S (W) v Adoption Board

• Jurisdiction: Ireland
• Judge: O'Neill J.
• Judgment Date: 06 October 2009
• Neutral Citation: [2009] IEHC 429
• Date: 06 October 2009
• Court: High Court
• Docket Number: [2008 No. 487 JR]

[2009] IEHC 429

THE HIGH COURT

No. 487 J.R./2008

S (W) v Adoption Board

W. S.

APPLICANT

AND

THE ADOPTION BOARD

RESPONDENT

AND

N. L.,

P. L.

AND

ATTORNEY GENERAL

NOTICE PARTIES

EUROPEAN CONVENTION OF HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

EUROPEAN CONVENTION OF HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

EUROPEAN CONVENTION OF HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 14

ADOPTION ACT 1952 S7

ADOPTION ACT 1952 S19(A)

ADOPTION ACT 1998 S4

ADOPTION ACT 1998 S6

ADOPTION ACT 1952 S19

GUARDIANSHIP OF INFANTS ACT 1964 S11

ADOPTION ACT 1952 S19A(3)

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S45

ADOPTION ACT 1952 S16(1)

ADOPTION ACT 1952 S3

ADOPTION ACT 1998 S5

ADOPTION ACT 1952 S16(1)(D)

ADOPTION ACT 1998 S2

ADOPTION ACT 1952 PART IA

ADOPTION ACT 1998 PART 7D(1)

ADOPTION ACT 1998 S6

ADOPTION ACT 1952 S19A(3)

ADOPTION ACT 1998 S4(7)(E)

ADOPTION ACT 1998 S4(7)(F)

ADOPTION ACT 1974 S2

ADOPTION ACT 1952 S24

ADOPTION ACT 1988 S7

ADOPTION ACT 1952 S2

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3

ADOPTION ACT 1952 S16(1)

ADOPTION ACT 1952 S19A(3)

ADOPTION ACT 1974 S2

ADOPTION ACT 1974 S5

STATE (NICOLAOU) v BORD UCHTALA 1966 IR 567

ADOPTION ACT 1998 S6

ADOPTION ACT 1952 S19A(2)

G v BORD UCHTALA 1980 IR 32

K(J) v V(W) 1990 2 IR 437

KEEGAN v IRL 1994 18 EHRR 342

O'R W v E(H) 1996 2 IR 248 1

ADOPTION ACT 1998 S7(F)(1)

ADOPTION ACT 1998 S7(F)(3)

ADOPTION ACT 1952 S4

ADOPTION ACT 1952 S19(4)

ADOPTION ACT 1952 19(A)(3)(16)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 19A(2)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 20032003 ART 6(1)

ESKI v AUSTRIA 2007 1 FLR 1650

LEBBINK v NETHERLANDS 2004 2 FLR 463

BOUGHANEMI v FRANCE 1996 22 EHRR 228

CILIZ v NETHERLANDS ECHR 11.07.2000 APPLICATION NO 29192/95

GUL v SWITZERLAND UNREP ECHR 10.10.1994 App No. 23218/94

ADOPTION AGENCY REGS 2005 SI 289/2005 (UK)

ADOPTION RULES 1984 R 4(4)

FAMILY PROCEDURE ADOPTION RULES 2005 R23(3)(UK)

ADOPTION RULES 1984 R15(3)

L, IN RE 2008 1 FLR 1079

H, IN RE G ADOPTION CONSULTATION OF UNMARRIED FATHERS 2001 1 FLR 646

M, IN RE ADOPTION RIGHTS OF NATURAL FATHER 2001 FLR 745

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S16(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S19A(2)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S19A(3)

ADOPTION ACT 1976 S5

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 40

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 41

ADOPTION ACT 1976 S16(1)

CONSTITUTION ART 40.3

ADOPTION ACT 1976 S5(1)(A)

ADOPTION ACT 1976 S5(1)(B)

FAMILY LAW

Adoption

Father - Rights of natural father to child - Adoption order made without natural father being notified - Natural parents unmarried - Application to adopt child by natural mother and her husband - Validity of order - Certiorari - Whether natural father has right to be notified of application for adoption - The State (Nicolaou) v An Bord Uchtála [1966] IR 567 distinguished; G. v An Bord Uchtála [1980] IR 32 considered - Adoption Act 1952 (No 25), ss 7D, 16, 19A(3) and 24 - Adoption Act 1976 (No 29), s 5 - Adoption Act 1988 (No 30), s 7 - Adoption Act 1998 (No 10), ss 4, 5 and 6 - Certiorari granted (2008/487JR - O'Neill J - 6/10/2009) [2009] IEHC 429

S(W) v Adoption Board

Facts section 16(1) of the Adoption Act 1952, as amended, provides, inter alia, that the natural father is entitled to be heard on an application for an adoption order of his child. Section 19A of the Act of 1952 provides, inter alia, that "(2)on the receipt of an application for an adoption order, the Board shall take such steps as are reasonably practicable to consult the father of the child in relation to the matter of the adoption. (3) Whether the Board is satisfied, that, having regard to the nature of the relationship between the father and the mother or the circumstances of the conception of the child, it would be inappropriate for the Board to consult the father in respect of the adoption of the child, the Board may make the adoption order without consulting the father." Section 7E of the Act of 1952 provides, inter alia, that "where an adoption agency proposes to place a child for adoption and the identity of the father is known to the agency, the agency shall, before placing the child for adoption, take such steps as are reasonably practicable to consult the father" Section 2 of the Adoption Act 1974 provides that "in anyapplication or proceedings before the Board or any court relating to the arrangements for the making of an adoption order, the Board or the court, in deciding that question, shall regard the welfare of the child as the first and paramount consideration." Leave for judicial review had been granted by the High Court allowing the applicant seek, inter alia, an order of certiorari of the decision of the respondent making an adoption order in respect of his daughter to her mother's new husband on the grounds that it had failed to notify him of the application for the said adoption order. The relationship between the applicant and his daughter's mother had broken down after a period of about three years co-habitation with their daughter. Her mother married another man shortly afterwards and applied to the respondent seeking to adopt the applicant's daughter. In the application, the child's mother stated, incorrectly, that she was unaware of the respondent's whereabouts and requested that he not be notified of the application in any event on the grounds that it would place her in danger. The respondent made the adoption order without making any prior attempt to notify the applicant of the application for the adoption order or giving him an opportunity to have his views heard in relation thereto. The respondent opposed the application for judicial review on the grounds that it had acted reasonably within its statutory discretion in not notifying the applicant that an application had been made to it for the adoption of his daughter.

Held by Mr. Justice O'Neill in granting the relief sought, 1, that family life within the meaning of Article 8 of the European Convention on Human Rights extended beyond families based on marriage to include other de facto families, as when parties lived together. A child born within such a relationship enjoyed a relationship amounting to family life with its parents. The existence of family life under Article 8 was a question of fact which depended on the existence of the requisite personal ties.

2. That, in establishing whether family life existed between a natural father and his child, the Court would adopt a pragmatic approach in identifying the necessary personal ties. If that relationship existed, a very high threshold had to be reached to demonstrate that those ties had been extinguished by subsequent events. If a natural father who enjoyed family life with his child was deprived of any participation in adoption proceedings it would have to be established whether such a decision to exclude him was in accordance with the law, necessary in a democratic society and pursued a legitimate aim. A Child's interests could override that of a natural parent.

3. That there was family life within the meaning of Article 8 of the Convention between the applicant and his daughter which was evidenced by the fact that he and her mother had been in a relationship after the birth of the child, during part of which they cohabited and that he enjoyed contact with the child for three years following her birth.

4. That the existence of an Article 8 relationship between the applicant and his daughter was sufficient to trigger the obligation to notify the applicant unless the circumstances of the conception or the nature of the relationship between the applicant and the child's mother were of such extreme or exceptional kind as to have either severed the Article 8 family tie or to have been a proportionate response in the light of the circumstances, bearing in mind the paramount welfare of the child.

5. That, as the applicant's Article 8 rights had been engaged, it necessarily followed that, pursuant to section 2 of the European Convention on Human Rights Act 2003, sections 16(1) and 19A of the Act of 1952 had to be interpreted, as far as it was possible, in a manner consistent with the State's obligations under the European Convention on Human Rights.

The State (Nicolaou) v. An Bord Uchtla [1966] I.R. 567 overruled.

6. That a purposive, child-centred, approach was required in the interpretation of section 19A(3) of the Act of 1952, as amended. The operation of section 19A(2) and (3) were essential features of the making of an adoption order, not dispensable preliminaries and a relevant factor which the respondent had to consider in making an adoption order and all the requisite preliminary steps thereto was the nature of the relationship between the child and its natural father.

7. That the consequences of the non-notification of a natural father was that a central party to the adoption proceedings was excluded which created a real risk that the process could be flawed or kiltered by the sole reliance on one-sided information that could turn out to be inaccurate or otherwise unreliable which would create a grave risk of a serious breach of the natural father's constitutional right to fair procedures and natural justice and his rights under Article 6 of the European Convention on Human Rights, resulting in a serious injustice being done to the natural father and the child. The version of events propounded by the applicant for the adoption order had to be corroborated or supported by reliable independent evidence. The information given to the respondent which moved or persuaded it to withhold notification of the adoption proceedings to...