Southern Health Board v an Bord Uchtála

• Jurisdiction: Ireland
• Judgment Date: 11 June 1999
• Date: 11 June 1999
• Docket Number: [S.C. No. 136 of 1995]
• Court: Supreme Court

Supreme Court

[S.C. No. 136 of 1995]

Southern Health Board v. An Bord Uchtála

Southern Health Board

Applicant

and

An Bord Uchtála, Respondent: M.O'D. and M.O'D., Notice Parties

Cases mentioned in this report:-

G. v. An Bord Uchtála [1980] I.R. 32; (1980) 113 I.L.T.R. 25.

Hay v. O'Grady [1992] 1 I.R. 210; [1992] I.L.R.M. 689.

Adoption - Marital child - Failure in duty of parents - Whether failure likely to continue until child attains the age of eighteen - Whether such failure constitutes abandonment of all parental rights - Whether intention relevant - Adoption Act, 1988 (No. 30), ss. 2, 3 and 4.

Words and phrases - "Abandonment" - Adoption Act, 1988 (No. 30), s. 3(I)(C).

Appeal from the High Court.

The facts are summarised in the headnote and are set out more fully in the judgment of Denham J., infra.

By order of the High Court (Costello P.) dated the 23rd March, 1995, it was directed, pursuant to the provisions of s. 3(1) of the Adoption Act, 1988, that An Bord Uchtála be authorised to make an adoption order in relation to F.O'D. in favour of Mr. and Mrs. C.

By notice of appeal dated the 20th April, 1995, the notice parties, the natural parents of F.O'D., appealed to the Supreme Court.

The appeal was heard by the Supreme Court (Denham, Barrington, Keane, Murphy and Lynch JJ.), on the 13th April, 1999.

Section 3 of the Adoption Act, 1988, provides that the High Court may make an order authorising An Bord Uchtála to make an adoption order in relation to a marital child of whom one or both parents are living, where certain matters are established to the satisfaction of the court including, inter alia, the following:-

"Section 3(1)(I) that -

• (A) for a continuous period of not less than 12 months immediately preceding the time of the making of the application, the parents of the child … for physical or moral reasons, have failed in their duty towards the child,

• (B) it is likely that such failure will continue without interruption until the child attains the age of 18 years,

• (C) such failure constitutes an abandonment on the part of the parents of all parental rights, whether under the Constitution or otherwise, with respect to the child, and

• (D) by reason of such failure, the State, as guardian of the common good, should supply the place of the parents, …"

F.O'D., the infant the subject of these proceedings, was made the subject of a fit persons order pursuant to s. 58 of the Children Act, 1908, due to concerns for his welfare on the part of welfare officers. He was placed in the care of Mr. and Mrs. C. who were the applicants for the adoption order at issue in the proceedings. In 1989, F.O'D. was returned by District Court order to the notice parties, his natural parents. Following admission to hospital suffering from injuries suggestive of beatings and neglect, a second fit persons order in respect of F.O'D. was made in 1990, committing F.O'D. into the care of the Southern Health Board until he attained the age of sixteen. The Southern Health Board returned the child to the care of his original foster parents, Mr. and Mrs. C. where he then remained.

Mr. and Mrs. C. applied to An Bord Uchtála to adopt F.O'D. pursuant to s. 2 of the Adoption Act, 1988, which provides for such an application to be made in cases in which, but for the Act, the board would have no power to make an adoption order. In accordance with the provisions of s. 2 of the Act of 1988, the board heard the application and adjourned the making of the order in favour of Mr. and Mrs. C. pending an order of the court pursuant to s. 3(1). An order pursuant to s. 3(1) of the Act, authorising An Bord Uchtála to make an adoption order in favour of Mr. and Mrs. C. was made by the High Court (Costello P.).

The notice parties appealed to the Supreme Court against the order of the High Court. The notice parties submitted (a) that the High Court was incorrect in holding on the evidence before it that the criteria as laid down by s. 3(1) of the Adoption Act, 1988, had been satisfied, (b) that the High Court was not entitled to infer that the notice parties had abandoned F.O'D. within the meaning of s. 3(1)(I)(C) of the Act as there must be an intention to abandon the child, (c) that due regard had not been paid to the suitability of placing the child in a different culture and different sized family, and (d) that in any event, adoption was not an appropriate remedy and that the child should be entitled to decide for himself when the fit persons order expired on his reaching the age of sixteen years.

Held by the Supreme Court (Denham, Barrington, Keane, Murphy and Lynch JJ.), in dismissing the appeal, 1, that insofar as the appeal related to matters of fact, the Supreme Court was bound by findings of fact made by the trial judge which were supported by credible evidence.

Hay v. O'Grady [1992] 1 I.R. 210 approved.

2. That the failure in the duty of the parents, within the meaning of s. 3 (1)(I)(A) of the Adoption Act, 1988, was established. The neglect which resulted in such failure could encompass not only the physical acts but also any psychological damage that a child sustained.

3. That this failure of duty constituted an abandonment of parental rights within the terms of s. 3 (1)(I)(C). In s. 3(1)(I)(C) the word "abandonment" was used as a special legal term. The section did not require that there be an intention to abandon and parents may also be said to have abandoned their child, where, by their actions, parents have failed in their duty so as to enable a court to deem that their failure constitutes an abandonment of parental rights.

• G. v. An Bord Uchtála [1980] I.R. 32 approved.

4. That, in relation to the question of whether a child's interests were best served by placing him in a different culture and family background, this was an open placement, the circumstances of the matter were considered by An Bord Uchtála, and there was no reason to assume that they were not given due consideration.

5. That it was inappropriate to consider the proposition that the application be denied and that it be reconstituted when the child was sixteen as this matter had not been argued in the High Court.

Cur. adv. vult.

Denham J. 11th June, 1999

This is an appeal by the notice parties against the judgment and order of Costello P. delivered on the 23rd March, 1995, wherein the High Court directed, pursuant to the provisions of s. 3(1) of the Adoption Act, 1988, that An Bord Uchtála be authorised to make an adoption order in relation to F O'D., in favour of Mr. and Mrs. C.

F O'D., the infant who is the subject of these proceedings, was born on the 12th October, 1986. On the 16th December, 1987, he was made the subject of a fit persons order pursuant to the provisions of the Children Act, 1908. He was entrusted to the care of Mr. and Mrs. C., who are the applicants for the adoption order in issue in these proceedings. F O'D. remained with Mr. and Mrs. C. until August, 1989, when he was returned by District Court order to his natural parents M O'D. and M O'D., the notice parties. In December, 1989, he was again placed in the care of Mr. and Mrs. C. and was the subject of a fit persons order in February, 1990. He has remained with Mr. and Mrs. C. since then.

First fit persons order

The matter was at hearing before the High Court on the 7th, 8th and 9th March, 1995. Facts were found by the learned trial judge, including:-

"[F O'D]'s parents … are travellers and come from a very deprived background. They are not able to read or write. They have eleven children two of whom are younger than [F O'D], who was born on the 12th October, 1986. The Southern Health Board became involved in [F O'D]'s welfare on the 15th December, 1987, when the gardaí made contact with the Welfare Department as a result of which one of their welfare officers, Miss Mullane, visited the camp-site where [F O'D] and his family were living. [F O'D]'s parents were not at the site at the time of her visit. [F O'D] was inside a caravan tied by a string around his waist to its window. He was in a sitting position but was unable to lie down because of the manner in which the string was tied.

His ten year old sister and two young brothers aged five and six were also on the site. A paraffin heater was lighting in the caravan. It had only a half door. It was a very cold and wet day. [F O'D]'s legs and hands were bare and purple with cold. Miss Mullane took [F O'D] from the site. When he was examined it was found that he had a very bad nappy rash and he was medically diagnosed as being on the verge of pneumonia."

As a result, on the following day, on the application of the Health Board, an order was made under s. 24 of the Children Act, 1908. F O'D. was given into the care of Mr. and Mrs. C. F O'D. remained with Mr. and Mrs. C., his foster parents, until the beginning of August, 1989, when, as a result of a District Court order, he was returned to his parents, the notice parties. There was concern about F O'D. on the part of staff of the Southern Health Board when visiting during the following months. On the 1st September, 1989, it was noticed that his hands were puffy and hard. There was some difficulty visiting him again because the family had moved. On the 28th September, 1989, the family was found and it was discovered that F O'D. had been put in a trailer with a brother and he appeared to be very withdrawn and frightened. Again the family moved and care for the family was transferred to another social worker with concern being expressed about the situation. There was a visit on the 26th October, 1989. It was found that F O'D. was not with the family and it was said that he was with relatives. Again, in November, 1989, on a visit, F O'D. was not present and the social worker was told that he was with relatives. On the 4th December, 1989, once again F O'D. was not found with his family.

Physical injuries and second fit person...