Child and Family Agency v The Adoption Authority of Ireland

• Jurisdiction: Ireland
• Judge: Ms Justice Power,Ms Justice Máire Whelan
• Judgment Date: 10 August 2022
• Neutral Citation: [2022] IECA 196
• Year: 2022
• Court: Court of Appeal (Ireland)
• Docket Number: Appeal Number: 2022/170

In the Matter of an Application Pursuant to Section 54(2) of the Adoption Act 2010 (As Amended)

and

In the Matter of Miss B, A Minor,

Between/

Child and Family Agency and Ms A

Appellants

and

The Adoption Authority of Ireland

First Respondent

and

Ms C

Second Respondent

and

Mr Z

Third Respondent

In the Matter of an Application Pursuant to Section 54(2) of the Adoption Act 2010 (As Amended)

and

In the Matter of B (A Minor)

Between:

The Chld and Family Agency and A

Appellants

and

The Adoption Authority of Ireland, and C and Z

Respondents

[2022] IECA 196

[2022] IECA 196

Whelan J.

Costello J.

Power J.

Whelan J

Costello J

Power J

Appeal Number: 2022/170

Record No. 2022/170

THE COURT OF APPEAL

Civil

THE COURT OF APPEAL

CIVIL

Adoption – Consent – Adoption Act 2010 s. 54(2) – Appellants seeking an order authorising the first respondent to make an adoption order in relation to a child in favour of the second appellant – Whether the consent of any person whose consent was required to the making of the adoption order ought to be dispensed with

Facts: The first appellant, the Child and Family Agency, and the second appellant appealed to the Court of Appeal from the order of Barrett J made in the High Court on the 6th July 2022 wherein he refused the application pursuant to s. 54(2) of the Adoption Act 2010 (as amended) that the first respondent, the Adoption Authority of Ireland, be authorised to make an adoption order in relation to a child in favour of the second appellant. By notice of appeal dated the 7th July 2022, the appellants appealed the entire decision on the following grounds: (1) the trial judge erred in his refusal of the orders sought; (2) the judge did not correctly apply the provisions of s. 19 of the 2010 Act; (3) the judge did not properly have regard to the best interests of the child and/or the paramountcy of such interests as provided for by law; (4) the judge did not properly take into account the views of the child; (5) the judge did not correctly apply the provisions of s. 54(1) of the 2010 Act; (6) the judge did not correctly apply the provisions of s. 54(2) of the 2010 Act; (7) the judge erred in law and in fact in his examination of and/or factual determinations based upon the affidavit evidence before him; and (8) the judge did not take proper or sufficient account of all the evidence submitted on behalf of the appellants. The first respondent sought that the Court allow the appeal and that it make an order pursuant to s. 54(2) of the 2010 Act, and an order to dispense with the consent of any person whose consent was necessary to make such an adoption order. The second respondent, the biological mother of the child, opposed the appeal.

Held by Power J that she was not persuaded, having regard to the enduring and positive nature of the relationship that had prevailed between the child and her birth mother, a relationship that time and attention could strengthen, that it would, truly, be in the child’s best interests to sever the constitutional link that existed and to change her legal identity.

Power J held that she would refuse the appeal.

Appeal dismissed.

Judgment of Ms Justice Power delivered on 10 ^th day of August 2022

Introduction

1 . This is an urgent and complex case at the centre of which is a young girl who is known and loved by two mothers – her birth mother, C, and her foster mother, A. The girl, B, will be eighteen on 3 September 2022. The concerns which preclude me from allowing the appeal in this case arise in respect of two issues: (i) how the statutory safeguards in adoption applications are to be interpreted and applied where the minor in question is on the ‘cusp of adulthood’; and (ii) having regard to the relationship which exists between this girl and her birth mother, whether it is, truly, in her best interests that the legal recognition of that relationship be extinguished.

2 . Before an order authorising the Adoption Authority (‘the Authority’) is made, the High Court must be satisfied that certain statutory requirements have been met. At issue is whether, on a strict interpretation, each one of those requirements is capable of being met in respect of this minor. If they are capable of being met and are, in fact, met, then the question arises as to whether the making of an adoption order would be in the best interests of this child? The trial judge was not satisfied that each requirement was met. Moreover, he did not consider that the minor's best interests would be served by making an order authorising her adoption in the last remaining days of her childhood.

3 . Time is of the essence in this case. For that reason, I do not propose to recite all the relevant constitutional and statutory provisions that are required to be considered and applied. Nor do I propose to rehearse the various quotations from several decided cases that reiterate the paramountcy of the child's best interests in an application of this nature. That principle is well settled law and I accept that it is the paramount consideration in this case. Given the constraints of time, I propose only to highlight those issues in respect of which I have reservations. The issues are mixed matters of law and of fact. Before doing so, however, I want to make three preliminary remarks.

4 . First, this is one of several cases in which serious concern has been expressed by the High Court over the significant failures on the part of the State's Child and Family Agency (‘the Agency’) to work towards family reunification of children who are placed in care. 1 The concern is evident where ‘eleventh hour’ applications are made seeking authorisation for adoption orders. Fairness is intrinsic to justice and the High Court has expressed its concern, on several occasions, about the unfairness that such recurring failures and late applications are causing. In view of the public interest in the proper administration of justice, it is troubling that the High Court considers that it must make such orders in the best interests of the child but in the face of what it considers to be situations of fundamental unfairness. 2

5 . Second, I do not consider that the regrettable failures on the part of the Agency in this case could ever be the basis for refusing to authorise an adoption order if such were in the best interests of the minor concerned. Adoption is not about punishing or rewarding any person or entity (see Child and Family Agency and HR and FR v. Adoption Authority and PW and AW (Re CW A Minor) [2018] IEHC 515). Still less is it a lottery and it would be grossly unfair to a child to allow or refuse an adoption order to be made on the basis of whether a statutory authority happened to have discharged its responsibilities well or poorly, in a given case.

6 . Third, I am not persuaded that the trial judge's refusal to authorise an adoption order in this very particular case, if upheld, would mean that ‘ at a systemic level, children aged 17 and over could never be adopted’. Every child's story is different. Any adoption order made or refused, must be made or refused on the basis of the law as it applies to the specific and unique facts of a particular child's life. As with everyone's identity, this minor's identity is that which helps her to know what it is about her that is unique from other people. In this sense, the history that she has had with both her birth mother and her foster mother is an important part of the mosaic that makes up her life, her identity.

Birth family background

7 . The facts of the case and the contents of the affidavits are set out, extensively, in the judgment of the High Court. It is not in dispute that the minor was brought up in the care of a foster family supported, as it was, by the Child and Family Agency. Her gestation and birth coincided with a time of extreme crisis in her mother's life and the child was placed, voluntarily, in care. Her mother was a target of extreme domestic violence. She was isolated in a rural setting, subjected to deprivation and sexually and physically assaulted. Her husband was also abusive towards the children. To cope with the crisis, C began to drink. She was unaware of her pregnancy with B for the first trimester and when the baby was born in September 2004 she had medical complications. By this time, C had reported her husband to the Gardaí. He was gone from the family home (though continued to harass C) when B was born. 3

8 . As a single parent and facing the threat of care proceedings, C agreed to place the child, B, voluntarily, in care in December 2004. She also agreed to enter rehabilitation. To facilitate this, her two other children were placed in care. Following a 28-day rehabilitation programme, C has abstained from alcohol ever since. She underwent parenting programmes, therapy and after care. After eighteen months, the two other children were returned to her because they were at risk in care. Removed from the crisis situation that prevailed at the time of B's birth, C, over time, was able to rebuild her life. C educated and raised her other children well. She says that she wanted all of her children back but was told by the social worker that she would never get B back and, that B would ‘ die in [her] care’. She says she was told to concentrate on the other children and that she did not have the transport necessary to bring B to her medical appointments. She says she felt ‘ pressurised and riddled with guilt’ and she consented to the care order being made.

9 . Access to her child, B, was easier for C when they lived in closer proximity to each other in the countryside. For several reasons, she moved away from the rural setting but continued for the next 3 years to have regular access to her child because she had somewhere to stay when she made the long journey from the city to the countryside to see her. She had attended every Child in Care Review...