High Court grants adoption order dispensing with birth father's consent despite his opposition.

THE HIGH COURT

FAMILY LAW

[2025] IEHC 563

RECORD NO. 2025 115 SP

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 54 OF

THE ADOPTION ACT 2010 (AS AMENDED), AND IN THE MATTER OF Y,

A MINOR BORN NOVEMBER 2007

BETWEEN/

CHILD AND FAMILY AGENCY AND A AND H

APPLICANTS

-AND-

THE ADOPTION AUTHORITY OF IRELAND

FIRST NAMED RESPONDENT

-AND-

E

SECOND NAMED RESPONDENT

-AND-

N

THIRD NAMED RESPONDENT

EX TEMPORE JUDGMENT of Mr. Justice Jordan delivered on the 30th day of July 2025

1. I propose to deal with the matter now, not least because N is here and has travelled some distance to be here to participate and voice his opposition to his consent being dispensed with.

2. I want to start by saying that it is unsatisfactory that proceedings which are important are left to the last minute. These proceedings were issued on 25 June last with a return date to 27 June. Y turns 18 in November next. This means that this application has been rushed. The court has had to find time to fit it in and N has had to deal with the matter at short notice, as has his legal team, and I appreciate the fact that they have done so.

3. The position of the birth mother is that she has consented to the adoption. There was an error in the first form of consent which was signed because the religion of the applicants was incorrectly stated, although it appears that the birth mother was aware of their actual religion. However, that issue has been addressed by a fresh affidavit of consent being signed by the birth mother on 24 July last and I have it before me and I am going to hand it back for fear I mislay it.

4. It is, in my view, not fair that these applications be left to the last minute. It is not fair to the birth father, the birth mother, albeit she has consented now. It is not fair to Y. It is not fair to the applicants for adoption, and it is not fair to the court. It is something that really needs to be addressed, as I have said many times, because delaying these matters is inimical or contrary to the interests of any parent opposing an application for adoption. And really, leaving applications for adoption to the cusp of the child obtaining their majority is undesirable, to say the least.

5. I have, however, to deal with the application. I am not going to read through reams of legal authorities in circumstances where the law in relation to the matter is clear, in circumstances where it has been the subject of the Supreme Court judgment in the B case, and I have before me the judgment of Hogan J in that case of 24 May 2023. That case being reported at [2023] IESC 12. The law and how the law should be applied is comprehensively set out in that judgment.

6. I will come in a moment to s. 54(2)(a) of the Adoption Act 2010, as amended. But it is necessary to refer also of s. 19 of the 2010 Act, which provides that in subs.

(1): -

“(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.”

7. I would pause there, and I would make the point that I have already made, that I am concerned with a paramount consideration which is the best interest of the child. I will make the point also that that does not trump all other considerations. I have to have regard to all of the matters listed in the section when approaching my decision in the matter. Section 19(2) provides: - “(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—

(a) the child’s age and maturity,”

Now, Y is almost 18 years of age. It is clear from the papers that she is a mature young person, although she has difficulties, in particular anxiety. She is reluctant to take the medication that has been prescribed although it is low dose medication. She prefers CBT, other approaches to treatment, and there is, as has been mentioned, indications of improvements insofar as her situation is concerned: - “(b) the physical, psychological and emotional needs of the child,” Well, I have touched on that just now in terms of the anxiety which she suffers from, the fact also that she has been home schooled, in effect, and has been out of education for many years now, although, on that front, it has to be said that this Court is alert to the fact from other cases that children out of school has become something of a problem throughout. In other words, Y is not unique in terms of her non-engagement with education. But insofar as her emotional needs are concerned, I cannot disregard the fact the child has been with the applicants for adoption since infancy. She is fortunate in many respects to have a birth mother, and, indeed, a birth father, who are concerned also about her welfare. But the fact of the matter is that, on a day-to-day basis, throughout all of her life, her emotional needs have been met by the applicants for adoption.

“(c) the likely effect of adoption on the child” Well again, the evidence which I have is that Y wishes to be adopted. She is aggrieved that the fact that two of her step siblings were adopted before now, although she is with the applicants for adoption longer than both of them. The effect of the adoption on her, it seems to me, from the evidence which is before the court, is likely to be a positive effect because that is what she wants. Or put another way, and I think that N will appreciate what I am saying in this regard, I think that if I refuse to make the adoption order, notwithstanding the expressed wishes of Y, that it will have a negative effect on her – I think it would set her back significantly.

“(d) the child’s views on… her proposed adoption” I have dealt with that as part of the previous. She wants to be adopted. I appreciate what N says in that regard, he says that he believes that the foster parents have influenced her and, of course, the truth of the position is that, because she is with them since infancy, that fact has a bearing on her wishes, but that is the fact of the matter. The truth is that the applicants for adoption have been her parents throughout her life on a dayto-day basis in terms of her daily needs, her emotional needs, and such like.

“(e) the child’s social, intellectual and educational needs” Again, we are speaking of a child who is almost 18 years of age, and in the ordinary course of events, one is dealing with that consideration in the context of a much younger child. But it is worth pointing out again that where Y is now, the home she lives in, is the only home she has been in for all of her life. So, in terms of her social needs, her social needs are met by the current environment in which she resides which is, to her, her home because it is the only one she knows.

“(f) the child’s upbringing and care” Again, that is covered in what I have said earlier. Y has been brought up since infancy by the applicants for adoption.

“(g) the child’s relationship with his or her parent, guardian or relative, as the case may be” The position in relation to Y, and I am trying to leave fault or blame out of the picture, because it does not seem to me to be helpful to anyone involved or concerned with the welfare of Y. The factual situation is that there have been difficulties in terms of Y’s contact with her birth mother and her birth father over the years. It is clear from the evidence that access between Y and her father was difficult for her, and it is clear that, notwithstanding what I believe were the best intentions of N, that it simply was not working out. That is not to attribute blame. But I suppose that situation has to be viewed in the context once more that Y has been since infancy in the home of her foster parents and reared with their other children, their own and other foster children who have already been adopted by them. I have to have regard also to any other particular circumstances pertaining to the child concerned. There are exhibited before me two letters from Y in relation to her plea to allow the adoption proceed which I cannot ignore and have to have regard to. Subsection (3) of s. 19 states:- “Insofar as practicable in relation to any matter, application or proceeding 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.” Now, I hear what N has said in relation to the views expressed by Y, and I am satisfied from reading her letters which are exhibited that her express wish is that the adoption proceed. But that is hardly surprising in circumstances where, as I have said already, she has been with A and H since infancy. It is the position that a full care order after a contested hearing was granted back in July 2014.

8. So I turn now to s. 54(2A) “Before making an order under subs. (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 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.” It is difficult for N to sit here and to hear decisions being made in relation to what is stated in this and the other subsections, but I have to deal with the factual situation as it is. And the factual situation as it is, is that all of the decisions throughout her life, from infancy, regarding her day-to-day care, her education, her welfare, her upbringing, had been taken by the applicants for adoption. All of the parental duties have been exercised by the applicants for adoption and, notwithstanding the efforts made and N’s interest and bona fides in maintaining a relationship with his daughter, it is clear to me on the evidence that the requisite proof recited at para. (a) is met and, in this regard, I should perhaps make the point that I have before me a lever arch folder, which runs to almost

160 pages, which I have read and I have considered. I should say also that additional affidavits were filed yesterday and served yesterday, apparently, and I am disregarding those because I take L’s point, it is bad enough dealing with a late application, but having papers served at the very last minute in a late application is potentially unfair. I am also leaving those affidavits to one side and disregarding them because the evidence in the booklet which is before me is sufficient to deal with the matters which I am required to deal with.

9. There are conflicts of fact between the affidavits supporting the application to have the father’s consent dispensed with, and the father’s replying affidavit. And, as I said to the father, there is a considerable amount of water under the bridge at this stage in terms of the events of the child’s life. But it is important in dealing with applications like this that I avoid making findings of blame or culpability, if that is possible and, having considered the evidence, I do believe, it possible and I am proceeding to deal with the application, having regard to what I see as clear evidence in the affidavits and exhibits which are before the court.

10. I move then to subs. (b). “there is no reasonable prospect the parents will be able to care for the child in a manner that would not prejudicially affect his or her safety or welfare.” Now, as pointed out by Hogan J, s. 54(2A)(b) is not concerned with parental capacity in the abstract. It is concerned, as a statutory test, with the concrete welfare and interest of the particular child in question. And, as in that case, given the circumstances in Y’s life to date, any arrangements or rearrangement of her living environment would cause a very significant rupture in her life and would be fraught with risk. It is common case, that Y has some challenges; she suffers from anxiety, she is out of education. It is completely unrealistic to believe that there is any reasonable prospect that N will be able to care for Y in a manner that would not prejudicially affect her safety or welfare. And, again, I hope that N can understand what I am saying in that regard. If you imagine this evening, or you imagine at some point in the future, N arriving to the home where Y has lived all of her life, and saying, “You’re my daughter, you're coming with me” and then with the best will in the world, bringing her to his home, and expect that doing that and trying to care for Y, would not prejudicially affect her safety or welfare. It is completely unrealistic to think that it could work or would work.

11. I move then to subs. (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.” As I said, and I am sorry, N, that that word is used, I end up apologising frequently to birth parents when reading those words from the section. However, Denham J in a case, the Southern Health Board case [2000] 1 IR 165, many years ago, and McGuinness J in the Northern Area Health Board case [2002] 4 IR 252, they said, dealing with an earlier Act with similar wording in it, the 1988 Act, that those words have a special legal meaning. And Hogan J, in the Supreme Court judgment which I have mentioned, the recent judgment, said 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”. Hogan J goes on to say “It does not necessarily mean or imply abandonment in the sense of a physical abandonment of the child”, although it could mean that, but in the ordinary course of events and, in this instance, it is not suggested that that is what it means. What it is directed at is the question of the abandonment of parental rights viz-a-viz the child. And that is, in fact, what has occurred here because, since Y was an infant, she has been reared and brought up by A and H who have exercised all parental rights in respect of her.

12. I say frequently, N, to parents opposing their consent being dispensed with, that it is not a question of blame or criticism that I am concerned with, I am concerned at looking at the factual situation, the evidence and what it satisfies me of and the requirements of the section, having at the back of my mind, bringing it to the front before concluding, the paramount consideration, the welfare of Y.

13. I move on to subpara. (d), “by reason of the failure the State, as guardian of common good, should supply the place of parents”. And I usually take that with subpara. (f), as I will now, “that the adoption of the child by the applicants is a proportionate means by which to supply the place of parents”. And, again, the fact of the matter is at the time when she was a few weeks old, I think it was December 2007 that she was placed with the applicants for adoption. The fact of the matter is that it was necessary because of the upheaval that existed in the life of her birth parents and, in particular, in the life of her birth mother. It was necessary to place her with the foster parents because her welfare was significantly at risk if that was not done.

14. Is it proportionate that the adoption order be made. Again, as Hogan J pointed out in the Supreme Court decision, adoption is an institution which is designed to meet the deep seated human needs for family stability, security and the ties of 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 or 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.

15. As Hogan J says, this point is underscored by the fact that this very situation is provided for and acknowledged by two separate constitutional provisions, namely Article 37.2 and Article 42A. Hogan J went on to say, in that case, “It is also worth observing that the ties created by an adoption do not cease when the adopted child obtains his or her majority”. This has been the position since the Adoption Act of 1952, and he said 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.

16. I have considered the entire judgment of the Supreme Court in the B case. I am not going to recite subsequent paragraphs. Paragraph 77 of the judgment and, indeed, subsequent paragraphs are relevant. N is here in court and the judgment speaks for itself, and I do not want to be reading out long extracts from it. It sets out the law which I am applying.

17. And that leaves subpara. (e), “the child, (i) at the time of making of the application is in 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 that is the factual situation, and that is established by the evidence.

18. Section 54(3) also says:-

“In considering an application for an order under subsection (2), the High Court shall–

(a) have regard to the following:

(i) the rights, whether under the Constitution or otherwise, of the persons concerned, including the natural and imprescriptible rights of the child

(ii) any other matter which the High Court considers relevant to the application.”

19. Just in that regard, it seems to me that the persons concerned are, in particular, N who is here, and Y, whose welfare I am to regard as a paramount consideration. Their position, and likewise the position of birth mother and the applicants for adoption, are very clear, being clearly set out in the affidavits before the court and the documentation exhibited. Insofar as the constitutional rights of all of the parties concerned and, in particular, for the purpose of what I am saying now, N and Y, they are matters which I am having regard to. This is not and cannot be regarded as a rubberstamping exercise.

20. There is another matter which I have touched on and which I do consider relevant to the application, and that is the fact that Y will be 18 in November next.

Appreciating the difficulties adverted to by Hogan J in the Supreme Court judgment, it is nonetheless the position that these late applications on the cusp of majority are undesirable and potentially unfair to somebody such as N who wants to oppose the application. That consideration, however, is not sufficient, in my view, to tip the balance against the making of the order.

21. Subsection 54(3)(b) goes on to say:-

“Insofar as is practicable in a case where the child concerned is capable of forming his or her own views, give due weight to the views of that child having regard to the age and maturity of the child, and in the resolution of any such application, the best interests of the child shall be the paramount consideration.” I have already dealt with that and did where it is mentioned in s. 19 which I referred to earlier.

22. I have had regard also to (although, it has not been urged upon me, it is not part of any submissions made), but I am familiar with the jurisprudence of the European Court of Human Rights and, in particular, in relation to Article 8 of European Convention on Human Rights and my view in the context of this application coincides and is in agreement with the view of Hogan J, as recited at paras. 86 to 94 of his judgment in the B decision.

23. There does come a point when the child’s best interests are better served by the foster parents being allowed to adopt the child. I want to pause for a moment and reflect on the findings I have made and emphasise once more, although this is an ex tempore judgment, it is a judgment which is given by me having carefully considered all of the evidence before the court which, as I say, is sufficient to establish the facts grounding my findings that the requisite proofs, all of them, are satisfied insofar as the dispensing of the consent is concerned.

24. On a human level, I want to say a number of things, because N has travelled here and because I expect that he will be disappointed with the outcome. I think that N should find consolation in the following. Firstly, he did not walk away from voicing his opposition to the application which is before the court and the reason he did not walk away is because he is the birth father of Y who was born almost 18 years ago. Secondly, in addition to not walking away and being present here to voice his opinion, his objection and his views, out of interest for his birth daughter, Y, he should take consolation from the fact that the making of an adoption order, while it creates a new legal relationship between Y and A and H who will be regarded as her legal parents, there is no order which this Court can make which will alter the fact that the birth father of Y is N. Thirdly, I think that N should take consolation from the fact that Y, when she hears that the application was successful within the next hour or so, whenever she receives the phone call, will be happy, as opposed to the picture which would present likely of a very distraught and dejected feeling Y, if her wishes to be adopted were prevented and, as she would see it, disregarded. That may be all very difficult for N to absorb at this very moment being, as I expect he is, in a strange environment, sitting in front of a Judge in the High Court with a lot of law, legislation and case law being referred to. But N will have time to reflect on what I have said in the hours and days to come, and he should reflect on one point, in particular, and that is that there is always hope that at some future point in time, Y and himself will improve their relationship. It does happen and there is hope that it will happen. But in truth, N, I think it would be very destructive to that hope if I refused to allow Y be adopted by A and H.

25. I do not want to go on in that regard. I think that N likely understands what I have said and may well disagree with much of what I said and with the order which I am about to make. But that is my decision, having considered all of the evidence which is before me.

26. I will make the order pursuant to s. 54(2) of the Adoption Act of 2010, as amended, authorising the respondent to make an adoption order in relation to Y who was born on 10 November 2007 in favour of A and H, I will make an order, although it is, to my mind, surplus to requirements, but I will make the order sought at para. (b), that is in order pursuant to s. 54(2) of the Adoption Act of 2010, as amended, dispensing with the consent of any person whose consent is required to the making of adoption order.

27. I should also say, and I intended to say it, but I will say it now. I did take on board all of what N has said in his replying affidavit. I did mention, in the course of my judgment, the conflicts of fact that exist and the fact that there is a lot of water under the bridge. Many of those conflicts of fact are not capable of resolution based on the affidavits and the evidence before the court. But the findings of fact which I have made are sufficient to ground what I have said in relation to the requirements of s. 54(2A). That is my Judgement. Alright, thank you.