Child and Family Agency v The Adoption Authority of Ireland anor

• Jurisdiction: Ireland
• Judge: Mr. Justice Jordan
• Judgment Date: 23 July 2020
• Neutral Citation: [2020] IEHC 419
• Docket Number: [2020 NO. 17 M]
• Court: High Court
• Date: 23 July 2020

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 54(2) OF THE ADOPTION ACT 2010 (as amended) AND IN THE MATTER OF M.L. A MINOR

BETWEEN

CHILD AND FAMILY AGENCY

AND

G.K. AND C.K.

APPLICANTS

AND

THE ADOPTION AUTHORITY OF IRELAND

AND

M.L.

RESPONDENTS

[2020] IEHC 419

Jordan J.

[2020 NO. 17 M]

THE HIGH COURT

FAMILY LAW

Adoption – Adoption Act 2010 s. 54(2) – Best interests – Applicants seeking an order under s. 54(2) of the Adoption Act 2010 – Whether the best interests of the minor required the granting of the approval sought

Facts: Proceedings were commenced by way of special summons which was issued on the 4th of March, 2010. The first applicant, the Child and Family Agency, was a statutory authority established under the Child and Family Agency Act 2013. The second and third applicants were a married couple who resided together in Co. Dublin. They were the foster carers and prospective adoptive parents of the minor named in the title of the proceedings. The first respondent, the Adoption Authority of Ireland, was established and carried out statutory functions under the Adoption Act 2010, as amended. The second respondent was the birth mother of the minor and she also resided in Dublin. The Adoption Authority of Ireland received papers in respect of the application for an order pursuant to s. 54 of the 2010 Act from the Child and Family Agency on 1st March 2019. The Authority issued a declaration of eligibility and suitability in respect of the second and third applicants on 12th March 2019. A hearing in respect of the application for an order pursuant to s. 54 was scheduled for the 8th October 2019. Having heard the evidence in relation to the application the Board concluded that it would be proper for the Adoption Order to be made if a s. 54(2) Order was made by the High Court. On the 14th January 2020 the Adoption Authority adjourned the application and declared that, if an order was made under s. 54(2) of the 2010 Act, it would, subject to s. 53(2) of the said Act, make the Adoption Order sought.

Held by Jordan J that, having had regard to the situation that existed, applied the test which must be applied and had regard to the authorities and all the matters which must be considered, the Court was satisfied that the threshold was met in terms of the statutory requirements. The Court was entirely satisfied that the best interests of the minor as things stood required the granting of the approval sought. Jordan J held that it would be wrong of the Court to refuse to grant the approval sought by reason of the shortcomings of the first applicant. Jordan J held that to refuse the approval sought would negatively impact on the best interests of the minor and would effectively set to one side that paramount consideration.

Jordan J held that the Court would grant the order as sought.

Application granted.

JUDGMENT of Mr. Justice Jordan delivered on the 23 ^rd day of July 2020

1 These proceedings were commenced by way of special summons which was issued on the 4th of March, 2010. The first named applicant is a statutory authority established under the Child and Family Agency Act 2013. The second and third named applicants are a married couple who reside together in Co. Dublin. They are the foster carers and prospective adoptive parents of M.L., the minor named in the title of the proceedings.

2 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 M.L. and she also resides in Dublin.

3 M.L. was born on the 4th November 2002. She was placed in foster care when she was just four days old. The first named applicant says that the placement in foster care was pursuant to a voluntary arrangement with the birth mother. This is disputed by the birth mother.

4 The birth mother was born on the 4th of February, 1970 and M.L. is her second child. She also has a son, M., who was born in 1995. There were concerns about the safety and care of M. when he was a child and the evidence indicates that he was placed in the care of his father, who did not live with the birth mother, as a private family arrangement. The evidence of the birth mother, which is not contradicted, is that her son was returned to her in 2010 when he was 14 years of age and continues to reside with her. According to the birth mother, she reared him from then onwards and steered him through difficult adolescent years. She says he is currently in employment and that she has a close relationship with him. It is a curious feature of this case that the first named applicant appears to know little about M. and of his progress in life. Given the circumstances in which M.L. was taken into care and has remained in care one would have thought that the first named applicant would have monitored the progress of the son of the birth mother and be able to provide some evidence in that regard. Very little information is provided by the first named applicant in relation to the son, although there is some reference to the granting of interim care orders in respect of M. in 2000/2001.

5 The evidence shows that the birth mother became extremely unwell after the birth of her son. She was admitted to a psychiatric hospital on an involuntary basis in August 2000 and a diagnosis of schizophrenia was made. It is clear from the evidence that the birth mother was unable to look after her daughter when her daughter was born in 2002. It is also apparent that the mother of the birth mother (the ‘grandmother’) had previously raised concerns about the safety and care of M., as had the public health nurse. The evidence indicates that the grandmother was with the birth mother at a meeting, apparently in the maternity hospital, on the 5th November 2002 and appeared to encourage her daughter to sign M.L. into care as she was concerned regarding the birth mother's ability to look after the child. The evidence establishes that M.L. was signed into voluntary care by the birth mother on the 8th November 2002 for an agreed period of six months. The birth mother has raised an issue as to the validity of the original voluntary care agreement which was entered on the 8th November 2002, in circumstances where she was then suffering from a severe mental illness, with a diagnosis of schizophrenia. This is not an issue for determination in these proceedings. If it was an issue for determination it would be determined by reference to the medical evidence available in relation to the birth mother's capacity or lack of capacity to understand and to enter into such a binding legal agreement at the time. The fact that the birth mother was unable to look after her new born child and was suffering from schizophrenia for which she was receiving treatment does not in itself prove lack of capacity. It is worth noting also that care proceedings were subsequently litigated in the District Court.

6 It appears that M.L. was subject to court proceedings from the 23rd April 2004 onwards as follows;

Interim Care Orders were obtained on the following dates:

23rd March, 2004, 20th April, 2004, 18th May, 2004, 15th June, 2004, 13th July, 2004 (two-month order), 14th September, 2004, 12th October, 2004, 9th November, 2004 and 7th December, 2004.

A Care Order was granted on the 17th January 2005 for a two-year period until the 17th January 2007.

Further Interim Care Orders were granted as follows:

16th January 2007, 14th February 2007, 21st March 2007, (three-month order).

A full Care Order was granted on 25th June 2007 until M.L. is 18 years old. The second and third named applicants were granted enhanced rights in the District Court under S.43A of the Child Care Act 1991 on the 18th December 2015.

7 The birth mother did have legal representation during the District Court proceedings although there were some gaps in the legal representation. She was consistent in her opposition in the Care Order proceedings.

8 Unfortunately for the birth mother she had multiple so-called “negative symptoms” of schizophrenia, including decreased energy, decreased spontaneity, decreased ability to initiate and complete complex tasks and decreased speech with a degree of social withdrawal. These symptoms impacted severely on her ability to care for a young child and there is no real contest but that the birth mother was unable to do so when M.L. was young. She was nonetheless able to seek and attend access even if it was difficult on both sides.

9 The evidence does show that the birth mother did improve with treatment. Correspondence received from the treating psychiatrist by the first named applicant tracked this improvement. An email from the treating psychiatrist dated 6th May 2011, following a meeting with the birth mother the day before, described the birth mother as markedly improved from when she had been seen in the past - with no evidence of psychiatric illness. Her last appointment with the treating psychiatrist had been in February 2008. The treating psychiatrist did also say in the email that the birth mother remained vulnerable to alcohol abuse recurring but that she reported as being largely abstinent at that point in time.

10 According to the first named applicant there are no medical records on the social work files following the email from the treating psychiatrist on 6th May 2011. That this is so is difficult to comprehend given that the reason for the child being in care was the mental health of the birth mother. This puzzle is more remarkable in light of the evidence that the son, the half sibling of M.L, was returned to the birth mother in 2010 when he was 14 years of age. They siblings do now have contact although limited.

11 The right of a parent to have access with his or her child in care and the right of that child to have access with his or her parent or parents are basic...