N & Anor -v- H S E G & Anor & An Bord Uchtála, [2006] IEHC 278 (2006)

Docket Number:2006 181 SS
Party Name:N & Anor, H S E G & Anor & An Bord Uchtála
Judge:Mac Menamin J.
 
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THE HIGH COURT

[2006 181SS]

BETWEEN

N & Anor.

APPLICANT AND

HSE & Ors.

RESPONDENT

JUDGMENT of Mr Justice MacMenamin delivered on the 23rd day of June, 2006In February, 2006 counsel for the first named applicant applied ex parte to the High Court (O'Higgins J) for an inquiry pursuant to Article 40.4.2 of the Constitution of Ireland requiring the respondents herein to certify in writing the grounds for the detention of Ann the minor named in the title hereof. Counsel for the second applicant, the wife of Brian was present in court and Catherine was named as a notice party to the proceedings, although subsequently joined as a second applicant.

(For the purpose of clarity in delivering this judgment in public and to protect the identity of the child and the parties, those involved have been given fictional names or are referred to by initials).

The applicants (hereinafter Brian and Catherine, or 'the Byrnes', are the birth parents of Ann born in July, 2004. Since November of that year Ann has been in the care of the second and third named respondents herein for the purpose of adoption by them. Up to January, 2006, the applicants were unmarried and Ann's name at birth was registered as Ann C. Six weeks prior to the initiation of these proceedings the applicants were married in January, 2006. As members of a family so constituted they now seek custody of Ann, (whose name was re-registered as Ann Byrne pursuant to their rights under Article 41 and 42 of the Constitution of Ireland. They assert that there is no lawful basis for Ann to remain in the custody of the second and third named respondents (who for convenience I will refer to as the "Doyles" as counsel did during the course of the proceeding, and may also refer to them as David and Eileen in order to avoid any confusion).

Pursuant to order of this court the second and third named respondents certified their grounds for detention of Ann. The first named respondent ('the HSE') did not file a certificate justifying the detention for reasons set out later. An Bord Uchtála the Adoption Board were named as a notice party but participated only insofar as related to their direct interest in the issue.

Prior to the Trial

Prior to describing the events giving rise to these proceedings it is necessary to deal with the way in which the issues were approached by the parties. The position of the Byrnes who are the applicants is relatively straightforward. Although on a slightly differing factual basis, they each as her birth parents claim entitlement to the custody of Ann. The Doyles deny this as a matter of law.

The situation of the first named respondent is more complex. It operates an adoption agency, which became involved in the arrangements for the adoption of Ann. When these proceedings were brought counsel for the HSE appeared on the return date and dates subsequent, as it considered certain duties devolved upon it to provide for the best interests of children in their functional area in the circumstances of an adoption. Counsel indicated to O'Higgins J that they would seek reports relating to the welfare of the child. These reports were to be obtained from a social worker and also a psychologist with particular expertise in the issues of attachment and bonding of children to adults. The HSE obtained the report of a social worker Ms G who is actually employed by that respondent. She interviewed the Byrnes and the Doyles. Arrangements were also put in place for the applicants to attend a psychologist Dr Gerard McDonald a Clinical Psychologist with the Department of Clinical Psychology in the Newry and Mourne Health and Social Services Trust. For reasons given to the court, the applicants did not attend the meetings arranged with Dr McDonald.

On the second day of the hearing Mr John Rogers Senior Counsel representing the first named respondent indicated that his client had taken the view that the child should be returned to the birth parents. This was on legal advice and on the basis of the report which was available to them from Ms G the Social Worker. However matters were rendered more complex procedurally by the fact that an employee of the HSE, Mr F a Senior Social Worker had dealt with the adoption procedure. His views regarding the welfare of Ann were contrary to those of Ms G. His conclusion was that the child should be allowed to remain with the Doyles and that her best interests lay there. Consequently the first named respondent was constrained to participate in the proceedings, by on the one hand advancing the recommendation made by Ms G, but also by seeking to vindicate the procedures adopted by Mr F in the course of the lengthy interaction between the Byrnes and the Health Service Executive.

The first and second named applicants were separately represented. Prior to their marriage they had previously taken legal advice. Senior counsel for Brian, Ms Dervla Browne SC indicated that on the facts the interest of her client might differ from those of his wife. This was in relation to rights which as a single father he sought to assert with regard to the adoption procedure prior to the marriage.

Ultimately the procedure adopted in this inquiry was premised on permitting each of the parties to advance their respective cases, and also where necessary to vindicate their position if necessary by cross-examination, and examination-in-chief.

For many reasons, it is unfortunate that no opportunity for seeking further directions from the court took place prior to the commencement of the hearing.

The sole form of proceeding before the court was pursuant to Article 40.4.2. No proceeding was brought on although the first, and also the second and third named respondents have initiated proceedings to have Ann made a ward of court. This of course is a separate matter. I last week, on an interim basis, made a wardship order.

The hearing also differed from a claim pursuant to s. 3 of the Adoption Act 1974 in that the Doyles and the Byrnes had become acquainted in making arrangements for what was termed an "open" adoption. Therefore it was unnecessary for the proceedings to be phased in order to protect anonymity.

The Present Custody of Ann

The evidence establishes that since November, 2004 Ann has been in the custody of the Doyles pursuant to an arrangement whereby she was to be adopted. The Doyles are in their thirties and have no children. It is not disputed that Ann is living in a close, warm and supportive "family unit" for the last 18 months, having being placed with those respondents at the age of four months after a period of short term foster care.

Ann is described by all the professional witnesses who have seen her as a determined, bright, alert, friendly and affectionate child who sees the Doyles as her parents. It is not contested that they have been unstinting in their affection and their efforts to provide for her. The child is living in suitable accommodation. She attends a crèche three times a week and plays there with other children. She is friendly with two children who live close by, one of whom is very close in age to her. Also nearby are two children who she regards as her cousins. Also close by is Eileen's mother who Ann regards as her grandmother.

Ann identifies David and Eileen as her mother and father. The evidence is that she is bonded and attached to the Doyles to a very high degree. She is a contented and happy child albeit wary of strangers and showing anxiety when in their company. She is advanced for her age in terms of physical, emotional, cognitive, social and language development. Ann is well looked after physically. Her speech is clear and now developed to three to four word sentences which is seen as advanced for her age. Her cognition in terms of recognition and making sense of events and observation is good which is indicative of significant intellectual ability. The evidence is that she is well adjusted to the environment in which she lives. She was baptised in the Roman Catholic faith in December, 2004, a ceremony which was attended by members of the Doyle family and their friends and relatives.

One factor which may have contributed to Ann's well being is that the third named respondent, Eileen, took 11 months off work so as to be available full time to assist in the bonding and attachment process. For this she took adoptive leave. Thereafter she returned to work on a three day basis. Eileen, who testified, is working. David is a [occupation deleted]. He has testified one of the advantages of his position is that he can spend substantial periods of time with her.

Ann was introduced to a crèche near her home at the age of 13 months. It took a significant time for her to settle there. It was necessary for Eileen to bring her down for an hour every day and thereafter spend time with her. In her absence she showed distress though she could be distracted in time. The process of adaptation to the crèche took approximately four to five weeks. The evidence is that when not at work Eileen brings Ann swimming, to playgrounds, or adventure parks. As indicated she has a friend who lives nearby who has one child very close in age to Ann and another aged four. Ann and her near contemporary are close friends. The other two children living nearby, are aged three and just one year. She sees them nearly every day as well as the other children who attend the crèche where she is in a class varying in size between 10 and 15 children.

The ultimate, indeed the only question for determination in these proceedings is whether Ann is lawfully in the custody of the Doyles. If such custody is lawful she may remain there. If not, she must be transferred to the custody of her birth parents now constituted a family under the Constitution who submit that they are entitled as of right to her custody.

The Applicants

The first named applicant Brian was born in May, 1982.

Having attended secondary education he commenced an academic course. His academic career...

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