A Foster Mother v The Child and Family Agency

• Jurisdiction: Ireland
• Judge: Mr Justice Garrett Simons
• Judgment Date: 21 December 2018
• Neutral Citation: [2018] IEHC 762
• Court: High Court
• Docket Number: 2018 No. 752 J.R.
• Date: 21 December 2018

BETWEEN

A FOSTER MOTHER

APPLICANT

AND

THE CHILD AND FAMILY AGENCY

RESPONDENT

THE BIRTH MOTHER

THE PROSPECTIVE ADOPTIVE PARENTS

NOTICE PARTIES

[2018] IEHC 762

Simons J.

2018 No. 752 J.R.

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Delay – Amendment of grounds – Applicant seeking judicial review – Whether the proceedings were inadmissible by reason of delay

Facts: A child remained in the care of the applicant, their foster mother, for approximately thirteen months before being placed with prospective adoptive parents in April 2018. The foster mother alleged 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 maintained that the statutory report prepared by the respondent, the Child and Family Agency, for the Adoption Authority of Ireland was deficient and, in particular, failed to include an up-to-date medical and psychological assessment of the child. The foster mother also complained that the statutory report did not communicate to the Adoption Authority that she wished to be considered as an adoptive parent herself. The precise nature of the relief sought by the foster mother evolved during the course of the judicial review proceedings. An application to amend the statement of grounds to include additional reliefs was made on the last day of hearing. The parties all agreed that it was in the best interests of the child that they remain in the care of their prospective adoptive parents. The foster mother expressly disavowed any relief which would delay or in any way interfere with the adoption process. Notwithstanding those concessions, it was nevertheless submitted that the High 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 an historic failure to have regard to the child’s best interests in March and April 2018. That failure was said to represent a breach of the child’s constitutional rights, and it was submitted that the court had an obligation to vindicate that breach by way of the granting of declaratory relief. The Child and Family Agency raised an objection that the proceedings were inadmissible by reason of delay.

Held by Simons J that the proceedings were inadmissible by reason of delay; the application was made outside the three month period allowed under Order 84, rule 21 of the Rules of the Superior Courts. Simons J refused an application for an extension of time. Simons J refused the application to amend the statement of grounds. Having made a late start, it behoved the foster mother to ensure that all issues which she wished to ventilate were put before the court at the time of the ex parte application for leave; Simons J held that it was not appropriate to seek to amend the proceedings on the final day of a six day trial. Simons J held that the effect of permitting the proposed amendment would be to change the scope of the case significantly, and would have required an adjournment in order to allow the Child and Family Agency an opportunity to adduce rebuttal evidence on the new issues. Simons J noted that the court has an obligation to ensure that proceedings concerning the adoption of a child are determined expeditiously and that to permit the amendment, and to delay the hearing further, would be inimical to this.

Simons J held that the application for judicial review would be dismissed.

Application dismissed.

JUDGMENT 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...