High Court: Application for adoption finalised in the Philippines to be registered in Ireland refused

Four CourtsA couple from the Philippines have been unsuccessful in their application to have their 22-year-old niece, adopted by them in 2011, to be registered in the Register of Intercountry Adoptions pursuant to Section 90(2) of the Adoption Act 2010.

Refusing the application, Ms Justice Leonie Reynolds stated that the facts of the case had to be distinguished from the Mexico case, in that the adoption was not substantially compliant with the Hague Convention and the Court could not apply any degree of flexibility.

Background

The proceedings arose from the domestic adoption by J.M. and his wife of their niece, A.M., in the Philippines by way of a Decision of the Philippine Court issued on the 28th March 2011.

The adoption was subsequently finalised by way of a Certificate of Finality issued by the Philippine Court on the 1st July 2011.

The application was properly processed through the Family Courts in the Philippines, However J.M. was unaware of the necessity to liaise with the relevant Hague Convention Office with responsibility for intercountry adoption. In the circumstances, The Adoption Authority of Ireland contended that the adoption is not one which is compliant with the procedures required for intercountry adoption in accordance with the Hague Convention.

The application form completed by J.M. for an entry of the adoption into the “Register” refers to the date of the adoption order as being the 9th November 2009.

On that basis, J.M. contended that the adoption should be registered pursuant to Section 90(2) of the Adoption Act, as it had been completed prior to the 1st November 2010, (the establishment day for the purposes of the 2010 Act which incorporates the Hague Convention into Irish law). The relevance of that date is that an adoption which was effected prior to the said date is eligible to be registered on the Register under Section 57(2)(a) of the Adoption Act 2010, even if it had not been effected in compliance with the Hague Convention.

It was contended by J.M. that the adoption was effective from the 9th November 2009, in circumstances where the decision of the Philippine Court referred to the Decree of Adoption “effective as of the date of the filing of this petition on the 9th November 2009”.

High Court

J.M. endeavoured to have the adoption entered in the “Register” maintained by the Adoption Authority pursuant to Section 90(2) of the Adoption Act 2010. The application was declined by the Authority in circumstances where the Authority contended that it did not satisfy the relevant provisions of Section 57 of the Adoption Act 2010. Further, it was noted that the adoption was not registered in the United Kingdom where J.M. was habitually resident.

In refusing the application, the Adoption Authority determined the date of the adoption to be “28th of March 2011, finalised on the 1st of July 2011” and further had regard to the fact that “the child continued to reside with the birth mother until the 1st of July 2011”, a fact not disputed by J.M.

In the circumstances, J.M. sought the directions of the Court pursuant to Section 92(1)(a) of the Adoption Act 2010 to “direct the Authority to procure the making of a specified entry in the register of intercountry adoptions.”

J.M. contended that:

  • The Court should consider the relevant date for the purposes of the adoption as being the 9th November 2009, that being the date of the petition. In support of this contention, J.M. submitted that the transfer of parental rights and duties occurred at that time.
  • The adoption was compliant or at least substantially compliant with the requirements of the Hague Convention and therefore ought to be registered as an intercountry adoption.

The Adoption Authority submitted that J.M’s position was untenable in circumstances where the adoption was not completed prior to the 1st November 2010, and further where the said adoption was purely a domestic adoption and was not effected in accordance with the requirements of the Hague Convention.

Discussion

Having regard to the March 2011 Decision of the Regional Trial Court in the Philippines of the Regional Trial Court, and the Certificate of Finality dated 1st July 2011 – Justice Reynolds concluded that the effective date of the adoption was the 1st July 2011.

In determining whether or not the adoption was in accordance with the requirements of the Hague Convention, justice Reynolds concluded that the mandatory requirements of Section 90 and Section 57 of the Adoption Act 2010 were not met.

The final issue for the Court to determine was whether or not the adoption was substantially compliant with the Hague Convention such that would afford the Court some degree of flexibility or discretion to direct the registration pursuant to Section 92 of the Adoption Act 2010.

In considering this issue, Justice Reynolds distinguished the present case on the facts of those in MO’C and BO’C v. Udaras Uchtala na hEireann ([2014] IEHC 580, “the Mexico case”, Unreported 30 May 2014). In the Mexico case, Abbott J. recognised that some flexibility could be adopted by the Court, and made an order under Section 92 in relation to an adoption that did not comply with all the necessary of the Hague Convention.

Refusing the application, Justice Reynolds stated that in J.M’s case it was untenable to suggest that the broad requirements of the Hague Convention were met or that the Court could properly direct the registration pursuant to Section 90(2) of the Adoption Act 2010.

  • by Seosamh Gráinséir for Irish Legal News