In the matter of the Adoption Act, 2010, Section 49 (2), and in the matter of JB (a minor) and KB (a minor)

Factual and Procedural Background

Two children (“Child 1” and “Child 2”) were born in “Country A” and are the niece and nephew of “Applicant 2”. In 2011–2012 Applicant 2 obtained a domestic adoption order for the children in Country A. The couple then brought the children to Ireland, where they have lived ever since.

The domestic Country A adoption was effected without the participation of either Country A’s or Ireland’s Central Authorities under the 1993 Hague Convention on Protection of Children and Co-operation in respect of Inter-country Adoption (“the Hague Convention”). No Article 17 placement approval notice or Article 23 certificate issued, and no application was made within three months for entry on Ireland’s Register of Inter-country Adoptions.

In 2013 the Applicants asked the Child and Family Agency for an assessment to permit a domestic adoption in Ireland. Conflicting and at times inaccurate advice was received from State bodies. The Irish Adoption Authority (“the Authority”) ultimately declined to make an adoption order, expressing concern that to do so would breach the Hague Convention.

The Authority stated a case to the High Court under s.49(2) Adoption Act 2010, asking five questions on the proper interpretation of the Act. The High Court answered in favour of the Applicants, holding that a domestic adoption order could be made. The Authority obtained a “leap-frog” appeal to the Supreme Court.

Legal Issues Presented

1. Whether the Country A adoption is recognisable in Ireland under Part 8 of the Adoption Act 2010 or at common law.
2. Whether, having regard to the existing Country A order and s.45 of the 2010 Act, the Authority has jurisdiction to make an Irish adoption order.
3. Whether the pre-2010 case MF v An Bord Uchtála remains good law following incorporation of the Hague Convention.
4. If MF is still good law and the Country A order is not recognisable, whether the children’s original status persists.
5. Whether the children are eligible for a domestic adoption under s.23 of the 2010 Act.

Arguments of the Parties

Authority’s Arguments

• The Country A adoption cannot be recognised because mandatory Hague procedures (Arts 2–5, 17, 23) were ignored.
• Permitting a domestic adoption would undermine the Convention and create an “ad hoc” parallel system exploitable by others.
• MF v An Bord Uchtála is displaced by the comprehensive 2010 statutory code; any common-law recognition power is gone.

Applicants’ Arguments

• They relied on erroneous official advice; the breaches were innocent and the children’s best interests require regularisation.
• The children are now habitually resident in Ireland and should be treated as eligible for a domestic adoption under s.23.
• Alternatively, the High Court can direct an entry in the Register under s.92 because the Country A order meets the older definition of a “foreign adoption”.

Attorney General’s Arguments

• Supported the view that, given the children’s long residence, a domestic adoption might be permissible in their best interests.
• Accepted, however, that full Convention compliance is the statutory ideal and any solution must stay within the Act.

Table of Precedents Cited

Court's Reasoning and Analysis

All members of the Supreme Court agreed that the Country A order cannot be recognised under Part 8 because the Hague Convention procedures were not followed. They also agreed that MF v An Bord Uchtála can no longer govern recognition questions after the comprehensive 2010 code.

The Court divided on whether any legal route remained to protect the children’s status:

• Majority (Judge MacMenamin; concurred in separate opinions by Judge O’Donnell and Judges Dunne & O’Malley):
  • Section 92 gives the High Court a narrow but real power, in truly exceptional cases, to direct the Authority to enter an adoption in the Register even though it is not Convention-compliant, provided the court is satisfied there was no deliberate circumvention and that such entry serves the children’s paramount interests under Article 42A.
  • Before any court order, the Authority must attempt to “heal” the defects by engaging with Country A’s Central Authority to see if retrospective compliance—and an Article 23 certificate—can be achieved.
  • If that fails, the Applicants may apply to the High Court under s.92; the court would demand rigorous evidence and could exercise its constitutional duty to protect the children’s welfare.
• Minority (Judge McKechnie):
  • Section 92 cannot be used to bypass the Convention; recognition must strictly follow the statutory scheme.
  • The only lawful outcomes are either (a) full retrospective Convention compliance, or (b) acceptance that the children remain legally un-adopted in Ireland, with alternative protections (guardianship, wills, immigration discretion) used to mitigate hardship.

The majority emphasised that their comments on s.92 are obiter and confined to the unusual facts; they do not create a general alternative to Convention compliance.

Holding and Implications

Order: The Supreme Court ALLOWED the Authority’s appeal, set aside the High Court’s answers, and substituted the following conclusions:

• The Country A adoption is not recognisable under Part 8 of the 2010 Act or at common law.
• The Authority presently lacks jurisdiction to make an Irish adoption order for the children.
• MF v An Bord Uchtála is not good law post-2010.
• The children’s original status (children of unmarried parents) therefore remains.
• They are not eligible for a domestic adoption under s.23.

Implications: The judgment reaffirms the primacy of Convention compliance but signals that, in exceptional cases, s.92 may furnish the High Court with a limited remedial jurisdiction. It also clarifies that common-law recognition doctrines are superseded by the 2010 Act. No new precedent permitting routine bypass of Convention rules is established; any future use of s.92 will require strict proof of innocence, necessity, and paramountcy of the child’s interests.