The Adoption Authority of Ireland v The Child and Family Agency

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice MacGrath
• Judgment Date: 19 October 2018
• Neutral Citation: [2018] IEHC 632
• Docket Number: [2018 No. 33 SS]
• Date: 19 October 2018

IN THE MATTER OF THE ADOPTION ACT 2010, SECTION 49(2)

THE ADOPTION AUTHORITY OF IRELAND

APPLICANT

THE CHILD AND FAMILY AGENCY, F.T., G.T. AND K.R. (A MINOR)

NOTICE PARTIES

[2018] IEHC 632

MacGrath J.

[2018 No. 33 SS]

THE HIGH COURT

Case stated – Adoption – Consent – Applicant seeking the determination of certain questions of law arising on the application for an adoption order by the second and third notice parties – Whether the consent of the birth mother, birth father, and/or guardian is required when they are deceased

Facts: This was a case stated pursuant to s. 49(2) of the Adoption Act 2010 by the applicant, the Adoption Authority of Ireland, at the request of the Child and Family Agency, for the determination of certain questions of law arising on the application for an adoption order by the second and third notice parties, a married couple, who were the child’s foster parents. It was their wish to adopt the fourth notice party. By letter dated 8th August, 2016, the Child and Family Agency wrote to the Authority formally requesting that a case be stated concerning: (a) whether the consent of the birth mother, birth father, and/or guardian is required when they are deceased; and (b) whether consent is required where the birth mother is deceased and the birth father who is not a guardian is consenting to the adoption. The following questions of law were posed at para. 16 of the case stated: “(a) Where a person, whose consent to the adoption of a child is necessary, has died, is it necessary to dispense with the consent of that person? (b) If so, is it necessary to bring an application to the High Court under section 26(1)(d) and section 54(2) of the 2010 Act in every such case? (c) Where such a person has died, will the requirements of section 54(2) of the 2010 Act be automatically satisfied in every such case? (d) Where a person, whose consent to the adoption of a child is necessary, has died and the child to be adopted is a Ward of Court, and the Office of the Wards of Court has confirmed that it has no objection to the adoption of the child, is it necessary to apply to the High Court to dispense with such consent as set out in question (ii) [sic – understood to be (b)]. (e) Where a person, whose consent to the adoption of a child is necessary, has died and the birth father (who is not a guardian) is consenting to the adoption, is it necessary to apply to the High Court to dispense with such consent as set out at question (b) above? (f) Where a relevant non-guardian of a child has died, is it necessary for the Authority to obtain the approval of the High Court under section 30 of the 2010 Act in every such case, prior to making an adoption order in respect of such child.”

Held by the High Court (MacGrath J) that the procedure relating to objection envisaged a positive action on the part of a relevant non-guardian, something which in MacGrath J’s view is incapable of being performed where the relevant non-guardian has died.

MacGrath J held that the following are the answers raised at para. 16 of the case stated: (a) No; (b) In this case, no; (c) In this case, no; (d) No; (e) Does not arise on the facts of this adoption; (f) In this case, no.

Judgment approved.

JUDGMENT of Mr. Justice MacGrath delivered on the 19th day of October, 2018.

Case Stated

1 This is a case stated pursuant to s. 49(2) of the Adoption Act 2010 (‘ the Act of 2010’) by the Adoption Authority of Ireland (‘ the Authority’) at the request of the Child and Family Agency, for the determination of certain questions of law arising on the application for an adoption order by the second and third named notice parties, a married couple who are the child's foster parents. It is their wish to adopt the fourth named notice party (K.R. who is a minor).

2 Pursuant to s. 49 of Act of 2010, the Authority may refer a question of law arising from an application for adoption to the High Court. Section 49(2) provides as follows:-

‘Notwithstanding subsection (1), the Authority, unless it considers a question of law arising on an application for an adoption order or the recognition of an intercountry adoption effected outside the State to be frivolous, shall refer the question of law to the High Court for determination if requested to do so by—

(a) an applicant for the order or the recognition of the intercountry adoption effected outside the State,

(b) the mother or guardian of the child, or

(c) any person having charge of or control over the child.’

The Authority is obliged to state a case in circumstances where it requested to so do by any person having charge or control over the child, save where it considers the question to be frivolous.

The Request

3 By letter dated 8th August, 2016, the Child and Family Agency wrote to the Authority formally requesting that a case be stated concerning:-

(a) whether the consent of the birth mother, birth father, and/or guardian is required when they are deceased; and

(b) whether consent is required where the birth mother is deceased and the birth father who is not a guardian is consenting to the adoption.

The Questions

4 The following questions of law are posed at para. 16 of the case stated:-

‘The Authority, having considered the facts and matters identified above and the Request, hereby refers the following questions of law which arise thereon:

(a) Where a person, whose consent to the adoption of a child is necessary, has died, is it necessary to dispense with the consent of that person?

(b) If so, is it necessary to bring an application to the High Court under section 26(1)(d) and section 54(2) of the 2010 Act in every such case?

(c) Where such a person has died, will the requirements of section 54(2) of the 2010 Act be automatically satisfied in every such case?

(d) Where a person, whose consent to the adoption of a child is necessary, has died and the child to be adopted is a Ward of Court, and the Office of the Wards of Court has confirmed that it has no objection to the adoption of the child, is it necessary to apply to the High Court to dispense with such consent as set out in question (ii) [sic – understood to be (b)].

(e) Where a person, whose consent to the adoption of a child is necessary, has died and the birth father (who is not a guardian) is consenting to the adoption, is it necessary to apply to the High Court to dispense with such consent as set out at question (b) above?

(f) Where a relevant non-guardian of a child has died, is it necessary for the Authority to obtain the approval of the High Court under section 30 of the 2010 Act in every such case, prior to making an adoption order in respect of such child.’

Factual background

5 The facts outlined in the case stated are:-

(i) K.R. was born in 2001 and will achieve majority in 2019.

(ii) K.R.'s mother was born in 1974 and died in 2008.

(iii) K.R.'s birth father was born in 1968 and died in 2012.

(iv) Searches have indicated that both the mother and father died intestate. No question of testamentary guardianship arises.

(v) At para. 6 of the case stated it is recorded that the child was born outside marriage and her birth father was not her legal guardian. Therefore no issue arises in relation to the consent of the child's birth father.

(vi) Since August, 2001, K.R. has been in the care of the Child and Family Agency under a long term foster care arrangement.

(vii) Arising from an assault by her birth mother in 2001, K.R. suffered very severe injuries as an infant. In consequence she has serious and complex health and educational needs which will continue into adulthood.

(viii) A number of orders have been made during the course of the child's life pursuant to the Child Care Act 1991 including emergency, interim and full care orders. A full care order was made on 23rd July, 2001, and will remain in effect until the child reaches the age of eighteen.

(ix) On 24th October, 2011, an order was made in the District Court pursuant to s. 43A of the Child Care Act 1991, granting the foster carers control over the child as if the foster parents were the child's parents. The order did not interfere with the birth parents” guardianship status.

(x) A wardship order was made in respect of K.R. on 25th March, 2015 as a result of which the child was taken into the wardship of the High Court and the child's foster mother was appointed guardian of the child's fortune.

6 Pursuant to s. 37 of the Act of 2010, on 31st July, 2015 the foster parents applied to the Child and Family Agency for an assessment and for a declaration of eligibility and suitability to adopt. A social worker for the Child and Family Agency strongly recommended that the board of the Authority grant such declaration in their favour, stating that it was in the best interests of the child that it be adopted by them.

7 On 18th November, 2015, the Authority granted a declaration of eligibility and suitability to adopt in favour of the foster parents, which declaration expires on 18th November, 2018.

8 On 7th April, 2016, a social worker advised that the best long term care option for the child was to be adopted by the foster parents, and in his report, fully supported such adoption.

9 K.R., the child, is a ward of court. By letter dated 8th October, 2015 the Office of the Wards of Court confirmed that it had no objection to the adoption of the child by the foster parents.

10 A further issue which is stated to arise is whether the consultation procedures in s. 30 of the Act of 2010, as amended by s. 13 of the Adoption (Amendment) Act 2017, require the Authority to first obtain the approval of the High Court to make an adoption order without consulting with the father (or other relevant non-guardian of the child) where the father (or other relevant non-guardian of the child) is deceased.

11 The Child and Family Relationships Act 2015 was commenced on 18th January, 2016, and has broadened...