Child & Family Agency v Adoption Authority of Ireland
| Jurisdiction | Ireland |
| Judge | Mr Justice Max Barrett |
| Judgment Date | 25 May 2022 |
| Neutral Citation | [2022] IEHC 304 |
| Court | High Court |
| Docket Number | [2021 No. 46 M] |
In the Matter of an Application by the Adoption Authority of Ireland (The Applicant Herein) Under Section 54 of the Adoption Act 2010 (As Amended)
and
In the Matter of Master D, A Minor Born on [Stated Date]
and
and
[2022] IEHC 304
[2021 No. 46 M]
THE HIGH COURT
Adoption – Best interests – Adoption Act 2010 s. 54(2) – Applicants seeking adoption order – Whether it was in the best interests of the child that he be adopted by the applicants for adoption
Facts: The applicants applied to the High Court for, amongst other matters, an order pursuant to s. 54(2) of the Adoption Act 2010 authorising the first respondent, the Adoption Authority, to make an adoption order in respect of a child in favour of the second and third applicants (the foster parents), and an order pursuant to s. 54(2) of the 2010 Act dispensing with the consent of any person whose consent was required to the making of an adoption order. The first applicant, the Child and Family Agency, and the Adoption Authority, were of the view that the proposed adoption was in the child’s best interests. The foster parents had fulfilled all parental duties during the child’s life in an exemplary manner. As a result of the toxins to which he was exposed before he was born, the child presented with some behavioural difficulties. The foster parents ensured that he received all the assistance necessary to address those issues. The child had never been in the care of his birth parents at any time in his life. The natural father consented to the adoption. With the exception of a small number of infrequent access visits, the child had never spent time in the company of the second respondent, his natural mother. She did not seek to resume her parental duties; she was satisfied that the child should remain in the statutory care of the Child and Family Agency until he attains the age of majority and that his foster parents should remain his primary carers. Though she had not greatly availed of access in the past she was concerned about access in the future. The view of the Child and Family Agency was and remained that any (if any) potential advantage to the child of remaining in care was far outweighed by the disadvantages of not becoming a legal member of the only family that he had known.
Held by Barrett J that all the professionals who had inputted into this case were of the view that adoption was very much the preferred arrangement and none of them favoured any form of care or enhanced rights short of adoption. It seemed to him that their views in that regard were rational and not arbitrary or unfair or based on irrational considerations. Moreover, it seemed to him that the “exceptional circumstances” to which the Court of Human Rights pointed in Lobben v Norway (Application No. 37283/13) did present in this case. He held that it was clear that all the agencies and professionals who had come to this matter were motivated by an overriding regard for the best interests of the child. Barrett J held that the adoption of the child by the second and third applicants was a proportionate means by which to supply the place of his natural parents.
Barrett J held that the court would make an order pursuant to s. 54(2) of the 2010 Act authorising the Adoption Authority to make an adoption order in relation to the child in favour of the second and third applicants, and dispensing with the consent of the second respondent to the making of the adoption order.
Application granted.
JUDGMENT of Mr Justice Max Barrett delivered on 25 th May 2022 .
. This is an application for, amongst other matters, (i) an order pursuant to s.54(2) of the Adoption Act authorising the Adoption Authority to make an adoption order in respect of Master D in favour of Ms H and Mr I, and (ii) an order pursuant to s.54(2) of the Act of 2010 dispensing with the consent of any person whose consent is required to the making of an adoption order.
. The background to this application is helpfully outlined by counsel for Ms A in his written submissions:
“ 5. Master D was born on Date 1 and has been in the care of his foster carers since Date 2 [one calendar month after his birth]…. He is [Stated Number 3] years old [which, for the benefit of the reader I note is a few years short of ten years old]….
6. Master D has three elder siblings by Ms A….
7. It is accepted by Ms A that she has had issues with drugs. These issues have led to her children being in care. Ms A did not oppose the making of care orders in view of her drug issues. However, she has also had periods of stability….
8. The period of Ms A's pregnancy with Master D and his infancy was particularly difficult. Ms A's grandmother who had cared for Ms A for much of her childhood became ill during the pregnancy with Master D. Ms A's drug use escalated and Master D was born with Neonatal Abstinence Syndrome [a syndrome the details of which I return to later below]. Ms A [I am very sorry to recount] was raped in December 2013 by two men. Ms A's grandmother died the following year. Her grandfather then died in 2015. This led to a crisis in her mental health and a spiralling drug problem and inconsistent attendance at access, which was suspended on 19 th January 2015. Ms A did, however, continue to request access on a number of occasions after that date.
9. Ms A was in prison from March 2017 to August 2017, from October 2017 to September 2019. Six weeks after her release she was back in prison until August 2020. Ms A was drug-free while in prison. [In the witness box she said that she actually saw prison as something of “ a blessing in disguise” as it gave her the space in which to try and turn her drug habit around – a continuing effort which, if I may be so bold, I respectfully applaud]. She requested access with Master D while in prison, including video access. This was not granted by the Child and Family Agency. [There was good reason for this, as will become apparent in my consideration later below of the affidavit evidence furnished by the Child and Family Agency].
10. Ms A made contact with the social work department seeking access again in March 2021 and attended meetings with the social work department. Access was postponed for a number of reasons…but ultimately happened on 21 st December 2021. It is common case that it was positive for all concerned. In January 2021 Ms A sought access again and was told that it would not happen until Easter 2021….[In July 2021] Ms A went to Dolphin House to talk to the District Court Office about how she would bring an access application under s.37 of the Child Care Act 1991.
11. Ms A is concerned that if the adoption proceeds she will not be able to apply to a court to seek access.
12. Ms A is also concerned that if the adoption proceeds, sibling access may not occur. It is currently organized by Ms A's aunt…who is foster carer to [Child E, another of Ms A's children]. It happens approximately six times a year. Ms A wants to ensure that Master D and his siblings know each other….
13. Ms A has only one sibling, her younger sister, Ms B, who is a [professionally qualified person]…. Ms B has access with Children E, F and G [the three other children of Ms A]. She sees Child E most weeks and has regular telephone calls [with Child E]. She has taken Child E to New York on holiday. She has had overnights with Children F and G and has brought them on outings. These have been arranged directly with their foster carers. By contrast, she has not seen Master D since Halloween 2017 [despite various good faith efforts to do so] ….Ms A would like for Ms B to have access to Master D but is concerned that this will not happen or be sustained if the adoption order proceeds.
[Ms B gave evidence in court and impressed me as a well-intentioned person who genuinely cares for her sister's children and wishes the best for them, including that they should know of their birth family's background. She has even prepared ‘memory boxes’ for them in which she has sought to include material about their blood background. I must admit that I was also struck during her evidence as to what Ms A might have achieved professionally if her drug dependency had not come about. Both Ms A and Ms B, if I might respectfully observe, are intelligent people and Ms A – I understand from Ms B's testimony – has a talent for art which might have taken her who knows where had she not been overtaken by her misfortunes. Drug dependency is a terrible affliction.]
14. The Child and Family Agency has not proposed adoption in the case of any of Master D's other siblings. [I understand from the evidence in court that this is because the Child and Family Agency acts responsively in this regard: if application is made for an adoption order it assesses and, if and as appropriate, progresses such application as is made.]
15. Master D has behavioural issues….
19. Ms A is concerned that if the adoption order is made, but despite the best efforts of his carers, it subsequently breaks down, this may be experienced as a double loss by Master D. Further, it is argued that a care order offers the child – and his foster parents – protections that are important given his level of need.”
. Ms H, the foster-mother of Master D has sworn an affidavit in these proceedings in which she avers, amongst other matters, as follows:
“ 2. I say that we reside in [Stated Place] with Master D, the child in the within proceedings, born on Date 1. I say that we were approached to foster Master D…and were introduced to him when he was eight days old. He was suffering with extreme [drug] withdrawal symptoms and was being cared for in…[Stated] Hospital. We visited him throughout...
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