Northern Area Health Board v an Bord Uchtála

JurisdictionIreland
JudgeMrs Justice McGuinness
Judgment Date17 December 2002
Neutral Citation[2002] IESC 75
CourtSupreme Court
Docket Number[S.C. No. 147 of 2002]
Date17 December 2002
NORTHERN AREA HEALTH BOARD, H (W) & H (P) v. BORD UCHTALA & R (P)
IN THE MATTER OF THE ADOPTION ACTS 1952 TO 1988
AND IN THE MATTER OF J. O'D, AN INFANT

BETWEEN

NORTHERN AREA HEALTH BOARD AND W.H. AND P.H.
APPLICANTS/RESPONDENTS

AND

AN BORD UCHTÁLA AND P.R
RESPONDENTS

AND

P.O'D
NOTICE PARTY/APPELLANT

[2002] IESC 75

McGuinness J.

Hardiman J.

Geoghegan J.

No. 147/02

THE SUPREME COURT

Synopsis:

FAMILY LAW

Adoption

Foster care - Adoption Act, 1988 - Health Board - Abandonment - Parental duties of parent - Guardianship of Infants Act 196 - Whether the notice party due to her mental disability failed in her parental duty to her child - Whether the notice party had abandoned her parental rights to her child despite the fact that she had continued access to her child (147/2002 - Supreme Court - 17/12/2002) - [2002] 4 IR 252 - [2003] 1 ILRM 481

Northern Area Health Board v An Bord Uchtala

Facts: The notice party is the natural mother of the infant J the subject of these proceedings. The notice party had a difficult upbringing and is mildly mentally handicapped and suffered from behavioural and communication problems as a result. In 1998 the notice party became pregnant and attempted suicide as a consequence. After the birth of J the notice party was totally unresponsive to the needs of the baby and accordingly on 13th February 1989 the notice party agreed to place the baby in the voluntary care of the Health Board. On 17th August 1989 W.H. and P.H. became the long-term foster parents of J. It subsequently transpired that J was suffering from Cerebral Palsy with right Hemiplegia. However she continued to remain in the care of Mr and Mrs H and they subsequently moved to Dublin to live. The notice party's health continued to deteriorate and in 1997 she was diagnosed with chronic schizo-affective psychosis overburdening a degree of mild mental handicap. She was admitted to hospital on a number of occasions.

Mr and Mrs H made a formal application for adoption in May 1997. The notice party refused to consent to the adoption of J and the Health Board also refused to support the application due to the possible impact on the notice party's health. The respondent made a declaration under Section 2 of the Adoption Act, 1988 on 13th October 1998 and a special summons issued on 8th March 2001 seeking an order pursuant to Section 3(1) of the Adoption Act 1988. The matter was transferred to the Health Board of the area where Mr and Mrs H and J had moved to and the Health Board reversed its earlier decision regarding the adoption of J. The notice party visited her daughter on numerous occasions and she refused to formally consent to the adoption of J because she feared that she would no longer be able to see her child. Mr Justice Herbert made an order on 3rd May 2001 pursuant to Section 3 of the Adoption Act 1988 authorising an Bord Uchtala to make an Adoption Order in relation to J in favour of Mr and Mrs H. The notice party filed a notice of appeal on 24th May 2002 against this decision.

The notice party relied greatly on her right to guardianship and custody of her child as contained in the Guardianship of Infants Act, 1964. Specifically the notice party submitted that she had at all times when she was in sufficiently good health exercised her right to access and it was further submitted that the right to access was an inherent part of the right to custody. The notice party also alleged that she had not failed in her duty to her child and further that there was an inherent contradiction in the findings of fact upon which the learned trial judge bases his conclusions in that Herbert J. found that the notice party had for physical reasons due solely to mental illness, chronic severe depression and a mild impairment of mental function totally failed in her duty towards her daughter. However the presumption of abandonment seemed to be based on a finding that the notice party would have been able to care for her child even if inadequately. It was also submitted by the notice party, who had exercised rights of access over the years and who refused to consent to the adoption of J that she could not therefore have abandoned either her statutory or constitutional rights.

Held by the Supreme Court (McGuinness, Hardiman, Geoghegan JJ) in dismissing the notice party's appeal: 1. That the Adoption Act 1988 is a child-centred Act that provides for the adoption in children of married parents in limited circumstances. Therefore a purposive approach should be applied to the interpretation of this statute.

2. That the right to custody under the Guardianship of Infants Act 1964 is by no means absolute. The rights conferred by this Act do not alter or add to the rights already possessed by the notice party under Article 40.3 of the Constitution as the mother of her child. These rights are fully protected by the criteria set out in the 1988 Act.

3. That sub clause A of Section 3(1)(I) of the 1988 Act speaks of the performance rather than the exercise of parental rights. Parental duties means the normal day to day care of the child.

4. That the trial judge had before him ample evidence to establish that on account of her disability the notice party had been unable to fulfil her parental role for the entire of J's life.

That the learned trial judge fell into error in basing his findings of abandonment on the conclusion that the notice party's condition was not such as to prevent her caring for J to even a minimum degree. There was an inherent contradiction in holding on the one hand that for physical reasons the notice party had totally failed in her duty towards her child and on the other hand holding that she could have cared for her child but had failed to do so. The requirement of abandonment is not to be considered in isolation, separate from the failure of duty. The behaviour of the notice party amounted in a real and objective sense to abandonment of her rights as a parent.

Reporter: L O'S

Citations:

ADOPTION ACT 1988 S3(1)

ADOPTION ACT 1988 S2

ADOPTION ACT 1988 S3(2)

ADOPTION ACT 1988 S2(1)

ADOPTION ACT 1988 S2(2)

ADOPTION ACT 1988 S3

ADOPTION ACT 1988 S4(1)

ADOPTION ACT 1988 S4(2)

ADOPTION ACT 1988 S4(3)

GUARDIANSHIP OF INFANTS ACT 1964 S6(4)

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

CONSTITUTION ART 40.3

G V BORD UCHTALA 1980 IR 32

GUARDIANSHIP OF INFANTS ACT 1964 S11(2)(A)

ADOPTION ACT 1988 S3(1)(I)(C)

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

WESTERN HEALTH BOARD V BORD UCHTALA 1995 3 IR 178

SOUTHERN HEALTH BOARD & D (M) & D (J) V BORD UCHTALA UNREP HIGH 20.12.2001

ADOPTION ACT 1988 S3(1)(I)(A)

CONSTITUTION ART 42.5

SOUTHERN HEALTH BOARD V BORD UCHTALA 2000 1 IR 165

CONSTITUTION ART 26

ADOPTION ACT 1988 S4

ADOPTION ACT 1988 9

ADOPTION ACT 1952 S10

ADOPTION ACT 1952 S14

ADOPTION ACT 1974 S3

CONSTITUTION ART 41

CONSTITUTION ART 42

BANK OF IRELAND V PURCELL 1989 IR 327

FAMILY HOME PROTECTION ACT 1976

GUARDIANSHIP OF INFANTS ACT 1964 S10

GUARDIANSHIP OF INFANTS ACT 1964 S14

GUARDIANSHIP OF INFANTS ACT 1964 S16

HEALTH ACT 1953 S55

CHILD CARE ACT 1991

NICOLAOU, STATE V BORD UCHTALA 1966 IR 567

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

ADOPTION ACT 1988 S3(1)(I)(B)

ADOPTION ACT 1988 S3(1)(I)(D)

ADOPTION ACT 1988 S3(1)(II)(A)

ADOPTION ACT 1988 S3(1)(II)(B)

ADOPTION ACT 1988 S3(1)(III)

ADOPTION ACT 1988 S3(II)

1

Judgment of Mrs Justice McGuinness delivered the 17th day of December 2002

2

This is an appeal by the notice party, P. O'D against the judgment and order of Herbert J. delivered the 3 rd day of May 2002, wherein the High Court directed, pursuant to the provisions of Section 3(1) of the Adoption Act 1988, that An Bord Uchtála be authorised to make an adoption order in relation to J. O'D in favour of W.H. and P.H.

The Facts
3

The factual background to these proceedings is set out in full and comprehensive detail by the learned High Court judge in his judgment of 3 rd May 2002. Since the facts are by and large not in issue between the parties, it is sufficient to set them out in summary form here. The child who is at the centre of these proceedings, J.O'D (whom I shall call J) was born on 29 th December 1988 and is now almost 14 years of age. Her mother, P.O'D, who is the notice party in these proceedings, came from an extremely deprived family and was as a child for a time placed in voluntary care of the local health board. She was diagnosed in 1982 as being mildly mentally handicapped with behaviour problems and difficulties of communication. In 1984 she had further problems of aggressive behaviour and was found to have indications of psychosis. When J. was born P.O'D was 21 years of age. After the birth she was totally unresponsive to the needs of the baby. She was unable to feed her or care for her in any way.

4

Little is known of the father of J. It appears that he once visited P.O'D and the baby shortly after the birth, when they were still in a mother and baby home, but P. did not want to have anything further to do with him as he had been violent towards her. He never supported J. financially and, it appears, has never had any contact with her. In accordance with the terms of the Adoption Act 1988, the father was notified by registered post on 26 th June 1998 of the preliminary hearing before the Adoption Board in connection with the proposed adoption of J. by Mr and Mrs H. The registered letter was returned marked "not known". The father was also personally served by a summons server with notice of the proceedings before the High Court. He did not appear before the Court nor did he instruct any one to appear on his behalf.

5

On account of P.O'D's (whom I shall call P.) inability to care for her baby, J. was admitted to voluntary care with the local health board on the 13 th February 1989 when she was six weeks old. She was placed with short term foster parents, but...

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