THE High Court yesterday rejected a claim by two Irish couples seeking to adopt Chinese babies that the Eastern Health Board breached its statutory duty in taking two years to assess them for suitability.
Mr Justice Shanley said he was not satisfied that the couples had discharged their onus of proof that the health board was in breach of its statutory duty.
At the end of his judgment Mr Peter Charleton SC, for the health board, asked for the legal costs of the action.
Mr James Connolly SC, for the couples, said he would ask the judge not to make any order as it was a matter of public importance that required clarification by the court.
Mr Justice Shanley said he was satisfied that it was a matter of public importance. The couples had taken on a significant financial burden to clarify the matter and he would make no order as to costs.
In his judgment, he said the couples were anxious to adopt Chinese children. The Chinese authorities would allow the adoptions if authorised by the appropriate health authorities in the State of the prospective adoptive parents.
The fact that the length of the process of assessment would take two years was not in dispute.
The couples contended that it interfered with their rights as a family under the Constitution and that the two year delay infringed those rights. The Constitution also guaranteed a couple the right to decide the size of their family.
The words in the Adoption Act 1991 said the couples must be assessed "as soon as practicable". The health board contended that these words should be construed in the normal way. It stated that adoption was not a constitutional right and the children to be adopted had rights that required careful assessment procedures.
The judge said that in his view the decision to apply to adopt was not protected by the Constitution. The guarantee in the Constitution about the right to decide the size of the family was to ensure against invasion of privacy. In all adoptions, the couple would decide privately, but when the application was made to the state agencies then privacy ceased to have any relevance.
He must also have regard to the same articles from the point of view of the adoptee and not just, from the prospective parents vantage point.
He did not accept there was a constitutional right to adopt or decide to adopt or have a decision within a certain period.
In considering whether the health board was in breach of its statutory duty, he must have regard to all the circumstances, such as staffing levels and the variations of the number of applications and the extent to which any delay assisted or hindered the welfare of the adoptee.
He was not satisfied the couples had discharged the onus of proof that the health board was in breach of its statutory duty.
He would give the words "as soon as practicable" in the Act the same meaning as the health board.