Child and Family Agency and K and C v The Adoption Autority of Ireland and A and J

• Jurisdiction: Ireland
• Judge: Mr. Justice Jordan
• Judgment Date: 07 July 2021
• Neutral Citation: [2021] IEHC 677
• Court: High Court
• Docket Number: [Record No. 2021/51 M]

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

and

In the Matter of S,

A Minor Born on the Day of August 2003

Between

Child and Family Agency and K and C

Applicants

and

The Adoption Autority of Ireland and A and J

Respondents

[2021] IEHC 677

[Record No. 2021/51 M]

THE HIGH COURT

FAMILY LAW

Adoption – Delay – Best interests of the child – Applicants seeking adoption – Whether adoption was in the best interests of the child

Facts: The applicants, the Child and Family Agency and the foster parents, applied to the High Court under s. 54 of the Adoption Act 2010 (as amended) for the adoption of a child on the cusp of majority. The second respondent, the birth mother, complained in relation to the lateness of the application.

Held by Jordan J that, having referred to The Child and Family Agency and Anor v The Adoption Authority of Ireland and M.L. (A Minor) [2020] IEHC 419, it would be wrong of the court to refuse to grant the approval sought by reason of the shortcomings of the Child and Family Agency and although the court had made clear its dismay at what had transpired, to refuse the approval sought would negatively impact on the best interests of the child.

Jordan J granted the approval sought.

Application granted.

EX TEMPORE JUDGMENT of Mr. Justice Jordan delivered on the 7 ^th day of July, 2021 .

1 . This application is a late application once more, an application under s.54 arriving to the court when the child in question is on the cusp of majority. This is an unfortunate situation and some effort must be made by the stakeholders, the Child and Family Agency and insofar as it can do so the Adoption Authority to create a new regime in relation to foster care situations where it ought to be apparent that adoption is being considered or is likely to be considered. It does seem to me in this particular case that a discussion ought to have taken place between the Child and Family Agency and the foster parents many years ago.

2 . The complaint which A makes in relation to the lateness of this application is justified. Delay is inimicable to the interests of justice, it doesn't help the child, it doesn't help the foster parents and it certainly doesn't help the birth mother in the position in which A now finds herself. It seems to me that it is fundamentally unfair that that situation has come about. It seems to me that there ought to be a proactive approach by the Child and Family Agency in the hope of avoiding late applications such as this. I am not saying that it will always be possible to avoid late applications but I am saying that it is the view of this Court having dealt with many of these applications over the last few years that a number of them should have come before the Court at a much earlier stage.

3 . It seems to me also that A is entitled to point out that more support ought to be provided to somebody such as a birth mother in her position. In fairness, I do need to temper that observation with another observation and that is that the situation for many years now, ten years or so, has been extremely difficult in terms of the ability of the Child and Family Agency to converse with or contact or interact with A.

4 . I take the point in relation to s.54(1)(a) of the Adoption Act of 2010 as amended. I take the point in relation to the introduction of that amendment in 2017 by the amending legislation, the section says that “where applicants in whose favour the Authority has made a declaration under s.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 is satisfied that every reasonable effort has been made to support the parents of the child to whom the declaration under 53(1) section relates”. The section goes on to provide “the applicants may apply to the High Court for the order”

5 . It is the position that the provision in relation to support of the parents, the birth mother in this instance, is not included in subs. (a) to (f) inclusive of s.54(2A). That is a valid point in the context of the framing of the section. However, it is also the position that sub-section 54(3) provides that “in considering an application for an order under s.2, the High Court shall (a) have regard to (i) the rights whether under the Constitution or otherwise, of the persons concerned (including the natural and imprescriptible rights of the child); (ii) any other matter which the High Court considers relevant to the application”. In sub.(b) insofar as is practicable in a case where the child concerned is capable of forming his or her own views give due weight to the views of that child having regard to the age and maturity of the child and the section goes on to provide at the end of s.54(3): “In the resolution of any such application the best interests of the child shall be the paramount consideration”.

6 . It does seem to me therefore, as Ms. Behan urges on behalf of A, that in having regard to anything that I consider relevant I should have regard to what has transpired over the years in terms of the support or lack of support for A and I will come back to that.

7 . Insofar as these applications are concerned it is necessary to point out, I think not for the first time, and as I have touched upon earlier the need for the Child and Family Agency to be proactive in order to expedite applications for adoption particularly when it becomes apparent that such applications are likely to be made sooner or later.

8 . Turning back to the requirement for support for the birth mother, it is true that this Court has to take an objective view and have regard to the high thresholds that require to be met in terms of the proofs that have to be satisfied but that objective view is an objective view having regard to the facts as they exist at this moment in time.

9 . I am dealing with the application for the adoption of S who will turn eighteen on the of August next and who has been in the care of his foster parents for almost the entirety of his life. The wording of s.54(1)(a) refers to the Child and Family Agency being satisfied that every reasonable effort has been made to support the parents or the birth mother in this instance. It seems to me on the evidence that I have heard that the Child and Family Agency was in fact satisfied that every reasonable effort was made to support the birth mother. It seems to me that that was the conclusion which the Child and Family Agency did arrive at. I am not saying that the Court agrees with that conclusion. I am saying that it does seem apparent to me that the Child and Family Agency was satisfied that every reasonable effort had been made to support the birth mother. I do need to say insofar as the conclusion in that regard is concerned that it does seem to me that the Child and Family Agency should look at reviewing the protocols and procedures. Many of these cases are high conflict situations in terms of the interface between the Child and Family Agency and the birth mother and it is not unusual that a complete standoff occurs. It is not unusual that there is a complete breakdown in communication but the Child and Family Agency is staffed by trained professionals and some effort needs to be made to continue the discourse with the birth mother even though the situation is high conflict and even though contact with the birth mother may be difficult.

10 . Insofar as the complaint of A concerning the accessing of her address in light of what had transpired previously and in light of what she recollects as a complete embargo on contact with her, imposed in her recollection by a District Court Judge, her complaints in relation to the manner in which she was found is understandable in the context of the history of her contact with the Child and Family Agency. I should say that if an application had been made to the court in relation to ascertaining her contact details by contact with the department, it is likely that the court would have permitted such contact be made provided of course a statutory basis for such an order exists. Even if such an order was not permissible, this Court has in other cases and would probably in this case have asked that an effort be made to effect service of these proceedings through the Department of Social Protection if it was the only way in which service could be effected. At the end of the day the Child and Family Agency did need to make contact with A in relation to this application. It does not seem to me that there was any motivation involved other than a genuine effort to establish contact.

11 . A makes the point in evidence that she has been involved in a completely rushed process because of the lateness of the hour insofar as this application is concerned and again one cannot argue with the points she makes in that regard. It is apparent to everyone involved in this application that it is a rushed process. It is apparent also to the court that much of the upset and stress which A has endured as a result of this application would likely have been avoided if the application had been made earlier, if it had been made some years ago. No good reason is established in the evidence before the court for the delay which has occurred.

12 . It is the position that S. is with the foster parents who are relative foster parents since August of 2004 and it is the position that A is entitled to take exception to the use of the word abandonment. She did not abandon S. in the sense in which that word is ordinarily understood. She did in the sense of the special legal meaning attributed to that word. As set out in the authorities no intention to abandon is proved in this case nor was there such an intention but such an intention is not a requirement because the word abandon has a special legal meaning.

13 . There has been some discussion about the care orders but...