By Sarah Ryan, Solicitor, Family Law Unit
The Adoption Act, 2010 (“the Act”) came into force on the 1st November 2010. This new act consolidates all existing laws in relation to adoption into one single piece of legislation and aims to ensure better regulation of adoption in Ireland and in respect of intercountry adoption.
The Act also establishes “The Adoption Authority of Ireland” in place of the Adoption Board.
Hague Convention and Intercountry Adoption
The Act provides that the Hague Convention (meaning the Convention on Protection of Children and Co-operation in respect of Intercountry Adoption, 1993) now has the force of law in Ireland. This in effect means that it is now only possible to adopt children from countries that have ratified the Hague Convention or from countries with which Ireland has a bi-lateral agreement. Membership of Hague is intended to improve standards in intercountry adoption.
As a result of the passing of the Act, it is presently no longer possible to adopt from Vietnam, Ethopia and Russia which are among some of the countries that have not ratified the Hague Convention. The Act however provides that any couple who has already been provided with “a declaration of eligibility and suitablity to adopt” from the Adoption Board from a non-Hague compliant country such as Russia is still allowed to proceed with such an adoption.
Children who can be Adopted
The Act provides that a child cannot be placed for adoption unless the child is at least six weeks old. The Act also states that the Authority shall not make an adoption order unless the child resides in the State, is not more than seven years of age, is an orphan or is born of parents not married to each other and has been in the care of the applicants for a specified period of time.
The Act provides that the Adoption Authority shall not make an adoption order or recognise an intercountry adoption unless the applicants are a married couple who are living together, the applicant is the mother or father or relative of a child or the applicant satisfies the Authority that the adoption is desirable and in the best interests of the child.
Interestingly this means that co-habitants cannot adopt as joint applicants. This is because the Irish Constitution is centred on protecting the married family. However where two people are co-habiting one of them may apply as a single applicant but this leaves the other party to the couple without legal rights in respect of the child.
Single applicants are not automatically entitled to adopt but must satisfy the Authority that the adoption is desirable and in the best interests of the child in the particular circumstances.
The eligibility part of the Act also results in biological parents having to adopt their own child in the circumstances where they wish their spouse, the step parent, to adopt their child and remain the child’s legal parent and guardian themselves. The biological parent and the step parent would have to make a joint application to adopt in these circumstances.
In summary, the following persons are eligible to adopt:
• A married couple living together
• A married person alone. The other spouse’s consent to adopt must be obtained unless the couple is living apart and separated under a court order/deed of separation, or the other spouse has deserted the adoptive parent or the other spouse’s conduct has resulted in the adoptive parent, with just cause, leaving the other spouse
• The mother, father or relative of the child (relative meaning a grandparent, brother, sister, uncle or aunt of the child and/or the spouse of any such person, the relationship to the child being traced through the mother or the father)
• A widow or widower
• A sole applicant who is not in one of the categories listed above may only adopt where the Adoption Authority is satisfied that, in the particular circumstances of the case, it is desirable.
For more information and advice please contact H. Pat Barriscale, Sarah Ryan, or Aisling Carr of our Family Law Unit.