Child and Family Agency v The Adoption Authority of Ireland

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 27 June 2022
• Neutral Citation: [2022] IEHC 389
• Court: High Court
• Docket Number: [2022 No. 31 M]

In the Matter of an Application Pursuant to S.54(2) of the Adoption Act 2010 (As Amended) and in the Matter of Miss B, a Minor, Born on [Stated Date]

Between:

Child and Family Agency and Ms A

Applicant

and

The Adoption Authority of Ireland

Respondent

and

Ms C

Respondent

and

Mr Z

Respondent

[2022] IEHC 389

[2022 No. 31 M]

THE HIGH COURT

Adoption – Consent – Best interests – First applicant seeking orders authorising the first respondent to make an adoption order and dispensing with the consent of any person whose consent was required – Whether acceding to the application would be in the child’s best interests

Facts: The first applicant, the Child and Family Agency, applied to the High Court for orders pursuant to s. 54 of the Adoption Act 2010, as amended, (a) authorising the first respondent, the Adoption Authority, to make an adoption order in respect of “Miss B” and (b) dispensing with the consent of any person whose consent was required. Neither natural parent consented to same. The natural father had never played any meaningful part in Miss B’s life and had placed no affidavit evidence before the court. The real focus of the application was the well-intentioned refusal of consent by the second respondent (“Ms C”), a demonstrably competent mother, who had raised her other children well.

Held by Barrett J that he did not see what adoption about 10 weeks before Miss B turned 18 years of age would achieve. He held that it was clear from the affidavit evidence of the second applicant (“Ms A”) that Miss B was genuinely loved by her wider foster-family and that love patently did not rest on Miss B’s standing as a foster-child rather than an as an adopted child. He held that if Miss B wanted the surname of her foster-family she could change her name by deed-poll when she turned 18 years of age, and if Ms A wanted to bequeath property to Miss B, her adult children were no longer dependants so she could bequeath her property however she wanted. He held that all that adoption would achieve would be to cut the legal link between a loving natural mother and a much-loved natural child with whom the natural mother had fought and sought to retain the closest contact over the years, with a disappointing want of assistance from the Child and Family Agency. He did not see that to cut that ‘natural mother-natural child’ legal link at the very moment when a child is about to enter adulthood, when he could see no particular advantage to the adoption, and when that adoption seemed unlikely to have the slightest effect on Miss B’s day-to-day existence was somehow in Miss B’s best interests. He noted that those interests, while paramount, were not the sole interests at play. He held that he was allowed, without in any way compromising the paramountcy of Miss B’s best interests, to have regard to the interests of Ms C in wishing to retain both natural and legal bonds with her child, a wish which seemed to him to be compatible with Miss B’s best interests.

Barrett J held that he did not consider that for him to accede to the application would be in Miss B’s best interests. He declined to accede to the application.

Application refused.

Summary

This is a failed application for an order under s.54(2) of the Adoption Act 2010 authorising the Adoption Authority to make an adoption order in relation to a child and to dispense with the consent of any person whose consent is necessary for the making of the order.

JUDGMENT of Mr Justice Max Barrett delivered on 27 ^th June 2022 .

I

Application and General Note

1 . The Child and Family Agency has applied to the High Court for orders pursuant to s.54 of the Adoption Act 2010, as amended, (a) authorising the Adoption Authority to make an adoption order in respect of Miss B and (b) dispensing with the consent of any person whose consent is required. Neither natural parent consents to same. The natural father has never played any meaningful part in Miss B's life and has placed no affidavit evidence before the court. So although I touch upon his refusal of consent later below, the real focus of this application is the well-intentioned refusal of consent by Ms C, a demonstrably competent mother, who has raised her other children well.

2 . As will be seen in the pages that follow this is a case in which the Child and Family Agency has not done a good job. I wish to emphasise by way of general note before proceeding further that:

(i) Ms A, the foster-carer, has had Miss B in her care since Miss B was four months old. She has done a remarkable job caring for Miss B and I respectfully salute her for that. It is obvious that Ms A loves Miss B hugely and that that love is returned. A life-affirming feature of this case has been to see how much Miss B is so clearly loved by so many people.

(ii) I make no criticism whatsoever of the social worker who gave evidence at the hearing of this application. She came very late to this case and has done the best that she can. Counsel for Ms C likewise emphasised at the hearing that he was not seeking to criticise the social worker who gave evidence. He had to ask her the questions he did because she was the witness proffered.

II

Key Elements of Ms C's Affidavit Evidence

3 . Ms C swore an affidavit on 1 ^st June in which she avers as follows:

“ 4. I was born on [Stated Date].

5. I have four children. They are: a. Ms E [born in the late 1980s]… b. Mr F [born in the mid-1990s]… c. Ms G [born at the turn of the century]… and Miss B [who will turn 18 years of age in the autumn].

6. Ms E's father was my first boyfriend….We had a good relationship. However, I was [very young]… at the time and he [was not much older]. We were too young and not really compatible. We parted amicably.

7. I met my husband, Mr Z (the third respondent herein), when I was about 23 and we got married on [Stated Date] and had three children together. We lived in Dublin until [the turn of the century]… when we moved to County X.

8. I am currently in the process of obtaining a divorce from Mr Z….

11. There was only one time that I was physically abused before we moved to County X. Mr Z wanted me to go to his mother's house to collect washing but I could not carry it back so I decided to get a taxi. He punched me because of this. I was pregnant with Mr F at the time. I warned him that if he ever punched me again that I would call my brothers. He also punched Mr F once when he was 16 months old after Mr F had broken a model aeroplane. I warned my husband that he was never to hurt my child again.

12. At the time Mr Z had a good job with [Stated Employer] in [Stated Place]. He told me that he had a transfer to County X. So we moved to County X [at the turn of the century]….

13. When we got to County X, I realised that he had no job there. In retrospect, I think he wanted to move to County X to isolate and control me and my children. In Dublin I had the support of my family and indeed his family. In County X, I was in the middle of a rural area ten miles from [Stated Town] and had nobody. There was only one bus a week that would bring you to [Stated Town]. We had no transport of our own. That was when the abuse really started for me and my children.

14. In County X, Mr Z limited my contact with my family. He controlled what I bought. While I was able to ensure that my children were properly fed, he would take my meals away and eat them himself. He beat me up, including in public. He constantly raped me after I had had a miscarriage and even when there was a child standing at the door. He would slap them and punch them and deliberately trip them up.

[Ms C's allegations of marital rape are, sadly, not unusual. Indeed one of the more disturbing aspects of hearing family law cases is that this is one of several cases in which I have had women swear to such serious allegations.]

15. My husband drank huge amounts. He would sometimes drink with a plastic basin beside him so that he could throw up and then he would drink some more.

16. The house we lived in was cold and damp with concrete floors. I had no money to do it up. Mr F had a lot of colds. He also got asthma attacks and, as a result, missed a lot of school.

17. Over time I also drank more alcohol to help me deal with the abuse that I was suffering and my guilt over the physical abuse that my children were suffering. I was also dealing with the grief of losing my mother…and, as previously mentioned, the miscarriage….Weighed down by all this I stared to drink four cans of Dutch Gold Beer slowly throughout the day – every day – to keep my nerves calm….

18. I had been using contraception but getting to the chemist regularly was not easy in a rural area with no transport and a controlling husband. Sometimes I missed my pill. I did not realise that I was pregnant with Miss B until I was four months into the pregnancy. By then the damage was done in terms of foetal alcohol. By contrast, I had not drunk during my previous three pregnancies when I was in Dublin and not facing the same level of abuse.

19. In March [of a year in the early ‘noughties’] Ms E was staying with my aunt on a holiday. She disclosed to my sister that she was being sexually abused by Mr Z. I had not suspected this. I did know that he was a bad man, but I was being raped so consistently that it did not occur to me that he could be sexually abusing anybody else.

20. When Ms E told me of the sexual abuse, I knew that I had to get Mr Z out of our lives. I contacted the Garda Síochána. Garda [Stated Name] came to the house and told Mr Z that he had to leave and that if he did not he [the garda] would take the children. My husband said that he [the garda] should take the children. But in the end Mr Z left anyway.

21. I beg to refer to [the Child and Family Agency affidavit]… where it is stated that to the knowledge of the social work department my husband had no further involvement with the family after he left...