Tuesday, 19th February 2008: The Law Reform Commission’s Report on Aspects of
Intercountry Adoption Law will be launched by the Attorney General, Mr. Paul Gallagher, S.C.,
at the Commission’s offices at 6pm this evening.
Background: the Attorney General’s request and the Tristan Dowse case
The Report is in response to a request in November 2005 by the then Attorney General, Mr. Rory Brady S.C., under the Law Reform Commission Act 1975 to consider the status and rights including citizenship rights of a child resident outside the State who has been the subject of a foreign or intercountry adoption order made in favour of an Irish citizen or citizens living abroad. The Commission was also asked to consider the most effective manner of securing the performance of the constitutional and legal duties of the adoptive parents in respect of such a child and the most effective manner of ensuring the fulfilment of the duties of the State in respect of such a child. The Report contains the Commission’s final recommendations on these questions and follows extensive consultation after the Commission published a Consultation Paper on Aspects of Intercountry Adoption Law in March 2007.
The request came against the immediate background of the Tristan Dowse case. Tristan had been adopted in Indonesia and one of the adopting parents was Irish. The adoption was registered in Ireland as a foreign adoption under the Adoption Act 1991 and Tristan was issued with an Irish passport (a registered adoption automatically carries Irish citizenship). This was an unusual foreign or intercountry adoption since the child never lived in Ireland. They account for about 10% of the 4,500 foreign or intercountry adoptions which have been registered by the Adoption Board since 1991. Around 75% of intercountry adoptions in Ireland concern adoptive parents who live in Ireland and who have been assessed by the Health Service Executive and the Adoption Board before they travel abroad to adopt a child. The unusual circumstances of the Dowse case were relevant to the Commission’s analysis of the questions raised by the Attorney General.
Main recommendations: rights of the child
The Report notes that, once an adoption is recognised in Ireland and at least one of the
adopter’s is an Irish citizen, the adopted child is entitled to become an Irish citizen even where
the family lives outside the State. This is what happened in the Dowse case. The Report notes that this approach is accepted by a growing number of countries because it treats adopted children and children born to their parents equally. The Commission recommends that the law should remain as it is, particularly in view of the importance which the Irish diaspora attach to Irish citizenship. In its Report, the Commission recommends that children such as Tristan Dowse should be treated comparably in terms of their rights as any other child of Irish parents. The Report notes that the State’s duties to all children are limited under the Constitution to the extent that this is “practicable”. In cases where children are adopted abroad, this is especially relevant because the State cannot reasonably be expected to investigate the parenting skills of Irish citizens who live abroad, and there are significant practical difficulties in ensuring the legal and constitutional rights of an Irish citizen child resident outside the State are enforced. The Commission also recommends that, in cases such as Dowse which come to the attention of the State in the future, the Attorney General, in his role as guardian of the public interest, and in conjunction with the diplomatic and consular services of the Government, is the most appropriate officer of the State to protect the rights of a vulnerable child subject to relevant principles of international law.
1993 Hague Convention on Intercountry Adoption
The Commission’s Report reiterates a previous recommendation that the 1993 Hague Convention on Protection of Children and Co-Operation in Respect of Intercountry Adoption be ratified and incorporated into Irish law. The Commission welcomes the imminent publication of the Adoption Bill 2008 to do so. The Commission also looks forward to the implementation and ratification of the 1996 Hague Convention on the International Protection of Children by all Member States of the European Union.
In the course of its research, the Commission dealt with a number of other related issues and the Report contains recommendations on these. First the Commission recommends that the Adoption Board prepare guidelines for verifying the authenticity of foreign adoption documentation and recommends that it has appropriate, independent legal advice at its disposal. Second, the Commission raises the issue of migrant women in Ireland who place their children for adoption and who require culturally appropriate care services. Third, the Commission recommends that consideration be given to the appointment of a designated High Court judge to deal with all adoption cases particularly in light of the increasing internationalisation of families and family law. Fourth, the Commission recommends that section 6 of the Child Care Act 1991 be amended to provide that post-adoption services including counselling be made available on a statutory basis for both domestic and intercountry adoptions. Fifth, the Commission recommends the creation of accredited bodies and mediation agencies on a statutory basis as envisaged in the 1993 Hague Convention. This is to ensure that foreign or intercountry adoptions are ethical, legal and that the rights of all concerned are protected.