Child and Family Agency v The Adoption Authority of Ireland

• Jurisdiction: Ireland
• Judge: Mr. Justice Jordan
• Judgment Date: 12 April 2019
• Neutral Citation: [2019] IEHC 312
• Docket Number: [2019/19 M]
• Court: High Court
• Date: 12 April 2019

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 54 92) OF THE ADOPTION ACT, 2010 (AS AMENDED) AND IN THE MATTER OF T., A MINOR

BETWEEN

CHILD AND FAMILY AGENCY

AND

X.X.

AND

Y.Y.

APPLICANTS

AND

THE ADOPTION AUTHORITY OF IRELAND

AND

Z.Z.

RESPONDENTS

[2019] IEHC 312

Jordan J.

[2019/19 M]

THE HIGH COURT

Adoption order – Consent – Adoption Act 2010 s. 54(2) – Applicants seeking an order pursuant to s. 54(2) of the 2010 Act authorising the first respondent to make an adoption order in relation to a minor in favour of the second and third applicants – Whether the consent of the second respondent in the making of an adoption order ought to be dispensed with

Facts: The second and third applicants are a married couple who reside together. They were foster carers and prospective adoptive parents of the minor named in the title of these proceedings. The second respondent is the birth mother of the minor. In accordance with s. 54(1) of the Adoption Act 2010, the second and third applicants requested that the first applicant, the Child and Family Agency, apply to the High Court for an order pursuant to s. 54 of the 2010 Act. The applicants sought an order pursuant to s. 54(2) of the 2010 Act authorising the first respondent, the Adoption Authority of Ireland, to make an adoption order in relation to the minor in favour of the second and third applicants. The applicants also sought an order pursuant to s. 54(2) of the 2010 Act, dispensing with the consent of the second respondent in the making of an adoption order.

Held by Jordan J that, in light of the evidence adduced before him, and having regard to the constitutional provisions and the statutory provisions he was satisfied that: (a) for a continuous period of not less than thirty-six months immediately preceding the time of the making of this application, the second respondent had failed in her duty towards the minor to such an extent that her safety or welfare was likely to be prejudicially effected; (b) there clearly was no reasonable prospect that the second respondent would be able to care for the minor in a manner that would not prejudicially affect her safety or welfare; (c) the failure constituted an abandonment on the part of the second respondent of all parental rights, whether under the Constitution or otherwise, with respect to the minor; (d) the minor was in the custody of and had a home with the second and third applicants at the time of the making of this application and for a continuous period of not less than eighteen months immediately preceding the time of the making of this application; and (e) the adoption of the minor by the second and third applicants was a proportionate means by which to supply the place of the parents.

Jordan J held that it was appropriate to grand the order sought by the applicants and accordingly he made: (i) an order pursuant to s. 54(2) of the 2010 Act authorising the first respondent to make an adoption order in relation to the minor in favour of the second and third applicants; and (ii) an order pursuant to s. 54(2) of the 2010 Act dispensing with the consent of the second respondent to the making of an adoption order.

Order granted.

JUDGMENT of Mr. Justice Jordan delivered on the 12th day of April, 2019

Background

1 The first named applicant is a statutory authority established pursuant to the provisions of the Child and Family Agency Act, 2013 and it discharges functions to, inter alia, Part 7 of the Adoption Act 2010.

2 The second and third named applicants are a married couple who reside together and they are foster carers and prospective adoptive parents of T., the minor named in the title of these proceedings.

3 The first named respondent is the Adoption Authority of Ireland and it was established and carries out statutory functions under the Adoption Act, 2010 (as amended). The second named respondent is the birth mother of T. and she resides in a part of Ireland. T. will turn eighteen soon. Her birth father, W.W. is deceased.

4 T. is the fourth of six children born to the second named respondent and W.W. (deceased). Her birth family was known to the social services since the birth of the eldest child. Her older sister was placed in voluntary care when she was five months old. The child care services had concerns about the birth mother's behaviour towards her children and her ability to meet their needs. The second named respondent has a mild learning difficulty.

5 A pre-birth assessment was carried out before the birth of T. and supports were put in place to assist her coping with a newborn. However, the concerns persisted.

6 T. suffered from persistent encopresis (soiling) which resulted in hospitalisation for twenty-eight days at which time her condition progressed to a serious bowel condition. The second named respondent refused to co-operate with, or act on the advice of the medical staff. She also refused to implement the treatment prescribed by the child's medical team, the combination of which resulted in her being placed in voluntary care. The care order was granted due to a significant risk of harm to the child's health.

7 While access arrangements were put in place, the second named respondent's attitude towards the access visits was not helpful and the child became reluctant to attend. The second named respondent continued to display inappropriate behaviours and a lack of adherence to boundaries.

8 T. has developed and thrived in the care of the second and third named applicants and she has integrated very well into their family. Their wishes are to establish her as a recognised permanent family member in law and to ensure her future security and care and in order that there can be no uncertainty about their mutual enjoyment of each other. They acknowledge the link with her birth family and her continued relationship with her birth sister and it is their wish that T. would benefit from two families, while they would become her legal family.

9 T.'s family was known to the social services since 1992 or thereabouts. As stated above, a care order was granted which was extended over the following years until a full care order was granted.

10 Following the initial placing, access arrangements were put in place. There were persistent problems with access visits – including erratic attendance patterns, frequent last minute cancellations and a failure on the part of the second named respondent and the father whilst he was alive to the needs of T. before other matters. Following her father's death, the second named respondent told T. that it was revealed at post mortem stage that he had died of a broken heart due to her refusal to visit the family. This had a profound effect on T. and she was devastated by this assertion. She refused to attend access after that point. She does have regular contact with her younger birth sister, who is also in care. They meet regularly, supported by both sets of foster parents.

11 On 12th February 2019, the first named respondent made a declaration, having received an application from the second and third named applicants for a declaration as to their eligibility and suitability to adopt, having had regard to a report from the first named applicant, pursuant to s. 40 of the Adoption Act, 2010 that it was satisfied:-

1) that the second and third named applicants are eligible to adopt by virtue of s. 33 of the Adoption Act 2010, and

2) that they are suitable to adopt by virtue of s. 34 of the Adoption Act, 2010.

12 This declaration which was given under the official seal of the Authority on the 12th February, 2019 applies only in relation to an adoption effected during a period of twenty four months of its date. In passing, it is worth noting that the declaration will be moot long before then as T. attains her age of majority in early course.

13 On 29th March, 2019 the first named respondent declared pursuant to s. 53(1) of the 2010 Act (as amended) that if an order is made by this Court pursuant to s. 54(2) of the 2010 Act, make an adoption order for the adoption of T. by the second and third named applicants.

14 In accordance with s. 54(1) of the 2010 Act, the second and third named applicants requested the first named applicant apply to this Court for an order pursuant to s. 54 of the 2010 Act.

15 The second and third named applicant's family have previously adopted T.'s brother in 2017. One of her birth sisters was adopted by her foster family in 2013, just prior to her eighteenth birthday.

16 The applicants are seeking an order pursuant to s. 54(2) of the 2010 Act (as amended) authorising the first named respondent to make an adoption order in relation to T. in favour of the second and third named applicants.

17 The applicants are also seeking an order pursuant to s.54(2) of the 2010 Act, dispensing with the consent of the second named respondent in the making of an adoption order.

18 T. has attended a senior clinical psychologist since April 2016 and it is clear that that her input has assisted her greatly in dealing with her life history.

19 T. has strongly pursued the option of adoption and has voiced this wish. The second and third named applicants acknowledge the link with the birth family and her continued relationship with her birth sister and it is their wish that she would benefit from two families, whilst she would be adopted by them and become part of their family in the legal sense. Unfortunately, access and engagement with the younger brothers of T. has not been possible due to the actions of the second named respondent.

20 It is clear from the affidavit evidence that T. has a complete grasp of her situation and position in life and a complete understanding of adoption and of the adoption order which she hopes is made in respect of her. At the suggestion and agreement of the parties I met with and spoke to T. in the course of the case. The court was cleared and I...