless the child –
(a) resides in the State, and
(b) is, at the date of the application not less than six months and not more than seven years of age, and
(c) is illegitimate or an orphan.”
Section 25 of the Act of 1952, provides:
“Upon an adoption order being made in a case in which the adopter (or, where the adoption is by a married couple, the husband) is an Irish citizen the child, if not already an Irish citizen, shall be an Irish citizen.”
Section 3 of the Act of 1988, contains the following relevant provisions:
“(1) Where persons in whose favour the Board has made a declaration under section 2 (1) (referred to subsequently in this subsection as ‘the applicants’) request the health board in whose functional area they ordinarily reside to apply to the Court for an order under this section –
(a) if the health board considers it proper to do so and an application therefor in accordance with paragraph (b) of this subsection has not been made by the applicants, the health board may apply to the Court for the order, and
(b) if, within the period of 3 months from the day on which the request was given to the health board, the health board either –
(i) by notice in writing given to the applicants, declines to accede to the request, or
(ii) does not give the applicants a notice under subparagraph (i) of this paragraph in relation to the request but does not make an application for the order under paragraph (a),
the applicants may apply to the Court for the order, and, if an application under paragraph (a) or (b) of this subsection is made and it is shown to the satisfaction of the Court –
(I) that-
(A) for a continuous period of not less than 12 months immediately preceding the time of the making of the application, the parents of the child to whom the declaration under section 2 (1) relates, for physical or moral reasons, have failed in their duty towards the child,
(B) it is likely that such failure will continue without interruption until the child attains the age of 18 years,
(C) such failure constitutes an abandonment on the part of the parents of all parental rights, whether under the Constitution or otherwise, with respect to the child, and
(D) by reason of such failure, the State, as guardian of the common good, should supply the place of the parents,
(II) that the child –
(A) at the time of the making of the application, is in the custody of and has a home with the applicants, and
(B) for a continuous period of not less than 12 months immediately preceding that time, has been in the custody of and has had a home with the applicants,
and
(III) that the adoption of the child by the applicants is an appropriate means by which to supply the place of the parents,
the Court may, if it so thinks fit and is satisfied, having had due regard for the rights, whether under the Constitution or otherwise, of the persons concerned (including the natural and imprescriptible rights of the child), that it would be in the best interests of the child to do so, make an order authorising the Board to make an adoption order in relation to the child in favour of the applicants.
(2) Before making an order under subsection (1), the Court shall, in so far as is practicable, give due consideration, having regard to his age and understanding, to the wishes of the child concerned.”
The decision in the High Court
The ratio decidendi of the decision of Carroll J. in the High Court is contained in three paragraphs at p. 214 of her reserved judgment, and they are as follows:
“It is clear from the judgment that the Supreme Court’s consideration was directed towards the adoption of a child whose parent(s), apart from any natural rights, had rights and duties under the Constitution. It is obvious that the Supreme Court did not consider the constitutionality of the Act in the context of the failure of parents outside the jurisdiction to carry out their duties. Parental duties may vary from civilization to civilization and what are perceived as parental duties in one society may be very different from what are considered parental duties in another. Alien parents not within the jurisdiction could not have constitutional duties under the Irish Constitution. There is no common good involved in the State supplying the place of alien parents.
Therefore even though alien children were not expressly excluded from the Act, it is obvious that the Oireachtas did not intend to legislate to take away the rights of alien parents.
The requirement in s. 4, sub-s. 4 that all appropriate measures should be taken to ascertain the identity or whereabouts of the parents concerned makes no sense when a child has been born out of the jurisdiction.”
The “Supreme Court’s consideration” mentioned in this part of the judgment is of course the decision of the Court in the reference to it pursuant to Article 26 of the Constitution of the Adoption (No. 2) Bill, 1987.
The learned trial judge did not in the course of her judgment define in any way what she meant by “alien parents” or “the child of alien parents”. She does refer, in the portion of the judgment which I have quoted, to a child born outside the jurisdiction and that may be what she intended by the phrase “alien”.
Counsel for the defendant on this appeal who supported the decision and reasoning of the learned trial judge in full, did not submit any comprehensive definition of “alien”, as he would understand it, arising from her judgment, but submitted the possibility that it applied to a person who is not a citizen or, though less relevantly, I think, even in his submission, the possibility that it applied to a person who required permission to travel to and enter this State.
The decision
I have come to the conclusion that there are no grounds whatsoever for holding that the provisions of the Adoption Act, 1988, do not apply to this child, who is the subject matter of the application for adoption.
The Adoption Act, 1988, constituted an extension for the first time in our adoption law of the provisions dealing with the adoption of children, to cover children who were neither illegitimate nor orphans. As is clear from the provisions of s. 9 of the Act, however, it is to be read with and forms part of a code consisting of the Adoption Acts, 1952 to 1988.
The definition of a child for the purpose of the Adoption Acts, which is provided for in s. 6 of the Act of 1988, was quite clearly an amendment of the existing provision arising from s. 3 of the Act of 1952, so as to make it conform to the reduction of the age of majority from twenty-one to eighteen years. It is, however, of major significance that a “child” as defined in the Adoption Acts, both prior to and after the enactment of the Act of 1988, is in no way qualified or confined to a child of particular nationality, citizenship or origin. The provisions of s. 6, sub-s. 2 is the precise provision which applies to the instant case, this child being a child in respect of whom an application for an adoption order was made and not determined before the commencement of the Act of 1988, and it in its terms refers to any person whatsoever who is under the age of twenty-one years.
The Act of 1988, provides certain new procedures and conditions in relation to the making of an adoption order by the Adoption Board in respect of persons who could not have been eligible for adoption prior to its enactment. It does not, however, seek to set out new or separate provisions for the making of adoption orders, and the provisions already in existence in the code apply, unless they are inconsistent with some of the provisions of the Act of 1988. In this context it is of considerable importance that the definition of “parent” contained in the Act of 1952, which is the principal Act, and amended or extended in the Act of 1988, is not in any way qualified as to citizenship, nationality or domicile of the parent concerned. Furthermore, the provisions of s. 10 of the Act of 1952, prohibiting the making of an adoption order unless the child resides in the State, seems particularly inconsistent with an implied exclusion of a child who resides in the State but was born outside it. Section 25 of the Adoption Act, 1952, is plainly inconsistent with the exclusion from the category of children capable of being adopted of a child who is not at that time an Irish citizen.
Consideration of these various provisions of the Act of 1988, and of the Adoption Acts with which it is to be read, make it quite clear that not only is there no provision of any description in that Act purporting to exclude from its application children born of parents with a particular nationality, citizenship or domicile, such as would be equivalent to any possible meaning of the word “alien”, but that many of the express provisions of the Act of 1988, and of the Acts incorporated with it, are plainly inconsistent with such a construction of the Act.
It, therefore, becomes necessary to test the question arising on this appeal by seeing whether there is any provision of the Act of 1988, which of necessity implies the exclusion of “alien children” or the “children of alien parents”, such as has been held in the High Court to exist. Reliance was placed expressly by the learned trial judge, and the support of it was the fundamental and main argument put forward on behalf of the defendant to justify her judgment, in this context, on the provisions of s. 4, sub-s. 4 (a) of the Act of 1988. As best I can understand it, the argument is that if the legislature had intended that this subsection should apply to a child born of “alien parents” that it would have defined in some special or particular way the appropriate measures which the court would have to be satisfied had been taken to ascertain the identity of its parents. No general principle was put forward in support of this submission, nor, of course, is there any question of any decision relating to any analogous matter which would support it.
I simply cannot conceive that there could be any presumption, from the existence of this subsection, that it was outside the capacity of the High Court to set appropriate guidelines and standards of proof for compliance by an applicant and by the Adoption Board, with the obligation of establishing, firstly, that the identity of the parents concerned, although they are of foreign origin, is not known to either the applicant or the Board and, secondly, that the applicant and the Board have taken appropriate measures to ascertain the identity.
The facts which I have outlined in this case appear to me to constitute a very clear example, where both the Board and the parents have satisfactorily discharged the onus of proof of indicating that the identity of the parents of this child is unknown to them and that they have taken the only possible measures they could to ascertain that identity and have failed to do so. Where it is established, as has been established in this case, that this child was left, over twelve years ago, in an orphanage by a person or persons unknown, and that as recently as up to 1990 her parents have not sought by communication to that orphanage, or to the Council for Child Welfare associated with it, to identify themselves or to seek any information or show any concern or interest in this child, it seems to me clear that by ascertaining those facts and inquiring from those persons whom the Court of India was satisfied to appoint through the honorary secretary as a joint guardian of the child, the Board and the applicants for adoption have discharged quite clearly the obligation that is imposed under s. 4, sub-section 4 (a). I cannot see, therefore, that the main justification which has been put forward for the decision reached in the High Court can be accepted.
To some extent, reliance was also placed on a general assertion that parents of a child who was born outside the jurisdiction of this Court might by reason of legal, constitutional or even social customs, have different standards of care which they would be expected to apply to the child. As I understand this argument, it is based on the fact that conclusions by the court to the effect that such parents have failed in their duty towards the child are impossible to reach.
I would reject also this submission. It is possible to envisage a situation in which the parents of a child in respect of whom an application made to the court pursuant to s. 3 of the Act of 1988, who were nationals of and domiciled in a foreign State, would plead that their particular conduct towards the child during a relevant period was in accordance with accepted standards of their duty in such State. A conceivable example of this would be a State where fosterage in early years was common and accepted as an appropriate method of care. Such concepts, however, do not and cannot arise in this case, where the only evidence before the court is that the child was completely and totally abandoned within days of its birth, and any particular issue that might arise on the special facts of a case under s. 3 could not under any circumstances justify a blanket exclusion of all children born outside the jurisdiction of the court to persons who ordinarily resided outside the jurisdiction of the court.
The Act of 1988, is a very significant step forward in the capacity of our society to care and provide for children in need of care and protection. Unless compelled by its terms to do so the courts should not, in my view, construe it as unavailable to any child within their jurisdiction who would otherwise qualify for adoption and, in particular, such exclusion based on nationality, citizenship or place of birth would not appear to be supportable.
I am, therefore, quite satisfied that the Act of 1988, applies to this child and that this appeal must be allowed and the order of the High Court refusing the application under s. 3 must be set aside and reversed.
There is one feature of this case which to me is intensely disturbing. This child has been in the care of Mr. and Mrs. M. since she was very young indeed, and has consistently been in their care. All the evidence adduced before the court by the Eastern Health Board indicates that they have dealt with particular devotion and skill with her upbringing. That she should become a fully adopted member of the family, which already contains one other adopted child, must be of extreme importance to her, and obviously that is the view of the defendant. Mr. and Mrs. M. sought to adopt this child as far back as 1982, and clearly for want of proof, either that she was an orphan or what was then known as illegitimate, they were unable to process an adoption order notwithstanding the fact that other conditions might have been fulfilled. As soon as the Act of 1988, was passed they apparently revived their application and the defendant issued the appropriate declaration, pursuant to s. 2 of the Act, in March, 1990. Without any appreciable delay the applicants brought this matter before the High Court by summons issued in September, 1990. It was not determined in the High Court until March, 1992, and then determined on a preliminary point with the consequence that this Court having ruled that jurisdiction exists it must now be remitted to the High Court.
As I have already indicated, it seems clear to me that there is no controversy at all with regard to the welfare of the child and the proposed adoption, and it is unequivocally in the interest of the child that she should be adopted. On the papers which are before this Court on appeal, I conclude also, as I have already indicated, that both Mr. and Mrs. M. and the defendant upon whom an onus is also placed pursuant to the provisions of s. 4, sub-s. 4 of the Act of 1988, have clearly established that the identity of the parents is unknown to any of them and that appropriate measures have been taken by them both to try and ascertain that identity without success. In those circumstances, since the other matters provided for in s. 3 seem to be clearly established and are not in contest in this application, I consider that it is most desirable that the matter should be remitted without any possible delay to the High Court, so as to permit it to consider and make an order pursuant to s. 3 of the Act, with the consequential resumption by the defendant of the hearing of the application for adoption in accordance with the declaration which has already been made by it.
Hederman J.
I agree.
O’Flaherty J.
I agree with the judgment delivered by the Chief Justice. However, in view of the importance of the issues canvassed in the course of the debate before us, I think I should add some supplementary observations of my own.
What is now the Adoption Act, 1988, was, as a Bill, referred by the President to the Court pursuant to Article 26 of the Constitution. In the judgment of the Court delivered by the Chief Justice on the 26th July, 1988, the Bill was pronounced not to be repugnant to the Constitution or any provision thereof: Adoption (No. 2) Bill, 1987 [1989] I.R. 656.
The learned High Court Judge thought that the Court did not, in effect, consider the situation that now presents itself for resolution. She based this on the concept that parental duties may vary from civilization to civilization and what are perceived as parental duties in one society may be very different from what are considered parental duties in another. She went on to say at p. 215 of the report:
“Alien parents not within the jurisdiction could not have constitutional duties under the Irish Constitution. There is no common good involved in the State supplying the place of alien parents . . . it is obvious that the Oireachtas did not intend to legislate to take away the rights of alien parents.”
I believe that this analysis of the Court’s judgment is at variance with the realities that prevailed at the time of the Court’s decision. The existing position, prior to the enactment of the Act of 1988, was that an adoption order could be made only in respect of an orphan; a child born outside wedlock or one who had been legitimated (I am using the language of the time) by the marriage of his parents but whose birth had not been re-registered. Children born in wedlock and foundlings were not eligible for adoption.
A foundling’s place of birth might not be susceptible of proof. The very fact that the legislation was to cater for foundlings means that it had to have within its scope the possibility that children, born abroad of foreign parents, who were in the State for whatever reason and by whatever means would henceforth be eligible for adoption.
The report of the Review Committee on Adoption Services (May, 1984; Pl. 2467) pointed to the possibility, at least, that children born in wedlock had been sent out of the jurisdiction from time to time because of the restriction then existing in regard to their adoption in this State. Clearly, adoption had an international dimension at the time of the Court’s decision.
As the Chief Justice has pointed out, the Act of 1988 is a very significant step forward in the capacity of our society to care and provide for children in need of care and protection.
The judgment of the Court in the Adoption (No. 2) Bill, 1987 [1989] I.R. 656 pointed out that the terms of Article 42, s. 5 of the Constitution are reflected both in the long title to the Bill and in many of the provisions of section 3. The Court went on to say at p. 663:
“Article 42, s. 5 of the Constitution should not, in the view of the Court, be construed as being confined, in its reference to the duty of parents towards their children, to the duty of providing education for them. In the exceptional cases envisaged by that section where a failure in duty has occurred, the State by appropriate means shall endeavour to supply the place of the parents. This must necessarily involve supplying not only the parental duty to educate but also the parental duty to cater for the other personal rights of the child.
Article 42, s. 5, does not in any way mean that the children whose parents have failed in their duty to them become the children of the State or that they are to be disposed of as such.
The State would, in any event, by virtue of Article 40, s. 3 of the Constitution be obliged, as far as practicable, to vindicate the personal rights of the child whose parents have failed in their duty to it.”
And later at p. 663:
“The Court accepts . . . that the right and duty of the State to intervene upon the failure of parents to discharge their duty to a child can be considered under both Article 42, s. 5 and Article 40,
section 3. By the express provisions of Article 42, s. 5, the State in endeavouring to supply the place of the parents is obliged to have due regard for the natural and imprescriptible rights of the child. Any action by the State pursuant to Article 40, s. 3 endeavouring to vindicate the personal rights of the child, would, the Court is satisfied, be subject to a similar limitation.”
The reference to “parents” and “children” in Article 42, s. 5 is not confined to citizens of this State. Indeed, it would be remarkable if this section could not be invoked to protect any child in the State who is left, in effect, parentless. The minimum requirements to satisfy this constitutional provision are that the child should have adequate shelter; food; clothing and care, including especially medical care as well as a basic education. These requirements which, in turn, constitute the rights of the child, whether to be provided by a parent or the State, are surely of universal application. This is also reflected in Article 25 of the Universal Declaration of Human Rights, 1948, which provides:
1. Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
2. Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.
It is clear that the proposed adoptive parents in this case have gone far beyond the minimum required under the Constitution and have, indeed, provided a most caring environment, companionship and hope for the future for this child. There is a solemn obligation on the courts as well as on the Adoption Board to make sure that everything is now put in train so that the adoption of this child is finalised as soon as possible.
Egan J.
I agree with the judgment of the Chief Justice.
Blayney J.
I agree with the judgment of the Chief Justice.
In the Matter of the Adoption Acts 1952–1988 and
Eastern Health Board and T.M. and A.M. v An Bord Uchtála
in the Matter of A.N.M., an infant
1992 No. 101
Supreme Court
8 March 1993
[1993] I.L.R.M. 577
(Finlay CJ, Hederman, O’Flaherty, Egan and Blayney JJ)
FINLAY CJ
(Hederman J concurring): This is an appeal by the plaintiffs against an order made in the High Court by Carroll J on 10 March 1992 dismissing the claim made by the plaintiffs in this summary summons for an order pursuant to s. 3(1) of the Adoption Act 1988, authorising the defendant to make an adoption order in relation to the infant A.N.M.
The facts
The plaintifffs, T.M. and A.M., are both Irish citizens domiciled in Ireland and were married on 13 April 1977. In November 1979 they applied to the Delhi Council for Child Welfare in India, proposing that they might be in a position to adopt an Indian child. They registered with the council in March 1980, and in August 1980 were informed that there was a baby girl born on 5 July 1980 whom they might be interested in adopting. A petition was then presented by Mrs Chandra Lekha Soin as attorney for Mr and Mrs M., and on behalf of herself to appoint Mr and Mrs M. and Mrs Soin herself as joint guardians of the infant. This was granted by the Delhi District Judge after a full hearing, specifically for the purpose of enabling Mr and Mrs M. to bring the child back to Ireland in order, if possible, to have her adopted by them according to the laws of Ireland. An Indian passport was issued to the child on 26 September 1980, in which Mr M. was named as the father of the child. Mr and Mrs M. travelled to India in October 1980 and took the child back with them to Ireland, with the consent of the Irish Department of Justice. She has since that time resided with them in company with another adopted daughter whom they have adopted in this country and has been reared and brought up by them. A certificate of naturalisation under the Act of 1956 was granted by the Minister for Justice to the child, on the application by Mr M. as a parent, on 21 June 1985, and the child is now the holder of an Irish passport.
The evidence which was before the court in Delhi prior to the making of the order in September 1980, was to the effect that the child had been left by a person or persons unknown at the orphanage conducted by the child welfare service in Delhi, that the authorities there were unaware of the identity of the parents of the child or as to whether they were married or unmarried. Subsequently, upon communication with the authorities in Delhi, after the commencement of these proceedings, it was apparent that they had since been unable to obtain any further information concerning the identity of the parents of the child, and that no person on behalf of the child, or seeking to be or to act for the parents, had made any claim in respect of the child or made any communication to the orphanage.
Mr and Mrs M. applied to the defendants for permission to adopt the child in May 1982, but in the absence of proof that the child was either a child born out of wedlock or an orphan it was not possible for the defendants to entertain an application for adoption at that time.
Upon the passing of the Adoption Act 1988, which became law on 26 July 1988, Mr and Mrs M. renewed, or revived, their application to adopt the child, that Act, of course, having made possible for the first time in our law the adoption of children whether born in or out of wedlock.
On 13 March 1990 the defendants, having examined the position of the applicants and, of course, also made a careful examination concerning the welfare of the child, made a declaration pursuant to s. 2 of the Adoption Act 1988. That declaration was to the effect that the board having complied with the provisions of s. 2(1)(c) of the Act of 1988 adjourned the application and declared that if an order was made by the court under s. 3(1) of that Act it would, subject to s. 2(2) make the adoption order.
Proceedings in the High Court
On 17 July 1990 these proceedings were instituted by a special summons in which the Eastern Health Board, the health board concerned, and Mr and Mrs M. were plaintiffs and An Bord Uchtála was defendant. The summons was supported by an affidavit filed on behalf of the Eastern Health Board by Eileen Conway, a social worker, and an affidavit filed by T.M. on behalf of both the plaintiffs. In these affidavits and in the exhibits referred to in them, the entire history of the matter was set out in considerable detail and, in particular, the affidavit of Eileen Conway indicated a most careful and comprehensive investigation of the situation, interests, and welfare of the infant and of the position and capacity of Mr and Mrs M. to look after her. In that affidavit and in an affidavit of T.M. the history of the proceedings in the Indian courts, a full copy of the order made in Delhi in September 1980, and the circumstances under which the child came into the orphanage in Delhi are all fully set out.
By notice of motion which came for hearing on 14 December 1990 and was supported by a further affidavit of Eileen Conway, directions were sought as to the trial of the proceedings seeking an order from the court pursuant to s. 3(1) of the Act of 1988. In that further affidavit and the exhibits set out in it, confirmation was obtained that the Delhi Council for Child Welfare, which had originally been responsible for the child when it had been abandoned by unknown persons at the orphanage in Delhi, did not wish to be represented or to make any representations in the application before the court. An order was accordingly made by Murphy J on 14 December 1990, the material portion of which is in the following terms:
And upon reading the said notice, the affidavit of Eileen Conway filed on 11 December 1990 and the exhibits therein referred to from which it appears that the natural parents of the infant referred to as A.N.M. in these proceedings are unknown and that the Delhi Council for Child Welfare, the honorary secretary of which having been appointed joint guardian with the second and third named plaintiffs to the said infant, has indicated by letter dated 14 September 1990 that it does not wish to be heard or represented at the hearing of these proceedings and upon hearing said counsel, it is ordered that the special summons herein which is listed for hearing on Wednesday, 16 January 1991 be heard on oral evidence.
The matter then came on for hearing before Carroll J on 16 January 1991 and on 10 December 1991, and on the latter date the learned trial judge reserved her judgment, which was delivered by her on 10 March 1992.
It appears that, though there were no formal pleadings nor any affidavit filed on behalf of the defendant, the defendant felt obliged to raise before the learned trial judge a question as to whether the Act of 1988 applied to the child in the title named in these proceedings. The learned trial judge decided to try that as a preliminary issue and apparently came to the conclusion that the Act of 1988 did not apply to the child of ‘alien parents’. It is against that decision that this appeal has been brought.
Relevant statutory provisions
S. 9 of the Adoption Act 1988 provides as follows:
(1) This Act may be cited as the Adoption Act 1988.
(2) The Acts and this Act may be cited together as the Adoption Acts 1952 to 1988.
(3) The Acts and this Act shall be construed together as one.
By virtue of s. 1(1) of the Act of 1988:
(a) ‘the Acts’ means the Adoption Acts 1952 to 1976,
(b) ‘parents’ includes a surviving parent, and in the case of a child in respect of whom an adoption order is in force, means the adopters or the adopter or the surviving adopter under the order,
(c) ‘the Principal Act’ means the Adoption Act 1952.
By virtue of s. 6 of the Act of 1988 it is provided as follows:
6
(1) Subject to subs. (2), s. 3 of the Principal Act is hereby amended by the substitution of the following definition for the definition of ‘child’:
‘child’ means (save where the context otherwise requires) any person who is under the age of 18 years;
(2) Notwithstanding subs. (1), the Acts shall apply and have effect in relation to any person whatsoever who is under the age of 21 years and as respects whom an application for an adoption order was made and was not determined before the commencement of this Act as if subs. (1) had not been enacted.
S. 3 of the Adoption Act 1952 provides as follows:
‘Adoption order’ means an order under s. 9;
‘child’ means (save where the context otherwise requires) any person under 21 years of age;
‘parent’ does not include the natural father of an illegitimate child.
S. 9 of the Act of 1952 provides that the board may on the application of a person desiring to adopt a child, make an order for the adoption of the child by that person, and at subs. (2), where the applicants are a married couple, the order should be for the adoption of the child by them jointly.
By s. 10 of the Act of 1952 it is provided that an adoption order shall not be made unless the child:
(a) resides in the State, and
(b) is at the date of the application not less than six months and not more than seven years of age,
and
(c) is illegitimate or an orphan.
S. 25 of the Act of 1952 provides:
Upon an adoption order being made in a case in which the adopter or, where the adoption is by a married couple, the husband, is an Irish citizen, the child if not already an Irish citizen shall be an Irish citizen.
S. 3 of the Act of 1988 contains the following relevant provisions:
(1) Where persons in whose favour the board has made a declaration under s. 2(1) (referred to subsequently in this subsection as ‘the applicants’) request the health board in whose functional area they ordinarily reside to apply to the court for an order under this section—
(a) if the health board considers it proper to do so and an application therefor in accordance with paragraph (b) of this subsection has not been made by the applicants, the health board may apply to the court for the order, and
(b) if, within the period of 3 months from the day on which the request was given to the health board, the health board either—
(i) by notice in writing given to the applicants, declines to accede to the request or
(ii) does not give the applicants a notice under sub-paragraph (i) of this paragraph in relation to the request but does not make an application for the order under paragraph (a),
the applicants may apply to the court for the order,
and, if an application under paragraph (a) or (b) of this subsection is made and it is shown to the satisfaction of the court—
(I) that:
(A) for a continuous period of not less than 12 months immediately preceding the time of the making of the application, the parents of the child to whom the declaration under s. 2(1) relates, for physical or moral reasons, have failed in their duty towards the child,
(B) it is likely that such failure will continue without interruption until the child attains the age of 18 years,
(C) such failure constitutes an abandonment on the part of the parents of all parental rights, whether under the Constitution or otherwise, with respect to the child, and
(D) by reason of such failure, the State, as guardian of the common good, should supply the place of the parents,
(II) that the child—
(A) at the time of the making of the application, is in the custody of and has a home with the applicants; and
(B) for a continuous period of not less than 12 months immediately preceding that time, has been in the custody of and has had a home with the applicants,
and
(III) that the adoption of the child by the applicants is an appropriate means by which to supply the place of the parents,
the court may, if it so thinks fit and is satisfied, having had due regard for the rights, whether under the Constitution or otherwise, of the persons concerned (including the natural and imprescriptible rights of the child), that it would be in the best interests of the child to do so, make an order authorising the board to make an adoption order in relation to the child in favour of the applicants. (2) Before making an order under subs. (1), the court shall, in so far as is practicable, give due consideration, having regard to his age and understanding, to the wishes of the child concerned.
The decision in the High Court
The ratio decidendi of the decision of Carroll J in the High Court is contained in three paragraphs at p. 573 of her judgment, and they are as follows:
It is clear from the judgment that the Supreme Court’s consideration was directed towards the adoption of a child whose parent(s), apart from any natural rights, had rights and duties under the Constitution. It is obvious that the Supreme Court did not consider the constitutionality of the Act in the context of the failure of parents outside the jurisdiction to carry out their duties. Parental duties may vary from civilization to civilization and what are perceived as parental duties in one society may be very different from what are considered parental duties in another. Alien parents not within the jurisdiction could not have constitutional duties under the Irish Constitution. There is no common good involved in the State supplying the place of alien parents.
Therefore even though alien children were not expressly excluded from the Act, it is obvious that the Oireachtas did not intend to legislate to take away the rights of alien parents.
The requirement in s. 4(4) that all appropriate measures should be taken to ascertain the identity or whereabouts of the parents concerned makes no sense when a child has been born out of the jurisdiction.
The ‘Supreme Court’s consideration’ mentioned in this part of the judgment is of course the decision of the court in the reference to it pursuant to Article 26 of the Constitution of the Adoption (No. 2) Bill 1987 ([1989] ILRM 266).
The learned trial judge did not in the course of her judgment define in any way what she meant by ‘alien parents’ or ‘the child of alien parents’. She does refer, in the portion of the judgment which I have quoted, to a child born outside the jurisdiction and that may be what she intended by the phrase ‘alien’.
Counsel for the defendant/respondent on this appeal who supported the decision and reasoning of the learned trial judge in full, did not submit any comprehensive definition of ‘alien’, as he would understand it, arising from her judgment, but submitted the possibility that it applied to a person who is not a citizen or, though less relevantly, I think, even in his submission, the possibility that it applied to a person who required permission to travel to and enter this State.
The decision
I have come to the conclusion that there are no grounds whatsoever for holding that the provisions of the Adoption Act 1988 do not apply to this child, who is the subject matter of the application for adoption.
The Adoption Act 1988 constituted an extension for the first time in our adoption law of the provisions dealing with the adoption of children, to cover children who were neither illegitimate nor orphans. As is clear from the provisions of s. 9 of the Act, however, it is to be read with and forms part of a code consisting of the Adoption Acts 1952 to 1976.
The definition of a child for the purpose of the Adoption Acts, which is provided for in s. 6 of the Act of 1988, was quite clearly an amendment of the existing provision arising from s. 3 of the Act of 1952 so as to make it conform to the reduction of the age of majority from 21 to 18 years. It is, however, of major significance that a ‘child’ as defined in the Adoption Acts, both prior to and after the enactment of the Act of 1988, is in no way qualified or confined to a child of particular nationality, citizenship or origin. The provisions of s. 6(2) is the precise provision which applies to the instant case, this child being a child in respect of whom an application for an adoption order was made and not determined before the commencement of the Act of 1988, and it in its terms refers to any person whatsoever who is under the age of 21 years.
The Act of 1988 provides certain new procedures and conditions in relation to the making of an adoption order by the board in respect of persons who could not have been eligible for adoption prior to its enactment. It does not, however, seek to set out new or separate provisions for the making of adoption orders, and the provisions already in existence in the code apply, unless they are inconsistent with some of the provisions of the Act of 1988. In this context it is of considerable importance that the definition of ‘a parent’ contained in the Act of 1952, which is the Principal Act, and amended or extended in the Act of 1988, is not in any way qualified as to citizenship, nationality or domicile of the parent concerned. Furthermore, the provisions of s. 10 of the Act of 1952 prohibiting the making of an adoption order unless the child resides in the State, seems particularly inconsistent with an implied exclusion of a child who resides in the State but was born outside it. S. 25 of the Adoption Act 1952 is plainly inconsistent with the exclusion from the category of children capable of being adopted of a child who is not at that time an Irish citizen.
Consideration of these various provisions of the Act of 1988 and of the Adoption Acts with which it is to be read, make it quite clear that not only is there no provision of any description in that Act purporting to exclude from its application children born of parents with a particular nationality, citizenship or domicile, such as would be equivalent to any possible meaning of the word ‘alien’, but that many of the express provisions of the Act of 1988 and of the Acts incorporated with it are plainly inconsistent with such a construction of the Act.
It, therefore, becomes necessary to test the question arising on this appeal by seeing whether there is any provision of the Act of 1988 which of necessity implies the exclusion of ‘alien children’ or the ‘children of alien parents’, such as has been held in the High Court to exist. Reliance was placed expressly by the learned trial judge, and the support of it was the fundamental and main argument put forward on behalf of the defendant/respondent to justify her judgment, in this context, on the provisions of s. 4(4)(a) of the Act of 1988. As best I can understand it, the argument is that if the legislature had intended that this subsection should apply to a child born of ‘alien parents’ that it would have defined in some special or particular way the appropriate measures which the court would have to be satisfied had been taken to ascertain the identity of its parents. No general principle was put forward in support of this submission, nor, of course, is there any question of any decision relating to any analogous matter which would support it.
I simply cannot conceive that there could be any presumption, from the existence of this subsection, that it was outside the capacity of the High Court to set appropriate guidelines and standards of proof for compliance by an applicant and by the board, with the obligation of establishing, firstly, that the identity of the parents concerned, although they are of foreign origin, is not known to either the applicant or the board and, secondly, that the applicant and the board have taken appropriate measures to ascertain the identity.
The facts which I have outlined in this case appear to me to constitute a very clear example, where both the board and the parents have satisfactorily discharged the onus of proof of indicating that the identity of the parents of this child is unknown to them and that they have taken the only possible measures they could to ascertain that identity and have failed to do so. Where it is established, as has been established in this case, that this child was left, over twelve years ago, in an orphanage by a person or persons unknown, and that as recently as up to 1990 her parents have not sought by communication to that orphanage, or to the council for child welfare associated with it, to identify themselves or to seek any information or show any concern or interest in this child, it seems to me clear that by ascertaining those facts and inquiring from those persons whom the Indian court was satisfied to appoint through the honorary secretary as a joint guardian of the child, the board and the applicants for adoption have discharged quite clearly the obligation that is imposed under this subsection. I cannot see, therefore, that the main justification which has been put forward for the decision reached in the High Court can be accepted.
To some extent, reliance was also placed on a general assertion that parents of a child who was born outside the jurisdiction of this Court might by reason of legal, constitutional or even social customs, have different standards of care which they would be expected to apply to the child. As I understand this argument, it is based on the fact that conclusions by the court to the effect that such parents have failed in their duty towards the child are impossible to reach.
I would reject also this submission. It is possible to envisage a situation in which the parents of a child in respect of whom an application made to the court pursuant to s. 3 of the Act of 1988 who were nationals of and domiciled in a foreign state, would plead that their particular conduct towards the child during a relevant period was in accordance with accepted standards of their duty in such state. A conceivable example of this would be a state where fosterage in early years was common and accepted as an appropriate method of care. Such concepts, however, do not and cannot arise in this case, where the only evidence before the court is that the child was completely and totally abandoned within days of its birth, and any particular issue that might arise on the special facts of a case under s. 3 could not under any circumstances justify a blanket exclusion of all children born outside the jurisdiction of the court to persons who ordinarily resided outside the jurisdiction of the court.
The Act of 1988 is a very significant step forward in the capacity of our society to care and provide for children in need of care and protection. Unless compelled by its terms to do so the courts should not, in my view, construe it as unavailable to any child within their jurisdiction who would otherwise qualify for adoption and, in particular, such exclusion based on nationality, citizenship or place of birth would not appear to be supportable.
I am, therefore, quite satisfied that the Act of 1988 applies to this child and that this appeal must be allowed and the order of the High Court refusing the application under s. 3 must be set aside and reversed.
There is one feature of this case which to me is intensely disturbing. This child has been in the care of Mr and Mrs M. since she was very young indeed, and has consistently been in their care. All the evidence adduced before the court by the Eastern Health Board indicates that they have dealt with particular devotion and skill with her upbringing. That she should become a fully adopted member of the family, which already contains one other adopted child, must be of extreme importance to her, and obviously that is the view of the defendant board.
Mr and Mrs M. sought to adopt this child as far back as 1982, and clearly for want of proof, either that she was an orphan or what was then known as illegitimate, they were unable to process an adoption order notwithstanding the fact that other conditions might have been fulfilled. As soon as the Act of 1988 was passed they apparently revived their application and the defendant board issued the appropriate declaration, pursuant to s. 2 of the Act, in March 1990. Without any appreciable delay the applicants brought this matter before the High Court by summons issued in September 1990. It was not determined in the High Court until March 1992, and then determined on a preliminary point with the consequence that this Court having ruled that jurisdiction exists it must now be remitted to the High Court.
As I have already indicated, it seems clear to me that there is no controversy at all with regard to the welfare of the child and the proposed adoption, and it is unequivocally in the interest of the child that she should be adopted. On the papers which are before this Court on appeal, I conclude also, as I have already indicated, that both Mr and Mrs M. and the defendant board upon whom an onus is also placed pursuant to the provisions of s. 4(4) of the Act of 1988, have clearly established that the identity of the parents is unknown to any of them and that appropriate measures have been taken by them both to try and ascertain that identity without success. In those circumstances, since the other matters provided for in s. 3 seem to be clearly established and are not in contest in this application, I consider that it is most desirable that the matter should be remitted without any possible delay to the High Court, so as to permit it to consider and make an order pursuant to s. 3 of the Act, with the consequential resumption by the defendant board of the hearing of the application for adoption in accordance with the declaration which has already been made by it.
O’FLAHERTY J
(Egan and Blayney JJ concurring): I agree with the judgment delivered by the Chief Justice. However, in view of the importance of the issues canvassed in the course of the debate before us, I think I should add some supplementary observations of my own.
What is now the Adoption Act 1988 was, as a bill, referred by the President to the Supreme Court pursuant to Article 26 of the Constitution. In the Judgment of the Court delivered by the Chief Justice on 26 July 1988, the bill was pronounced not to be repugnant to the Constitution or any provision thereof: In re Adoption (No. 2) Bill 1987 [1989] ILRM 266.
The learned High Court judge thought that the court did not, in effect, consider the situation that now presents itself for resolution. She based this on the concept that parental duties may vary from civilisation to civilisation and what are perceived as parental duties in one society may be very different from what are considered parental duties in another. She went on to say at p. 573:
Alien parents not within the jurisdiction could not have constitutional duties under the Irish Constitution. There is no common good involved in the State supplying the place of alien parents … it is obvious that the Oireachtas did not intend to legislate to take away the rights of alien parents.
I believe that this analysis of the court’s judgment is at variance with the realities that prevailed at the time of the court’s decision. The existing position, prior to the enactment of the 1988 Act, was that an adoption order could be made only in respect of an orphan, a child born outside wedlock or one who had been legitimated (I am using the language of the time) (cf. Status of Children Act 1987) by the marriage of his parents but whose birth had not been re-registered. Children born in wedlock and foundlings were not eligible for adoption.
A foundling’s place of birth might not be susceptible of proof. The very fact that the legislation was to cater for foundlings means that it had to have within its scope the possibility that children, born abroad of foreign parents, who were in the State for whatever reason and by whatever means would henceforth be eligible for adoption.
The report of the Review Committee on Adoption Services (May 1984; Pl. 2467) pointed to the possibilitity, at least, that children born in wedlock had been sent out of the jurisdiction from time to time because of the restriction then existing in regard to their adoption in this State. Clearly, adoption had an international dimension at the time of the court’s decision.
As the Chief Justice has pointed out, the Act of 1988 is a very significant step forward in the capacity of our society to care and provide for children in need of care and protection.
The Judgment of the Court in In re Adoption (No. 2) Bill 1987 [1989] ILRM 266 pointed out that the terms of Article 42.5 of the Constitution are reflected both in the long title to the bill and in many of the provisions of s. 3. The court went on to say at p. 272:
Article 42.5 of the Constitution should not, in the view of the court, be construed as being confined, in its reference to the duty of parents towards their children, to the duty of providing education for them. In the exceptional cases envisaged by that section where a failure in duty has occurred, the State by appropriate means shall endeavour to supply the place of the parents. This must necessarily involve supplying not only the parental duty to educate but also the parental duty to cater for the other personal rights of the child.
Article 42.5 does not in any way mean that the children whose parents have failed in their duty to them become the children of the State or that they are to be disposed of as such.
The State would, in any event, by virtue of Article 40.3 of the Constitution be obliged, as far as practicable, to vindicate the personal rights of the child whose parents have failed in their duty to it.
And later at p. 272:
The court accepts … that the right and duty of the State to intervene upon the failure of parents to discharge their duty to a child can be considered under both Article 42.5 and Article 40.3. By the express provisions of Article 42.5, the State in endeavouring to supply the place of the parents is obliged to have due regard for the natural and imprescriptible rights of the child. Any action by the State pursuant to Article 40.3, endeavouring to vindicate the personal rights of the child, would, the court is satisfied, be subject to a similar limitation.
The reference to ‘parents’ and ‘children’ in Article 42.5 is not confined to citizens of this State. Indeed, it would be remarkable if this section could not be invoked to protect any child in the State who is left, in effect, parentless. The minimum requirements to satisfy this constitutional provision are that the child should have adequate shelter, food, clothing and care, including especially medical care as well as a basic education. These requirements which, in turn, constitute the rights of the child, are surely of universal application. This is also reflected in Article 25 of the Universal Declaration of Human Rights 1948 which provides:
1. Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
2. Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.
It is clear that the proposed adoptive parents in this case have gone far beyond the minimum required under the Constitution and have, indeed, provided a most caring environment, companionship and hope for the future for this child. There is a solemn obligation on the courts as well as on the board to make sure that everything is now put in train so that the adoption of this child is finalised as soon as possible.