A two-year-old girl who has lived with her prospective adoptive parents since she was three months old is to be returned to her natural parents on a phased basis following a Supreme Court decision yesterday.
The five-judge court unanimously upheld an appeal by the natural parents of the girl, known as Baby Ann, against a High Court decision directing that Ann remain with her prospective adoptive parents.
The necessary compelling reasons had not been put forward to displace the constitutional presumption that Ann's welfare would be best achieved in the care and custody of her natural parents, the Supreme Court held.
It ruled the basis of Ann's present custody with the prospective adopters is unlawful and that she must be returned to her natural parents on a phased and sensitive basis, to be decided by the court in line with professional advice. The circumstances of that return will be discussed before the court next week.
Ann was born in July 2004 when her natural parents - Couple A - were unmarried students and they placed her for adoption. This was done in November of that year, and since then Ann has remained with the prospective adoptive parents- Couple B - although no final adoption order has been made.
Couple A married in January 2006, which constituted them as a family unit under the Constitution and started proceedings to regain custody of Ann.
In a High Court decision in September, Mr Justice John MacMenamin ruled that Ann would be psychologically damaged if she was taken away from her prospective adoptive parents. He held her natural parents, while motivated by the best interests of their child, were guilty of a failure of duty to her.
Yesterday, all five Supreme Court judges rejected those findings. Another crucial factor in the court's decision, Mrs Justice Catherine McGuinness noted, was that, in light of her birth parents marriage and the provisions of the Adoption Act, there was now "no realistic possibility" that Ann could be adopted by Couple B.
In his judgment, Mr Justice Nial Fennelly said the essence of the finding of failure of duty was the decision to place Ann for adoption and to leave her in the care of Couple B. This was "a dangerous approach", as it raised the possibility in every case of placement for adoption that failure of duty was involved. In deciding against returning Ann to her birth parents, the trial judge was relying on a future event - the evidence of Couple B that they felt they would be unable to co-operate with a phased return of Ann. The prospective adoptive father had said such an experience would be "hell".
However, this was really opinion evidence and Couple B had an obvious interest in the outcome in that an assertion of inability to co-operate was in their own interest, Mr Justice Fennelly said. Mrs Justice McGuinness said this was at all times intended to be an open adoption with the natural parents to have future access to Ann at stated intervals. To find that a placement for adoption, either wholly or partially, amounted to a failure of duty represented a threat to the stability of the statutory system of adoption, she added.
The test was whether there were compelling reasons why Ann's rights could not be achieved within her natural family, which was given added weight by being set in the context of the constitutional rights of the family and of parents which applied "to the legally married family alone".
It was against this constitutional context she must consider the "dramatic and remarkable part" played in Ann's life and future by her parents' marriage.
Prior to the marriage, Ann was placed with highly suitable prospective adopters but, once the marriage of her natural parents took place, Ann and they became a constitutional family with all the concomitant rights and presumptions.
That marriage marked "a metamorphosis" in the court proceedings involving Ann - it was no longer the best interests of the child but the lawfulness or otherwise of Couple B's custody of her.
This meant it was no longer possible for the court to look at the matter from the point of view of the child, the judge said.
Ann, the judge said, was now a happy and secure two year old in the loving care of a couple whom she knew as her father and mother. Her future was uncertain. However, the expert evidence before the court did not meet the heavy burden of establishing compelling reasons that her welfare could not be achieved in the custody and care of her natural parents.
Mr Justice Adrian Hardiman said the Constitution establishes "demanding criteria" which must be met before the right of the child to be reared by their parents could be displaced. The argument by the proposed adopters invited the court to displace the position of the parents as guardians of the child's welfare by adopting less demanding criteria.
When dealing with very young children who could express no meaningful views of their own, it was of great importance that terms such as a "child-centred approach" should be thought through and not become a "proxy" for the views of social workers or others.
A placing mother and prospective adoptive parents accepted "risks of great personal distress" on entry into the adoption process and assumed a moral responsibility to act in the child's interest "even in very fraught and distressing circumstances", he said. No evidence had been adduced to show the birth parents marriage was not genuine, he said. Mr Justice Hugh Geoghegan said the expert evidence did not establish that the bonding of Ann to Couple B was so strong that severe damage would probably result if she was returned to her birth parents.
Outlining the background to the case, Mr Justice Fennelly said Ann was born when her parents, both students, were in their early 20s. Neither informed their parents of the pregnancy or birth, both continued their studies and ultimately decided on adoption. There was conflicting evidence about the extent to which both were committed to the adoptive process. In September 2004, the birth mother wrote to the Adoption Board asking to resume full care of Ann.
The judge said Couple A were married in January 2006 and some of the events leading up to that civil marriage made "strange reading". Appointments for the marriage were twice cancelled. It seemed "reasonably clear" the birth parents were acting on legal advice to the effect that their marriage would improve the prospects of their recovering the custody of Ann. However, this did not put in question the extent or genuineness of their long-term commitment to each other and was irrelevant to the matters to be decided.
Earlier in her judgment, Mrs Justice McGuinness said it was "perhaps striking" that "the one person" whose particular rights and interests were not separately represented in the case was the child herself. In her view, and in light of the UN Convention on the Rights of the Child, this situation "should give pause for thought".
The judge added it would be "disingenuous" were she not to admit she was one of those who had voiced criticism of the position of the child in the Constitution. She had done so in her report of the Kilkenny Incest Inquiry in 2003. However, this case had to be decided "under the Constitution and the law as it now stands".
