Supreme Court dismisses appeal allowing adoption by foster mother for child with special needs and complex history.

,

AN CHÚIRT UACHTARACH

THE SUPREME COURT

[2023] IESC 12

O’Donnell C.J. Dunne J. O’Malley J. Woulfe J. Hogan J. Murray J. Collins J.

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 54(2) OF THE

ADOPTION ACT 2010 (AS AMENDED)

AND

IN THE MATTER OF B, A MINOR

Between:

CHILD AND FAMILY AGENCY AND B

Applicants/Respondents

AND

THE ADOPTION AUTHORITY OF IRELAND AND C AND Z

Respondents/Appellants

JUDGMENT of Mr. Justice Gerard Hogan delivered the 24th day of May 2023 Part I - Introduction Background

1. While the title of these proceedings might appear to suggest some form of litigious contest between two State agencies – namely, the Child and Family Agency and the Adoption Authority of Ireland – this simply serves to camouflage the mixture of both human tragedy and hope that underlies the facts of this case. As will become apparent in the course of this judgment, the complex legal issues in this appeal may be resolved down to this: where a natural mother who is the victim of appalling domestic violence has through force of circumstances agreed to allow her daughter (who is, as it happens, is now a young woman with particular and complex special needs) to be reared by a foster mother for virtually the entirety of the child’s minority, should an adoption order now be made in respect of that foster mother?

2. Before considering any of these legal issues, it is necessary first to say something about the background facts. In 2004, Ms C and Mr Z were unhappily married. Ms C has four children, the eldest of whom was from a previous relationship. At the date of the hearing in the High Court in June 2022 Ms C was in the process of obtaining a divorce from Mr Z. The parties have, in any event, been separated since the birth of the child at the centre of this appeal, Ms. B, in 2004. The present case concerns Ms C’s youngest child, Ms B, who has been in foster care since 2004.

3. It appears that Ms C was subjected to emotional, physical and sexual abuse by her husband, which her eldest three children had regrettably witnessed. Following a 28-week pregnancy, Ms C gave birth to Ms B at a particular date in 2004. Ms B, the young woman at the centre of this appeal, was born with foetal alcohol syndrome with associated global development delay and a moderate general learning disability. This syndrome was due to Ms. C drinking alcohol to excess during the first trimester of her pregnancy in order to cope with her abuse, not knowing that she was pregnant at the time.

4. I should say in passing that it is, perhaps, regrettable that the Court has not been furnished with an expert psychological evaluation of Ms. B’s intellectual and emotional capacities. While the absence of such a report is not necessarily crucial – so far, at least, as the present case is concerned – it has nonetheless hampered the Court’s ability to make an informed assessment of Ms. B.’s capacity “of forming…her own views” and the weight to be ascribed to those views “having regard to the age and maturity of the child” in the manner required by Article 42.4.2° of the Constitution.

5. On 9 December 2004, Ms C consented to have Ms. B put in voluntary child-in-care with Ms. A. At the time of review in 2006, Ms. C acknowledged the high level of care Ms. A provided and requested that her daughter should remain with her foster mother. On 17 July 2007, a care order was granted by the District Court to Ms A until Ms B reached the age of majority. While it is only proper to record that Ms. C did not object to the making of that order, it should also be stated that she consented to this in the knowledge that this was likely to be in the best interests of her daughter, Ms. B, and in view of the acute difficulties which she (Ms. C) faced at the time.

6. Ms B has resided with Ms. A her whole life and she has never been in Ms. C’s day-to-day care. Ms A is herself now divorced from her husband and she has two adult children of her own. There is no question at all, but that Ms. A has provided Ms. B with a loving and happy home.

7. Ms B does however have a relationship with her birth mother, Ms. C.. From 2004-2008 Ms. C had fortnightly access to Ms. B, then a young infant. In 2008 Ms. C’s access to Ms. B became less frequent due to Ms C moving from a rural area which was close to Ms A’s home to Dublin. She (Ms C) was reliant on public transport and the Child and Family Agency (“the CFA”) to facilitate access, a statutory duty which it is contended that it failed adequately to exercise.

8. It is true that in his judgment Barrett J. in the High Court was critical of the role of the CFA in terms of the supports it offered to Ms C and the contact it facilitated in respect of Ms B In passing it may be observed that s. 37(1) of the Child Care Act 1991 places the duty on the CFA to facilitate reasonable access between natural parents and children. The appellant, Ms. C., contends that the CFA failed to discharge this duty. She points in in this regard to Article 17(1) and Article 18(1)(b) of the Child Care (Placement of Children in Foster Care) Regulations 1995 (S.I. No. 260 of 1995) which require that a child is to be visited by their natural parents a minimum of every 6-months and that child-in-care reviews are to be conducted at least once annually.

9. Despite this, Ms. C contends that from 2012-2017 inclusive the CFA failed to provide financial support to allow her to visit Ms B, and that from 2014-2017 that no child-in-care review was conducted. Furthermore, the appellant contends that no social worker was assigned in this time and that overall management of access was entirely delegated to Ms

A. Ms. C contends that the failures of the CFA during this period directly impacted on the ability of Ms. B to be brought up in the care of her natural family in accordance with her constitutional rights and that such ought to be borne in mind when interpreting the requirements of s. 54 of the 2010 Act, in particular ss. 54(2A)(d) and 54(2A)(f) in relation to the necessity that the State should supply the place of the parents and the proportionality of the order.

10. It is, I think, unnecessary for me to express any concluded view on this issue because even if one accepts that the CFA failed adequately to support Ms. C in the manner required by statute and by the 1995 Regulations, all this would have meant is that there would have been greater contact at key times between Ms. B and Ms. C. While this would certainly have been to the good, it really would not have changed the essential fact that Ms. B resided with Ms A for all of her life. There was never a suggestion that had such occurred through the facilitation of such visits that Ms C could then then have provided Ms B with a home and cared for her. In fact, Ms C has never challenged the care order or sought the return of the custody of Ms B, although she has expressed a wish that one day they will live together.

11. It is only fair to say that in the interval Ms C has, to her great credit, managed to turn her life around from circumstances of profound adversity. In 2005 she attended an alcohol treatment programme, and she now abstains from alcohol. She also attended parenting courses and she resumed custody of her two other children by Mr. Z in October 2006 and she has raised them successfully and given them a good education. In recent years she has graduated with a university degree, and she now lives in local authority accommodation with a stable home of her own.

12. In the course of 2021, in anticipation of Ms B’s 18th birthday in the following year, Ms A sought to adopt Ms B. This step had previously been suggested on a number of occasions. The possibility had indeed first been canvassed by Ms. C in 2012. It would also seem that in March 2019 Ms. C was aware that Ms. A was seeking the adoption of Ms. B. and took no steps at the time to have the long-term care order discharged or varied.

13. At all events, the natural parents, Ms C and Mr Z, both refused, however, to consent to the proposed adoption order. Though Ms C has sought to retain the closest possible contact with her daughter over the years, Mr Z’s refusal of consent is the only interaction he has had with his child since he visited her in hospital shortly after she was born in 2004. It appears, however, that Mr. Z supports the position of Ms. C even though he has taken no part in these proceedings.

14. The Adoption Authority made an order on 21st December 2021 declaring, pursuant to s. 40 of the 2010 Act that Ms. A. was both eligible and suitable as an adoptive parent. It further declared on 15th February 20202 that if an order were to be made by the High Court pursuant to s. 54(2) of the 2010 Act it would then make the adoption order sought.

15. The question which now arises is whether an adoption order should now be made in favour of her foster-parent, Ms A. The present appeal presents issues of some difficulty, raising as it does complex constitutional and legal problems.

16. The matter came before Barrett J. in the High Court on the application of the Adoption Authority (“the Authority”) pursuant to s. 54(2A) of the Adoption Act 2010 (“the 2010 Act”). In these proceedings the CFA seeks an order authorising the Authority to make an adoption order in respect of Ms. B and to dispense with the consent of the biological parents, i.e., the consent of the natural mother (Ms. C) and the natural father (Mr. Z). (While Mr Z is on notice of these proceedings, he has not sought to take any part in them.)

17. In the High Court Barrett J. refused to make the order sought. A majority of the Court of Appeal (Whelan and Costello JJ., Power J. dissenting) allowed the appeal. The Adoption Authority then made an adoption order on 23rd August 2022.

18. Ms. C has now appealed to this Court pursuant to a grant of leave made by this Court in accordance with Article 34.5.3° of the Constitution. It is, however, agreed that in the event that this appeal were to succeed the adoption order would be set aside.

19. It is, I think, difficult to follow the detail of these judgments without first considering the relevant legislative texts, principally, s. 54(2A) of the 2010 Act. Since, however, one cannot really grasp the import of these provisions without first understanding the evolution of the relevant constitutional and legislative provisions, I propose to start first at this point before then considering the judgment of the High Court and the judgments of the Court of Appeal.

Part II – The relevant constitutional and legislative provisions

20. Article 42.5 of the Constitution as adopted by the People in July 1937 originally provided as follows:

“In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.”

21. This is really not the place for a comprehensive review of the case-law arising under the old Article 42.5 regarding the extent to which the natural parents could forfeit their constitutional rights (and, indeed, obligations) to care for their children where the children in question had been in the custody of third parties. It is sufficient to say that judicial views on this topic varied considerably.

22. In The State (Doyle) v. Minister for Education, Supreme Court 21 December 1955 (belatedly reported at [1989] ILRM 277) this Court held that s. 10 of the Children Act 1941 was unconstitutional insofar as it enabled the District Court to order the indefinite detention of a young child. Here the mother had deserted the family and the father had requested the District Court to send his daughter to an industrial school as he was unable to care for her at the time. Sometime later when the father’s financial circumstances had improved, he sought the return of his child, but the Minister refused to consent to this. This Court held that this section clearly violated the right of the father to educate and rear his child under Article 42.1 of the Constitution.

23. On this point Maguire C.J. was clear ([1989] ILRM 277 at 280): “It is submitted that once the detention of a child in an industrial school is permitted it may well be that its detention over a lengthy period is essential in order to enable it to be properly educated. In the view of the Court, however, [Article 42.5] does not enable the legislature to take away the right of a parent who is in a position to do so to control the education of his child, where is nothing culpable on the part of either parent or child.”

24. By contrast, in J v. D., Supreme Court, 22 June 1977, this Court held that it was in the best interests of the four children that they continue to reside and be reared with their grand aunts. The children had by that stage been living with their grand aunts for four years. Their parents had been living in England when they separated. Their mother returned to Ireland and lived with her family. When she died in 1975, her aunts in turn looked after the children. When their father sought custody, this was refused on the basis that the best interests would be served by remaining where they were. The case is notable for the fact that in his concurring judgment Kenny J. denied that the Constitution gave parents any “prima facie right” to the custody of their children.

25. Pausing at this point, it is perhaps only proper to say that the view of Kenny J. has not commanded much support in the intervening period since these views were first uttered and these views seem, frankly, at odds with the express words of Article 42.1 itself. There is perhaps also a risk that the words of Maguire C.J. in Doyle might either be mis-interpreted or over-interpreted, since he simply stressed that the Oireachtas could not remove the right of a parent to rear or educate a child where there was nothing culpable on the part of either parent or child. Given, indeed, what we now know from the Ryan Commission and elsewhere regarding the institutional care of children and the experience of children in that sad and often bleak environment, the decision of this Court in Doyle might well be regarded as a salutary check on the right of the Oireachtas to provide for compulsory institutional care of children against the wishes of their parents where such is not objectively warranted.

26. What was more problematic at the time was the issue of whether the children of married couples themselves could be adopted. This Court ultimately concluded in Re Article 26 and the Adoption (No.2) Bill 1987 [1988] IR 656 that legislation which provided for the adoption of such children was not in principle unconstitutional. The Adoption Act 1988 (i.e., the title of the 1987 Bill when it became law) allowed the High Court to make an adoption order in circumstances (i) where for a continuous period of 12 months the parents had failed in their duty towards their children; (ii) it was likely that such failure will continue “without interruption until the child attains the age of 18 years” and (iii) such failure “constitutes an abandonment on the part of the parents of all parental right…with respect to the child.”

27. Drawing on the language of Article 42.5 and the consequent obligation of the State to vindicate the natural and imprescriptible rights of the child, Finlay C.J. observed ([1988] IR 656 at 663):“The guarantees afforded to the institution of the family by the Constitution with their consequent benefit to the children of a family, should not be construed so that upon the failure of that benefit it cannot be replaced where the circumstances demand it, by incorporation of the child into an alternative family.”

28. The Court then proceeded to examine the terms of the Bill, stressing the existence of mutual safeguards for the rights of both parents and children before any such adoption order could be made. These principles were then followed and applied by this Court in a series of cases sanctioning the adoption of children born to married couples: see, e.g., Southern Health Board v. An Bord Uchtála [2000] 1 IR 165 and Northern Area Health Board v. An Bord Uchtála [2002] 1 IR 252.

29. The pre-existing adoption law was subsequently consolidated and revised by the 2010 Act which repealed all the previous legislation since 1952. The (original) version of s. 54 of that 2010 Act reflected the terms of 1988 Act and this in turn reflected the circumstances in which the constitutionality of that Act (while still in Bill form) had been upheld by this Court.

The enactment of Article 42A of the Constitution

30. On 28th April 2015 the 31st Amendment of the Constitution Act 2015 was signed into law by the President. This inserted a new Article 42A into the Constitution. It replaced the old Article 42.5, and it now provides as follows: “The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights. 1° In exceptional cases, where the parents, regardless of their marital status, fail in their duty towards their children to such extent that the safety or welfare of any of their children is likely to be prejudicially affected, the State as guardian of the common good shall, by proportionate means as provided by law, endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child. 2° Provision shall be made by law for the adoption of any child where the parents have failed for such a period of time as may be prescribed by law in their duty toward the children and where the best interests of the child so require.

3. Provision shall be made by law for the voluntary placement for adoption and the adoption of any child.

4. 1° Provision shall be made by law that in the resolution of all proceedings— i. Brought by the State, as guardian of the common good, for the purpose of preventing the safety and welfare of any child from being prejudicially affected, or ii. Concerning the adoption, guardianship, or custody of, or access to, any child, The best interests of the child shall be the paramount consideration. 2° Provision shall be made by law for securing, as far as practicable, that in all proceedings referred to in subsection 1° of this section in respect of any child who is capable of forming his or her own views, the views of the child shall be ascertained and given due weight having regard to the age and maturity of the child.”

31. The perceived reason for the introduction of Article 42A was that the pre-existing provisions of Article 42.5 and the case-law which it had generated had been thought to weigh the balance of constitutional rights too heavily in favour of parents at the expense of the best interests of children. For present purposes it is really immaterial whether these concerns were in fact really fully justified: constitutional historians will doubtless give their verdict on this point in the fulness of time. It is sufficient to say, as O’Donnell J. did in JB v. KB [2018] IESC 30, [2019] 1 IR 270 at 278, that: “The amendment as a whole was directed towards a perceived approach of statutory and constitutional interpretation as a matter of history, which was considered to be unsatisfactory in principle, and to give rise to potentially unsatisfactory results. That is because it was considered that issues in relation to children could be skewed by the emphasis placed by the Constitution as originally enacted on the family as the natural and primary educator of children, and as a moral institution possessing rights anterior and superior to positive law, which might lead to cases being resolved in a way which subordinated the interests of the child to that of a family, and in effect, therefore, of parents. This occurred perhaps most clearly in the field of the possible adoption of children born to married parents, or parents who were subsequently married. Article 42A can therefore be seen as a restating of the balance, acknowledging in explicit terms the individual rights of children, and indeed explicitly permitting the adoption of children whatever the marital status of their parents. In that context, Article 42A.4 was unremarkable, and perhaps the least significant aspect of the amendment. It is unnecessary at this stage to consider whether concerns as to the interpretation of the Constitution were justified, or to what extent any unhappy outcomes were the consequence of the text of the Constitution, or the interpretation applied to it. However, the very fact that there were concerns as to the interpretation and application of the pre- 2015 provisions is itself a warning against further glosses of the new provisions.”

32. The extent to which the new Article 42A effectively changed the law is, as I have already indicated, to some extent a matter of debate. Yet in at least two respects, however, the new Article 42A effected important changes. There was now a legislative obligation to provide for the adoption of a child where the parents (regardless of marital status) had failed in their duty towards a child. The stipulation of the old Article 42.5 to the effect that the failure of the parents had to be for “physical or moral” reasons was also removed.

33. Over and beyond this, it might be said that, as this Court observed in Re JJ, an infant [2021] IESC 1, Article 42A effected an incremental change and subtly re-calibrated the respective rights of the children and parents gently in favour of the former. To that extent Article 42A favours and mandates an extension in the circumstances in which a child can be adopted over the wishes of one or more of its parents where, for whatever reason, the existence of parental failure has been established.

The Adoption (Amendment) Act 2017

34. In 2017 the Oireachtas, in discharge of the constitutional obligation contained in Article 42A.2.2°, enacted the Adoption (Amendment) Act 2017 (“the 2017 Act”). What is particularly relevant for our purposes is that the 2017 Act amended s. 54 of the 2010 Act in order to set out and extend the conditions under which a child could be adopted without the consent of its natural parents. These statutory provisions set out the circumstances in which the High Court could, on the application of the Authority, dispense with the consent of the natural parents and proceed to make an adoption order.

35. This new section s. 54(2A) provided as follows: “(2A) Before making an order under subsection (2), the High Court shall be satisfied that—

(a) 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 section 53(1) relates, have failed in their duty towards the child to such an extent that the safety or welfare of the child is likely to be prejudicially affected,

(b) 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,

(c) The failure constitutes an abandonment on the part of the parents of all parental rights, whether under the Constitution or otherwise, with respect to the child,

(d) By reason of the failure, the State, as guardian of the common good, should supply the place of the parents,

(e) The child—

i. At the time of the making of the application, is in the custody of and has a home with the applicants, and ii. For a continuous period of not less than 18 months immediately preceding that time, has been in the custody of and has had a home with the applicants, And

(f) That the adoption of the child by the applicants is a proportionate means by which to supply the place of the parents.”

36. It is also necessary to point to the provisions of s. 19 of the Act of 2010 which provides:

“(1) In any matter, application or proceedings under this Act, which is, or are, before—

(a) the Authority, or

(b) any court,

the Authority or the court, as the case may be, shall regard the best interests of the child as the paramount consideration in the resolution of such matter, application or proceedings.

(2) In determining for the purposes of subsection (1) what is in the best interests of the child, the Authority or the court, as the case may be, shall have regard to all of the factors or circumstances that it considers relevant to the child who is the subject of the matter, application or proceedings concerned including-

(i) the child's age and maturity

(ii) the physical, psychological and emotional needs of the child,

(iii) the likely effect of adoption on the child,

(iv) the child's views on his or her proposed adoption,

(v) the child's social, intellectual and educational needs,

(vi) the child's upbringing and care,

(vii) the child's relationship with his or her parent, guardian or relative, as the case may be, and

(viii) any other particular circumstances pertaining to the child concerned.

(3) In so far as practicable, in relation to any matter, application or proceedings referred to in subsection (1), in respect of any child who is capable of forming his or her own views, the Authority or the court, as the case may be, shall ascertain those views and such views shall be given due weight having regard to the age and maturity of the child."

37. The new s. 54(2A)(3)(as amended by the 2017 Act) supplements all of these provisions by further requiring the High Court to have regard to the constitutional and other rights of all persons concerned (including the child) and any other matter which the Court considers “relevant to the application.” In essence, the question arising in these proceedings has largely reduced itself to the issue of whether the proposed adoption would satisfy these various statutory pre-conditions.

38. Having set out the relevant constitutional and legislative provisions, we can now proceed to consider the judgments of the High Court and the Court of Appeal. Part III – The judgments of the High Court and the Court of Appeal

39. In a judgment delivered on 27 June 2022, Barrett J. refused the adoption application: [2022] IEHC 389. Barrett J. held that while Mr Z had entirely failed as a parent to the extent that there was no reasonable prospect that he could care for Ms B in a manner which would not prejudicially affect her safety/welfare. He further held that with respect to Mr Z that it would not be an over-reach or disproportionate for the State to make the adoption order. Barrett J. was nonetheless not satisfied that these statutory proofs required by s. 54(2A) of the 2010 Act ss. (a)-(f) were satisfied with respect to Ms C, owing to the general parenting competencies Ms C had demonstrated in raising her other children. Barrett J. therefore held that it would be an over-reach by the State to supply the place of Ms C and that the adoption would therefore be a disproportionate intervention. As such, Barrett J. rejected the application on the basis that that the relevant necessary statutory proofs had not been met.

40. Barrett J. held, moreover, that, having regard for the considerations detailed in s.19 of the 2010 Act, it was in any case in the best interests of Ms B that the adoption was refused. Barrett J. held that given that Ms B was only 10 weeks away from the age of majority at the time of judgment that the benefits that she may receive from the adoption were minor, and in any case, otherwise available through other mechanisms. Barrett J. held that he believed that the only substantial effect of allowing the adoption would be to sever the existing legal connection between the child and her birth mother who ‘fought’ to occupy meaningful space in her life. Moreover, Barrett J. was not convinced that Ms B fully understood the legal implications of adoption or that her monosyllabic replies to questions he put to her in the course of an interview he had conducted constituted an emphatic desire to be adopted.

41. By notice of appeal dated 7 July 2022, the Child and Family Agency and Ms A appealed this decision to the Court of Appeal. In this it was supported by the Adoption Authority.

The judgments of the Court of Appeal

42. In a judgment delivered on 10 August 2022 on behalf of the majority of the Court of Appeal, Whelan J. held that the trial judge erred in stating that the requirements of s. 54(2A) (b),

(d) and (f) of the 2010 Act had not been met and that it was in Ms B’s best interests for the adoption application to be rejected: [2022] IECA 196.

43. Whelan J. held that it was clear to her that the adoption was needed for the continued protection of the social, educational, physical, and psychological welfare of Ms B. Whelan

J. held that Barrett J. had conflated Ms C’s general competencies as a mother with the relevant statutory evaluation of s. 54(2A)(b), which required examination of the safety and welfare of Ms B in particular if she were to be put in Ms C’s care. In that respect, Whelan

J. held that there was no probative evidence available which suggested that Ms C had a reasonable prospect of being able to care for Ms B’s particular needs in a manner which would not prejudicially affect her welfare. Whelan J. held that the trial judge had given insufficient consideration to Ms B’s lived reality. Ms B had never resided with Ms C. Ms A had been exclusively in charge of Ms B’s day-to-day care. Ms C had never made decisions regarding Ms B’s health, educational or developmental needs. Whelan J. also ruled that Barrett J. had focused too heavily on and gave excessive weigh to the failures and omissions of the CFA in facilitating a level of contact between Ms B and Ms C. Whelan

J. held that though the CFA’s conduct had its deficits, that such ought to have been balanced against the fact that Ms C never took any legal action to seek further access in face of those deficits.

44. Whelan J. furthermore held that Barrett J. had not properly assessed Ms B’s best interests. Whelan J. was satisfied that the trial judge had downgraded the benefit and effect of the proposed adoption contrary to the evidence before him. Moreover, Whelan J. held that Ms B’s views on adoption, which, while simple, were unequivocal and were not given sufficient weight. Undue regard had instead been given to Ms C’s wish to retain her natural and legal bond despite their little contact and the lack of contact Ms B had with Mr Z. Whelan J. held that, given Ms B’s vulnerability, that the security, certainty stability and support served by a life-long parental relationship with Ms A would be in line with Ms B’s view. Whelan J. held that the trial judge had not given sufficient weight to the time Ms B had spent in Ms A’s care, instead focusing on why it was the case, not giving sufficient regard to her lived experience. Whelan J. concluded therefore that adoption would give Ms B a concrete legal identity with the only family she had ever known, who had always met her various needs, in line with her wishes, and therefore in Ms B’s best interests.

45. Power J. dissented, observing that the requirements expressed in s. 54(2A) of the 2010 Act exist to ensure that the sundering of a link of constitutional importance is not done lightly. Power J.’s dissent was critically concerned with how the safeguarding proofs of s. 54(2A) of the 2010 Act are to be interpreted in ‘eleventh hour’ applications, observing that it was unclear whether a strict interpretation and application of the proofs would even be possible in such circumstances. Power J. furthermore, considering ss. 54(2A)(d) (necessity of State intervention) and (f) (proportionality) together, disagreed that more weight ought to have been given to Ms B’s exclusive residence with Ms A. Power J. held that adoption is not a reward for having done a good job, nor a punishment for a bad job, but an intervention arising from exceptional circumstances characterised only by the prejudicial effect nonintervention may have on a child’s safety or welfare for as long as they are a child.

46. Given, therefore, that Ms B was nearing the end of her childhood, Power J. held that she was not convinced that the refusal of the order would prejudicially affect her welfare as a minor during the short time that was left of her minority. Moreover, while Power J. agreed that Ms C’s general parenting competencies were insufficient to satisfy the proof in s. 54(2A)(b), that in situations such as this, where a transfer of custody is not actually proposed, that the application and interpretation of the safeguarding proofs contained in s. 54(2A) should not consider the potential effect of such a transfer. She held therefore, that the Court did not have to consider what would happen if Ms C regained custody of Ms B before she reached the age of majority.

47. Power J. was moreover satisfied that Barrett J. had correctly discharged his statutory obligations under s. 19(2) of the 2010 Act and had appropriately exercised his discretion in deciding that the adoption order was not in Ms B’s best interests. Power J. was further satisfied that adoption was not required to create legal certainty as she was satisfied that Ms B had a certain identity as a child of two families, both of whom strive to have a meaningful relationship with her. As such, Power J. held that, having recognising that adoption was more significant than severing a legal tie alone, it could nonetheless not follow that it would be in Ms B’s best interests to sever the constitutional link between herself and her birth mother, having regard in particular to the effort the latter had made to maintain a meaningful relationship, which in Power J.’s opinion could be strengthened over time and which would not displace or jeopardise Ms B’s place with her foster family.

48. The Court of Appeal thus made orders pursuant to s. 54(2) of the 2010 Act (as amended) authorising the Adoption Authority to make an adoption order in relation to Ms B in favour of Ms A and dispensing with Ms C and Mr Z’s consent to the same. A stay was not placed on the operation of the order. The parties instead made an undertaking to accept that the order shall be set aside should any appeal to this Court be successful. The parties further agreed not to raise the issue of mootness on appeal should leave be granted.

49. In a Determination dated 15 November 2022, this Court found that the appellant had raised matters of profound public importance concerning the operation and interpretation of s. 54 of the 2010 Act (as amended) in light of Article 42A.2.1° of the Constitution. Leave to appeal was granted in those respects in accordance with Article 34.5.3° of the Constitution.

Part IV – The submissions of the principal parties

50. I cannot here but give a brief flavour of the extensive and helpful submissions which the Court received from Ms C, the Child and Family Agency, Ms A and the Adoption Authority. In addition, the Court had the benefit of hearing both the Attorney General and the Irish Human Rights and Equality Commission, who appeared as amicus curaie.

51. Ms C appealed to this court on the basis that the Court of Appeal erred in their conclusions in many respects in regard to the interpretation and application of the proofs of s. 54(2A) of the 2010 Act. She first contended that the assessment of s. 54(2A)(b) was erroneous insofar as the majority held that the section required the consideration that Ms B would be taken into her care during the remaining period of her childhood, even where such was not proposed on the facts. Ms C contended that what is required by the section is that the birth parent is able to care for the child, not that they will. Ms C contends that in this respect, the majority were in error in assessing that her lack of legal action regarding the unification of her family as evidence that Ms C did not want to care for Ms B at all rather than the recognition of Ms C prioritising Ms B’s welfare.

52. Insofar as she contends that if the order were refused that Ms B’s living situation would not change, Ms C maintains that the majority were also incorrect in their assessment of s.

54(2A)(d) and (f). The appellant relies on the dissent of Power J. in contending that adoption is disproportionate. She furthermore contends that it was erroneous to hold that her previous failure of duty was relevant as evidence which speaks to there being a reasonable prospect that Ms C would not be able to care for Ms B in a manner which would not prejudicially affect her welfare or safety, necessitating State intervention. She contends that such overlooks the access she had to Ms B as well as the training and work she has specifically undergone with a view that it would assist in caring for Ms B. Similarly, in that respect, Ms C contends that it was an error to determine that her general competencies as a mother were irrelevant for the purposes of s. 54(2A) of the 2010 Act.

53. Ms C also contends that the failures of the CFA ought to have been given more weight, referring to the duty placed upon them by s. 37 of the Child Care Act 1991 to facilitate reasonable access between natural parents and children. Furthermore, the appellant contends that wardship ought not to have been rejected as an alternative option which would not be unreasonable or disproportionate and that late adoptions could render negatory the efficacy of s. 54(2A)(f). Moreover, Ms C contended that having proper regard for all the factors required by s. 19(2) of the 2010 Act that it was not in Ms B’s best interests to allow the order. She contends that by severing her legal link with Ms B, adoption would deny a fundamental aspect of Ms B’s life, that of being a child of two families.

54. The CFA assert that the adoption order be upheld and the reasoning of the majority of the Court of Appeal be affirmed. The CFA submit that s. 54(2A)(b) of the 2010 Act necessarily infers a transfer of custody, as without it, the subsection fails to have regard to the child at the heart of the proceedings and their specific circumstances and becomes instead a provision which assesses Ms C’s general competencies, which they claim are irrelevant because they do not bear on the specific relationship of care arising between her and Ms B. Moreover, The CFA contend that s. 54(2A)(b) is of both prospective and retrospective effect. Hence, the past, enduring failure of Ms C must be taken into consideration in the assessment of her reasonable prospects in caring for Ms B in a manner which does not prejudice her welfare and safety.

55. The CFA emphasise the fact that Ms B has never been in Ms A’s care. The CFA contend that the Court of Appeal were correct to assess that the distress that would arise from removing Ms B from the only family she ever knew would unreasonably prejudice her welfare at this point. The CFA contend that, on the facts, Ms A and the CFA have fulfilled the role of caretaker for Ms B, and that given the passage of time under which this has been the case, that s. 54(2A)(d) could not but be fulfilled. Finally, the CFA contend that the measure was proportionate and that the Court of Appeal afforded due weight to Ms B’s wishes and had correctly assessed the need for the certainty and stability adoption would provide to Ms B’s social, educational, physical and psychological welfare and correctly balanced such against other alternatives.

56. The Adoption Authority takes the view that the making of the adoption order should be upheld. It points to the fact that Ms B has had a settled and stable home with Ms A since she was some four months’ old. She had no contact at all with her biological father, Mr Z, and only limited access to her birth mother, Ms C. All the evidence, they suggest, was that Ms B wishes the adoption order to be made. The adoption ensured legal protection for the relationship and identity which the child has had with her foster mother for the last 17 years and generally protects the child’s best interests.

Part V: Whether the relevant statutory conditions contained

in the 2010 Ac (as amended by the 2017 Act) t have been satisfied

57. It is clear that the proper interpretation of s. 54(2A) of the 2010 Act (as amended by the 2017 Act) is central to the resolution of this appeal. While this sub-section must, of course, be viewed through the prism of Article 42A, it is not, I think, necessary to explore in any detail any of the issues concerning the interpretation of that provision itself. While Ms. C did not dispute – and, indeed, conceded – that certain of these statutory conditions (such as, for example, s. 54(2A)(c) in relation to abandonment) had been satisfied, it may be convenient nonetheless if each of them are now considered in turn. The question of law for this Court is, as I have already indicated, whether each of the relevant statutory conditions have been fulfilled. As MacGrath J. stated in Child and Family Agency v. Adoption Authority of Ireland (HR and FR) [2018] IEHC 515 (at [101]) before any adoption of this nature can be authorised by the High Court there must be “satisfactory proof” that each of these statutory conditions have been satisfied. In this respect, therefore, these conditions are each cumulative.

Section 54(2A)(a): whether parents failed in their duty

58. This sub-section provides that the High Court must satisfied that for a “continuous period of not less than 36 months” immediately preceding the date of the making of the application the parents had failed in their duty towards the child “to such an extent that the safety or welfare of the child is likely to be prejudicially affected.”

59. I do not think that one could realistically suggest that this condition has not been satisfied in the present case. Ms B had been in foster care for virtually the entirety of her minority. The concept of failure of parental duty has, as I noted at outset of this judgment, been a central feature of this aspect of our adoption law since 1988. In Adoption (No.2) Bill Finlay C.J. observed ([1988] IR 656, at 664) that the concept of failure must be construed as “total in character”. He continued: “No mere inadequacy of standard in the discharge of parental duty would…suffice to establish this proof…This does not mean that the failure must necessarily in every case be blameworthy, but it does mean that a failure due to externally originating circumstances such as poverty would not constitute a failure within the meaning of the sub-clause.”

60. This passage was subsequently applied by this Court in Northern Area Health Board v. An Bord Uchtála [2002] 4 IR 252, a case arising under the 1988 Act. Here a child had been in foster care for some years. Although her father had not been involved in her care, her mother opposed the adoption application. She, however, suffered from severe mental health issues and the High Court found that she was too ill to look after the child. In this McGuinness J. held ([2002] 4 IR 252, at 272) that there was “ample evidence to establish that on account of her disability [the mother] had been unable to fulfil her parental role, not alone for the required twelve-month period but for the entire of [the child’s] life.” She also added ([2002] 4 IR 252, at 272) that this finding was not offset by the level of access to the child on the part of the mother, agreeing with Herbert J.’s description of her that she was “more of a visitor than a parent” to the child.

61. A similar view was taken by MacGrath J. in HR and FR. In this case the natural parents had six children, one of whom died in infancy in circumstances that were never fully explained to the satisfaction of the authorities. The mother was pregnant with CW at the time of the death and, following his birth, he was taken into care. Because of the parents’ concerns regarding the question of whether other children would be taken into care, they appear to have left the State to live variously in either the United Kingdom or Nigeria (from whence they had originally come).

62. It is unnecessary to detail the complex facts of what subsequently happened. It is sufficient to say that CW lived all his life with loving foster parents and both he and they sought an adoption order shortly before he attained his majority. While MacGrath J. described the application as “highly unusual and difficult”, he nonetheless held that the statutory proofs for the purposes of s. 54(2A) had been satisfied and he made the order sought.

63. Much the same can be said here. For a variety of reasons Ms. C has been unable to discharge her parental rights for virtually the entirety of Ms. B.’s life. While not in any sense ascribing personal blame to Ms. C for this state of affairs, the plain fact of the matter is that all decisions regarding the education, welfare, up-bringing and day-today care of Ms. B were in fact taken by Ms. A., the foster mother. While, again, to her credit Ms. C sought to maintain contact with her child and sought to visit her regularly, she was at most a form of aunt to her daughter: she never exercised any decision-making role regarding the education and welfare of her daughter.

Section 54(2A)(b): whether natural parents unable to care for the child to the extent that her safety or welfare would be prejudicially affected

64. This sub-section requires that the High Court to be satisfied that Ms. C. would be unable to look after Ms. B. to the extent that her safety or welfare would be prejudicially affected. Much emphasis was laid by Ms. O’Toole SC on behalf of Ms. C on the issue of whether this particular condition had been complied with. She pointed to the fact that Ms. C had turned her life around and had in fact discharged her parental duties in respect of her other children. To that extent I agree with Ms. O’Toole SC: it cannot be said that there is no reasonable prospect that Ms. C will not be able to care for her daughter.

65. That, however, is not the relevant statutory test. It is not a question of parental capacity simpliciter because the sub-section goes on instead to stipulate that this parental care must be exercisable in a manner “that will not prejudicially affect…her safety or welfare.” All the evidence is that Ms. B.’s welfare would be best served by leaving her to reside in the only house which she has known as her family home. This is where her centre of interests lies, and she has come to love and value the rural life and landscape which her foster home offers. She should not be uprooted from that home environment, not least given the nature of her disability and personal disadvantage.

66. Section 54(2)(b) is accordingly not concerned with parental capacity in the abstract. This statutory test is rather concerned with the concrete welfare and interests of the particular child in question. Given the circumstances of Ms. B.’s life to date, any arrangements in her living environment would cause a very significant rupture in her life and would be fraught with risk.

67. I appreciate, of course, that it is no part of Ms. C.’s case that in the event that this appeal were to succeed that Ms. B. would then come to live with her. The point, however, is that Ms. C.’s own subjective intentions in this regard are not directly relevant to the application of this specific statutory test. Rather the High Court is required to ask itself whether the natural parents would be in a position to care for the child in a manner which would not prejudicially affect her safety or welfare. Here I agree with the comments of Whelan J. in the Court of Appeal to the effect that any conclusion to the contrary simply overlooks what she described as “the lived reality” of Ms. B. To that extent, therefore, I consider that this test is also satisfied in that there is no reasonable prospect that Ms. B’s mother would be able to care for her in a way which would not prejudicially affect her welfare.

Section 54(2A)(c): abandonment of parental rights

68. The question presented under this heading is whether the High Court could have been satisfied that Ms. C’s failure “constitutes an abandonment on [her] part for all parental rights.” (As it happens, Ms. O’Toole SC, counsel for Ms. C, conceded that there had been such an abandonment). As Denham J. (in Southern Health Board) and McGuinness J. (in Northern Area Health Board) both respectively observed in the context of the similarly worded 1988 Act, this term must be accorded a meaning according to its statutory context and is has - as both of these judges in their respective judgments stressed - a “special legal meaning”. While the word “abandon” has gloomy overtones reminiscent of the novels of Hugo and Dickens, and it is, moreover, a word which, as Denham J. said in Southern Health Board, is one which “in its ordinary meaning would distress parents” ([2000] 1 IR 165 at 177), it 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 sub-section is rather directed at the question of the abandonment of parental rights vis-a vis the child.

69. In Northern Area Health Board, McGuinness J. said ([2002] 4 IR 252, at 276): “Here P.O'D has agreed to the continuing care of J. by Mr and Mrs H. over virtually J's entire life to date. She is, in addition, happy that this situation should continue. She has allowed and willingly continues to allow J. to become in a practical sense a member of the H. family. She has, in my view, abandoned the custody and care of her daughter to Mr and Mrs H. She has left and will continue to leave to them the crucial decisions regarding J's health and education and the carrying into effect of those decisions, together with the by no means insubstantial financial costs that arise from them. In my view this situation amounts in a real and objective sense to abandonment of her rights as a parent. As Walsh J. pointed out in the passage quoted above [from

G. v. An Bord Úchtala [1980] IR 32 at 67-68] a parent may be deemed to have abandoned his position as a parent. In my view the infrequent visits by P. to her daughter, largely initiated by others, are not inconsistent with the reality of her abandonment of her position as a parent. It is true that P. has consistently expressed her opposition to adoption. I would, however, agree that such opposition in itself does not contradict the fact of abandonment. The test of abandonment must be an objective one.”

70. One can say as much in the present case as well. Ms. C agreed to the continuing care of Ms. B by Ms. A. She has left to Ms. A all the critical decisions regarding Ms. B.’s education and well-being. The fact that Ms. C visited her fairly regularly during the course of her childhood cannot take from the reality of abandonment of parental rights vis-à-vis Ms. B.

Section 54(2A)(d): whether necessary for the State to have intervened

71. There can really be little argument regarding compliance with sub-section (d). This requires the High Court to be satisfied that it was necessary that the State, as guardian of the common good, should supply the place of the parents. The unfortunate reality in the present case was that Ms. C.’s marriage and, consequently, her ability to care for her children, was overwhelmed by a series of crushing vicissitudes. She herself was unable to cope and this is why Ms. B. was first admitted into care and then fostered. This is a clear case of where the State had to supply the place of the parents.

Section 54(2A)(e): whether the child is in the custody of the foster parents

72. Here again there can be little argument regarding compliance with this specific statutory condition. This sub-section provides that the High Court must be satisfied that the child in question is in the custody of Ms A and that she has a home with her for at least an 18-month period. It is not disputed but that Ms. B has been living with Ms. A and in her custody for virtually the entirety of her life or, indeed, that Ms. A has provided a loving and caring home for her.

Section 54(2A)(f): proportionality of the proposed adoption order

73. The final condition – namely, whether the High Court could have been satisfied that adoption is a proportionate response in the circumstances of this case – was the one which occasioned perhaps the greatest debate in this Court. The essential contention of Ms. O’Toole SC for Ms. C. was that adoption was unnecessary and that Ms. B.’s interests could be served, if necessary, by admission into wardship or (since 26 April 2023 with the entry into force of the Assisted Decision-Making (Capacity) Act 2015) by some form of assisted

decision-making.

74. In the High Court Barrett J. was openly sceptical of the value of an adoption at this late stage given that Ms. B was on the cusp of adulthood. As he put it: “But where my views align with those of Ms C is that I do not see what adoption at this time (about 10 weeks before Miss B turns 18 years of age) will achieve. As will be seen from Ms A’s affidavit evidence later below, Miss B is genuinely loved by her fosterfamily and that love does not rest on Miss B’s standing as a foster-child rather than an as an adopted child. (Love is not determined by legal links). If Miss B wants the surname of her foster-family she can change her surname by deed-poll when she turns

18 years of age. And if Ms A wants to bequeath property to Miss B, her adult children are now raised and ‘gone from the nest’ and no longer dependants so she can bequeath her property however she wants. So all that adoption would undoubtedly achieve at this time is to cut the legal link between a loving natural mother and a much-loved natural child with whom the natural mother has fought and sought to retain the closest contact over the years (with a disappointing want of assistance from the Child and Family Agency). I do not see that to cut that ‘natural mother-natural child’ legal link at the very moment when a child is about to enter adulthood, when I can see no particular advantage to the adoption, and when that adoption seems unlikely to have the slightest effect on Miss B’s day-to-day existence is somehow in Miss B’s best interests - and I note that those interests, while paramount, are not the sole interests at play. I am allowed also, without in any way compromising the paramountcy of Miss B’s best interests, to have regard to the interests of Ms. C in wishing to retain both natural and legal bonds with her child (a wish which in this case seems to me to be compatible with Miss B’s best interests).”

75. I find myself in respectful disagreement with the reasoning in this passage. Adoption is an institution which is designed to meet the deep-seated human needs for family stability, security and the ties and love of a family in circumstances where – for whatever reason – the natural parents have been unable to provide such an environment for the child. Adoption is accordingly rather more than simply the question of a name or a right to inherit or even the entitlement to look to others for guidance and direction in the making of important life decisions such as might in the past have been provided by wardship or now (since 26 April 2023) by assisted decision-making. Adoption is rather a question of status which has lifetime consequences going well beyond the issue of care during the minority of the child. 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. This point is underscored by the fact that this very institution is provided for and acknowledged by two separate constitutional provisions, namely, Article 37.2 and Article 42A.

76. It is also worth observing that the ties created by an adoption do not cease when the adopted child attains his or her majority. This has been the position since the Adoption Act 1952. It reflects a clear and consistent view on the part of the Oireachtas that there is a lifelong value to the relationship created by adoption.

77. Much was also made in this context of the fact that this was a late application for adoption. It is true that the fact that the courts were asked to apply a statutory test that is essentially forward-looking when there was at the time of the initial High Court application only a matter of weeks before the child became an adult in law makes the entire exercise somewhat artificial. I nevertheless find myself in agreement with the contention made by Ms. Browne SC on behalf of the CFA that this was not so much a consequence of a dilatory approach on the part of the Agency as rather the almost inevitable by-product of statutory tests such as “abandonment” and “no reasonable prospect of being able to care for the child”. These are tests which are, frankly, difficult to establish in early childhood at a time when, ideally and all other things being equal, adoption orders should preferably be made in order to advance the bests interests of the child in question.

78. One might further observe that the current adoption legislation arguably still carries too much of the imprint of the 1988 Act structure. As I have already noted, this legislation itself set a very high bar for the adoption of children of married parents in order to avoid potential constitutional difficulties arising from the (old) Article 42.5. (Whether those historic concerns were, in fact, actually well-founded is really immaterial for present purposes). One of the objects of Article 42A was to facilitate the adoption of children in foster-care and it may be that the current statutory provisions do not fully reflect the nature of the change brought about by this constitutional amendment.

79. In these circumstances Ms. B is entitled to enjoy the emotional and legal security of family membership which adoption entails. Any other conclusion would, on the facts of this case, be inconsistent with the obligation imposed upon this Court by Article 42A.4. As O’Donnell J. observed in Re JB and KB (minors) [2018] IESC 30, [2019] 1 IR 270, the application of Article 42A requires it to be performed in a manner which is child-centred in which the paramount consideration is, in fact, the child’s best interests. Posed in this manner this question really answers itself.

80. While Ms. B is on the cusp of adulthood, her condition and arrested mental development means that many of the delights of young adulthood – travel, adventure, romance, further education and employment – are likely to be denied to her. Her future is regrettably an uncertain one. If ever there was a young adult who needed the stability and security offered by a family environment, it is in fact Ms. B. It is only through adoption that these ties of emotional stability and family support can be given a full legal reality.

81. I accordingly conclude that this statutory condition has also been satisfied.

Section 54(2A)(3): the constitutional rights of the parents and the child

82. Section 54(2A)(3)(as amended by the 2017 Act) supplements all of this by requiring the High Court to have regard to the constitutional and other rights of all persons concerned (including the child) and to any other matter which the Court considers “relevant to the application.” In the Court of Appeal Power J. dissented [at 87] on precisely this issue because she was not convinced – just as Barrett J. had not been in the High Court – that “having regard to the enduring and positive nature of the relationship that has prevailed between them, a relationship that time and attention can strengthen, that it would truly be in this child’s best interests to sever the constitutional link that currently exists and to change her legal identity.”

83. While I recognise the force of these observations, I would nonetheless conclude that they are overborne by the fact that it is very much in the interest of Ms. B that she should enjoy the emotional security and other supports which membership of the family of Ms. A – the family which, after all, who has cared for her all her life - would actually provide. While I appreciate that Ms. B may not have a precise conception of what this step actually entails in law, it seems clear that Barrett J. found, having discussed the matter with her, that she is in favour of this step. This is further supported by the averments of the principal social worker familiar with this case.

84. Applying, therefore, the criteria specified in s. 19 of the 2010 Act (as amended), it seems to me that judged by all these statutory metrics adoptions would in fact be in Ms. B.’s best interests for all the reasons I have already set out.

85. It is naturally heartening that Ms. B does in fact have a good relationship with her natural mother. The making of an adoption order does not in any way prevent or preclude this relationship continuing or even strengthening in the manner contemplated by Power J. One happy feature of these proceedings is that Ms. A furnished an undertaking to the Court of Appeal that she would facilitate contact between Ms. B and Ms. C even after the making of the adoption order. Yet, viewed objectively, the considerations on the side of the ledger which favour adoption outweigh by some margin those which favour keeping the legal link of family with the natural mother. The Article 8 ECHR jurisprudence of the European Court of Human Rights relied on by the Irish Human Rights and Equality Commission

86. In expressing this conclusion, I have not overlooked the recent case-law from the European Court of Human Rights in respect of the Article 8 ECHR (respect for family life) obligations imposed on Contracting States upon which Mr. Lynn SC (counsel for the Irish Human Rights and Equality Commission) forcefully relied. Here the contention was that Article 8 ECHR, generally speaking, imposed a positive obligation (albeit subject to particular exceptions bearing on the safety and welfare of the child) to safeguard the parentchild bond and the unity of the family.

87. In the first of these cases, Strand Lobben v. Norway [2019] ECHR 615, the ECtHR held that, generally speaking, ties with the birth family must be maintained, except for where the family has been proven particularly unfit. It pointed to the fact that severing those ties means cutting a child off from its roots. The Court further noted that where the authorities are responsible for a situation of family breakdown because they failed in their obligations, adoption cannot be authorised on the ground of an absence of a bond between the parent and child. Yet the Court also accepted that the interests of the parents to have their family reunited may be overridden by the interest of the child not to have their de facto situation changed.

88. Similar thinking is also found in the even more recent judgment of the ECtHR in Abdi Ibrahim v. Norway [2021] ECHR 1060. In this case the applicant was a Muslim Somali who had been granted asylum upon her arrival in Norway. Following concerns about the risks to her young son, he was taken into care, and he was then placed at a very young age with a Norwegian Christian family who were active in the Mission Covenant Church of Norway. That family was itself opposed to “open” adoption, i.e., they did not favour continuing contact with the Somali natural mother, although they were prepared to supply information to their adopted son about his natural mother

89. The Norwegian adoption board and, subsequently, the Norwegian courts, ultimately ruled that the adoption was in the child’s best interests. They took the general view that the young boy had formed an attachment to the Norwegian family. The need for family stability meant that his identification with an evangelical Christian tradition was such that considerations based on natural ties, ethnicity, culture and religion all had to carry less weight. The child was aged about 6 when the Norwegian High Court made the adoption order in 2015. It noted that that he regarded the foster parents as his parents, and he seemed very attached to them.

90. The ECtHR took a different view, saying that Contracting States have an Article 8 ECHR duty to facilitate family reunification as soon as possible and to re-build family relationships. It took the view [at 149] that adoption should be permissible: “…only in very exceptional circumstances and could only be justified if motivated by an overriding requirement pertaining to the child’s best interests…That is so since it is in the very nature of adoption that no real prospects of rehabilitation or family reunification exist and that it is instead in the child’s best interests that he or she be placed permanently in a new family…Given the nature of the issues and the seriousness of the interests at stake, a stricter scrutiny is necessarily called for in respect of such decisions.”

91. The Court ultimately concluded that the facts of the case did not justify a complete and definite severance of the family relationship, with the result that Norway was to that extent guilty of an Article 8 ECHR violation.

92. While I do not doubt the enunciation of these principles or their manner of application in these Norwegian cases, I feel that there are significant factual points of distinction between these decisions and the specific facts of the present appeal. For a start, unlike the pointed situation in Ibrahim, the adoption here will be a form of “open” adoption in that Ms. B. and Ms. C will continue to have active contact with each other. The situation in Ibrahim can, moreover, be contrasted with the present case. In that case (unlike the present one) the child was a good deal younger at the time of the adoption, and he had not spent virtually an entire childhood with the foster family. There was also some hope of family reunification in that case, whereas this cannot realistically be said in the present appeal.

93. Yet even more fundamentally, our constitutional law has always stressed the importance of the parent/child relationship and how the child’s best interests are normally served by preserving the natural parental child bonds. Any number of the decisions of this Court over the decades could be cited for this purpose, ranging from Doyle, M. v. An Bord Uchtála [1977] IR 297, G., the Adoption Bill reference right through to N. v. Health Service Executive (“Baby Ann”) [2006] IESC 60, [2006] 4 IR 476. The subtle and gentle recalibration of the balance of parental/child rights effected by Article 42A of which I have already spoken does not alter the essential premise of Article 41 and Article 42 to the effect that parents are the natural educators of their children. As MacGrath J. said in Child and Family Agency v. Adoption Authority (HR and FR) [2018] IEHC 515 [at 129] it is “only in exceptional cases that the consent of the birth parents to an adoption should be dispensed with.” There is accordingly no conflict in principle between the precepts underpinning Article 8 ECHR on the one hand and the fundamental principles contained in Article 41, Article 42 and Article 42A of the Constitution on the other.

94. Yet it is not always possible to uphold the primacy of the parental role. The old Article

42.5 expressly recognised this regrettable fact inasmuch as it had expressly acknowledged that the State must step in to safeguard the welfare of the child. This is further underscored and enhanced by the new Article 42A. There comes a point where the child’s best interests are in fact better served by adoption by a foster family. This is the situation here where the adoption will simply give legal effect to what has been Ms B’s own experience since infancy, namely, that she has been a member of Ms A’s family.

Part VII - Conclusions

95. At the outset of this judgment, I said that this was a case in which human tragedy and hope were mixed. There has been plenty of human tragedy: appalling domestic violence, coercive control, alcohol abuse and foetal damage have never been far from the facts of this case. Yet there is hope as well. Ms. C has turned her life around in an impressive fashion and looks after her two of her three other children in a manner which does credit to all concerned.

96. The making of an adoption order in Ms. B’s case is also, however, a sign of hope. It cements the emotional bonds of family and security for which she doubtless subjectively yearns and which she objectively needs. There is hope too to be found in the generous and altruistic manner in which Ms. A has opened her house and her heart to care for the needs and welfare of Ms. B.

97. While none of these cases are easy, I nonetheless find myself obliged to conclude that the proposed adoption order would clearly satisfy the various statutory criteria specified in s.

54 of the 2010 Act (as amended). Viewing this through the prism of the Constitution’s injunction contained in Article 42A.4.1° that the best interests of the child should be the paramount consideration, I consider that such has been clearly established by reference to all the relevant statutory metrics.

98. It follows, therefore, that I consider that the majority of the Court of Appeal were correct in concluding that the High Court had erred in failing to make the adoption order sought. I would accordingly dismiss the appeal.