Adoption Authority of Ireland v AB (A Minor)

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr Justice Max Barrett
• Judgment Date: 23 November 2021
• Neutral Citation: [2021] IEHC 829
• Docket Number: [2021 No. 225 MCA]

In the Matter of an Application by the Adoption Authority of Ireland (The Applicant Herein) Under Section 30 of the Adoption Acts 2010 to 2017 and In the Matter of a Proposed Adoption of AB (A Minor, Born on –––––)

[2021] IEHC 829

[2021 No. 225 MCA]

THE HIGH COURT

Adoption – Consultation – Adoption Acts 2010-17 s. 30 – Applicant seeking an order pursuant to s. 30(3) of the Adoption Acts 2010-17 and/or an order pursuant to s. 30(5) of the said Acts – Whether s. 30(5) fell to be construed as though the words “After counselling the mother or guardian of the child under subsection (4)” and item (a) that follows had been excised from that provision

Facts: A non-Irish mother died soon after childbirth and the child she delivered also died. As a result, a non-national child with whom the mother had come to Ireland ended up being placed in foster-care. Extensive efforts, utilising various different persons, including diplomatic and less formal actors, failed to identify who the child’s natural father was. The child’s foster-mother in Ireland wished to adopt the child and the child in turn wished to be adopted by the foster-mother. The applicant, the Adoption Authority of Ireland, came to the High Court seeking either of order (i) or (ii) hereafter, leaving the court to decide which was the more appropriate form of order: (i) an order pursuant to s. 30(3) of the Adoption Acts 2010-17 approving the making of an order for the adoption of the child without consulting the natural father in circumstances where the Authority was satisfied that having regard to the nature of the relationship between the natural father and the natural mother of the child, it would be inappropriate for the Authority to consult the natural father; and/or (ii) an order pursuant to s. 30(5) of the said Acts approving the making of an order for the adoption of the child without consulting the natural father in circumstances where the natural mother was unable to confirm the identity of the natural father and the applicant had no other practical means of ascertaining the natural father’s identity.

Held by Barrett J that ‘the law requires nothing impossible’ (lex non cogit ad impossibilia) and does not compel a person to do that which they cannot possibly perform. Barrett J held that the counselling of a mother or guardian (as appropriate) contemplated by s. 30(4) of the 2010 Act cannot possibly be done (and is not required to be done) where the mother or guardian (as appropriate) is dead at the time when that counselling would otherwise fall to be done. In such circumstances, and bringing the same maxim to bear, Barrett J held that s. 30(5) falls to be construed as though the words “After counselling the mother or guardian of the child under subsection (4)” and item (a) that follows had been excised from that provision; otherwise s. 30(5), in such circumstances, would rest on the performance of an impossibility. Barrett J held that the High Court in such cases would want to be presented with the type of evidence that had been presented, showing that every reasonable effort had been made to ascertain the identity of the father (very extensive efforts had been made) before it could properly conclude that the Authority is in a situation where “no other practical means of ascertaining the identity of [the]...father” present. Looking to the best interests of the child, it seemed to the court that in all the circumstances presenting an order may also issue under s. 30(5). The court saw nothing in the foregoing that was not reconcilable with the conclusions reached in The Adoption Authority of Ireland v The Child and Family Agency and Ors [2018] IEHC 632.

Barrett J held that, given (i) the rights and interests of the parties in the determination of the application, (ii) the age, views and needs of the child, (iii) the requirement that the child’s best interests be regarded as the paramount consideration, (iv) the limited information concerning the relationship between the father and mother, and (v) the absence of any relationship between father and child throughout the child’s life to the present (and, so far as same may be predicted, likely for all time), the court was satisfied to grant (a) an order pursuant to s. 30(3) approving the making of an order for the adoption of the child without consulting the natural father; and also (b) an order pursuant to s. 30(5) approving the making of an order for the adoption of the child without consulting the natural father.

Application granted.

Summary

Lex non cogit ad impossibilia (‘The law requires nothing impossible’ and thus does not compel a person to do that which that person cannot possibly perform). Hence the counselling of a mother or guardian (as appropriate) contemplated by s.30(4) of the Adoption Act 2010 cannot possibly be done (and is not required to be done) where, the mother or guardian is dead at the time when that counselling would otherwise fall to be done. In such circumstances, and bringing the same maxim to bear, s.30(5) falls to be construed as indicated hereafter.

JUDGMENT of Mr Justice Max Barrett delivered on 23 ^rd November 2021 .

1 . This is a case which has a sad beginning, arising from a tragic instance in which, some years ago, a non-Irish mother died soon after childbirth and the child she delivered also died. As a result, a non-national child (the ‘Child’) with whom the mother had come to Ireland ended up being placed in foster-care here. Very extensive efforts, utilising various different persons, including diplomatic and less formal actors, have...