McC v The Eastern Health Board

• Jurisdiction: Ireland
• Judge: Keane J.
• Judgment Date: 01 January 1997
• Neutral Citation: 1996 WJSC-SC 4064
• Docket Number: [S.C. No. 176 of 1996]
• Court: Supreme Court
• Date: 01 January 1997

MCC v. EASTERN HEALTH BOARD

BETWEEN

McC AND McD

Applicants/Appellants

AND

THE EASTERN HEALTH BOARD

Respondents

1996 WJSC-SC 4064

Hamilton, C.J.

Barrington, J.

Keane, J.

176/96

THE SUPREME COURT

Synopsis:

ADOPTION

Foreign child

Procedure - Applicant - Suitability - Assessment - Expedition - Requirement - Health Board - Report - Applicant's complaint of unreasonable delay by defendant board in processing application - Statutory requirement that Health Board effect assessment as soon as practicable - Issue to be determined in light of situation existing in functional area of defendant board - Adoption Act, 1991 (No. 17), ss. 5, 8 - (176/96 - Supreme Court - 29/7/96)

|McC. v. Eastern Health Board|

TRIBUNAL

Enquiry

Commencent - Delay - Adoption - Applicant - Suitability - Assessment - Applicant sought adoption of foreign child - Statutory requirement that assessment of applicant be effected as soon as practicable - Obligation not equivalent to duty to effect assessment as soon as possible - (176/96 - Supreme Court - 29/7/96) - [1996] 2 IR 296 - [1997] 1 ILRM 349

|McC. v. Eastern Health Board|

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WORDS AND PHRASES

"As soon as practicable"

Tribunal - Application - Determination - Commencement - Delay - Applicant sought adoption of foreign child - Statutory requirement that assessment of applicant be effected as soon as practicable - Obligation not equivalent to duty to effect assessment as soon as possible - (176/96 - Supreme Court - 29/7/96) - [1996] 2 IR 296 - [1997] 1 ILRM 349

|McC. v. Eastern Health Board|

Citations:

CONSTITUTION ART 40

CONSTITUTION ART 41

CONSTITUTION ART 42

ADOPTION ACTS 1952 – 1991

ADOPTION ACT 1952 S13

ADOPTION ACT 1991 S5(1)

ADOPTION ACT 1991 S10

ADOPTION ACT 1991 S8(1)

ADOPTION ACT 1991 S5(1)(a)(iii)(II)

CHILD CARE ACT 1991 S3(1)

CHILDREN ACT 1908

ADOPTION ACT 1991 S5

ADOPTION ACT 1991 S8

LOCAL GOVT ACT 1991 S7

LOCAL GOVT ACT 1991 S7(1)

HOEY V MIN FOR JUSTICE 1994 1 ILRM 334

HOBBS V HURLEY UNREP COSTELLO 10.6.80 1980/6/1106

DONOVAN V AG 1961 IR 114

CONSTITUTION ART 16.2.3

LEE V NURSERY FURNISHINGS LTD 61 TLR 663

BUTLER, APPL OF 1970 IR 45

MIN FOR AGRICULTURE V KELLY 1953 NI 151

ROAD TRAFFIC ACT 1961

COURTHOUSE (PROVISION & MAINTENANCE) ACT 1935

1 JUDGMENT delivered the 29th day of July, 1996 by Keane J. [NEM DISS]

2 Each of the Applicants in this case wishes to adopt a Chinese child. They were informed by the Adoption Board that their suitability as adoptive parents would have to be assessed in the first instance by the Respondents in whose functional area each of the Applicants resides. They were told by the Respondents that they would have to attend an information session on May 16th, 1996. (The initial inquiry by the first named Applicant was made in February, 1996 and by the second named Applicant in November, 1995.) The first named Applicant was also informed that there would be a further additional delay of at least seven or eight months before a social worker began the process of assessment and that the assessment itself would take a further year. Information of broadly the same character was given to the second named Applicant.

3 Each of the Applicants made enquiries which satisfied them that the waiting period before the assessment process began was significantly less in the functional areas of other health boards throughout the country. They then sought the leave of the High Court to institute proceedings by way of judicial review claiming interalia:

4 (1) An order of mandamus to compel the Respondent to undertake the necessary process of assessment;

5 (2) Declarations that the Applicants are entitled to be assessed by the Respondents within a reasonable period of time and that the waiting period of at least seven to eight months constitutes an unlawful denial of the Applicants' statutory right to be assessed; and

6 (3) A declaration that the failure by the Respondent to undertake the process of assessment constituted an unlawful interference with the family rights of the Applicants as guaranteed by the Constitution and in particular Articles 40, 41 and 42 thereof.

7 On the 27th March, 1996, McCracken J. gave leave to the Applicants to issue such proceedings. A Statement of Opposition having been filed on behalf of the Respondents, the proceedings were heard by Shanley J. who, in an ex tempore judgment delivered on the 14th June last, dismissed the Applicants' claim. Both the Applicants now appeal to this Court.

8 The relevant provisions of the Adoption Acts, 1952to 1991 should first be considered. Section 13 of the Adoption Act 1952provides that:

9 2 "(1) The (Adoption) Board shall not make an adoption order unless satisfied that the Applicant is of good moral character, has sufficient means to support the child and is a suitable person to have parental rights and duties in respect of the child.

10 (2) Where the Applicants are a married couple, the (Adoption) Board shall satisfy itself as to the moral character and suitability of each of them."

11 S. 5(1) of the Adoption Act 1991 (hereinafter "the 1991 Act"), so far as material, provides that:

"A foreign adoption... shall be deemed, unless such deeming would be contrary to public policy, to have been effected by a valid adoption order made "

(a) on the date on which the adoption was effected...

12 if, but only if -

13 (i) the adopters are persons coming within the classes of persons in whose favour an adoption order may, by virtue of s. 10 of this Act, be made,

14 (ii) the adopters were ordinarily resident in the State on the date on which the adoption was effected, and

15 (iii) ... (II) In case the adoption was effected on or after the 1st day of April, 1991, the (Adoption) Board declares in writing before the date on which the adoption was effected -

16 (a) that it is satisfied that the adopters are persons coming within the classes of persons in whose favour an adoption order may, by virtue of the said s. 10, be made, and

17 (b) that (having had regard to a report by the health board in whose functional area the adopters were ordinarily resident at the time of the assessment, or by a registered adoption society, of an assessment as respects the matters referred to in s. 13 of the Principal Act in relation to the adopters carried out by the board or the society, as the case may be) it is satisfied in relation to the adopters as respects the matters referred to in the said s. 13."

18 S. 10 of the 1991 Act provides that an adoption order shall not be made unless the applicants are a married couple who are living together, or the applicant is the mother or father or a relative of the child, or the applicant is a widow or a widower.

19 S. 8(1) of the Adoption Act 1991provides that

"whenever a health board is so requested, for the purposes of s.5(1)(iii)(II) of this Act, by a person or persons who is or are ordinarily resident in its functional area, it shall, as soon as practicable - "

(a) carry out an assessment of the person or persons as respects the matters referred to in Section 13 of the Principal Act and shall prepare a report in writing of the assessment and shall transmit the report to the (Adoption) Board or

(b) arrange for the carrying out of such an assessment and the preparation of such a report in relation thereto by a registered adoption society and shall transmit the report to the (Adoption) Board."

20 Each of the Applicants swore affidavits deposing to the reasons as to why they, and their respective spouses, wish to adopt a child, and in particular a Chinese child. On behalf of the Respondents, Shay Smyth, an officer in the child care sector of the Respondents, swore an affidavit in which he set out the "procedures adopted by the Respondents in the case of applications for declarations of suitability under S. 5(1)(a)(iii)(II). He said that the unit which conducted assessments consisted of four social workers supervised by one senior social worker, all of whom had been trained and had specific experience in the area of child care and adoption. He said that this unit had been set up following the coming into operation of the 1991 Act for the specific purpose of carrying out inter country adoption assessments. The Respondents, he said, were the only health board in the country with a specialised unit set up for those purposes.

21 Mr. Smyth confirmed that persons who made enquiries in writing as to the possibility of adopting a foreign child, as the Applicants had done, were invited to attend a general information meeting. At those meetings the couples attending were advised in a general way of the procedures to be complied with under the 1991 Act. Those attending were also furnished with an information leaflet and were, according to Mr. Smyth, asked to take a period to reflect on what they had learned before making a final decision as to whether they wished to proceed with an application for assessment; they were specifically advised that a decision to adopt a child, especially a foreign child, was not one which should be lightly taken.

22 Mr. Smyth said that following the information meeting couples were asked to make a formal written application to the Respondents for assessment and the application, when received, was placed in the numerical list of those "waiting for assessments. He said that the current waiting period before an assessment was taken up by a social worker was seven months and that the assessment then involved a minimum of ten interviews with the Applicants concerned over a period extending up to nine months. He said that there were many areas which had to be covered in an assessment, including intimate details of the personality and motivation of the prospective adopters, their relationship, their expectations of placement and their parenting capacity.

23 Mr. Smyth said that during the assessment process all applicants...