THE LAW REFORM COMMISSION

AN COIMISIÚN UM ATHCHÓIRIÚ AN DLÍ

Report

(LRC 29–1989)

REPORT

ON THE RECOGNITION OF

FOREIGN ADOPTION DECREES

IRELAND

The Law Reform Commission

Ardilaun Centre, 111, St Stephen's Green, Dublin 2

© Copyright The Law Reform Commission 1989

First Published June 1989

THE LAW REFORM COMMISSION

The Law Reform Commission was established by section 3 of the Law Reform Commission Act, 1975 on 20th October, 1975. It is an independent body consisting of a President and four other members appointed by the Government.

The Commission's programme of law reform, prepared in consultation with the Attorney General, was approved by the Government and copies were laid before both Houses of the Oireachtas on 4th January, 1977. The Commission has formulated and submitted to the Taoiseach or the Attorney General twenty-eight Reports containing proposals for reform of the law. It has also published eleven Working Papers, one Consultation Paper and Annual Reports. Details will be found on pp. 43–46.

The Commissioners at present are:

The Hon Mr. Justice Ronan Keane, Judge of the High Court, President; John F. Buckley, Esq., B.A., LL.B., Solicitor;

William R. Duncan, Esq., M.A., F.T.C.D., Barrister-at-Law, Associate Professor of Law, University of Dublin;

Ms. Maureen Gaffney, B.A., M.A. (Univ. of Chicago), Senior Psychologist, Eastern Health Board; Research Associate, University of Dublin;

Simon P. O'Leary, Esq., B.A., Barrister-at-Law.

William Binchy, Esq., B.A., B.C.L., LL.M., Barrister-at-Law, is Research Counsellor to the Commission.

Ms. Grainne de Burca, B.C.L., LL.M. (Michigan), Ms. Rachel Hussey, LL.B. and Ms. Una Ó Raifeartaigh, B.C.L. are Research Assistants.

Further information from:

The Secretary,

The Law Reform Commission,

Ardilaun Centre,

111 St. Stephen's Green, Dublin 2.

Telephone: 715699.

CHAPTER 1: INTRODUCTION

1.

In its first programme of law reform, the Commission announced its intention of examining various aspects of private international law. When the present members of the Commission took up office in January 1987, they took the view that one of the branches of this subject which merited particular attention was the recognition of foreign adoption decrees. It seemed probable that there was a number of people living in the State who had been adopted abroad and that the number was likely to increase. It was also thought possible that, with the decrease in the number of children available for adoption within the State, an increasing number of Irish parents might be seeking to adopt children abroad. At that time, however, the Adoption (No.2) Bill 1987 was initiated and it was decided to defer further examination of the whole subject until the Bill's fate was known, since its provisions could have implications in the area of recognition of foreign adoption decrees. In the event, the Bill was referred by the President to the Supreme Court for a decision as to its constitutionality. Following the Court's ruling on the 26th July 1988 upholding the Bill's constitutionality, it was decided to resume the examination of the whole question.

2.

As a first step, a Discussion Paper was prepared which was circulated to a number of bodies and persons with a special interest in the subject. This Paper contained the Commission's provisional recommendations on the question. Observations on the Commission's Paper were received from the following:

Mr Bernard Carey, Registrar of An Bord Uchtála.

District Justice Agnes Cassidy, former Chairman of An Bord Uchtála.

Mr P. F. Curran, Chairman of the Revenue Commissioners.

Mr Donal Devitt, Principal, Children's Legislation Division, Department of Health.

Mr Declan Quigley, Former Senior Legal Assistant, Office of the Attorney General.

Deputy Alan Shatter.

The Commission would like to express their gratitude to those who made observations. They have been of considerable assistance in

enabling us to formulate our final proposals for reform. It must, as usual, be emphasised, however, that the Commission is solely responsible for the contents of this Report.

3.

The present law is unsatisfactory. Although it is generally assumed that foreign adoptions may be recognised under existing law, the circumstances in which recognition may be afforded have never been clearly defined either in case law or by statute. Since there are probably a number of people living in this country, both children and adults, who have been adopted abroad, it is a matter of concern that their status under Irish law should remain uncertain. This Report sets out our proposals as to how the law should be clarified and amended so as to eliminate existing anomalies and uncertainties.

4.

At the same time, the limitations on our present enquiry should be understood. As we have pointed out, it seems likely that an increasing number of Irish parents are seeking to adopt children abroad. We have been informed by the Adoption Board that they receive a small number of applications from such couples who have “adopted” a child abroad and who now wish to adopt the child under Irish Law. Such overseas “adoptions” have usually been effected in Third World countries. In the majority of cases dealt with by the Board, the requirements of Irish law as to eligibility for adoption and the obtaining of consents were met. In others, however, they were not, so that it was not possible for the Board to grant the applications for adoption under Irish law. Since the adoptive parents in such cases are neither domiciled nor even resident for any significant period of time in the country of adoption, it is obvious that such adoptions would fail to meet the threshold requirements of any system of recognition of foreign adoption decrees which uses normally acceptable criteria. It is unfortunately the case that adoptive parents in this position will not necessarily be assisted by the proposals in our Report if they are implemented.

5.

The Commission fully recognises the problem created by such adoptions and accepts that they are likely to increase with the decreasing number of children available for adoption in the State and the continuing rise in the population of Third World countries. It is generally acknowledged, however, that this problem can only be tackled at an international level and it has already been decided that the 17th session of the Hague Conference on Private International Law in 1993 will be devoted to the finalisation of a convention on The Adoption of Children Coming from Abroad. In these circumstances, it would be premature for the Commission to embark on an examination of this particular topic.

6.

This Report sets out the present position as to the recognition of foreign adoption decrees under Irish law and the relevant provisions of the Hague Convention on Jurisdiction, Applicable Law and Recognition of Decrees relating to Adoptions. It also considers the proposals contained in the Report of the Review Committee on Adoption Services on Adoption as to the recognition of foreign adoptions. Finally, it sets out the Commission's proposals for reform.

CHAPTER 2: THE PRESENT LAW

5.

Adoption consists of the establishment of a legal relationship of parent and child where this relationship does not necessarily depend on a natural relationship.¹ This very general definition simplifies a most complex range of adoption laws which have existed in different cultures at different times.² The policy of adoption has sometimes been directed towards benefiting the adoptive parents, as in Greece and Rome, where “[f]amily ties were strengthened in consequence and the name and property of ancient and noble houses were preserved from extinction”.³ This policy is reflected even today in the law of some African⁴ and Asian⁵ countries.

6.

In Ireland, other European countries and North America, a major goal of adoption is to promote the welfare of the child. There are, however, significant differences in a number of these countries as to the legal effects of adoption. In many common law countries, including Ireland, adoption has the effect of completely extinguishing the legal relationship between the natural parents and the child who is adopted. In some other countries, however, the legal relationship is only modified. Thus, the child may in some cases have succession rights in the estate of his or her natural and adoptive parents.⁶ In some of the countries traditionally favouring a complete severance of the legal relationship, a view has developed in recent years in favour of modification of the present position, on the basis that some form of less final and complete placement of their children might appeal to young mothers.⁷

7.

Other differences may be mentioned briefly.⁸ In some countries only children may be adopted; in others there is no age limit.⁹ In some countries adoption is by private agreement; in others it must be formally approved by a public authority, such as An Bord Uchtala in Ireland, or by a court. Some countries restrict eligibility for adoption to orphans and children designated illegitimate; others, in varying degrees, provide for the compulsory or voluntary adoption of legitimate children. Some countries provide for the extinction of the rights of one parent after a divorce and for the adoption of the child by the other parent and a later spouse; in other countries divorce does not sever parent-child relationships in this way.

8.

Adoption did not become part of Irish law until 1952.¹⁰ Before then, only one reported decision¹¹ considered the question whether foreign adoptions would be recognised in Ireland and, if so, the extent to which their effects would also be recognised. In England, before adoption was introduced there in 1926, Dicey¹² considered that, since adoption was unknown at common law, the courts should not recognise the status of the adopted child. A Canadian decision¹³ took the same view.

As against this, courts have been able to recognise the status of legitimation¹⁴ and of declarations of prodigality;¹⁵ it seems “a complete non-sequitur”¹⁶ to suggest that because of the mere fact that adoption was not part of our law, our courts should deny recognition to this status, provided, of course, no consideration of public policy would prevent them from doing so.

Nevertheless, in In re Tamburrini,¹⁷ in 1944, the High Court gave short shrift to the claims of a man to have custody of his adoptive son based on a foreign adoption order. Here, an Irish woman had gone to live in Scotland where she gave birth to a boy, outside marriage. She sent the child back to be reared by her parents in Ireland, and over the years contributed regularly towards his maintenance. When the boy was four, she married a divorced man in Scotland, who was not the child's father. The following year she and her husband formally adopted the boy under the provisions of the Adoption of Children (Scotland) Act 1930. They later sought custody of the child from his grandparents, who resisted their request.

The High Court rejected the application of the mother and adoptive father, and the child was permitted to remain with his grandparents. The Court was primarily concerned with the child's religious welfare, which, it felt, would not be served by moving the child to Scotland.

Of interest in the present context is the fact that Maguire P, during argument, enquired of counsel for the applicants whether he relied solely on the natural rights of the mother or on “any alleged right of Antonio Tamburrini, as adoptive father”.¹⁸ Counsel replied that he relied on the mother's natural rights, adding: “but under the law of Scotland Antonio Tamburrini has now the legal rights of a father and any order made by this court should give custody to the two prosecutors”.¹⁹

In the judgments of the Court, Maguire P²⁰ alone referred to the question of the adoptive father's claim. He said:

The case shows how little weight was attached to the status of a foreign adoption order in 1944, when no institution of adoption existed in Ireland. Not only were the rights of the adoptive father given virtually no attention, but the Court also ignored any rights of the mother as adoptive parent of her own child.²²

Jurisdiction to Make an Adoption Order

9.

An adoption order may be made only where the child resides in the State,²³ and where the applicants are ordinarily resident in the State

and have been so resident during the year ending on the date of the order.²⁴

Thus, the domicile of neither the child nor the applicants is relevant. So far as the child is concerned, this relieves the authorities of the task, which may be a difficult and complex one in many cases, of attempting to discern the domicile of the child's mother or father, as the case may be. The whole subject of the domicile of children is plagued by uncertainties.²⁵ If the authorities were obliged to work out the domicile of children otherwise eligible for adoption, they would have to resort frequently to the court for guidance on the matter. Moreover, a requirement that the child or the applicants should be domiciled within the State would lead to arbitrary results, to the detriment of the child in many instances²⁶“Residence” is probably a better notion than “living”, since it connotes a stronger degree of continuity than the latter term.²⁷ Clearly, what the legislation is seeking to prevent is an adoption of a child whose presence within the State is fleeting. “Residence” accomplishes this goal.

10.

The eligibility of applicants for adoption must next be considered. Section 11(1) of the Adoption Act 1952, as amended by section 5 of the Adoption Act 1964 and section 5 of the Adoption Act 1974 provides that only the following categories are eligible to adopt:

The Acts throw no direct light on the question as to how the courts are to determine, if called upon to do so, whether persons fall into such categories as “a married couple”, “a widow” or “a widower”. It would seem reasonable, however, that the capacity of the person concerned to marry should be determined by having regard to the conflicts of law rules on the question. In other words if, in the case of a married couple, the parties have such a capacity according to the law of the countries of both their domiciles, then, but not otherwise, do they fulfil the requirements of eligibility.

As to the meaning of “relative” in this context, section 3 of the 1952 Act defines the word as meaning:

Again the statute gives no guidance on the question of what law is to determine the legitimate or illegitimate status of the child. Again it seems reasonable that our conflicts of law rules on the subject of legitimacy²⁹ should determine the question.

11.

The subject of eligibility for adoption gives rise to similar questions. Those eligible for voluntary adoption are children residing in the State³⁰ who are: (a) orphans;³¹ (b) illegitimate children;³² and (c) certain legitimate children.³³ No major difficulty in relation to conflict of laws arises with respect to orphans.³⁴ So far as illegitimate children are concerned, conflict rules as to legitimacy should determine the question.

The position regarding legitimated children is the subject of a specific statutory provision. Section 2(1) of the Adoption Act 1964 permits the adoption of a child “who has been legitimated or whose legitimation has been recognised in pursuance of the provision of the Legitimacy Act 1931”, provided the child's birth has not been re-registered in pursuance of the provisions of the Schedule to the 1931 Act “or in pursuance of the law of a country other than the State”. (These provisions would appear to be intended to facilitate the adoption of an illegitimate child whose natural mother had consented to the adoption but married the natural father before an adoption order was made. Without such a provision, it would not have been possible to make an adoption order in respect of a legitimated child, save in the exceptional circumstances envisaged by the Adoption Act 1988). Clearly, a foreign legitimation recognised under the 1931 Act comes within the scope of section 2(1).

But what about a foreign legitimation recognised other than under the 1931 Act? There seems no sound policy justification for excluding children thus legitimated from the scope of section 2(1), at all events where it is not very easy to fit them within its express words. Perhaps it can be said simply that they have “been legitimated” but if this expression covers these children it should be sufficiently strong to cover children whose legitimation has been recognised under the 1931 Act, yet the latter receive specific mention.³⁵

12.

Some uncertainty surrounds the requirement that the birth of the legitimated child should not have been re-registered “in pursuance of the law of a country other than the State”. The position is that some countries may have provisions requiring re-registration, others not. For those requiring re-registration, section 2(1) provides that no such registration should actually have occurred. So far as those countries not requiring any re-registration are concerned, it is not clear whether this renders the child ineligible under section 2(1) or (more probably) that it renders irrelevant the requirement as to non-registration. Section 2(1) does not attempt to identify which country's law is relevant. This will depend on the choice of law rules as to recognition of foreign legitimations.

13.

Apart from the limited scope of operation of choice of law rules in respect of eligibility to adopt and to be adopted, it appears that our law of adoption does not in general involve choice-of-law principles. Thus an Irish adoption complying with the requirements of Irish law will be valid regardless of the fact that it fails to comply with the requirements for adoption under the lex (or leges) domicilii of the child and of the applicants.³⁶

Basis of Recognition of Foreign Adoptions³⁷

14.

There is no reported decision of the courts in the Republic of Ireland setting out the circumstances in which a foreign adoption may be recognised. Nor are there any statutory rules governing recognition. Nevertheless, some statute law proceeds on the assumption that recognition principles exist. Recent examples are sections 3(1)(b) and 92(1)(b) of the Status of Children Act 1987, which make reference to a

person adopted abroad whose adoption is “recognised by virtue of the law for the time being in force in the State”.

15.

It seems likely that the present position is governed by the common law, and that, under common law, a foreign adoption is entitled to recognition if the adopting parents were, at the time of the adoption, domiciled in the country where the adoption was effected. We understand that this principle was accepted and applied by McKenzie J in a case stated to the High Court by the Adoption Board on 25 June 1987. In that case an English adoption order was refused recognition because, at the time of the order, the natural mother (who was adopting her own child) was not domiciled in England. After obtaining the English order the mother had returned to live in this country, had married and had applied, together with her husband, to adopt the same child in Ireland. Had the English adoption been entitled to recognition the child would have been ineligible for re-adoption.

16.

In the absence of reported decisions it is worth exploring other approaches that might possibly be taken by the courts to the problem of recognition. These are:

(a) Refusal to Recognise Foreign Adoptions because the Legal Nature of Adoption varies so greatly from country to country

One approach requires the court to refuse to recognise foreign adoptions because the legal nature of adoption varies so greatly from country to country. In Re Wilson,³⁸ Vaisey J asked:

This approach seems to have little to commend it.

There is, of course, a problem in some instances as to the extent to which a legal process denominated “adoption” in a particular foreign law is akin to adoption under Irish law but this is by no means a unique type of problem in the conflicts of law.³⁹ One solution is to ask an all-or nothing question: “Is the legal process sufficiently similar with adoption in our law to be treated as an adoption?” If the answer is yes, then there is no further question to be asked. Even if the foreign legal process is in some respects different to our notion of adoption, these differences will be ignored. If the answer is no, then whatever similarities there may be with our notion of adoption will be ignored.

(b) The Reciprocity Principle

17.

Another approach is to recognise foreign adoptions if carried out in circumstances which, had they occurred in Ireland, would have entitled the Irish authorities to exercise jurisdiction.⁴⁰

In the English decision of Re Valentine's Settlement,⁴¹ in 1965, Lord Denning MR said:

A reciprocity principle based on similar jurisdictional criteria could work unsatisfactorily. Our jurisdictional requirements are liberal but our eligibility requirements are narrowly drawn. Where a country with similar jurisdictional requirements but wide-ranging eligibility requirements permitted an adoption it is not certain that recognition would necessarily be desirable. To this it may be said that our courts are always free to resort to public policy⁴³ where the eligibility requirements are too wide-ranging, and that, whether the reciprocity principle or one based on domicile is favoured, the problem of over-liberal eligibility requirements may arise.

(c) A Domicile-Based Test

18.

Another approach bases the recognition of foreign adoptions, whether exclusively or as one of a number of grounds, on domicile. It is perhaps not unreasonable that domicile should play a significant role since adoption (in the law of many countries) changes status,⁴⁴ and such an important result should not lightly be recognised. Domicile, it may be said, has a sufficiently strong and permanent force to base recognition of foreign adoptions upon it.

If domicile is the test, whose domicile should enter into consideration? One solution recognises a foreign adoption only where it is valid according to the leges domicilii of the child and the adoptive parents. This cumulative approach was supported by Barnard J in Re Wilby⁴⁵ and Vaisey J in Re Wilson.⁴⁶

In favour of this view, it may be said that, since adoption alters the status of both the child and the parents, it should not be recognised unless it is effective under the domiciliary laws of all parties concerned.⁴⁷ In this regard it has been argued that adoption differs from legitimation in that adoption involves no necessary prior connection by blood between the parties:

As against this, the cumulative rule restricts the number of adoptions which will be treated as effective. This may cause hardship and injustice in some instances.⁴⁹

19.

If a choice has to be made between the lex domicilii of the child⁵⁰ and that of the parents which should prevail? The argument in favour of the child's lex domicilii is based on the consideration that the law from which the child is withdrawn and which provides the existing framework of his legal relations should have some say in the change.⁵¹ The fact that the child in most cases will not be old enough to protect his own interests is a further reason for giving emphasis to the child's lex domicilii. Nor should one ignore the interests of the child's natural parent or parents, since, if the adoption is recognised, their rights in relation to their child will no longer be recognised.⁵²

The principal argument in favour of selecting the adoptive parents' lex domicilii is that in most cases the child, when adopted, will be living in the country of the adoptive parents' domicile; this will be his centre of gravity during the time he is growing up with them, and “[t]o attribute to him a connection with a system of law with which he has, perhaps, had no point of contact since his earliest months might be considered artificial”.⁵³ The analogy with custody proceedings has been pressed, debatably⁵⁴ perhaps, on the basis that one should have regard to the best interests of the child⁵⁵ by looking to the future rather- than the past.

Effects of Adoption⁵⁶

20.

It is one thing to recognise a child's status as an adopted person, it is “a very different thing”⁵⁷ to hold that this status controls succession and other entitlements under Irish law.

21.

Let us consider first the position where succession is governed by Irish law. Children adopted under the Adoption Acts 1952–88 are in the same position, for succession purposes, as their adoptive parents' children from within marriage, provided, in cases of testate succession, that they were adopted before the will was executed. (It should be noted that in the case of wills executed after June 14th 1988, the Status of Children Act 1987 provides that it is no longer necessary that the children should have been adopted before the will was executed). But what is the position where there has been a foreign adoption that is recognised under Irish law?

22.

Until recently, there was no clear answer to this question. Now, however, s.27(3) of the Status of Children Act 1987 provides that:

It is, accordingly, now clear that the succession rights of a child adopted abroad are to be the same as those of a child adopted under Irish law, provided, of course, that the foreign adoption is recognised under Irish law.

23.

Where the succession is governed by foreign law, the best approach would seem to be to refer the whole question to the lex successionis.⁵⁸ This straightforward solution would not be affected by the provision of the Status of Children Act already mentioned.

Foreign Adoption Decrees and Taxation

24.

Certain features of revenue legislation which affect the present position as to the recognition of foreign adoption decrees should be noted. Thus under section 2 of the Capital Acquisitions Tax Act 1976, “child” is defined as including

Similar provisions are to be found in relation to income tax, corporation tax, residential property tax, capital gains tax and stamp duty. It will be observed that the recognition of foreign adoptions for these purposes is significantly less qualified than the present general law and, indeed, than that law if it were altered in accordance with proposals subsequently made in this Report.

Constitutional Aspects of the Recognition of Adoption Decrees

25.

The effect of the Constitution on conflict of law rules relating to adoption must next be considered. Such rules, as they existed at the date of the coming into force of the Constitution, were preserved as part of our law, subject to the Constitution itself and to the extent to which they were not inconsistent with the Constitution.⁵⁹ A question may arise as to whether the choice of law rules discussed above are consistent with the Constitution in permitting the recognition under Irish law of adoptions which might be thought to abridge or remove the constitutionally guaranteed rights of parents, children or others.

26.

There is as yet no decision of the Superior Courts in this area. There have been a number of cases in recent years concerning the custody of children removed from the jurisdiction of other courts in which judges have considered the extent to which the principle of the comity of courts can outweigh the constitutionally guaranteed rights of parents and children.⁶⁰ No general principle can be extracted with any confidence from these decisions and they afford no real guidance as to the effect of the Constitution on conflict of law rules relating to adoption.

27.

The problem is most likely to arise in the case of adoptions of legitimate children effected, with or without the consent of the parents, under jurisdictions which permit such adoptions. Such adoptions are now permissible under Irish law by virtue of the Adoption Act 1988, but only in the strictly limited circumstances envisaged by that Act. Such adoptions may only be effected where the High Court makes an order authorising the adoption and such an order may only be made where certain pre-conditions have been met, including a requirement that the parents have, for physical or moral reasons, failed in their duty towards the child and that the failure constitutes an abandonment of their parental rights.

The President before signing the Adoption (No.2) Bill 1987, as the Act then was, referred it to the Supreme Court for a decision on the question as to whether it was repugnant to the Constitution or to any provision thereof. The Court ruled on the 26th July 1988 that none of the provisions of the Act was repugnant to the Constitution or any provisions thereof.⁶¹ The Court rejected a submission by counsel assigned to oppose the Bill that it represented an attack upon the constitution and authority of the family to which the child belonged by altering the constitution of the family for all time, saying:

28.

It does not follow, however, from the Court's decision that legislation which permitted such adoptions subject to less stringent safeguards for the constitutional rights of those concerned would be upheld. In this context, it should be noted that the phrase “physical or moral reasons” used by the draftsman in s.3(1(A) mirrors precisely the language used in Article 42.5 of the Constitution. This gives added significance to the comment of the Court as to how that expression should be interpreted:

However, the fact that the Oireachtas may be precluded by the provisions of Articles 40, 41 and 42 of the Constitution from enacting legislation which permitted the adoption of legitimate children other than in the exceptional circumstances envisaged by Article 42.5, does not necessarily mean that a conflict of law rule, which has as its consequence the recognition of such an adoption decree by another jurisdiction, would be inconsistent with the Constitution. In the area of divorce, where similar problems of status and public policy in the context of private international law arise, the Irish courts have been at pains to distinguish between the effects of the public policy underlying the Constitution which prohibits the positive enforcement in this jurisdiction of laws which offend that public policy and the more passive recognition of the status which those laws bring about as a matter of private international law.⁶⁴

29.

We accordingly approach our consideration of the topic on the basis that the choice of law rules already discussed do not involve any necessary conflict with the provisions of the Constitution. It should also be noted that Article 15 of the Hague Convention discussed below enables the contracting states to disregard its provisions when their observance would be “manifestly contrary to public policy”.

Reform of the Law

30.

The Review Committee on Adoption Services, in its Report, entitled Adoption,⁶⁵ published in 1984, addressed some issues relating to conflicts of law. The Committee referred to section 5(2) of the Adoption Act 1964, which stipulates that prospective adopters must be ordinarily resident in the State and have been so resident during the year preceding the date of the adoption order. From the information available to them, they were satisfied that this provision works well, and they recommend no change in the law. The requirement that the prospective adopters be “ordinarily” resident here removed any doubts as to the eligibility to adopt of Irish persons obliged temporarily to live abroad in the course of their work.

31.

The Committee stated that they “would be opposed to any measure which would encourage or facilitate trafficking in children for adoption purposes”.⁶⁶ They considered that the fact that there may be many young children orphaned or abandoned as a result of conditions of war or poverty or famine should not be regarded as a justification for removing them from their native environment. Instead, concern for the deprived children of distressed or undeveloped countries could “best be shown by assisting the various national and international agencies working to relieve the problems of such areas by improving conditions within them”.⁶⁷

32.

The Committee accepted that there will be particular instances in which people living in Ireland may wish to adopt a foreign child and where the circumstances would justify a favourable view being taken of such an application. They recommended, however, that it should be obligatory for all applications in respect of the adoption of a foreign child

to be made through a registered adoption society or health board.⁶⁸ The agencies would have the responsibility to make enquiries about the background of the child and to ensure that the necessary conditions, particularly those relating to consent, had been fulfilled.⁶⁹

33.

On the question of recognition of adoption orders made abroad, the Review Committee recommended that the Minister for Health should be empowered by statute “to designate countries whose adoption orders would be recognised in Ireland”.⁷⁰ The effect of this recognition would be “to accord the same rights to children adopted in these countries as children who had been adopted under Irish law”.⁷¹ The Minister would also be given powers to draw up rules governing the recognition of adoption orders made in non-designated countries.⁷² The Committee considered that the recognition of foreign adoptions should have retrospective effect but they suggested that, in framing the law, consideration should be given to making the recognition of foreign orders retrospective without affecting rights that are vested, such as those in relation to succession.⁷³

CHAPTER 3: THE HAGUE CONVENTION ON ADOPTIONS

34.

In this chapter we discuss the Hague Convention on Jurisdiction, Applicable Law and Recognition of Decrees Relating to Adoptions,¹ drafted at the 10th Session of the Hague Conference on Private International Law in 1964. The Convention contains some interesting solutions to the conflict between nationality and domicile as connecting factors in adoption, as well as introducing provisions for a modest degree of co-operation between the authorities of different countries when international adoptions are being made.² First the limits of the Convention should be noted, as they are “at least as important as its provisions”.³ The Convention covers only adoptions with a foreign element: it does not extend to wholly “internal” adoptions, where the adopter or adopters and the child all possess the same nationality and habitually reside in the State of which they are nationals.⁴ Thus, the question of the recognition abroad of these adoptions, “which are of course much more numerous and thus more important in practice”,⁵ was left to another day⁶

35.

The next and arguably most significant⁷ limitation is that the convention does not extend to the incidents and effects of an adoption recognised by another State. It goes only so far as to say (in Article 8) that every adoption granted by an authority having jurisdiction under the terms of Article 3, para. 1 of the Convention is to “be recognised without further formality in all contracting States”.⁸ The precise content of this recognition is left to be determined by each individual State, “for the obvious reason that there was no hope at the Conference of reaching a consensus on this point among 23 different States, each of which attributed different incidents to its own domestic adoption orders”.⁹

The background to this final outcome is worth examining, Professor Joost Blom explains:

Professor Blon goes on to say that:

36.

The next limitation in the scope of the Convention that should be noted is that the Convention deals only with adoptions by a single adopting parent, or by spouses, of children under the age of 18 who have not been married.¹⁸

The Adoptive Parent or Parents

37.

The Convention applies to an adoption where the adoptive parent “possessing the nationality of one of the contracting States, has his habitual residence within one of these States, or spouses each of whom, possessing the nationality of one of the contracting States, has his or her habitual residence within one of these States”.¹⁹ It is not necessary that the spouses actually habitually reside in the State of the nationality of either or both of them: it is enough that they habitually reside in any one²⁰ of the contracting States.

Jurisdiction to grant an adoption is vested in:

The Adopted Child

38.

The Convention, as we have mentioned, applies to a child who has not attained the age of eighteen years at the time when the application for adoption is made and has not married.²² Furthermore, the child must possess the nationality of one of the contracting States and have his or her habitual residence within one of these States²³ (not necessarily the same as the one of which the child is a national).

Choice of Law

39.

The authorities who have jurisdiction based on the habitual residence of the adopter (or adopters) must apply their internal law to the conditions governing an adoption.²⁴ However, they must apply the national law of the child relating to consents and consultations, other than those in respect of an adopter, his family or his or her spouse.²⁵ Moreover, they must respect any provision prohibiting adoption contained in the national law of the adopter (or, in the case of an adoption by spouses, any such provision of their common national law)²⁶ if the State of which the adopter is (or adopters are) nationals has made a declaration, when signing, ratifying or acceding to the Convention, specifying the provisions of its internal law prohibiting adoptions founded upon:

40.

Commenting on these provisions, Professor Joost Blom says:

The Interest of the Child

41.

The authorities having jurisdiction to grant an adoption under Article 3 of the Convention must not do so “unless it will be in the interest of the child”.²⁹ Before granting an adoption they must carry out, through the agency of the appropriate local authorities, a thorough inquiry relating to the adopter or adopters, the child and his or her family.³⁰ As far as possible this inquiry must be carried out in co-operation with public or private organisations qualified in the field of intercountry adoptions and the help of social workers having special training or having particular experience concerning the problems of adoption.³¹ The authorities of all the contracting States are required promptly to give all the assistance requested for the purposes of an adoption governed by the Convention.³²

Annulment and Revocation of Adoptions³³

42.

Article 7 of the Convention is concerned with the annulment and revocation of adoptions. It provides as follows:

Recognition

43.

Article 8 deals with recognition. It provides that every adoption, and every annulment or revocation of an adoption, to which relevant articles of the Convention apply “shall be recognised without further formality in all contracting States”. Moreover, if any question arises in a contracting State with respect to the recognition of such an adoption, annulment or revocation, the authorities of that State, in considering the jurisdiction of the authority which granted the adoption or made the annulment or revocation, “shall be bound by the findings of fact on which that authority based its jurisdiction”.

Professor Graveson has commented, in relation to this provision in Article 8 that:

It is worth noting Unger's observations on Article 8:

Possibly a Constitutional problem could arise in Ireland in relation to Article 8; the constitutional requirement that “truth must out”³⁶ may possibly be in potential conflict with the Article. If this is so, we could avail ourselves of Article 15.

International Notifications

44.

Article 9 provides that where an authority has granted an adoption pursuant to Article 3, paragraph 1, it must notify this fact to the other State, if any, the authorities of which would have been empowered to grant an adoption under Article 3, to the State of which the child is a national and to the contracting State where the child was born.

Article 9 also provides that, when an authority having jurisdiction under Article 7, paragraph 1, has annulled or revoked an adoption, it must notify this fact to the State the authority of which has granted the adoption, to the State of which the child is a national and to the contracting State where the child was born.

Other Provisions

45.

The Convention contains a number of other provisions which should be noted. Of particular importance is Article 15, which is to the effect that the provisions of the Convention may be disregarded in contracting States “only where this observance would be manifestly contrary to public policy”.

Article 16 provides that each contracting State must designate the authorities having power to grant, annul or revoke adoptions, to exchange communications relative to the welfare of children considered for adoption and to receive information about adoption of a child who is a national or who was born there.

CHAPTER 4: RECOMMENDATIONS

The Hague Convention

46.

Having outlined the strengths and weaknesses of the Convention we now must consider whether it should become part of our law. We have noted three limitations in particular:

The practical utility of Ireland's ratifying the Convention is significantly reduced by the fact that it has been ratified by three countries only, Austria, Switzerland and the United Kingdom, although it was adopted as long ago as 1965. Moreover, it may be superseded, in part at least, by the Convention on the Adoption of Children Coming from Abroad which it is hoped to adopt at the seventeenth session in 1993.

Our conclusion is that these factors indicate that Ireland should not ratify this particular Convention. If, contrary to that view, it was thought desirable that Ireland should ratify the Convention, it would obviously be important for a declaration to be made pursuant to Article 13 specifying the provisions in our adoption legislation which would render unlawful adoptions to which paragraphs (b) to (f) inclusive of that article apply.

Reform of Recognition Principles

47.

If it is accepted that the Hague Convention should not form the basis of recognition principles in the future, it is necessary to consider what should. It seems to us that in devising recognition principles the following factors should be taken into account.

Designated Country Adoptions

48.

Our conclusions, based on these considerations, are as follows.

49.

We recommend, following the recommendations of the Adoption Review Committee, that legislation be enacted giving the Minister for Health power to designate countries (or jurisdictions) whose adoption orders would be recognised in Ireland. If this approach were favoured, a valid adoption made in England or France, for example, would be recognised here, if these were designated countries, with our conflicts rules laying down no requirements as to the domicile, nationality or residence of the child or the natural or adoptive parents. Of course, in order to be valid under the law of England or France, the adoption would have to comply with the jurisdictional and other requirements of the law of England or France; but, from country to country, there

naturally will be a great variation in these requirements, with some countries laying few obstacles in the path of a valid adoption.

50.

It has been represented to the Commission that this proposal, which was provisionally made in our Discussion Paper, does not indicate with sufficient precision the basis on which designations should be made. It was also suggested that there were considerable administrative implications in the proposal which had not been sufficiently explored. We have carefully noted these objections but are satisfied that we should adhere to our provisional recommendation. We do not think that any substantial difficulty should be encountered by the Minister in deciding to what countries recognition should be extended. While in practice it may well be that recognition will be confined to those countries whose legal, social and political structures are broadly similar to our own (such as, for example, most of the member States of the European community), we do not think it would be either practical or desirable to attempt to set out specific criteria by which the Minister should be guided. We note, in this context, that the equivalent English legislation which has been in operation since 1968 does not set out specific criteria and we are not aware that any problems have been encountered in that jurisdiction.

51.

We further recommend that recognition under this head be confined to adoption orders made in respect of persons below the age of 18, and to adoptions effected under legislative provisions only. An adoption order made in a designated country should be regarded as having the same consequences as an adoption order made under the Adoption Acts. This will be of great practical significance in relation to citizenship, maintenance and guardianship. Recognition under this provision should operate as from the date of designation.

52.

We further recommend that these provisions should be without prejudice to the right of a court in a particular case to refuse recognition on the ground that recognition would be manifestly contrary to public policy. Another possibility would be to leave it to the Minister to assess, in the case of any particular jurisdiction, whether the possible constitutional difficulties are such as to make it undesirable for him to exercise his powers. We would prefer not to include such a provision in the legislation. Under such a provision the Minister might feel obliged to refuse to designate any country whose adoption law contains any provision, no matter how little used, which might be regarded as constitutionally suspect. The Minister might indeed find it difficult under such a provision to designate any country. It seems preferable to allow the Minister to designate those countries whose adoption laws have a broadly similar purpose as our own, leaving the courts with discretion to refuse recognition in particular cases on grounds of public policy.

Specific Recognition Principles

53.

In addition to giving the Minister a power of designation, the legislation should contain further specific recognition rules. These will

be required to govern the recognition of adoptions in countries or jurisdictions not designated by the Minister. To avoid anomalies, the recognition principles should, as a minimum, include the circumstances in which, under existing common law, adoption orders are probably entitled to recognition. We accordingly recommend that the legislation should provide for the avoidance of doubt, that an adoption order made in a country in which either or both of the adopting parents were domiciled at the time it was made will be recognised. We recognise the objections to the use of domicile as a connecting factor. However, it would be wrong in our view that reform should result in the law being any more restrictive than it already is. We also recommend that an adoption recognised in the country or jurisdiction where either or both of the adopting parents are domiciled at the time of the order should be recognised.

54.

In addition, we recommend that an adoption order made in the country or jurisdiction where either or both the adopting parents had his or her habitual residence at the time of the order, should be recognised. Habitual residence is, for reasons explained in our Report on Domicile and Habitual Residence as Connecting Factors in the Conflict of Laws a more satisfactory connecting factor than domicile. As with domicile, we recommend that an adoption order recognised in the country where the adopting parents had their habitual residence should also be entitled to recognition. In the case of habitual residence, recognition would have prospective effect only, in the sense that an adoption recognised on that basis, but made before the legislation, should be regarded as effective as from the coming into force of the legislation.

55.

As with designated country adoptions, recognition should be limited to adoptions of persons below the age of 18 and a recognised adoption should have the same consequences as a domestic adoption. The courts should be entitled to refuse recognition on the basis that recognition would be manifestly contrary to public policy.

Court Declarations as to Adoptions

56.

It has been represented to us that the position of persons adopted in other jurisdictions and now living in Ireland might be further improved by giving the courts jurisdiction to declare in any particular case that an adoption order effected in another jurisdiction is valid in Irish law. The production of the relevant court order to various state agencies could well eliminate delays, particularly in those cases where it may be difficult for an administrative official to decide the issue of recognition. This is most likely to be so where the adoption has taken place in an non-designated country. We accordingly recommend that the High Court should be given jurisdiction to make a declaration that the applicant is or is not the adopted child of a named person by virtue of a foreign adoption. The declaration should be available only on the application of the person whose adoptive status is in question and the applicant should be either domiciled or habitually resident in the State at the time of the application.¹. The High Court should have jurisdiction because a declaration is most likely to be sought in cases where the

issue of recognition is complex. We would emphasise that the production of a declaration should not be regarded as a pre-condition to the recognition of a foreign adoption by an administrative authority. There are many cases where the question of recognition could be easily determined without recourse to the courts, especially where the adoption was made in a designated country. It might be desirable in the legislation to include a provision making this clear.

CHAPTER 5: SUMMARY OF RECOMMENDATIONS

1.

Legislation should be enacted giving the Minister for Health power to designate countries or jurisdictions whose adoption orders would be recognised in Ireland: para 49.

2.

Recognition of such adoption orders should be confined to those made in respect of persons below the age of 18 and to adoptions effected under legislative provisions only: para 50.

3.

An adoption order made in a designated country should be regarded as having the same consequences as an adoption order made under the Adoption Acts 1952 to 1988: ibid.

4.

Doubts as to the validity in Ireland of foreign adoption decrees of countries where one or both of the adopting parents were domiciled at the time of the making of the adoption decree should be removed by legislation in the case of all such adoptions whether effected before or after the enactment of the legislation: para 52.

5.

Legislation should further provide for the recognition in Ireland of foreign adoption decrees of countries where one or both of the adopting parents are habitually resident at the date of the making of the decree. In the case of such adoptions, however, recognition of adoption decrees already granted should only take effect as from the coming into force of the proposed legislation: para 53.

6.

Recognition should also be limited in these cases to adoption of persons under the age of 18 and recognition should have the same consequences as in a domestic adoption: para 54.

7.

These provisions should be without prejudice to the right of the courts in particular cases to refuse recognition on the ground that recognition would be manifestly contrary to public policy: paras 51 and 54.

8.

The High Court should be empowered to grant declarations as to the validity of foreign adoption decrees.

9.

Ireland should not ratify the Hague Convention on Jurisdiction, Applicable Law and Recognition of Decrees Relating to Adoption: para 46.

APPENDIX

XII. CONVENTION ON JURISDICTION, APPLICABLE LAW AND RECOGNITION OF DECREES RELATING TO ADOPTIONS

(Concluded November 15, 1965)

The States signatory to the present Convention,

Desiring to establish common provisions on jurisdiction, applicable law and recognition of decrees relating to adoption,

Have resolved to conclude a Convention to this effect and have agreed upon the following provisions:

Article 1

The present Convention applies to an adoption between:

on the one hand, a person who, possessing the nationality of one of the contracting States, has his habitual residence within one of these States, or spouses each of whom, possessing the nationality of one of the contracting States, has his or her habitual residence within one of these States, and

on the other hand, a child who has not attained the age of eighteen years at the time when the application for adoption is made and has not been married and who, possessing the nationality of one of the contracting States, has his habitual residence within one of these States.

Article 2

The present Convention shall not apply where–

Article 3

Jurisdiction to grant an adoption is vested in–

The conditions relating to habitual residence and nationality must be fulfilled both at the time when the application for adoption is made and at the time when the adoption is granted.

Article 4

The authorities who, have jurisdiction under the first paragraph of article 3 shall, subject to the provisions of the first paragraph of article 5, apply their internal law to the conditions governing an adoption.

Nevertheless, an authority having jurisdiction by virtue of habitual residence shall respect any provision prohibiting adoption contained in the national law of the adopter or, in the case of an adoption by spouses, any such provision of their common national law, if such a prohibition has been referred to in a declaration of the kind contemplated in article 13.

Article 5

The authorities who have jurisdiction under the first paragraph of article 3 shall apply the national law of the child relating to consents and consultations, other than those with respect to an adopter, his family or his or her spouse.

If according to the said law the child or a member of his family must appear in person before the authority granting the adoption, the authority shall, if the person concerned is not habitually resident in the State of that authority, proceed, where appropriate, by means of a commission rogatoire.

Article 6

The authorities referred to in the first paragraph of article 3 shall not grant an adoption unless it will be in the interest of the child. I Before granting an adoption they shall carry out, through the agency j of the appropriate local authorities, a thorough inquiry relating to the I adopter or adopters, the child and his family. As far as possible, this inquiry shall be carried out in co-operation with public or private organisations qualified in the held of inter-country adoptions and the help of social workers having special training or having particular experience concerning the problems of adoption.

The authorities of all contracting States shall promptly give all the assistance requested for the purposes of an adoption governed by the present Convention; for this purpose the authorities may communicate directly with each other.

Each contracting State may designate one or more authorities empowered to communicate in accordance with the preceding paragraph.

Article 7

Jurisdiction to annul or to revoke an adoption governed by the present Convention shall be vested in

An adoption may be annulled –

Article 8

Every adoption governed by the present Convention and granted v an authority having jurisdiction under the first paragraph of article shall be recognised without further formality in all contracting States.

Every decision annulling or revoking an adoption granted by an authority having jurisdiction under article 7 shall be recognised without further formality in all contracting States.

If any question arises in a contracting State with respect to the cognition of such an adoption or decision, the authorities of that State, in considering the jurisdiction of the authority which granted e adoption or which gave the decision, shall be bound by the findings of fact on which that authority based its jurisdiction.

Article 9

When an authority having jurisdiction under the first paragraph of article 3 has granted an adoption, it shall notify this fact to the other State, if any, the authorities of which would have been empowered to grant an adoption under that article, to the State of which the child is a national and to the contracting State where the child was born.

When an authority having jurisdiction under the first paragraph of article 7 has annulled or revoked an adoption, it shall notify this fact to the State the authority of which had granted the adoption, to the State of which the child is a national and to the contracting State where the child was born.

Article 10

For the purposes of the present Convention, an adopter or a child who is stateless or whose nationality is unknown, is deemed to have the nationality of the State of his habitual residence.

Article 11

For the purposes of the present Convention if in the State of which either an adopter or a child is a national, there is more than one legal system in force, references to the internal law or to the authorities of the State of which a person is a national shall be construed as references to the law or to the authorities determined by the rules in force in that State or, if there are no such rules, to the law or to authorities of that system with which the person concerned is most closely connected.

Article 12

The present Convention does not affect provisions of other Conventions relating to adoption binding contracting States at the moment of its entry into force.

Article 13

Any State may, at the time of signature, ratification or accession, with a view to the application of the second paragraph of article 4, make a declaration specifying the provisions of its internal law prohibiting adoptions founded upon –

Such declarations may be revoked at any time. The revocation shall be notified to the Ministry of Foreign Affairs of the Netherlands.

Any declaration which has been revoked shall cease to have effect on the sixtieth day after the notification referred to in the preceding paragraph.

Article 14

Any contracting State may make a declaration specifying the persons deemed to possess its nationality for the purposes of the present Convention.

Such declarations and any modification or revocation thereof shall be notified to the Ministry of Foreign Affairs of the Netherlands.

Any such declaration, modification or revocation shall have effect on the sixtieth day after the notification referred to in the preceding paragraph.

Article 15

The provisions of the present Convention may be disregarded in contracting States only when their observance would be manifestly contrary to public policy.

Article 16

Each contracting State shall designate the authorities having power –

Article 17

With a view to the application of article 5, each contracting State shall inform the Ministry of Foreign Affairs of the Netherlands of the provisions of its internal law relating to consents and consultations.

Any State making a declaration under article 13 shall inform the said Ministry of the provisions of its internal law relating to the prohibitions specified in that declaration.

A contracting State shall inform the said Ministry of any modification of the provisions mentioned in the first and second paragraphs above.

Article 18

The present Convention shall be open for signature by the States represented at the Tenth Session of the Hague Conference on Private International Law.

It shall be ratified and the instruments of ratification shall be deposited with the Ministry of Foreign Affairs of the Netherlands.

Article 19

The present Convention shall enter into force on the sixtieth day after the deposit of the third instrument of ratification referred to in the second paragraph of article 18.

The Convention shall enter into force for each signatory State which ratifies subsequently on the sixtieth day after the deposit of its instrument of ratification.

Article 20

Any State not represented at the Tenth Session of the Hague Conference on Private International Law may accede to the present Convention after it has entered into force in accordance with the first paragraph of article 19. The instrument of accession shall be deposited with the Ministry of Foreign Affairs of the Netherlands.

The Convention shall enter into force for such a State in the absence of any objection from a State, which has ratified the Convention before such deposit, notified to the Ministry of Foreign Affairs of the Netherlands within a period of six months after the date on which the said Ministry has notified it of such accession.

In the absence of any such objection, the Convention shall enter into force for the acceding State on the first day of the month following the expiration of the last of the periods referred to in the preceding paragraph.

Article 21

Any State may, at the time of signature, ratification or accession, declare that the present Convention shall extend to all the territories for the international relations of which it is responsible, or to one or more of them. Such a declaration shall take effect on the date of entry into force of the Convention for the State concerned.

At any time thereafter, such extensions shall be notified to the Ministry of Foreign Affairs of the Netherlands.

The Convention shall enter into force for the territories mentioned in such an extension on the sixtieth day after the notification referred to in the preceding paragraph.

Article 22

Any State may, not later than the moment of its ratification or accession, reserve the right not to recognise an adoption granted by an authority exercising jurisdiction under sub-paragraph (b) of the first paragraph of article 3, when at the time of the application to adopt the child had his habitual residence within its own territory and did not possess the nationality of the State in which the adoption was granted. No other reservation shall be permitted.

Each contracting State may also, when notifying an extension of the Convention in accordance with article 21, make the said reservation, with its effect limited to all or some of the territories mentioned in the extension.

Each contracting State may at any time withdraw a reservation it has made. Such a withdrawal shall be notified to the Ministry of Foreign Affairs of the Netherlands.

Such a reservation shall cease to have effect on the sixtieth day after the notification referred to in the preceding paragraph.

Article 23

The present Convention shall remain in force for five years from the date of its entry into force in accordance with the first paragraph of article 19, even for States which have ratified it or acceded to it subsequently.

If there has been no denunciation, it shall be renewed tacitly every five years.

Any denunciation shall be notified to the Ministry of Foreign Affairs of the Netherlands at least six months before the end of the five year period.

It may be limited to certain of the territories to which the Convention applies.

The denunciation shall have effect only as regards the State which has notified it. The Convention shall remain in force for the other contracting States.

Article 24

The Ministry of Foreign Affairs of the Netherlands shall give notice to the State referred to in article 18, and to the States which have acceded in accordance with article 20, of the following–

In witness whereof the undersigned, being duly authorised thereto, have signed the present Convention.

Done at The Hague, on the 15th day of November, 1965, in the English and French languages, both texts being equally authentic, in a single copy which shall be deposited in the archives of the Government of the Netherlands, and of which a certified copy shall be sent, through the diplomatic channel, to each of the States represented at the Tenth Session of the Hague Conference on Private International Law.

BIBLIOGRAPHY

BINCHY:

W. Binchy, Irish Conflicts of Law (1988)

CHESHIRE & NORTH:

Cheshire & North, Private International Law (11th ed., by P.M. North & J.J. Fawcett, 1987)

DICEY & MORRIS:

Dicey & Morris, The Conflict of Laws (11th ed. by Lawrence Collins, with Specialist Editors, 1987)

KELLY:

J.M. Kelly, The Irish Constitution (2nd ed., 1984).

RABEL:

E. Rabel, The Conflict of Laws: A Comparative Survey (2nd ed., 1958).

SCOLES & HAY:

E. Scoles & P. Hay, Conflict of Laws (1982).

SHATTER:

A. Shatter, Family Law in the Republic of Ireland (3rd ed., 1986)