Child welfare ruling may change adoption regime

CAROL COULTER, Legal Affairs Editor

A RECENT Supreme Court judgment could have profound implications for Irish adoption law, paving the way for a new adoption regime, according to a child law expert. It also has implications for the children’s rights referendum, Geoffrey Shannon said.

The Government’s rapporteur on child protection and chairman of the Adoption Authority told The Irish Times that the judgment, delivered earlier this month by Mr Justice Donal O’Donnell on behalf of the five judges hearing the case, was “the most significant in a decade”. “The Adoption Authority will be considering the implications of this judgment at its meeting in January,” he said. “We will have to study it carefully.”

The judgment concerned an attempt by an English married couple to resist an application from the child welfare authorities in Nottingham County Council to have them and their children return from Ireland to England so childcare proceedings involving the children could be fully heard.

They had claimed that, because adoption was one of the options available to a UK court deciding on child welfare cases, the Irish Constitution’s protection for the family based on marriage meant the children should not be sent to England to face the proceedings.

Rejecting their arguments, the Supreme Court ruled that articles 41 and 42 of the Constitution, which guarantee to protect the family based on marriage, said nothing about adoption and “exhibit no intention to establish Ireland as a form of sanctuary for marital families from other jurisdictions”. In his lengthy judgment, Mr Justice O’Donnell also discussed the nature of adoption and Ireland’s obligations under its international agreements, in this case the Hague Convention on Child Abduction.

Mr Shannon said the statement in the judgment that articles 41 and 42 said nothing about adoption will give fresh impetus to the jurisprudence on adoption and provides the Government with much greater flexibility on the kind of adoption regime that can be introduced after the children’s rights referendum.

Earlier Supreme Court judgments, along with the 1988 Adoption Act, had set a very high bar for the adoption of the children of married parents, he said. This was put in question by this judgment.

“It provides a blank canvas for domestic and inter-country adoptions,” Mr Shannon said. Remarks made by Mr Justice O’Donnell on previous judicial commentary suggested too much had been read into the Constitution in the past concerning adoption. “It opens the door for putting a robust proposal on adoption into the Constitution,” he said. “Also, any new proposed wording of the amendment on children’s rights will have to take account of this judgment.”

The judgment also has implications for inter-country adoptions, he added. “The grounds of the non-recognition of an adoption order would have to be very significant indeed, and the system of adoption in the other country would have to be dramatically different from Ireland’s. That would be something the High Court would have to determine.