RECOGNIZING FOREIGN ADOPTIONS FOR IMMIGRATION PURPOSES
The recognition of a foreign adoptions has proven to be a difficult issue in the context of immigration.
The recognition of a foreign adoption for the purposes of immigration arises in circumstances where an individual who is legally residing in Ireland applies family reunification with their adopted child, where the child is resident in their own country of origin and by consequence, the adoption is done through their country of origin’s law.
In order for such permission to be granted for the child to join their adopted parent in Ireland, the foreign adoption must be registered with the Adoption Authority of Ireland, the statutory body governing intercountry adoptions in the State.
Generally the Adoption Authority will recognize two types of foreign adoptions. Firstly, the Adoption Authority will recognize those adoptions that have been effected in accordance with The Hague Convention on Protection of Children. The Convention is an international agreement which provides for the cooperation among signing countries to ensure that the best interests of the child and their fundamental rights are protected in the process of intercountry adoption.
The second type of foreign adoption that the Adoption Authority will recognize are those adoptions that are effected in a foreign state where the adopting parents are habitually resident in that country at the time of the adoption. An intention to permanently settle in that country is a factor in assessing ‘habitual residence’.
The Adoption Authority thus covers the majority of foreign adoptions. However, in the context of immigration there is clearly a gap. We have encountered circumstances where an adoption has been effected in a non-Hague Convention country, where the adopters were not habitually resident in the child’s country of origin at the time the adoption was effected. Such circumstances can easily arise in the context of immigration where individuals were legally resident in Ireland at the time of the foreign adoption was carried out.
In these circumstances the Irish authorities have refused to recognize these foreign adoptions for immigration purposes. These individuals have lawfully and legitimately adopted their children in the country of origin. Furthermore, they have evidently developed strong emotional bonds with their children.
The only way in which Irish law will recognize a foreign adoption from a non-Hague Convention country is if the adopting parents can establish habitual residence through an intention to permanently settle in the country of origin. Many adopted parents cannot establish an intention to permanently reside in their child’s country of origin. Therefore, these parents are denied this right to family reunification essentially on the basis that the country of origin has not ratified the Hague Convention.
On one hand, the incorporation of the Hague Convention into Irish law is to be welcomed. It ensures that vulnerable children and their families are protected, that the best interests of the child are always at the fore in the process of intercountry adoption and that process of intercountry adoption cannot be abused.
However, it has created unforeseen complications with regards to the recognition of foreign adoptions in the context of immigration. Legally resident individuals are denied the right to be reunited with their legitimately adopted children on the basis that the child’s country of origin is not among the relatively few countries that have ratified the Hague Convention on Protection of Children. This denial is all the more contradictory when one considers that the best interests of the child, the very purpose of the Hague Convention, are being ignored by failing to allow reunification with their parent or parents in Ireland.
The UK has an established procedure for circumstances where the adoptive parents were legally resident in the England or Wales at the time the adoption was carried out, and somewhat circumvents the fact that only a few countries have ratified the Convention. The UK procedure allows for the registration of Hague Convention adoptions, and for ‘Overseas Adoptions’. An Overseas Adoption is an adoption in a country carried out under the law of a country listed on The Adoption (Recognition of Overseas Adoptions) Order 2013. The 2013 Order provides a comprehensive list of eligible countries and thus facilitates the recognition of lawful adoptions from a wider range of countries.