RECOGNITION has been granted to the adoption by Irish couples of Chinese babies following the Supreme Court judgment yesterday dismissing an Adoption Board appeal.
Three Irish couples had challenged the Adoption Board's refusal to recognise adopt ions under Chinese law. A High Court decision granted recognition and the Adoption Board appealed to the Supreme Court. Yesterday, the five judge court unanimously upheld the High Court ruling.
The court had been told that the board had found the couples suitable to adopt children but a dispute had arisen over reconciling Irish and Chinese law.
Yesterday, Mr Justice Murphy, giving the judgment, said no adoption had yet taken place in China. The couples' applications had been processed there and one of the couples had been notified that a particular child had been allocated to them.
However, the Chinese authorities were unwilling to proceed unless they were satisfied the adoptions there would be recognised in this State as valid.
The board wrote to the couples that it could not recognise adoptions made in China.
It said the Adoption Act 1991 stated that a foreign adoption must have essentially the same legal effect, in ending and creating parental rights and duties to the child in the foreign country where it was made, as an adoption made by an Irish adoption order.
On the making of an Irish adoption order the natural parents lost all legal rights over the child and were freed from all duties. These were transferred to the adoptive parents.
The letter continued that under Chinese law the adoption could be ended by agreement between the parties. The board considered this to be fundamentally different to an adoption under Irish law.
The judge said the couples sought a declaration that the adoption of a child from China under Chinese law would have essentially the same legal effect on parental rights and duties as that of Irish law.
He said it was not surprising that the High Court judge described the Chinese provisions as being "remarkably similar" in content to the equivalent Irish legislation; they were virtually identical.
The couples contended that the termination provision had no reality in the intended Chinese adoptions. The judge said he would readily accept that the likelihood of one of the Chinese orphanages which had looked after the child agreeing to end the adoption would be very small.
Even less likely was the possibility of the couples seeking to end the adoption. The consent of the adopted child would be necessary under Chinese law if the child had reached 10 years.
It would seem inconceivable that a child who had been brought up and educated in this or any other foreign country would agree to forgo family, friends and society in which he or she had been integrated and be returned to a different society without friends or connections of any sort and presumably an unknown language.
While these considerations would render the termination provisions immaterial in practice, they did not refute an argument as to the legal effect.
Provisions for ending adoption or even envisaging altering the relationship would seem alien to our concept of adoption. In general, we would see the relationship created by an adoption as one which would be final in its effect and permanent in its duration.
There was express provision in the Adoption Act 1952 permitting a further adoption order to be made for a child where the original adopters or the sole adopter had died. Undoubtedly, a second adoption order may be made in relation to a child where the adopters fail in their parental duty. Accordingly, it would seem the concept of permanence as an incident of adoption was not absolute in this jurisdiction.
Irish legislation did recognise that adopters might lose the rights and duties which they acquired by an adoption order, so such a possibility did not necessarily undermine the essence of adoptions here.
The judge said that it was essential that a "foreign adoption" should be an adoption in the broad sense in which that word was used, and no doubt even that general concept would imply an intention to create a permanent relationship between the child and the adopter.
The possibility that the adoptive relationship might be terminated by external events or even by an agreement between the parties would not deprive the relationship of the fundamental character of an adoption, although provisions on that might be unknown or unacceptable in different jurisdictions.
"What the Chinese code has unequivocally provided is that the rights and duties in the relationship between a child adopted and his or her parents shall terminate with the establishment of the adoptive relationship", the judge said.
The code also provided that the legal provisions governing the relationship between parents and children shall apply to the rights and duties in the relationship between adoptive parents and adopted children.
It seems to me that this is as comprehensive a termination and creation of parental rights in China as that effected by any order made under Section 9 of the Adoption Act 1952", Mr Justice Murphy said.
It was not suggested in Chinese law that the possibility of consensually ending the adoptive relationship arose from any residual parental right. The ending of such rights was comprehensive and unequivocal.
The judge said that, accordingly, adoption in China did constitute an "adoption" as that term was generally understood and the proposed Chinese adoptions would meet conditions specified in the Irish legislation.