Important Supreme Court decision on Adoption highlights the ‘Best Interests of the Child’ Test
In a recent decision delivered by Mr Justice Gerard Hogan, the Supreme Court upheld a decision by the Court of Appeal to allow an adoption proceed in favour of the child’s long-term foster mother.
The decision of the Court of Appeal had overturned a previous decision of the High Court refusing to grant the adoption. Because the case involved issues of public importance, the Court of Appeal allowed a further appeal to the Supreme Court.
In its judgement delivered on the 24th of May 2023, Mr Justice Hogan said that it was a case in which ‘human tragedy and hope were mixed’. The birth mother had been a victim of domestic violence and had developed an alcohol problem and her three children had been taken into care. Two of the children were subsequently returned to her, and she had parented them successfully, and overseen them attending third level education.
The child who was the subject matter of this application had a learning disability and remained in foster care but contact with her birth mother was maintained and facilitated by the foster mother. The application for adoption was made by the foster mother.
In upholding the decision of the Court of Appeal to grant the adoption order, the Judge stated that the making of the order ‘cemented the emotional bonds of family and security for which she doubtlessly subjectively yearns and objectively needs’. He added that the adoption would satisfy the statutory and Constitutional criteria that the best interests of the child should be paramount.
Counsel for the birth mother had argued that the birth mother had been successfully treated for her alcohol problem and had never relapsed. It was noted that she had maintained contact with the child at the centre of the case over the years although this became more infrequent as a result of the birth mother moving with her two other children to another county. It was argued that there was a lack of finance provided by the Child and Family Agency (CFA) to facilitate regular visits. Contact did continue however, and the foster mother often took the girl to meet her birth mother, allowing them to spend a few hours alone together without any concern. It was argued on behalf of the birth mother that the CFA had not adequately looked at the issue of family reunification. The argument made on behalf of the birth mother that the making of the adoption order would end the legal nexus between the birth mother and the child. The birth mother was not seeking the child to go back and live with her.
The Court of Appeal had found that the High Court had placed too much weight on the birth mother’s claims that the CFA had failed to allow reasonable access or support. In the Supreme Court Senior Counsel for the CFA had argued that the birth mother had failed to avail of two significant opportunities to cement her relationship with her daughter- first of all at birth, and secondly when she decided to move to another county.
It was noted that the girl in question had indicated a preference in favour of adoption but the Supreme Court expressed misgivings in relation to this alleged view in view of the mental capacity of the daughter.
Submissions were received from the Irish Human Rights and Equality Commission and the Adoption Authority.
Mr Justice Hogan stated that adoption was more than simply a question of a name or a right to inherit or the entitlement to look at others for guidance in the making of important decisions. He pointed out that adoption was a question of status, which had lifetime consequences well beyond the issue of care while the person is a minor. He stated that adoption and the making of an adoption order reflects the fact that a new family relationship has been created and this is one which is underpinned and supported by the State and its legal system.
He added that the ties created by adoption do not end simply because the child reaches the age of majority and pointed out that there was a ‘lifelong value’ to the relationship created by adoption.
This is a particularly difficult and sad case but one which sets out important factors to be taken into account by a Court when assessing whether an adoption order should be made.
For further information or advice on this or any other family law related matter, please do not hesitate to contact Brendan Dillon, Erika Coughlan or Aoife Cathcart on 022960666.
