N and Another v Health Service Executive and Others

• Jurisdiction: Ireland
• Judge: Mr Justice MacMenamin
• Judgment Date: 23 June 2006
• Neutral Citation: [2006] IEHC 278
• Docket Number: [181SS/2006]
• Court: High Court
• Date: 23 June 2006

N & ANOR v HEALTH SERVICE EXECUTIVE (HSE) & ORS

BETWEEN

N & Anor.

APPLICANT

AND

HSE & Ors.

RESPONDENT

[2006] IEHC 278

[181SS/2006]

THE HIGH COURT

CONSTITUTIONAL LAW:

Family

Rights of child - Child placed for adoption - Withdrawal of consent - Presumption that welfare of child to be met within family - Test for rebutting presumption - Compelling reasons - Failure in duty by parents - Abandonment - In re J, an infant [1966] IR 295 and In re JH (inf) [1985] IR 375 distinguished - The Adoption (No 2) Bill,1987 [1989] IR 656; DG v Eastern Health Board [1997] 3 IR 511; North Western Health Board v HW [2001] 3 IR 622; Southern Area Health Board v An Bord Uchtála [2000] 1 IR 165 and Northern Area Health Board v An Bord Uchtála [2002] 4 IR 252 applied - Guardianship of Infants Act 1964 (No 7), ss3, 10(2)(a), 14 and 16 - Adoption Act 1974 (No 24), s 3 - Adoption Act 1988 (No 30) - Constitution of Ireland 1937, Articles 41.1,42.1 and 42.5 - Return of child to natural parents refused (2006/181SS - MacMenamin J - 23/6/2006) [2006] IEHC 278, [2006] 4 IR 374 N(E) v Health Service Executive (Baby Ann)

CONSTITUTION ART 40.4.2

CONSTITUTION ART 41

CONSTITUTION ART 42

ADOPTION ACT 1974 S3

FAHLBERG A CHILD'S JOURNEY THROUGH PLACEMENT

CHILD CARE ACT 1991

J, RE 1966 IR 295

H (J), RE 1983 IR 375

CONSTITUTION ART 42.5

GUARDIANSHIP OF INFANTS ACT 1964 S3

NORTH WESTERN HEALTH BOARD v W (H) & W (C) 2001 3 IR 622

G v AN BORD UCHTALA 1980 IR 32

G (O) v EASTERN HEALTH BOARD 1998 1 ILRM 241

ADOPTION (NO 2) BILL 1987, IN RE 1989 IR 656

CONSTITUTION ART 40.3

N (F) & B (E) v O (C) & ORS 2004 4 IR 311 2004/35/8210

GUARDIANSHIP OF INFANTS ACT 1964 S2

CONSTITUTION ART 42.1

W (P) v W (A) UNREP ELLIS 21.4.1980 1980/10/1862

GUARDIANSHIP OF INFANTS ACT 1964 S10(2)(A)

GUARDIANSHIP OF INFANTS ACT 1964 S14

GUARDIANSHIP OF INFANTS ACT 1964 S16

HEALTH ACT 1953 S55

CHILD CARE ACT 1991 S4

C (R) v S (I) 2003 4 IR 431

MCGEE v AG 1974 IR 284

N (F) v MIN EDUCATION 1995 1 IR 409

CONSTITUTION ART 40.3.1

F (M ) v SUPERINTENDENT BALLYMUN GARDA STATION 1991 IR 189

CIRPACI (ORSE MCCORMACK) v MIN JUSTICE 2005 2 ILRM 547 2005/10/2112

HULLY, STATE v HYNES 1966 100 ILTR 145

NICOLAOU, STATE v BORD UCHTALA 1966 IR 567

CAHILL v SUTTON 1980 IR 269

GUARDIANSHIP OF INFANTS ACT 1964 S11

OXFORD ENGLISH DICTIONARY CONCISE ED

M (P) v M (J) UNREP FINLAY 27.11.1984

D, RE 1987 IR 449

SHEEHAN v REILLY 1993 2 IR 81

CAHILL v GOVERNOR OF MILITARY DETENTION BARRACKS CURRAGH CAMP 1980 ILRM 191

STATE, TRIMBOLE v GOVERNOR OF MOUNTJOY PRISON 1985 IR 550

CONSTITUTION ART 40

Mr Justice MacMenamin

1 In February, 2006 counsel for the first named applicant appliedex parte to the High Court (O'Higgins J) for an inquiry pursuant to Article 40.4.2 of the Constitution of Ireland requiring the respondents herein to certify in writing the grounds for the detention of Ann the minor named in the title hereof. Counsel for the second applicant, the wife of Brian was present in court and Catherine was named as a notice party to the proceedings, although subsequently joined as a second applicant.

2 (For the purpose of clarity in delivering this judgment in public and to protect the identity of the child and the parties, those involved have been given fictional names or are referred to by initials).

3 The applicants (hereinafter Brian and Catherine, or “the Byrnes”, are the birth parents of Ann born in July, 2004. Since November of that year Ann has been in the care of the second and third named respondents herein for the purpose of adoption by them. Up to January, 2006, the applicants were unmarried and Ann's name at birth was registered as Ann C. Six weeks prior to the initiation of these proceedings the applicants were married in January, 2006. As members of a family so constituted they now seek custody of Ann, (whose name was re-registered as Ann Byrne pursuant to their rights under Article 41 and 42 of the Constitution of Ireland. They assert that there is no lawful basis for Ann to remain in the custody of the second and third named respondents (who for convenience I will refer to as the "Doyles" as counsel did during the course of the proceeding, and may also refer to them as David and Eileen in order to avoid any confusion).

4 Pursuant to order of this court the second and third named respondents certified their grounds for detention of Ann. The first named respondent (“the HSE”) did not file a certificate justifying the detention for reasons set out later. An Bord Uchtála the Adoption Board were named as a notice party but participated only insofar as related to their direct interest in the issue.

Prior to the Trial

5 Prior to describing the events giving rise to these proceedings it is necessary to deal with the way in which the issues were approached by the parties. The position of the Byrnes who are the applicants is relatively straightforward. Although on a slightly differing factual basis, they each as her birth parents claim entitlement to the custody of Ann. The Doyles deny this as a matter of law.

6 The situation of the first named respondent is more complex. It operates an adoption agency, which became involved in the arrangements for the adoption of Ann. When these proceedings were brought counsel for the HSE appeared on the return date and dates subsequent, as it considered certain duties devolved upon it to provide for the best interests of children in their functional area in the circumstances of an adoption. Counsel indicated to O'Higgins J that they would seek reports relating to the welfare of the child. These reports were to be obtained from a social worker and also a psychologist with particular expertise in the issues of attachment and bonding of children to adults. The HSE obtained the report of a social worker Ms G who is actually employed by that respondent. She interviewed the Byrnes and the Doyles. Arrangements were also put in place for the applicants to attend a psychologist Dr Gerard McDonald a Clinical Psychologist with the Department of Clinical Psychology in the Newry and Mourne Health and Social Services Trust. For reasons given to the court, the applicants did not attend the meetings arranged with Dr McDonald.

7 On the second day of the hearing Mr John Rogers Senior Counsel representing the first named respondent indicated that his client had taken the view that the child should be returned to the birth parents. This was on legal advice and on the basis of the report which was available to them from Ms G the Social Worker. However matters were rendered more complex procedurally by the fact that an employee of the HSE, Mr F a Senior Social Worker had dealt with the adoption procedure. His views regarding the welfare of Ann were contrary to those of Ms G. His conclusion was that the child should be allowed to remain with the Doyles and that her best interests lay there. Consequently the first named respondent was constrained to participate in the proceedings, by on the one hand advancing the recommendation made by Ms G, but also by seeking to vindicate the procedures adopted by Mr F in the course of the lengthy interaction between the Byrnes and the Health Service Executive.

8 The first and second named applicants were separately represented. Prior to their marriage they had previously taken legal advice. Senior counsel for Brian, Ms Dervla Browne SC indicated that on the facts the interest of her client might differ from those of his wife. This was in relation to rights which as a single father he sought to assert with regard to the adoption procedure prior to the marriage.

9 Ultimately the procedure adopted in this inquiry was premised on permitting each of the parties to advance their respective cases, and also where necessary to vindicate their position if necessary by cross-examination, and examination-in-chief.

10 For many reasons, it is unfortunate that no opportunity for seeking further directions from the court took place prior to the commencement of the hearing.

11 The sole form of proceeding before the court was pursuant to Article 40.4.2. No proceeding was brought on although the first, and also the second and third named respondents have initiated proceedings to have Ann made a ward of court. This of course is a separate matter. I last week, on an interim basis, made a wardship order.

12 The hearing also differed from a claim pursuant to s. 3 of the Adoption Act1974 in that the Doyles and the Byrnes had become acquainted in making arrangements for what was termed an "open" adoption. Therefore it was unnecessary for the proceedings to be phased in order to protect anonymity.

The Present Custody of Ann

13 The evidence establishes that since November, 2004 Ann has been in the custody of the Doyles pursuant to an arrangement whereby she was to be adopted. The Doyles are in their thirties and have no children. It is not disputed that Ann is living in a close, warm and supportive "family unit" for the last 18 months, having being placed with those respondents at the age of four months after a period of short term foster care.

14 Ann is described by all the professional witnesses who have seen her as a determined, bright, alert, friendly and affectionate child who sees the Doyles as her parents. It is not contested that they have been unstinting in their affection and their efforts to provide for her. The child is living in suitable accommodation. She attends a crèche three times a week and plays there with other children. She is friendly with two children who live close by, one of whom is very close in age to her. Also nearby are two children who she regards as her cousins. Also close by is Eileen's mother who Ann regards as her grandmother.

15 Ann identifies David and Eileen as her mother and father. The evidence is that she is...