High Court: Adoption order granted in case of child with special needs despite birth mother’s objections
The Child and Family Agency has been granted orders authorising the Adoption Agency of Ireland to make an adoption order in favour of the foster parents who have cared for the child since 2010.
Making an order dispensing of the consent of the birth mother to the making of the adoption order, Ms Justice Reynolds was satisfied that making the adoption order was in the best interests of the child and that the case satisfied the three-step process as outlined by the Supreme Court in Southern Health Board v. An Bord Uchtála MO’D & MO’D.
The child at the centre of the proceedings was born in 2000, and was first referred to Child Protection Services in 2002. There was particular concern in relation to child sexual abuse allegations perpetrated by a family friend who had convictions for sexual offences against children; neglect; domestic violence; and poor parenting ability.
The child was received into care in 2007 on foot of an Emergency Care Order, and a Full Care Order was granted in 2012. She was described as having a moderate learning disability, requiring 24-hour care and support, and at the time of her placement with TW and MW in 2010 she was not toilet trained and unable to properly speak.
Justice Reynolds said that she had thrived in the care of TW and MW and that they had demonstrated their full commitment to her.
The Court heard that “almost every” supervised access arrangement had been attended by her birth mother, which continued to be assisted and voluntarily facilitated by TW and MW.
In the High Court, the Child and Family Agency brought an application pursuant to s. 54(2) of the Adoption Act 2010, authorising the Adoption Authority of Ireland to make an adoption order in relation to the child in favour of TW and MW, and further dispensing with the consent of the birth mother, to the making of such order.
The birth mother objected to the making of the order, and while she conceded that she was unable to meet the complex needs of the child – she submitted that there were other more proportionate means to meet the best interest of the child, i.e. guardianship and wardship.
Justice Reynolds said that the best interests of the child must be the paramount consideration in determining the application, and considered the three-step process in the operation of s.3 of the Adoption Act 1988 as outlined in Southern Health Board v. An Bord Uchtála MO’D & MO’D 1 IR 165:
- whether the parents have, for physical or moral reasons failed in their duty towards the child;
- whether such failure will continue without interruption until the child attains the age of eighteen;
- whether the failure constitutes abandonment.
In considering the first step, Justice Reynolds referred to Northern Area Health Board WHPH v An Bord Uchtála; PO’D 4 IR 252, in which it was held that there did not have to be blame in relation to a person who by reason of mental handicap was not able to look after her child – that failure was nonetheless considered by the court to be a failure for physical reasons. In the present case, the birth mother was described as having mild intellectual difficulties, and Justice Reynolds concluded that there was a failure of parental duty by the birth mother.
In considering the second step, Justice Reynolds held that since the birthmother had conceded that she did not have the capacity to care for the child and was no longer seeking for the child’s return into her care, it was clear that that this failure would continue to the child’s 18th birthday.
In considering the final step, Justice Reynolds referred to the “special legal meaning” of the term “abandonment” in the Adoption Acts as per Southern Health Board v An Bord Uchtála 1 IR 165. Justice Reynolds said it was clear from the evidence that there was no intention by the birth mother to neglect or care for her child, but that she simply did not have the capacity to adequately care for her. As such, this constituted “abandonment” of parental rights.
Justice Reynolds was satisfied that the child was “psychologically closer” to TW and MW than to her biological parents, that she was provided with a “secure and loving home” which TW and MW were committed to providing into the future.
Although mindful of the birth mother’s opposition to the adoption order and the alternative options which the Court was obliged to consider, Justice Reynolds said that she was satisfied that the birth mother’s misgivings were misplaced when weighed against the best interests of the child.
In all the circumstances, Justice Reynolds granted orders pursuant to s 54(2) of the Adoption Act 2010:
- authorising the respondent to make an adoption order in relation to the child in favour of TW and MW
- dispensing with the consent of the birth mother to the making of an adoption order.
- by Seosamh Gráinséir for Irish Legal News