S. -v- The Adoption Board, [2009] IEHC 429 (2009)

Docket Number:2008 487 JR
Party Name:S., The Adoption Board
Judge:O''Neill J.
 
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THE HIGH COURT2008 487 JRW. S.APPLICANTAND

THE ADOPTION BOARD RESPONDENT AND

  1. L.,

  2. L.

AND

ATTORNEY GENERALNOTICE PARTIESJUDGMENT of O'Neill J. delivered the 6th day of October 2009.

  1. Reliefs sought

    1.1 Leave for judicial review proceedings was first granted by this Court (Peart J.) on the 28th April, 2008. Leave was granted by this Court on the 4th June, 2008, and on the 29th October, 2008, to amend the statement of grounds. The reliefs now sought are as follows:-

  2. An order of certiorari quashing the adoption order relating to S.H., otherwise S.L., made by the Adoption Board on the 26th June, 2007.

  3. A declaration that the respondent acted ultra vires and/or in breach of natural and/or constitutional justice and/or in breach of the applicant's constitutional rights in failing to notify him in relation to the proposal to place his natural child S.H., otherwise S.L., for adoption and/or in failing to notify him of the making of the adoption order of the 26th June, 2006.

  4. A declaration that the respondent acted ultra vires and/or in breach of natural and/or constitutional justice and/or in breach of the applicant's constitutional rights in failing to inform the applicant of the steps it had taken to consult him in relation to the proposed placement for adoption of his natural daughter S.H., otherwise S.L.

  5. A declaration that the respondent acted ultra vires and/or in breach of natural and/or constitutional justice and/or in breach of the applicant's constitutional rights in failing to inform the applicant of the grounds upon which it did not notify him in relation to the proposal to place his natural child, S.H. otherwise S.L., for adoption or otherwise provide him with any information and/or documentation in relation to the said adoption upon his request.

  6. A declaration that the respondent's actions in failing to involve the applicant in the decision-making process leading to the adoption order of the 26th June, 2007, was in breach of the applicant's rights and/or the rights of S.H. which are either protected by the Constitution and/or protected by Article 6, 8 and/or 14 of the European Convention of Human Rights.

  7. An order of mandamus directing the Adoption Board to provide the applicant with copies of all information with which it has been furnished concerning the applicant and records of all or any decisions taken as regards the consultation procedure and in particular its obligation to take such steps as were reasonably practical to consult him pursuant to ss.7 and or/19A of the Adoption Act 1952 and/or ss. 4 and 6 of the Adoption Act 1998.

  8. Further or in the alternative an Order declaring s.19 of the Adoption Act 1952 to be unconstitutional and/or an order pursuant to the European Convention on Human Rights Act 2003 declaring s.19 of the Adoption Act 1952 to be incompatible with European Convention and in particular Articles 6, 8 and/or 14 thereof.

    1.2 During the course of the hearing, on the 13th May, 2009, the applicant was permitted to amend his statement of grounds to include a claim for breach of the respondent's statutory obligation to have notified the applicant of the adoption application.

  9. The facts

    2.1 The applicant, W.S. is the natural father of the child S., the subject of these proceedings. The first named notice party, N.L., is the mother of S. The second named notice party, P.L., is N. L.'s husband. An adoption order in respect of S. was made in favour of the notice parties on the 26th June, 2007, without the knowledge of W.S.

    2.2 W.S. and N.L. met in September, 1999, when the W.S. was 19 years old and N.L. was 15 years old. They commenced a relationship. N.L. resided with her mother and attended school. W.S., at that time, was a member of the defence forces and resided in barracks or with his parents. N.L. became pregnant and left school. The child S. was born on the 29th January, 2001. W.S. is named as the father of S. on her birth certificate, which was issued on the 6th March, 2001, and his parents' address is given as his address on it. W.S. left the army after the birth of S.

    2.3 It is the evidence of N.L. that her relationship with W.S. was fraught before and after the birth of the S. In her affidavit sworn on the 8th January, 2009, she stated that in February 2003 W.S. attempted to strangle her in the course of an argument and that he was charged with assault on foot of this. She further averred that she took the decision to withdraw her statement on the day of the hearing of the criminal proceedings as W.S. threatened to take his own life if she ended the relationship. She stated that after this incident W.S. harassed her and would shout threats at her through her mother's letterbox, though there were periods when he was calm.

    2.4 The relationship recommenced and in July 2003. W.S. and N.L. became joint tenants of a council property and began to co-habit. N.L. stated that in September 2003 a violent incident in their home prompted her to return to her mother's house with S. She recalled further threatening and abusive behaviour on the part of W.S., in her mother's home. After consulting a solicitor, N.L. obtained undertakings from W.S. that he would vacate their home, would undergo counselling and would desist from behaving in a threatening and abusive manner. W.S. complied with these undertakings and relations between him and N.L. improved until December 2003.

    2.5 On the night of the 16th / 17th December, 2003, W.S. babysat S. in the home of N. L.'s mother. Upon N. L.'s return an argument ensued after N.L. accused W.S. of having taken medication from a cabinet. N.L. called the gardaí and W.S. subsequently left the house. Later that night the gardaí returned to N. L.'s mother's house seeking the keys to the house the subject of the joint tenancy from N.L. to give to W.S. She informed them about the undertakings W.S. had given in respect of their house but she ultimately handed the keys of their house over. W.S. then set that house on fire. It is his evidence that, at the time, he was under the influence of controlled drugs and that he wished to take his own life. He fled the burning house, however, and alerted the neighbours, one of whom contacted the emergency services. The house was damaged to such an extent that it was rendered uninhabitable. S. did not witness the fire.

    2.6 W.S. was charged with arson contrary to s.2 of the Criminal Damage Act 1991 and was granted bail. One of the conditions of bail was that he would not contact N.L. or her mother. However, he was imprisoned for one week for breach of that condition. N.L. maintains that upon his release that he continued to breach this condition of bail. She instituted proceedings in the Circuit Court and, on consent, was granted an interlocutory injunction against W.S. on the 6th May, 2004, which restrained him from perpetrating any further assault on N.L., threatening, intimidating, harassing or otherwise putting her in fear of her wellbeing and safety. It also prohibited him from entering the family home and from attending at or near or watching or besetting the family home, with a similar prohibition in respect of N. L.'s mother's house.

    2.7 Later in May 2004, after the granting of the injunction, W.S. absconded to the U.K. It is accepted that the only contact he had with S. whilst he was away was through sending birthday and Christmas cards to S.

    2.8 The foregoing is essentially N.L's version of events. W.S., in his affidavits, whilst admitting that the relationship was difficult, in large measure due his ongoing depression, vehemently denies violence or other abusive behaviour towards N.L. and asserts that the relationship between them was continuous from 1999 until December 2003. Specifically, he avers that until December 2003 he was with S. on a daily basis and was very much part of her life and her upbringing during that time. He points to the fact that that in the summer of 2003, they agreed to jointly take a tenancy in a local authority house, as evidence that a strong relationship was there as of that time and continued until December 2003. He admits burning this house but seeks to correct the impression given by N.L. in her application to the respondent to the effect that the applicant or S. were in any way endangered by his arson of the house. He explains what he did as a suicide attempt prompted by a sense of hopelessness brought on by the incident that had occurred earlier that night when he had been forced to leave N.L.'s house, leading him to believe that the relationship with N.L. was finished. He averred that his leaving the jurisdiction was not to escape the prosecution but to avoid false allegations by N.L. that he was breaching the conditions of his bail. He avers that he has never threatened or imperilled the safety of N.L. or S. and apart from accidentally encountering N.L. on the street or in shops he has had no contact with them for in excess of 5 years and that there was and is no basis for N.L.'s assertion in her application to the respondent that there was an ongoing threat to her safety if he was notified of the adoption application. In this regard the applicant emphasises that since his return from the U.K. he has made no attempt to contact N.L or S. and has directed his communications through correct channels and that he only learned of the adoption order when it was raised by N.L. to defeat his application to the District Court in November 2007, for access to S.

    2.9 On the 31st December, 2003, N.L. and P.L. met and began a relationship. They married on the 14th October, 2005. They made an application to the respondent by letter dated the 6th November, 2005, seeking to adopt S. A child (B.) was born to them on the 18th December, 2006. On the 26th June, 2007, the adoption order was made in respect of S. They applied for a new birth certificate, which was granted. It is dated the 31st July, 2007, and P.L. is named as her father.

    2.10 In July 2006 W.S. returned to Ireland...

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