High Court: Consent of parents dispensed with in ‘rare and difficult’ adoption application



High Court
High Court

The Child And Family Agency (Tusla) has been granted orders pursuant to the Adoption Act 2010 for the adoption of a child in favour of foster parents who have cared for him since October 2000, when he was thirteen weeks old.

The birth parents opposed the adoption, however Mr Justice Michael MacGrath said that the totality of the facts and circumstances of this ‘difficult case’ made it an exceptional case in which the consent of the birth parents should be dispensed with.  

Background

The child at the centre of the proceedings, CW was born in October 2000, and has been in the care of HR and FR since he was 13 days old.

CW’s birth parents, PW and AW, were married in Nigeria, and had two children (born in 1996 and 1999) when arrived in Ireland in February 2000, seeking 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, QW, to Ireland. QW died in July 2000, and the circumstances surrounding his death led to applications for the granting of an emergency care order in respect of CW when he was born in October 2000, followed by interim care orders and a full care order made in 2001.

PW and AW have had five children since then, born between November 2001 and December 2011. Concerned that, when born, another child might also be taken into care, PW and AW moved to England when CW’s birth mother became pregnant again in 2001. It was averred by a social worker employed by Tusla that PW and AW used alias names during this time, and that no contact was made with the relevant social care department between 2002 and 2009. It was explained that PW and AW returned to Ireland between 2003 and 2006.

In 2009, social workers became aware that PW and AW were in Ireland, and supervised access visits were subsequently arranged. The access visits between CW and his birth family initially went well, and were encouraged by CW’s foster parents, HR and FR. Unfortunately, after a certain visit when photographs were taken and CW complained that comments had been made about his physical appearance, the process of access became stressful for CW and he refused to go. CW no longer wished to have contact with PW and AW, and supervised access visits ceased in 2011 as it was deemed to be in his best interests that access not be pursued at that time.

Application to Adopt CW

Seeking to adopt CW, and it being clear that CW wished to be adopted by HR and FR, they made a formal application to the Adoption Authority of Ireland to adopt CW in March 2018. However, PW and AW were opposed to the adoption.

In May 2018, the Adoption Authority made a declaration pursuant to s. 53 of the Adoption Act 2010 that if an order is made by the High Court pursuant to s. 54(2) of the Adoption Act 2010 in respect of CW, in favour of HR and FR, it will, subject to the provisions of s. 53 of the Adoption Act 2010, make an adoption order for the adoption of the child by HR and FR.

In accordance with the provisions of s. 54(1) of the Adoption Act 2010, HR and FR requested the Tusla to apply to court for an order pursuant to s. 52 of the Adoption Act 2010

In the High Court, Tusla sought an order pursuant to s. 54(2) of the Adoption Act 2010 (as amended) authorising the Adoption Authority to make an adoption order in relation to a child, CW, in favour of the second and third named applicants, HR and FR.

Tusla also sought an order pursuant to s. 54(2) of the Adoption Act 2010 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, PW and AW. 

Sitting in the High Court, Mr Justice MacGrath explained that section 54(3) of the Adoption Act 2010 obliges the court considering an application for an order under s. 54(2) to have regard to the rights, whether under the Constitution or otherwise, of the persons concerned including the natural and imprescriptible rights of the child, and any other matter which the High Court considers relevant to the application. Furthermore, section 54(3)(b) provides that in so far as it is practicable, in a case where the child concerned is capable of forming his or her own views, the court shall give due weight to the views of that child, having regard to the age and maturity of the child. In the resolution of any such application, s. 54(3) provides that the best interests of the child shall be of paramount consideration. 

Mr Justice MacGrath also explained that pursuant to s. 55 of the Adoption Act 2010, the court cannot make an order under s. 54(2) without having heard the parents concerned or either of them and any other person who in the opinion of the court, ought to be heard by it. 

Mr Justice MacGrath stated that Article 42A of the Constitution makes it clear that it is only in exceptional cases that the State can intervene to supply the place of those parents, and that such intervention must be proportionate. AS such, Mr Justice MacGrath said that it was only in exceptional circumstances that the present application to dispense with the consent of the birth parents can succeed.

In assessing this ‘rare and difficult’ application, Mr Justice MacGrath was satisfied that HR and FR were very genuine people, and that CW had a strong desire to be adopted by them. However, Mr Justice MacGrath said that CW’s wishes could not be determinative, as the Court was required ‘…both constitutionally and statutorily to take into consideration the rights of others, in particular his birth parents and family, and to attempt to balance those rights, in accordance with the requirements of the [Adoption Act 2010]’.

Considering all of the circumstances, Mr Justice MacGrath said that there was ‘no reasonable prospect that the birth parents would be able to care for CW in a manner that will not prejudicially affect his welfare between now and the time he is eighteen years of age’. Furthermore, Mr Justice MacGrath was satisfied that, taking into consideration the totality of the facts and circumstances, that there had been abandonment of parental rights – and that PW and AW’s opposition to the adoption did not in and of itself contradict the fact of abandonment (Northern Area Health Board v. An Bord Uchtála considered)

Finding that the requirements of s. 54(2) of the Adoption Act 2010 were 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’, and while emphasising that ‘only in exceptional cases that the consent of birth parents to an adoption should be dispensed with’, Mr Justice MacGrath granted the orders sought.

  • by Seosamh Gráinséir for Irish Legal News

© Irish Legal News Ltd 2019



Other judgments by Mr Justice Michael MacGrath