Analysis: Children's rights are central to this ruling, writes Carol Coulter, Legal Affairs Correspondent
Once again, the courts have had to deal with the heart-rending situation in which the birth parents of an adopted child have changed their minds about an adoption and sought the return of the child some time after the child was placed with adoptive parents.
Here, as in other cases, the young parents of the child married after the birth of the child and then decided to seek to have the child restored to them, based on the fact that they now constituted a family based on marriage, which is protected by the Constitution.
In two earlier cases where this arose in the Irish courts, it was decided that, given the central position of the married family under the Constitution, the child in question had to be returned, despite having lived in and bonded with the adoptive family.
These decisions were made on the basis that the welfare of the child was presumed to lie within its married family, whether or not it had ever lived with its natural parents. The fact that the child may have bonded with the adoptive parents, and might be severely damaged by being removed from the only home he or she ever knew, was not held to overturn the constitutional bias in favour of the married family.
In his judgment delivered yesterday, Mr Justice MacMenamin modifies these earlier judgments, though he stressed that the principles outlined in this case should not be held to apply in adoption or foster care situations in general. He also pointed out that the case is under appeal to the Supreme Court.
He grounded his judgment in a consideration of the rights of the child, which in these circumstances he felt "was such as to displace the constitutional presumption" in favour of the marital family. The child's constitutional right to the protection of her health and welfare should first be vindicated, he said.
Dwelling on the evidence of the psychological damage that would be inflicted on the child by separation from the adoptive family at this stage, he said her right to health and welfare could only be vindicated by not disturbing her in her present home.
Commenting on the earlier judgments, he said the circumstances were different. The evidence in the earlier authorities did not establish the probability of a risk of harm or psychological damage such as gave rise to the consideration of the rights of the child, he said. The evidence in this case established bonding and attachment to a very high degree.
He also pointed out that these earlier judgments preceded a number of important Supreme Court judgments which identified constitutional rights held by children. These included the right to have their welfare determined having due regard to the right to be educated by the family and the right to have its welfare determined on the basis that this occupied a high position in the hierarchy of unenumerated (unnamed) constitutional rights.
He also pointed out that these two earlier cases did not establish "failure of duty" or "compelling reason", legal concepts that he gave considerable weight to in his judgment. The "compelling reasons" were the question of the child's welfare, and "failure of duty" of the marital parents is cited as a reason for the rights of the marital family to be subordinated to other rights. He stressed that failure of duty in this case arose from a specific combination of circumstances and did not imply any blame on any party.
Despite the judge's remarks that this case should not be held to apply to adoption generally, it nonetheless continues the recent trend towards placing the rights of children at the centre of the courts' consideration.