High Court: Foster mother who was not chosen as adoptive parent has application for judicial review dismissed

About this case:

• Citation:
  [2018] IEHC 762
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Garrett Simons

The child, who weighed only 720gms at birth, was in the care of the foster mother for over a year when the decision was made to place the child with the couple preferred by the birth mother.

Emphasising the importance and significance of the birth mother’s voice in voluntary adoption, Mr Justice Garrett Simons ultimately dismissed the application on the basis that it was made out of time.

Background

The child at the centre of the proceedings was born prematurely, weighing only 720gms, and consequently suffers from serious health conditions. After spending the first number of months in hospital, the child remained in the care of a Foster Mother from March 2017, and was placed with Prospective Adoptive Parents in April 2018.

Mr Justice noted in the judgment that the foster mother had provided excellent care to the child, securing an appointment at a private hospital which directly resulted in the child receiving an urgent surgical procedure which greatly improved quality of life for the child.

The adoption process began when the Birth Mother completed the necessary paperwork to place the child for adoption – the birth mother’s preferences in terms of prospective adoptive parents were strongly in favour of the child being adopted by a couple, to ensure the support of two parents, and also in light of her own personal experience of being brought up by a single parent. It was emphasised that in voluntary adoption the birth mother’s voice must be given some presumptive weight.

The matching process identified only two sets of potential adopters with the necessary skills to be considered, given the child’s very serious health issues. The birth mother expressed a preference for one of the couples, who had been issued with a statutory certificate pursuant to section 40 of the Adoption Act 2010 confirming they were suitable and eligible. In March 2018, the Adoption Authority of Ireland issued an authorisation, and the transition/familiarisation plan was prepared by the CFA.

Throughout this time, the foster mother expressed a wish to be considered a potential adoptive parent however she was informed by the Child and Family Agency (CFA) that she could not adopt the child because:

1. She was a lone parent and the birth mother had expressed a preference that the child be adopted by a couple;
2. She did not have the statutory declaration of eligibility and suitability under section 40 of the Adoption Act 2010;
3. The CFA had a policy against allowing the foster parents of children for adoption to become adopters.

The foster mother maintained that although she was aware that the child was in pre-adoptive care, she was only informed on March 2018 that the child was to be handed over imminently to prospective adoptive parents.

Application for judicial review

The foster mother alleged that the procedures leading to the termination of the arrangement with her, and the transfer of the child’s care to the prospective adoptive parents, were not in accordance with the law.

The foster mother contended that the CFA prepared a report for the Adoption Authority which was deficient and failed to include an up-to-date medical and psychological assessment of the child, and failed to communicate that she wished to be considered as an adoptive parent.

On the second day of the hearing, an agreement was entered into between the foster mother and the prospective adoptive parents indicating that she would not seek to adopt the child; delay or interfere with the adoption process; or seek custody of the child. All parties agreed that it was in the child’s best interests to remain in the care of the prospective adoptive parents.

Nevertheless, the foster mother submitted that the court should make a declaration that there was a historic failure to have regard to the child’s best interests in March and April 2018, and that this failure represented a breach of the child’s constitutional rights which the court had an obligation to vindicate by way of granting declaratory relief.

Mr Justice Simons said that the principle issues for consideration were whether:

1. Declaratory relief would be in the child’s best interests;
2. There is proper legal and evidential basis for such a declaration;
3. The proceedings were inadmissible by reason of delay.

Mr Justice Simons said that he was unable to accept that reviewing the events of March and April 2018 would be in the child’s best interests, because the outcome of such a review would run the risk of undermining the child’s placement with the prospective adoptive parents – a result which all parties insisted should not occur.

Considering the procedural requirements to be met before a child is removed from the custody of foster parents, Mr Justice Simons was satisfied that the foster mother was informed of the intention, and allowed an opportunity to make representations and have them considered. Although it was less clear whether there was strict compliance with the requirement to notify a reasoned decision – the technical breach of this was de minimis.

Mr Justice Simons said it was also significant that the prospective adoptive parents had been effectively released from the proceedings, and that the Adoption Authority had never been a party to the proceedings. In circumstances where it would be inappropriate to grant any relief which would suggest that the decision authorising the placement was invalid without hearing from all parties.

In any event, Mr Justice Simons said that the proceedings were inadmissible on the grounds of delay. Explaining that he deliberately considered the issue of delay at the end of the judgment to avoid cost and stress to the parties if a sole finding of delay was subsequently set aside, Mr Justice Simons was satisfied that the lapse between the decision being made in April 2018 and the application for leave being moved in mid-September 2018 was longer than the three month period prescribed under Order 84 of the Rules of the Superior Courts.

Emphasising that the time-limit under Order 84 was not one running from the date upon which a party forms an intention to pursue an application for judicial review, Mr Justice Simons dismissed the application for judicial review.

• by Seosamh Gráinséir for Irish Legal News