Child and Family Agency and B v The Adoption Authority of Ireland and C and Z
| Jurisdiction | Ireland |
| Judge | Mr. Justice Gerard Hogan |
| Judgment Date | 24 May 2023 |
| Neutral Citation | [2023] IESC 12 |
| Court | Supreme Court |
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
[2023] IESC 12
O'Donnell C.J.
Dunne J.
O'Malley J.
Woulfe J.
Hogan J.
Murray J.
Collins J.
AN CHÚIRT UACHTARACH
THE SUPREME COURT
JUDGMENT of Mr. Justice Gerard Hogan delivered the 24 th day of May 2023
. While the title of these proceedings might appear to suggest some form of litigious contest between two State agencies – namely, the Child and Family Agency and the Adoption Authority of Ireland – this simply serves to camouflage the mixture of both human tragedy and hope that underlies the facts of this case. As will become apparent in the course of this judgment, the complex legal issues in this appeal may be resolved down to this: where a natural mother who is the victim of appalling domestic violence has through force of circumstances agreed to allow her daughter (who is, as it happens, is now a young woman with particular and complex special needs) to be reared by a foster mother for virtually the entirety of the child's minority, should an adoption order now be made in respect of that foster mother?
. Before considering any of these legal issues, it is necessary first to say something about the background facts. In 2004, Ms C and Mr Z were unhappily married. Ms C has four children, the eldest of whom was from a previous relationship. At the date of the hearing in the High Court in June 2022 Ms C was in the process of obtaining a divorce from Mr Z. The parties have, in any event, been separated since the birth of the child at the centre of this appeal, Ms. B, in 2004. The present case concerns Ms C's youngest child, Ms B, who has been in foster care since 2004.
. It appears that Ms C was subjected to emotional, physical and sexual abuse by her husband, which her eldest three children had regrettably witnessed. Following a 28-week pregnancy, Ms C gave birth to Ms B at a particular date in 2004. Ms B, the young woman at the centre of this appeal, was born with foetal alcohol syndrome with associated global development delay and a moderate general learning disability. This syndrome was due to Ms. C drinking alcohol to excess during the first trimester of her pregnancy in order to cope with her abuse, not knowing that she was pregnant at the time.
. I should say in passing that it is, perhaps, regrettable that the Court has not been furnished with an expert psychological evaluation of Ms. B's intellectual and emotional capacities. While the absence of such a report is not necessarily crucial – so far, at least, as the present case is concerned – it has nonetheless hampered the Court's ability to make an informed assessment of Ms. B.'s capacity “of forming…her own views” and the weight to be ascribed to those views “having regard to the age and maturity of the child” in the manner required by Article 42.4.2° of the Constitution.
. On 9 December 2004, Ms C consented to have Ms. B put in voluntary child-in-care with Ms. A. At the time of review in 2006, Ms. C acknowledged the high level of care Ms. A provided and requested that her daughter should remain with her foster mother. On 17 July 2007, a care order was granted by the District Court to Ms A until Ms B reached the age of majority. While it is only proper to record that Ms. C did not object to the making of that order, it should also be stated that she consented to this in the knowledge that this was likely to be in the best interests of her daughter, Ms. B, and in view of the acute difficulties which she (Ms. C) faced at the time.
. Ms B has resided with Ms. A her whole life and she has never been in Ms. C's day-to-day care. Ms A is herself now divorced from her husband and she has two adult children of her own. There is no question at all, but that Ms. A has provided Ms. B with a loving and happy home.
. Ms B does however have a relationship with her birth mother, Ms. C.. From 2004–2008 Ms. C had fortnightly access to Ms. B, then a young infant. In 2008 Ms. C's access to Ms. B became less frequent due to Ms C moving from a rural area which was close to Ms A's home to Dublin. She (Ms C) was reliant on public transport and the Child and Family Agency (“the CFA”) to facilitate access, a statutory duty which it is contended that it failed adequately to exercise.
. It is true that in his judgment Barrett J. in the High Court was critical of the role of the CFA in terms of the supports it offered to Ms C and the contact it facilitated in respect of Ms B In passing it may be observed that s. 37(1) of the Child Care Act 1991 places the duty on the CFA to facilitate reasonable access between natural parents and children. The appellant, Ms. C., contends that the CFA failed to discharge this duty. She points in in this regard to Article 17(1) and Article 18(1)(b) of the Child Care (Placement of Children in Foster Care) Regulations 1995 ( S.I. No. 260 of 1995) which require that a child is to be visited by their natural parents a minimum of every 6-months and that child-in-care reviews are to be conducted at least once annually.
. Despite this, Ms. C contends that from 2012–2017 inclusive the CFA failed to provide financial support to allow her to visit Ms B, and that from 2014–2017 that no child-in-care review was conducted. Furthermore, the appellant contends that no social worker was assigned in this time and that overall management of access was entirely delegated to Ms A. Ms. C contends that the failures of the CFA during this period directly impacted on the ability of Ms. B to be brought up in the care of her natural family in accordance with her constitutional rights and that such ought to be borne in mind when interpreting the requirements of s. 54 of the 2010 Act, in particular ss. 54(2A)(d) and 54(2A)(f) in relation to the necessity that the State should supply the place of the parents and the proportionality of the order.
. It is, I think, unnecessary for me to express any concluded view on this issue because even if one accepts that the CFA failed adequately to support Ms. C in the manner required by statute and by the 1995 Regulations, all this would have meant is that there would have been greater contact at key times between Ms. B and Ms. C. While this would certainly have been to the good, it really would not have changed the essential fact that Ms. B resided with Ms A for all of her life. There was never a suggestion that had such occurred through the facilitation of such visits that Ms C could then then have provided Ms B with a home and cared for her. In fact, Ms C has never challenged the care order or sought the return of the custody of Ms B, although she has expressed a wish that one day they will live together.
. It is only fair to say that in the interval Ms C has, to her great credit, managed to turn her life around from circumstances of profound adversity. In 2005 she attended an alcohol treatment programme, and she now abstains from alcohol. She also attended parenting courses and she resumed custody of her two other children by Mr. Z in October 2006 and she has raised them successfully and given them a good education. In recent years she has graduated with a university degree, and she now lives in local authority accommodation with a stable home of her own.
. In the course of 2021, in anticipation of Ms B's 18 th birthday in the following year, Ms A sought to adopt Ms B. This step had previously been suggested on a number of occasions. The possibility had indeed first been canvassed by Ms. C in 2012. It would also seem that in March 2019 Ms. C was aware that Ms. A was seeking the adoption of Ms. B. and took no steps at the time to have the long-term care order discharged or varied.
. At all events, the natural parents, Ms C and Mr Z, both refused, however, to consent to the proposed adoption order. Though Ms C has sought to retain the closest possible contact with her daughter over the years, Mr Z's refusal of consent is the only interaction he has had with his child since he visited her in hospital shortly after she was born in 2004. It appears, however, that Mr. Z supports the position of Ms. C even though he has taken no part in these proceedings.
. The Adoption Authority made an order on 21 st December 2021 declaring, pursuant to s. 40 of the 2010 Act that Ms. A. was both eligible and suitable as an adoptive parent. It further declared on 15 th February 20202 that if an order were to be made by the High Court pursuant to s. 54(2) of the 2010 Act it would then make the adoption order sought.
. The question which now arises is whether an adoption order should now be made in favour of her foster-parent, Ms A. The present appeal presents issues of some difficulty, raising as it does complex constitutional and legal problems.
. The matter came before Barrett J. in the High Court on the application of the Adoption Authority (“the Authority”) pursuant to s. 54(2A) of the Adoption Act 2010 (“the 2010 Act”). In these proceedings the CFA seeks an order authorising the Authority to make an adoption order in respect of Ms. B and to dispense with the consent of the biological parents, i.e., the consent of the natural mother (Ms. C) and the natural father (Mr. Z). (While Mr Z is on notice of these proceedings, he has not sought to take any part in them.)
. In the High Court Barrett J. refused to make the order sought. A majority of the Court of Appeal (Whelan and Costello JJ., Power J. dissenting) allowed the appeal. The Adoption Authority then made an adoption order on 23 rd August 2022.
. Ms. C has now appealed to this Court pursuant to a grant of leave made by this Court in accordance with Article...
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