ANALYSIS:The Supreme Court has closed the door on married couples from other jurisdictions coming to Ireland to avoid childcare cases in their native countries
THIS month an English couple were told why they had failed in their appeal against a High Court ruling that they must return to England with their children to face child welfare proceedings.
They had been informed of the decision, and Mr Justice Donal O’Donnell gave the court’s reasons in a judgment that factored in the place of adoption in the Irish Constitution and the State’s obligations under international agreements signed.
The couple, who had no previous connections with the State, had fled to Ireland in November 2008, the day after care proceedings began in Nottingham. When Nottingham County Council sought the return of the children under the Hague Convention on Child Abduction, the couple claimed that, because one option open to the English court was to order the children to be adopted without their consent, the Irish Constitution prohibited the children’s return on grounds of the protection it gave to the family based on marriage.
The High Court ordered the return of the children on the basis their adoption was only a remote possibility and the English courts had legal custody of the children, and this met the requirements for return under the Hague convention. The couple appealed to the Supreme Court, which upheld this decision.
Mr Justice O’Donnell examined the issues of the relationship between the Irish Constitution, the law in other countries and international agreements; what circumstances the adoption of children of married parents is permitted under the Constitution; how this differs from English law, and the extent to which non-residents are entitled to invoke the provisions of the Irish Constitution.
He dismissed the idea that the protection afforded to the family based on marriage in the Irish Constitution means married families in other jurisdictions could seek sanctuary from their child protection regimes here.
His discussion of articles 41 and 42 of the Constitution is likely to be examined closely by the Government as it finalises its proposals on the children’s rights amendment, especially a clause permitting the adoption of the children of married parents in certain circumstances.
“It is possible to see that articles 41 and 42 say nothing in explicit terms about adoption,” Mr Justice O’Donnell said. “The articles, at least in general terms, state propositions that are by no means eccentric, uniquely Irish or necessarily outdated: there is a working assumption that a family with married parents is believed to have been shown by experience to be a desirable location for the upbringing of children.”
He noted the Constitution also states that marriage and the family based on it are supported by the State, and it does not seek to pre-empt it but will only interfere when a family is not functioning and thereby not providing the benefits to its members which the Constitution contemplates. However, he added he would be slow to conclude that anything other than what is prescribed in the 1988 Adoption Act, where it has to be shown that a married family is likely to fail in its duty towards its children until they reach adulthood, would be unconstitutional, thus opening the door to a more flexible law on the adoption of the children of married parents.
He said English adoption law, which includes provision for the adoption of the children of married parents, is on the same “spectrum” as Irish adoption law.
Referring to exceptions to the return of children contemplated by the Hague convention, he stressed the focus is on the decision to return the children, not what happens afterwards.
“If the parents had come to Ireland without the children and sought an injunction to restrain the adoption taking place in the United Kingdom, I do not conceive that an Irish court would have entertained the application,” he said. “The Irish Constitution does not demand the imposition of Irish constitutional standards upon other countries, or require that those countries adopt our standards as a price of interaction with us.”
Adoption raised legitimate constitutional issues in Ireland, but it ought to be rare that a child resident in another country and with little or no link to Ireland could persuade an Irish court that matters relating to their welfare should not be decided in their normal country of residence.
Carol Coulter is Legal Affairs Editor