Analysis: The Tristan Dowse case places the spotlight on international adoption law, writes Carol Coulter, Legal Affairs Correspondent
The plight of the three-year-old Indonesian boy, now effectively abandoned by the family that took him in when he was only eight weeks old, has moved many Irish people. But it is not a simple matter of offering him an alternative home.
His present situation is that he is an Irish citizen, and the first port of call to regulate his situation must be to the High Court. There is some doubt about the validity of his adoption in Indonesia.
However, according to Geoffrey Shannon, independent legal expert on adoption to the Department of Health and Children and author of the recently-published Child Law, not much is likely to turn on this in Irish law.
"The child is registered as adopted in the Irish adoption records," he said. "The Adoption Board does not look behind the adoption made abroad. It looks at the equivalence of the adoption legislation with Irish legislation."
It is clearly impractical for officials of the Adoption Board to examine the suitability of Irish couples adopting abroad - it must rely on the checks put in place by the authorities in the country where the adoption takes place, once it accepts the equivalence of the legislative framework.
The circumstances of his adoption and any subsequent Indonesian annulment of it may, of course, become relevant if and when an application is made to the High Court to annul it under Irish law. The only basis on which the annulment can be made is in the best interests of the child, not the wishes of the parents.
The High Court may well decide that it is in the best interests of the child that he remains in Indonesia and is available for re-adoption there.
If a cancellation of the registration is sought, the parents will have to appear in the High Court and give evidence as to why his best interests demand that the adoption be cancelled, according to Mr Shannon.
If they do not go, the Adoption Board can go to the High Court to seek clarification on a point of law, if needed to sort out the child's status. The hearing will be in camera, like all cases involving child protection and welfare. Tristan does not have to be in court, and, indeed, there is no provision for him to have his interests independently represented there.
Asked whether the Dowses could be charged with the abandonment of a child once they set foot in Ireland, Mr Shannon said that technically they could, as it is an offence to abandon a child. However, prosecutions are unknown, and it is unlikely they would be prosecuted.
A child having been abandoned is a basis for being available for adoption in Ireland, and no-one gets prosecuted, a senior counsel specialising in family law pointed out.
If the High Court agrees to annul the adoption, it will then have to deal with another question - is Tristan still an Irish citizen if the basis of his citizenship is his membership of an Irish family? "There is no legal guidance on this. This is uncharted territory," said Mr Shannon.
However, it is likely his Irish citizenship would end, according to the senior counsel, as the only basis of it was his membership of an Irish family, which would be at an end. The child has no connection with Ireland, and it is hard to see how it is in his interests to be an Irish citizen, the senior counsel said. "It is difficult to see circumstances where the child would end up here," he said.
That is, of course, unless another Irish couple sought to adopt him. If they did, and his Irish citizenship survived the High Court hearing, he would be adopted as an Irish child.
This would be irrevocable in a way the first adoption was not, as it is covered by the 1952 Adoption Act, rather than the later Acts brought in to deal with inter-country adoptions.
One of the issues highlighted by this case is that foreign and inter-country adoptions, which are registered on the Register of Foreign Adoptions, can be cancelled, while domestic adoptions cannot.
This anomaly, and other issues thrown up by the Dowse case underline the need for Ireland to ratify the Hague Convention on child protection and adoption, which it signed in 1993, according to Mr Shannon.
This is designed to regulate inter-country adoption, and it stresses that best practice in adoption procedures is that the best interests of the child, not bringing happiness to childless couples, must be the cornerstone of adoption law.