A Foster Mother -v- The Child and Family Agency, [2018] IEHC 762 (2018)

Docket Number:2018 No. 752 JR
Party Name:A Foster Mother, The Child and Family Agency
 
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THE HIGH COURT

JUDICIAL REVIEW2018 No. 752 J.R.

BETWEEN

A FOSTER MOTHERAPPLICANTAND

THE CHILD AND FAMILY AGENCYRESPONDENTTHE BIRTH MOTHER

THE PROSPECTIVE ADOPTIVE PARENTSNOTICE PARTIESJUDGMENT of Mr Justice Garrett Simons delivered 21 December 2018.

REPORTING RESTRICTIONS

  1. The within proceedings (i) relate to a minor, (ii) relate to issues concerning the minor’s foster care and subsequent placement for adoption; and (iii) require consideration of sensitive personal information relating to the minor. Accordingly, I made an order at the outset of these proceedings pursuant to section 45 of the Courts (Supplemental Provisions) Act 1961 directing that the proceedings be heard otherwise than in public. I also gave directions pursuant to section 40 of the Civil Liability and Courts Act 2004 (as amended) prohibiting the reporting, publication or broadcasting of any information which might enable the minor or the parties to the proceedings to be identified. In particular, I directed that none of the names of the parties, nor of the hospitals or medical personnel involved, be disclosed. (The order was varied on the second day of the hearing so as to allow publication of details of the proceedings to the Adoption Authority of Ireland. This was done so as to ensure that the parties could rely before the Authority on the agreement reached between the foster mother and the prospective adoptive parents (see paragraph 5 below).) These orders remain in force.

  2. This judgment has been prepared on the same basis, and for this reason I refer to the parties simply by reference to their role, e.g. “foster mother” or “prospective adoptive parents”, and not by their actual names or initials. Similarly, I will refer to the minor the subject of the proceedings simply as “the child”, and use the pronoun “their” to avoid disclosing the child’s gender. The use of these impersonal terms should not be mistaken for any lack of empathy by the court; rather, the sole purpose is to preserve the anonymity of the child. For the same reason, the timing of certain events is not stated by reference to the precise dates.

    OVERVIEW

  3. These proceedings relate to events leading up to the placement of a young child for adoption. The child had been born prematurely, and, as a result, suffers serious health complications. In particular, the child has had difficulty feeding, and has required a number of surgical procedures in this regard. The child spent the first [number redacted] months of their life in hospital. Thereafter the child remained in the care of their foster mother for approximately thirteen months before being placed with prospective adoptive parents in April 2018. It is to the great credit of the child’s foster mother, and, more recently, the child’s prospective adoptive parents, that they were willing to take on the challenge and responsibility of caring for such a sick young child. Their efforts and the love which they have shown to the child have contributed to the child making significant progress. The evidence before me indicates that the child is thriving and happy.

  4. These judicial review proceedings are taken by the child’s former foster mother. In brief, the foster mother alleges that the procedures leading up to the termination of the foster arrangement with her, and the transfer of the child to the care of the prospective adoptive parents, were not in accordance with law. The foster mother maintains that the statutory report prepared by the Child and Family Agency (“CFA”) for the Adoption Authority of Ireland (“Adoption Authority”) was deficient and, in particular, failed to include an up-to-date medical and psychological assessment of the child. The foster mother also complains that the statutory report did not communicate to the Adoption Authority that she wished to be considered as an adoptive parent herself.

  5. The precise nature of the relief being sought by the foster mother has evolved during the course of the proceedings. As pleaded in the statement of grounds, it appeared that the foster mother might be seeking the return of the child to her care. However, on the opening day of the case before me, senior counsel on behalf of the foster mother indicated that she was not now seeking any such relief. Thereafter, on the second day of the hearing, a written agreement was entered into between the foster mother and the prospective adoptive parents. This agreement was handed into court, and indicates that the foster mother shall not seek (a) to adopt the child; (b) to delay or in any way interfere with the adoption process; or (c) to seek custody of the child. As discussed at paragraph 90 below, the existence of this agreement has significant consequences for the reliefs which the foster mother is now entitled to seek. An application to amend the statement of grounds to include additional reliefs was made on the last day of hearing. I address this at paragraph 97 below.

  6. The most striking feature of the proceedings is the parties are now all agreed that it is in the best interests of the child that they remain in the care of their prospective adoptive parents. As noted above, the foster mother has expressly disavowed any relief which would delay or in any way interfere with the adoption process. Notwithstanding these concessions, it was nevertheless submitted that the court should grant certain declaratory relief. More specifically, it was submitted that the court should make some sort of declaration to the effect that there was a (historic) failure to have regard to the child’s best interests in March and April 2018. This failure was said to represent a breach of the child’s constitutional rights, and that the court had an obligation to vindicate that breach by way of the granting of declaratory relief.

  7. One of the principal issues to be addressed in this judgment is, first, whether the making of such declaratory relief would be in the best interests of the child, and, secondly, if so, whether there is a proper legal and evidential basis for making such a declaration.

  8. It will also be necessary to address an objection raised by the Child and Family Agency that the proceedings are inadmissible by reason of delay.

    SUMMARY OF FACTUAL BACKGROUND

  9. The child the subject of these proceedings is what is described as a micro premature baby. The child was born at twenty-three plus six weeks gestation, and weighed only 720gms. The child spent the first [number redacted] months of their life in hospital. During this period, the child suffered a collapsed lung and pneumonia.

  10. The child’s birth mother formally applied to have the child admitted to care towards the end of March 2017. An Admission to Care Form was completed and signed by the birth mother. A second form describes the child as having been placed in “pre-adoption foster care” with the Child and Family Agency. It appears, however, that the birth mother might not have formally consented to the placement of the child for adoption until August 2018.

  11. The foster mother’s first involvement with the child was when she responded to an urgent request by the CFA for volunteers to visit the child in hospital. The concern at that time was that the child did not have much human contact other than with their nurses. The foster mother entered into a foster care contract towards the latter end of March 2017. (It seems that the contract may not have been signed until towards the end of April 2017 but nothing turns on this). Upon the discharge of the child from hospital in mid-April 2017, the foster mother brought the child to her own home.

  12. There is no doubt but that the foster mother provided excellent care to the child for the period of the fostering arrangement. Moreover, the foster mother made significant efforts to ensure that the child received the best medical attention. By way of example only, the foster mother secured—on her own initiative and at her own expense—an appointment for the child with a leading consultant in gastroenterology at a private hospital. As a direct result of this appointment, the child was referred onwards to another consultant for an urgent surgical procedure. The surgical procedure was ultimately carried out in mid-April 2018. It seems that the surgical procedure was successful, and has greatly improved the quality of life of the child.

  13. It is the events in the lead-up to, and immediately after, this surgical procedure that are the focus of the judicial review proceedings. Before turning to those events, it is first necessary to rehearse the steps which had been taken in respect of the adoption process.

  14. It seems that the necessary paperwork to allow the child to be placed for adoption was completed by the birth mother in August 2018. As part of this process, the birth mother completed a detailed form which set out her preferences in terms of prospective adoptive parents. The birth mother expressed a strong desire that the child be adopted by a couple. The birth mother explained that she herself had been brought up by a single parent, and she was anxious that, if possible, her child would have the support of two parents. The birth mother also felt that, given the very real health difficulties which the child had, the support of two parents would be required.

  15. In circumstances where the identity of the father was not known, it was necessary for the Adoption Authority to make an application to the High Court for an order pursuant to section 18(7) of the Adoption Act 2010. Section 18(7) provides as follows.

    “(7) Where the mother or guardian of a child provides or provide, as the case may be, an accredited body with a statutory declaration stating that he or she or they, as the case may be, is or are unable to identify that father, then —

    (a) the Authority may, after first obtaining the approval of the High Court, authorise the accredited body to place the child for adoption, and

    (b) the accredited body may, at any time thereafter, place the...

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