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: 03 March 2025
• Neutral Citation: [2025] IEHC 148
• Docket Number: Record No. H.M. 2024 120

In the Matter of An Application Pursuant to Section 54(2) of the Adoption Act, 2010 and in the Matter of J.N, A Minor Born on [Date Redacted]

Between:

Child and Family Agency and R.K. and M.K.

Applicants

and

The Adoption Authority of Ireland, P.D. and C. N.

Respondents

[2025] IEHC 148

Record No. H.M. 2024 120

THE HIGH COURT

FAMILY LAW

Adoption – Abandonment – Proportionality – Applicants seeking an adoption order – Whether adoption was proportionate in the circumstances of the case

Facts: The first applicant, the Child and Family Agency, and the second and third applicants applied to the High Court seeking an order pursuant to s. 54(2) of the Adoption Act 2010 authorising the first respondent, the Adoption Authority of Ireland, to make an adoption order in relation to the child, in favour of the second and third applicants and to dispense with the consent of the second and third respondents to the making of the adoption order in that context. The first respondent made a declaration pursuant to s. 40 of the 2010 Act on 5 March 2024 and a declaration pursuant to s. 53 of the 2010 Act on 16 April 2024. The former decision related to the eligibility and suitability of the second and third applicants to adopt and the latter decision indicated that the first respondent was satisfied that it would be proper to make an adoption order in relation to the child in favour of the second and third applicants subject to the court making an order pursuant to s. 54(2) of the 2010 Act authorising such adoption order.

Held by Jackson J that, having considered the six cumulative factors which must be proved pursuant to s. 54(2A) of the 2010 Act, the conditions required by s. 54 were fulfilled: (i) failure of duty for 36 months - as there had been no exercise of any decision-making role by the second and third respondents regarding the education and welfare of the child, that statutory requirement was satisfied; (ii) whether the natural parents are unable to care for the child to the extent that his safety or welfare would be prejudicially affected - there was an inability to care for the child such as would prejudicially affect his safety and welfare; (iii) abandonment - Hogan J in Child and Family Agency and B v Adoption Authority of Ireland and C and Z [2023] IESC 12 (the B judgment) reiterated that the term as used in the legislative context does not necessarily mean abandonment in the sense of physical abandonment of a child but rather “the abandonment of parental rights vis a vis the child” and that statutory requirement was satisfied in this case; (iv) State should supply place of parents - no issue arose in that regard in this case and it had not been disputed that this would continue to be the position for duration of the child’s minority; (v) 18 months in the custody of the adoptive parents - there was no dispute in relation to that legislative requirement and that it was fulfilled in this instance; and (vi) proportionality - in the context of the family relationship in this instance, it did not appear that such a placement should operate to the disadvantage of the child or should operate to exclude him from becoming a secure and full participant in his de facto lifetime care unit. Applying the words of Hogan J in the B judgment, Jackson J held that what is proportionate must be child centred towards the child and consistent with his best interests. She therefore concluded that adoption was proportionate in the circumstances of this case.

Jackson J made the order sought by the applicants.

Application granted.

JUDGEMENT of Ms Justice Nuala Jackson delivered on the 3 ^rd March 2025.

INTRODUCTION

1 This matter comes before me in circumstances in which the Applicants are seeking an Order pursuant to section 54(2) of the Adoption Act, 2010 (‘the 2010 Act’) authorising the First-Named respondent (‘the AAI’) to make an adoption order in relation to the child, J, in favour of the Second and Third Named Applicants and to dispense with the consent of the Second and Third Named Respondents to the making of the adoption order in this context.

2 The AAI made a Declaration pursuant to section 40 of the 2010 Act on the 5 ^th March 2024 and a Declaration pursuant to section 53 of the 2010 Act on the 16 ^th April 2024. The former decision relates to the eligibility and suitability of the Second and Third Named applicants to adopt and the latter decision indicates that the AAI is satisfied that it would be proper to make an adoption order in relation to J in favour of the Second and Third Named Applicants subject to this court making an order pursuant to section 54(2) of the 2010 Act authorising such adoption order.

3 I have considered all of the papers herein. I have had regard to the three Affidavits of Ms H [social worker] sworn on the 3 October 2024, the 13 November 2024 and the 27 November 2024. I have also considered the Affidavit of the second named applicant sworn on the 2 ^nd October 2024. I have also considered the Affidavit of BF [social worker] of the 3 ^rd October 2024.

4 On behalf of the AAI, I have considered the Affidavit of Mark Kirwan of the 31 ^st July 2024.

5 Most importantly, Affidavits were sworn by the Second and Third Named Respondents, the birth mother on a date in October 2025 and the birth father on the 22 January 2025. I also heard oral testimony from the birth mother, Ms. D.

6 No Notices to Cross-examine were served and no applications to cross-examine were made at the hearing.

7 The Third-Named Respondent, with the advice of Counsel and solicitors, determined to adopt the position that he would neither consent nor oppose the application. I recognise his interest in the proceedings and the appropriateness that he would have full and complete legal advice and adequate time in order to address the very serious matters arising. I adjourned this matter to ensure that this was so and I am satisfied that he adopted the position he did with the benefit of full legal advice. Of course, I must still be satisfied that the statutory proofs have been complied with.

8 The Second-Named Respondent, the birth mother, is opposing this application.

FACTUAL BACKGROUND

9 Many of the facts herein are not in dispute. J is the third of Ms. D's four children. He is 13 years old. K, the eldest, has been previously adopted by the Second and Third Named Applicants herein. Ms D's two other children, one a teenager and one a small child, continue to reside with her. One of these two children is a full sibling of J.

10 The Second and Third Named Respondents have each experienced challenges in life. These challenges led to J being voluntarily placed in the care of Ms. D's sister, the Second—Named Applicant herein, and her husband, the Third-Named Applicant, at a very young age. J was born in 2011 and has lived with his aunt and uncle since shortly (2 days) after the time of his birth. The birth parents were married at this time but their relationship was under severe challenge and they separated shortly thereafter. It is unclear if they are divorced but it is amply clear that there have been irreconcilable differences between them for many years.

11 It is clear that the birth parents did not envisage that the arrangement would be permanent but no particular duration was envisaged. They were having coping difficulties and considered the arrangement one which would continue until these were resolved. It is clear that time passed and the situation continued. It would appear that the first care proceedings were brought a number of months after J's birth in order to regularise the previously voluntary situation. Thereafter, the care order was extended on a number of occasions. The first care order was the 30 ^th July 2013 until the 5 ^th September 2012. The extensions thereafter were to the 4 ^th September 2013, the 19 ^th September 2013 and 15 ^th November 2013, the 5 ^th November 2013 and the 21 ^st October 2016. A Care Order until J was 18 years of age was made on the 19 ^th October 2016. There is no evidence before me that any of these applications was contested in any meaningful way or at all or that any application was ever brought by the Second or Third Named Respondents to alter, vary or amend these Orders.

12 On the 19 ^th October 2016, a full care order was granted. It is not disputed by anybody that J will continue to live with and be cared for by the Second and Third Applicants during his minority. His birth mother's evidence in this regard was clear. In her Affidavit she states:

“I do not think the adoption is necessary. He is already in the care of the [K] family. He receives the love, care and attention he requires. I am incredibly grateful for the care he has received. But the level of care he will receive will not change by the adoption.”

She deposed, in addition, that:

“I have no intention of taking J away from the [K] family when he turns 18. I want him to finish school. I do not want to do anything to disrupt his life. I want the best for him.”

13 The first sentence of this averment is a little confusing as J will be an adult at 18 years and will have the legal autonomy which accompanies the attainment of his majority. However, the balance of this averment makes supports a commitment to J's day to day living circumstances not being altered.

14 Her oral evidence at hearing was in similar vein.

15 While it is a positive aspect of this case that J was placed with family members of the Second Named Respondent, allowing him to maintain close relations with remoter family members, it is unfortunate that relations between his carers and his birth mother have been erratic and the relationship between them is now poor. This is understandable in all of the circumstances and particularly so when the Second Named Respondent is opposed to the adoption of J which the Second and Third Named Applicants seek to advance. However, it is important to recognise that...