Dowse judgment/analysis: The judgment places the rights of children at the centre of adoption law, writes Carol Coulter, Legal Affairs Correspondent.
Children have no specific rights under the Irish Constitution. Nonetheless, they are mentioned in it and various international conventions assert their rights, which are also referred to in a number of Acts of the Oireachtas, including the 1991 Adoption Act under which Tristan Dowse was adopted.
Mr Justice McMenamin based his judgment on Article 42 of the Constitution, which sets out the obligation on parents to provide for "the religious and moral, intellectual physical and social education" of their children, according to their means.
When considering the Dowses' application to cancel the registration of Tristan's adoption, he said that this would have the effect of ending their alienable rights and duties to their son. "I am satisfied that the court should only make such an order if the provisions of Article 42.5 of the Constitution are satisfied," he said.
These provisions relate to the failure of constitutional duty by parents and also refer to "the natural and imprescriptible rights of the child".
Given the profound effects on the child of the cancellation of a foreign adoption, he pointed out that the 1991 Act only permits it if this "would be in the best interests of the person who was the subject of the adoption", that is, the child.
The same Act gives power to the court to make such orders as will protect the best interests of the child.
"The court must have regard to the conditions and lifestyle which would have been enjoyed by Tristan if the applicants had, and continued, their constitutional duties to him," he said.
This meant that, when providing for Tristan, the court would not base itself on the life that Tristan would have enjoyed had he never been adopted, but rather on the rights that flowed from his being adopted into a comfortably-off Irish family.
He would have been fed and clothed to a very high standard, would have lived in superior and comfortable housing, been educated probably to third level, been assisted in a start in life, perhaps with help in acquiring a home, and would have obtained other assets through inheritance.
If the adoption were cancelled and no orders were made for his welfare, then he would have had limited food and clothing, would live in cramped accommodation, would be unlikely to finish second-level education and was likely to end up in poorly-paid employment.
Flowing from all this, Mr Justice McMenamin ruled that a lump sum of €20,000 be paid immediately to enable Tristan's mother to obtain accommodation and that a monthly payment of €350 be paid, half to his mother and half into an account for him, which he could access at 18. To this would be added another €25,000.
He also ordered that the continuation of these payments in the event of Joseph Dowse's death should be covered by insurance.
Mr Justice McMenamin outlined a number of general principles that, unless they are overturned by the Supreme Court at some future date, will now apply in any similar circumstances.
These include that maintenance of an Irish citizen child in a country like Indonesia should not be set against the background of the standard and cost of living in that country, but against the standard of living he would enjoy as an Irish citizen.
He also stressed that his citizenship should not be revoked, which will allow the Irish authorities to oversee his welfare and will allow him access to the EU as an adult, should he wish it.
While it may appear contradictory that an adoption into an Irish family of a child citizen of another country can be annulled without that child losing any rights as an Irish citizen, the fact that the welfare of that child was at the centre of the judgment makes this possible not just for Tristan, but for the future.