The Child and Family Agency v The Adoption Authority of Ireland

• Jurisdiction: Ireland
• Judge: Mr. Justice MacGrath
• Judgment Date: 06 September 2018
• Neutral Citation: [2018] IEHC 515
• Docket Number: [2018 No. 32 M]
• Court: High Court
• Date: 06 September 2018

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 54(2) OF THE ADOPTION ACT 2010 AND IN THE MATTER OF C.W. A MINOR BORN ON 11TH DAY OF OCTOBER 2000

BETWEEN

THE CHILD AND FAMILY AGENCY

AND

H.R.

AND

F.R.

APPLICANTS

AND

THE ADOPTION AUTHORITY OF IRELAND

AND

P.W.

AND

A.W.

RESPONDENTS

[2018] IEHC 515

MacGrath J.

[2018 No. 32 M]

THE HIGH COURT

FAMILY LAW

Adoption – Consent – Best interests of child – Applicant seeking an order authorising the respondent to make an adoption order – Whether the requirements of s. 54(2) of the Adoption Act 2010 had been complied with

Facts: The first applicant, the Child and Family Agency, applied to the High Court seeking an order pursuant to s. 54(2) of the Adoption Act 2010 authorising the first respondent, the Adoption Authority, to make an adoption order in relation to a child in favour of the second and third applicants. It also sought an order pursuant to the said subsection dispensing with the consent of any person whose consent is required to the making of the adoption order, in this case the consent of the child's birth parents. The Agency submitted that the Court was being asked to dispense with the consent of the birth parents in the context of a factual situation where they had little or no involvement in the child's life for seventeen years. It was submitted that the child was abandoned by his birth parents in Ireland in 2001 and that they did not have contact with him until early 2009 and only then at the instigation of the Agency.

Held by MacGrath J that, in the circumstances, the requirements of s. 54(2) had been complied with and that in balancing the rights of the parties, at all times bearing in mind the paramount consideration being the best interests of this child, he was satisfied that the orders sought ought to be made.

MacGrath J proposed making the orders sought.

Application granted.

JUDGMENT of Mr. Justice MacGrath delivered on the 6th day of September, 2018.

1 The first named applicant seeks an order pursuant to s. 54(2) of the Adoption Act 2010 (as amended) authorising the first respondent, the Adoption Authority, to make an adoption order in relation to a child C.W. in favour of the second and third named applicants. It also seeks an order pursuant to the said subsection dispensing with the consent of any person whose consent is required to the making of the adoption order, in this case the consent of the child's birth parents.

2 The first named applicant was established pursuant to the provisions of the Child and Family Agency Act 2013, and discharges functions pursuant to Part 7 of the Adoption Act 2010 as amended (' the Act of 2010'). The second and third named applicants are a married couple and are the foster carers of the child the subject of this application, C.W. They are also the prospective adoptive parents of C.W. who has been in their care since 24th October, 2000 when he was thirteen days old. A formal application was made by the adoptive parents to the Adoption Authority to adopt C.W. on 12th March, 2018. On 29th May, 2018, the Adoption Authority made a declaration pursuant to s. 53 of the Act of 2010 that if an order is made by this Court pursuant to s. 54(2) of the Act of 2010 in respect of the child, in favour of the second and third named applicants, it will, subject to the provisions of s. 53 of the Act of 2010, make an adoption order for the adoption of the child by the second and third applicants. In accordance with the provisions of s. 54(1) of the Act of 2010, the second and third applicants requested the first applicant to apply to court for an order pursuant to s. 52 of the Act.

Background

3 The child's birth parents were married prior to the birth of C.W. on 11th October, 2000, and including him they have six other children. An older brother was born on 31st July, 1996 and C.W. has five younger siblings who were born between November, 2001 and December, 2011. There was one other child of the marriage, Q.W., who died on 27th July, 2000. As described in evidence, the circumstances surrounding his death led to applications for and the granting of an emergency care order, interim care orders and thereafter a full care order which was made in respect of C.W. on 10th July, 2001.

4 C.W., who will attain his majority within six weeks of the hearing of this application, has expressed a strong desire and wish that his adoption be permitted to proceed.

5 C.W.'s parents are Nigerian, of the Yoruba people. They were married in Nigeria prior to their arrival in Ireland in February, 2000. On arrival, they sought political asylum on the grounds of religious persecution in their country of origin. They left their eldest son with his grandparents in Nigeria and brought their second son, Q.W., who was born on 1st July, 1999, to Ireland with them. P.W. and A.W. moved to England for the birth of their third child. They were concerned that, when born, that child might also be taken into care. They subsequently returned to Ireland and since then, they have had other children, the youngest having been born in 2011. The birth parents now live apart, with the three youngest children residing with their mother, A.W. C.W. remains the subject of the care order which was made in 2001. Contact was re-established between C.W. in 2009. A number of access visits were arranged. Initially they went well. The visits ceased in 2011 as C.W. no longer wished to have contact with his birth parents. It was deemed to be in his best interests that access would not be pursued at that time. His foster parents, with whom he has resided and has been cared for since he was thirteen days old wish to adopt him and he wishes to be adopted by them. His birth parents are opposed to the adoption. The circumstances are more fully described below.

Evidence of Conor Fox, social worker

6 Mr. Conor Fox, social worker employed by the first named applicant, has been C.W.'s care worker since August, 2016. He has sworn a number of affidavits in the proceedings and has also given oral evidence. Mr. Fox informed the Court that C.W. was received into care when he was nine days old. He was the subject of an emergency care order which was granted on 20th October, 2000. The child protection concerns giving rise to the application, related to the birth parents' ability to keep C.W. physically safe following the death of his older sibling, Q.W. In this regard, in July, 2000, the birth father, P.W., presented at St. James's Hospital in Dublin with Q.W., who was pronounced dead on arrival. Subsequent post-mortem investigations found that the infant had a number of injuries including six broken bones and severe bruising. Mr. Fox states that neither parent was able to offer an explanation for the child's injuries. Both parents claimed that only they cared for their son and no one else had access to him. The Coroner and the Deputy State Pathologist completed reports. The cause of death was described as being ' unascertained' but likely to have been caused by non-accidental injury. While a full investigation was carried out by An Garda Síochána and a file was forwarded to the Director of Public Prosecutions, the latter issued a direction that there be no prosecution.

7 In his affidavit sworn in response to this application, P.W., avers that he did not know how Q.W. sustained injuries and also avers that when they were living in Nigeria, they availed of the services of childminders who cared for Q.W. for significant periods while they worked. He describes having suspicions that the injuries occurred during those times when carers were looking after Q.W.

8 A.W. was pregnant with C.W. at the time of Q.W.'s death. When C.W. was born on 11th October, 2000, the Health Board, the Child and Family Agency's predecessor in relation to the exercise of certain relevant functions, applied for an emergency care order. An initial application was refused but, subsequently, an emergency care order was made on 20th October, 2000. Interim care orders were made until 10th July, 2001, when a care order was made in the District Court pursuant to s. 18 of the Child Care Act 1991. This order remains in place and is effective until the child reaches the age of majority. The order of the District Court reflects the conclusions of the District Judge that, having heard the evidence tendered, he was satisfied that the child's health, development and welfare were likely to be impaired or neglected; and that he required care and protection which he was unlikely to receive unless the court made an order under s. 18(1) of the Act of 1991. The child was entrusted to the care of the Health Board (as it then was) until 10th October, 2018. Provision was made for access in favour of the birth parents on a supervised basis.

9 Mr. Fox avers in his affidavit that the birth parents attended twice weekly supervised access from the date of the child's birth on 11th October, 2000 until May, 2001. Weekly supervised access took place from June, 2001 to August, 2001 before access was revised to monthly visits for the remainder of 2001, with additional visits scheduled for special occasions.

10 Mr. Fox informed the Court that the birth mother disengaged from the social work department in November, 2001 and the birth father disengaged from February, 2002. He states that the child had no direct contact with either birth parent between February, 2002 and November, 2009.

11 During this period, the birth parents' whereabouts were unknown, although letters were sent to Ms. Mairead McDowell, social worker, and to Ms. Rachel Devlin, childcare manager, in August, 2002. Three such letters have been identified and they all appear to have been sent from an address in Nigeria at a time when it seems the birth parents were in fact residing in England. The sending of these letters was organised through a family member who then resided in Nigeria. A letter dated 5th August, 2002 was directed...