Child and Family Agency and Others v Adoption Authority of Ireland and Others

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Nuala Jackson
• Judgment Date: 10 April 2024
• Neutral Citation: [2024] IEHC 227
• Docket Number: Record No. H.M. 2024. 13

In the Matter of An Application Pursuant to Section 54 of the Adoption Act 2010 (As Amended) and In the Matter of ‘M’, A Minor, Born on the [Redacted Date]

Child and Family Agency

and

A.C. and B.C.

Applicants

and

The Adoption Authority of Ireland

First Named Respondent

and

W.X.

Second Named Respondent

and

Y.Z.

Third Named Respondent

In the Matter of An Application Pursuant to Section 54 of the Adoption Act 2010 (As Amended) and In The Matter of ‘N’, A Minor, Born on the [Redacted Date]

Child and Family Agency

and

A.C. and B.C.

Applicants

and

The Adoption Authority of Ireland

First Named Respondent

and

W.X.

Second Named Respondent

and

U.V.

Third Named Respondent

[2024] IEHC 227

Record No. H.M. 2024. 13

THE HIGH COURT

FAMILY LAW

JUDGMENT of Ms. Justice Nuala Jackson delivered on the 10 ^th April 2024 .

INTRODUCTION

1 W.X. is the birth mother of M and N, the children with whom these proceedings are concerned. Y.Z. is the birth father of M and U.V. is the birth father of N. During the course of the hearing herein, I met with M and N. They are both most impressive young people, N. on the cusp of adulthood and M. in the midst of adolescence. They have faced challenges in their young lives but, fortunately, it was clear that they both now have achieved a clear sense of stability and they are focussed on their day to day lives, school and extra-curricular activities as is normal, appropriate and desirable for young people of their ages. W.X. has also faced very considerable challenges in her life and it is to her very considerable credit that she has now addressed these and, to a very considerable extent, overcome them. Her achievement in this regard is to be complimented. It is, however, a fact of life that time passes on and new norms become established over the passage of time and dialling back the clock is sometimes not possible. This is not to in any way diminish the achievement of overcoming challenge. In addition, it must also always be remembered that time takes on a particular significance in the context of childhood where periods of time, considered short in later life, can represent a significant portion of a child's life. In the context of the struggles faced by the family of W.X., M and N were fostered by A.C and B.C., a fostering arrangement which has been very successful as far as M and N are concerned and which has been in place for a very considerable number of years. A.C. and B.C. now wish to adopt them and M and N wish to be adopted in order that their membership of their de facto family of long standing may be legally recognised. This application is supported by and has been advanced by the Child and Family Agency as First Named Applicant (“the CFA”) together with A.C. and B.C..

2 I must determine whether these adoptions should proceed having regard to the requisite statutory proofs set down in section 54 of the Adoption Act, 2010 as amended (“the 2010 Act as amended”). The making of section 54 order is opposed by W.X. Y.Z. is not opposing the application and has signed the requisite consent documents. Y.Z., in a position which was entirely understandable, indicated at the commencement of the hearing herein that he was opposing the application in respect of his child, M.. Subsequent to my having spoken with M. (and a note of our conversation having been provided to W.X. and Y.Z.), Y.Z. indicated that his position had altered and that he was consenting to the section 54 order and that he would sign all necessary forms to enable M.'s adoption to proceed. However, he did so in circumstances in which he remained of the view that the statutory proofs would not be met herein but he did not wish to obstruct the making of an adoption order, having regard to M's wishes. This position will be considered further below.

EVIDENCE

3 The following evidence was before me at the hearing herein and was considered by me:

• A. Affidavit of Hazel Mullen, social worker, CFA familiar with case files of the children over many years and currently the allocated social worker for both. No Notices to Cross-examine had been served but I indicated that I would permit cross-examination if sought given the late engagement of W.X. and Y.Z. in the proceedings. Ms. Mullen was cross-examined on her Affidavit by Counsel on behalf the Second and Third Named Respondents.

• B. Affidavit of Ellen Grant, social worker, AAI who was involved to contact and engage with the birth parents of the children. No significant issues arose in relation to her Affidavits. Cross-examination was not sought.

• C. Affidavit of Mark Kirwan, the Manager of the Domestic Adoption Unit of the AAI. This Affidavit exhibited the necessary statutory proofs so far as the AAI is concerned and also the Adoption Assessment Report prepared by Helen Culhane, social worker with the CFA. Cross-examination was not sought.

• D. Replying Affidavit of W.X.. I afforded an opportunity to W.X. to supplement this Affidavit with oral evidence if she so desired. It was indicated that she did not wish to do so and, in particular, did not wish to be cross-examined. The Applicants indicated that they did not wish to cross-examine W.X. on her Affidavit.

• E. Replying Affidavit of Y.Z.. I afforded an opportunity to Y.Z. to supplement this Affidavit with oral evidence if he so desired. It was indicated that he did not wish to do so. The Applicants indicated that they did not wish to cross-examine Y.Z. on his Affidavit.

• F. Ms. Mullen prepared affidavits in reply to the Affidavits referenced at 4 and 5 above.

4 In addition, I spoke with the children having agreed the terms upon which this should be done prior to so doing. In this regard, there was full discussion of the issues addressed in the judgment of Collins J. in DK v. PIK [2021] IECA 54 and my conversations with the children took place with full cognisance and recognition by all concerned of the legally hybrid nature of the information derived from such conversations.

FACTS NOT IN DISPUTE

• • W.X. is originally from a third country but has lived in Ireland for many years. She is the mother of three children, the younger two of whom are the subjects of these proceedings. The oldest child is a half-sibling of M and N.

• • W.X. has averred that the circumstances of the children coming into care are not disputed by her, that she was at the time “dependent upon alcohol” and she “was unable to care for the children on the occasions set out in the Grounding Affidavits”.

• • The first involvement of the CFA with the family was in or about 2006 (pre-dating M's birth). At that time, there were concerns raised about alcohol addiction and mental health issues. The boys were cared for by third parties under private arrangements during this time. Assessment found no evidence of alcohol addiction or mental health issues. Following network checks, the file in respect of the family was closed.

• • A further referral was received in or about 2008 (again, pre-dating M's birth). This referral seems to have been triggered by a contact made by the oldest half-sibling and allegations made by her concerning the care of that child and N by W.X.. Concerns were expressed by An Garda Siochana in relation to W.X.'s excessive consumption of alcohol and the impact of this on her behaviours and her care abilities in relation to her children. Section 12 of the Child Care Act, 1991 powers were invoked by An Garda Siochana in respect of N (his sister being cared for by her birth father).

• • A subsequent application for an interim care order was not successful and N and his sister returned to the care of W.X.. At approximately the same time, a supervision order pursuant to section 19 of the Child Care Act, 1991 was made.

• • In or about February 2009 (prior to the birth of M.), approximately six months after the previous childcare applications, a further application for an interim care order was made by the First Named Applicant (the CFA). This related to concerns relating to supervision of the children and alcohol abuse. The CFA asserts that W.X. was “incoherent, evasive and untruthful”. There were also concerns regarding threats of self-harm. N was placed with emergency foster carers for three months.

• • In or about 2012, some three and a half years later, An Garda Siochana again invoked its powers under section 12 of the 1991 Act. M was an infant at this time. The concerns expressed were, yet again, lack of supervision, leaving the children unattended and alcohol abuse. Qualitative care deficits were also reported. Emergency foster placements were made in respect of M and N.

• • An emergency care order was sought but refused in circumstances in which W.X. gave an undertaking to the District Court to refrain from alcohol consumption. The children returned to her care.

• • Further concerns were raised (this time by the school of the older children) approximately 10 months later. The issues were, yet again, intoxication and leaving the children unattended. An Garda Siochana again invoked its powers under section 12 of the Child Care Act, 1991 and an application for an interim care order was made by the CFA and such order was granted. M and N were placed with the Second and Third Applicants at this time and have resided and been cared for by them ever since.

• • A full care order was made in or about November 2015.

• • W.X.'s involvement with M and N since:

  • (i) She refused to attend child in care reviews as the foster carers were present. She did input into care planning outside of the context of such care reviews.

  • (ii) She attended for access with the children on a relatively consistent basis although the access was altered (frequency was reduced) and its conditions revised (supervision) based upon professional assessment of the children and their best interests. Assessment favoured the children remaining in care.

  • (iii) Access deteriorated after 2015 in circumstances in which W.X. faced...