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

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Nuala Jackson
• Judgment Date: 28 May 2024
• Neutral Citation: [2024] IEHC 352
• Docket Number: Record No. H.M. 2024.61

In the Matter of An Application Pursuant to Section 54 of the Adoption Act 2010 (As Amended)

And in the Matter of B.I., A Minor

Between:

Child and Family Agency and U.D. and M.D.

Applicants

and

The Adoption Authority of Ireland

and

C.I.

Respondents

[2024] IEHC 352

Record No. H.M. 2024.61

THE HIGH COURT

FAMILY LAW

JUDGMENT of Ms. Justice Nuala Jackson delivered on the 28 ^th May 2024

Introduction

1 The case under consideration concerns an application for an Order pursuant to section 54(2) of the Adoption Acts 2010 – 2017 (‘the Acts’) authorising the adoption of B.I. by U.D. and M.D.. Section 54(2) of the Acts states:

“(2) On an application being made under paragraph (a) or (b) of subsection (1), the High Court by order may authorise the Authority to make an adoption order in relation to the child in favour of the applicants and to dispense with the consent of any person whose consent is necessary to the making of the adoption order.”

2 B.I. is a child on the cusp of adulthood and she has lived with, been in the care of and has been cared for by U.D. and M.D. for a very considerable portion of her childhood. Their commitment to her has been unwavering. There is no evidence before me that this position will alter in the future. C.I. is B.I's birth mother and she has had involvement in B.I.'s life, to varying degrees which will be outlined below, throughout her life. That she loves her child and that this is an enduring love cannot be doubted.

3 At the outset of this judgment, I wish to recognise the very considerable assistance given to me by all of the parties and by their lawyers in the presentation of this application. It is undoubtedly the case that the issues which have to be addressed in applications such as the present are difficult and emotive ones and they often involve travelling back to consider very difficult times in life. These issues were bravely addressed in this instance by all concerned and, while B.I. has challenges and will continue to have challenges in her life, she is most fortunate to have the support of champions for her.

Chronology and background

• (a) B.I. was born in 2006. C.I. is her mother and her father is not unknown. C.I. not wishing to identify him at that time or at any time thereafter.

• (b) B.I. was placed in voluntary care when she was six months old. At this point, the child had been admitted to hospital on three occasions, considered to be “social admissions” and there is evidence before me that C.I. was finding it difficult to cope and “needed a break”. At the time of the admission to voluntary care and for a period thereafter (for a period of at least one year), there was a shared care arrangement in place with B.I. spending four days (and nights) with her foster family and three days (and nights) with C.I.. This diminished over time with overnight access ceasing (in or about 2010 as deemed not to be in B.I.'s best interests) and access changing from being unsupervised to being supervised. The progression of this diminution in contact remains somewhat opaque, particularly in relation to the years between the current placement and the basis for B.I. being in care changing from voluntary to court ordered. It would appear that access has steadily diminished over time going from two hours per week in 2013 to one hour per month in 2015 to one hour every three months in 2018. Physical access ceased entirely during the Covid-19 pandemic, with a short period of resumption in 2022. At the time of the hearing before me, apart from one contact at a milestone event which would appear to have encountered difficulties, there had been no contact between B.I. and her mother since 2022. The evidence before me is that B.I. is now oppositional to such visits. It would not appear that this was always the case.

• (c) Following an initial short-term placement, she was placed in fosterage with U.D. and M.D. when she was approximately 15 months old. They have been her primary caregivers since that time. That is not to say that C.I. had no role in her life. C.I. has had ongoing contact with B.I. throughout her life but, having been extensive in nature when B.I. was young, this contact has steadily diminished over time such that it is now minimal and has been minimal over the last number of years. I will consider this further below. B.I.'s younger half sibling is also in the care of U.D. and M.D..

• (d) A psychological assessment of C.I. took place in 2010. I have been provided with a copy of the resultant report. Following this assessment, application was made for a two-year care order which was granted.

• (e) A parenting capacity test was carried out in 2012. I have been provided with a copy of the resultant report. Following this assessment, application was made for a Full Care Order. This was granted on a date in 2013.

• (f) A court application for increased autonomy was made by and granted to U.D. and M.D. in or about 2018. This was not consented to by B.I..

• (g) The Affidavits filed on behalf of the Child and Family Agency (‘the CFA’) indicate that U.D. and M.D. first raised the possibility of adoption of B.I. in 2022. It must, however, be noted that in the Domestic Adoption Assessment Report for a Fostering to Adoption Application, dated the 12 ^th December 2023, U.D. and M.D. are recorded as stating:

  “With regards to the decision on adoption, [M and U] say that they were interested in adopting [B] when she was younger but Tusla did not believe it was appropriate at the time given the level of involvement of [B's] mother and the uncertainty surrounding [B's] health and prognosis. With the change in the legislation ( Adoption Amendment Act 2017) [M and U] raised the matter with Tusla again.

  At a recent meeting of foster carers, [M] spoke to other foster carers in a similar situation who were going through the adoption process. She and [U] decided they would ask again and they spoke to their fostering linkworker. She liaised with her colleagues in the Children in Care team and it was agreed that an urgent application should be made by [M and U] with Tusla's support.”

  A formal request for adoption was raised with the social work department of the CFA in October 2023.

• (h) An application to adopt B.I. and for a Declaration of Eligibility and Suitability for Adoption was received from U.D. and M.D by the Authority in January 2024 and such Declaration was granted in February 2024.

• (i) Following hearings in February and March 2024, the Authority granted a Declaration pursuant to section 53 of the Acts on the 5 ^th March 2024. In consequence of this Declaration, the Authority has confirmed that it is satisfied that, if an order is made in the application now being considered by me in favour of the prospective adoptive parents, U.D. and M.D., it would be proper to make the adoption order sought.

• (j) This application was heard by me over a two day hearing. There was written and oral evidence before me. In this regard, I have considered the Affidavit of Áine Fitzgerald sworn on the 23 ^rd April 2024; the Affidavit of Sinead McDonnell sworn on the 23 ^rd April 2023; the Affidavit of Mark Kirwan sworn on the 25 ^thApril 2023 and the Affidavit of C.I. sworn on the 8 ^th May 2024. Opportunity for oral testimony and for cross-examination was afforded all parties and, in consequence, Ms. McDonnell was cross-examined by Counsel for C.I. and oral evidence was given by C.I.. She was not cross-examined.

Health and Medical Issues

4 The evidence relating to B.I.'s complex health needs is uncontroverted. These needs are physical and intellectual in nature. There are extensive medical interventions and health professionals involved in her life. It is not disputed that B.I.'s needs in this regard will continue into adulthood and she will not be capable of independent living. It is uncontroverted that U.D. and M.D. have been assiduous in caring for B.I. and they have, over many years, been the persons who have taken responsibility for ensuring that she has the very best medical care possible. The evidence is clear that these are responsibilities which they desire to and are committed to continuing into B.I.'s adulthood. I heard and fully accepted the evidence of C.I. as to her desire to be involved in B.I.'s care going forward and as to the support which she would receive from her partner of a number of years. I do not doubt C.I.'s sincerity in this regard. However, I was uncertain as to whether she fully appreciated the onerous task involved. It is amply clear to me from the evidence before me that B.I. has particular needs which dictate the very significant importance of future stability and support beyond her minority.

Preliminary observations

A. Section 54(1) of the Acts:

Section 54(1) of the Acts states:

“(1) Where applicants, in whose favour the Authority has made a declaration under section 53(1), request the Child and Family Agency to apply to the High Court for an order under this section—

(a) if the Child and Family Agency considers it proper to do so and an application in accordance with paragraph (b) has not been made by the applicants, the Child and Family Agency may apply to the High Court for the order, and

(a) if the Child and Family Agency is satisfied that every reasonable effort has been made to support the parents of the child to whom the declaration under section 53(1) relates ,

(b) if, within the period of 3 months from the day on which the request was given, the Child and Family Agency either—

(i) by notice in writing given to the applicants, declines to accede to the request, or

(ii) does not give the applicants a notice under subparagraph (i) of this paragraph in relation to the request but does not make an application under paragraph (a) for the order,

the applicants may apply to the High Court for the order.

(underlining added)

5 As has been previously determined, the requirements of Section...