About this case:

• Citation:
  [2024] IEHC 678
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Ms Justice Nuala Jackson

Delivering judgment for the High Court in November, Ms Justice Nuala Jackson reasoned that “while I appreciate that there are concerns expressed by the birth parents in relation to the continuation of this relationship post adoption, it does appear to me that one must likewise have concerns about the continuation of their relationships (albeit that these are most curtailed relationships) if adoption is denied L, having regard to her expressed wishes. To attempt to reach a conclusion in this regard, is to wander into the unknown.”

Background

L was born in 2007 and was in care since the time of her birth with the consent of her birth parents. 

She lived with her present foster family from 3 years of age and was cared for by the second applicant since that time. L’s birth parents both had experienced considerable difficulties in their lives and their participation in her life was limited to supervised access.

An application was made to the High Court by the Child and Family Agency, Tusla, and the second applicant to adopt L absent the consent of her birth parents.

The High Court

Ms Justice Jackson considered in turn the statutory proofs in s.54(2A) of the Adoption Act 2010 (as amended) necessary for the making of the order sought.

The court firstly noted s.54(2A)(a) which requires that it must be satisfied that for a continuous period of not less than 36 months immediately preceding the time of the making of the application, the parents of the child to whom the declaration under s.53(1) relates have failed in their duty towards the child to such extent that the safety or welfare of the child is likely to be prejudicially affected. 

The applicability thereof was disputed by L’s parents, who suggested that they did not abdicate responsibility for L’s care and had always maintained contact with her.

Turning to s.54(2A)(b), which concerns whether there is no reasonable prospect that the parents will be able to care for the child in a manner that will not prejudicially affect his or her safety or welfare, the court pointed out that the “lived reality of L since the time of her birth” was determinative having regard to Re B [2023] IESC 12.

As to s.54(2A)(c) which requires that the failure on part of the child’s parents constitutes an abandonment on their part of all parental rights, whether under the Constitution or otherwise, with respect to the child, the court observed that “in this context, ‘abandonment’ has a very particular meaning” having regard to the judgment of Mr Justice Gerard Hogan in Re B which stated that abandonment “does not necessarily mean or imply abandonment in the sense of the physical abandonment of a child (although, of course, it could do so). The subsection is rather directed at the question of the abandonment of parental rights vis-a vis the child.”

Ms Justice Jackson noted that s.54(2A)(d) and (e), which require inter alia that by reason of the parents’ failure the State should supply the place of the parents and that the child at the time of the making of the application is in the custody of and has had a home with the applicants for a continuous period of no less than 18 months immediately preceding that time, were not disputed.

Moving to consider the proportionality of making an order for L’s adoption pursuant to s.54(2A)(f), the judge had regard to Re B which recognised that this consideration is child-centred and that the paramount consideration is the child’s best interests, that there is a “life-long value to the relationship created by adoption” and:

Finding that Mr Justice Hogan’s dicta in relation to proportionality applied equally to the matter before her, Ms Justice Jackson determined that the authorising of an adoption order in respect of L was proportionate.

Turning to s.54(3) of the 2010 Act in respect of the balancing of L’s constitutional rights as against her birth parents’ family rights, the High Court once again drew assistance from Re B in determining that L’s wishes and best interests favoured the making of the order sought and that those factors outweighed “the relationship which has evolved from the very curtailed participation of the birth parents in L’s life”.

Ms Justice Jackson emphasised the acceptance by L’s birth parents of her foster parents’ positive role in her life and the assurances provided through the second applicant’s counsel that she would support and encourage L to maintain a relationship with her parents in adulthood.

The court was mindful of the history of L’s father and his distrust of the Child and Family Agency due to his own personal experience having been adopted, recognising: “Such concerns and feelings are understandable based upon his personal experiences. Fortunately, it appears that L’s experience has been very different to that of her birth father. Additionally, the fact remains, that the Second and Third Named Respondents are and will remain L’s birth parents.”

Conclusion

Having found that all of the statutory proofs had been met, the High Court granted an order pursuant to s.54(2) of the 2010 Act.

Child and Family Agency & The Adoption Authority of Ireland & Ors [2024] IEHC 678