fallibilist

"I may be wrong and you may be right, and by an effort, we may get nearer to the truth." (Karl Popper)

Thursday, September 28, 2006

Adoption case - High Court judgment online

A little under two weeks ago, the story emerged that the High Court had granted an order that the need for the consent of a natural mother to her child's adoption could - indeed, in the best interests of the child, should - be dispensed with. The case was in fact decided on June 23rd, but the judgment was not released until September. It is now online, on the Courts Service site. The case, N & Anor v Health Service Executive and An Bord Uchtala, in a sense justifies the media description of it as a "landmark". In another sense, it highlights the (necessarily) fact-oriented nature of family law cases. General principles can be set out, but their application is peculiarly related to the endlessly variable (and varying) facts of intensely personal relationships.

The reasons why the case represents an interesting legal development is, briefly, as follows. In order to have one's child adopted, a mother must consent to the child being placed for adoption. The child is removed from the mother's physical custody, and placed with prospective adopters. The mother retains her legal position; the move is comparable to a trial separation. Before the child may be legally adopted - and its legal relationship with its birth parents severed - the mother must, by a separate and later act (freely and voluntarily, having been fully advised) consent to this second step. At all times when a child's future - as dictated by legal matters such as adotion, guardianship, custody and so on - are at stake the child's welfare (in effect, its best interests) must be "the first and paramount consideration": see s. 3 of The Guardianship of Infants Act 1964.

As stated above, the natural mother must give two separate consents at different defined stages of the adoption process. However, and this is at the core of the recent case, since 1974, the High Court - and on appeal the Supreme Court - has had the power to (at the behest of the prospective adopters) override the mother's prerogative in the second instance. In other words, the mother may agree to place her child for adoption, later change her mind - only to discover that her decision is not final. (The possibility of this happening must legally be pointed out to the mother before she signs the first consent, but that was not at issue in the recent N case.)

This position must be interpreted in light of the Constitution, which as I noted in another context the other day, has clear and strong protections for the family based on marriage. The Supreme Court came to decide that the Constitution was premised on a presumption that the child's welfare will, absent strong evidence (such as a likelihood of severe psychological damage to the child) to the contrary, be best served by being with its (married) parents, and not unrelated prospective adopters. The most important case is Re JH (An Infant) [1983] IR 375. There a child had spent a considerable time with a set of prospective adopters. It barely knew its birth parents. After the child's birth, the natural parents married. The mother had placed the child for adoption, but now withheld the crucial second consent, as she was entitled to do. The intending adopters, as they were entitled to do, asked the court to dispense with the mother's objection. The High Court (Lynch J.) allowed this, but the Supreme Court overturned this decision, and set out the italicised rule in the second sentence of this paragraph. (In case anyone goes to look at the Supreme Court judgment, I paraphrase its holding, but reasonably accurately, if recent memory serves me correctly.)

The facts in this year's N case were very similar to those in Re JH (An Infant). The natural parents married after the child's birth; the mother changed her mind and refused the second consent. The couple with whom the baby had been with for over a year applied to the court to have the mother's consent dispensed, under the 1974 legislation. The High Court (McMenamin J.) held that the child's best interests lay in having the requirement that its mother consent to the final stage of the adoptin process set aside. As I pointed out at the outset, it may well be that the facts of N are different to JH and that the decision is very closely tied to the specific circumstances. (After all, the High Court is bound to proceed on the basis of the law as set out by the Supreme Court; it wouldn't have been valid for McMenamin J. to purport to vary or disagree with Supreme Court precedent.) I wasn't in the courtroom; I haven't done more than scan McMenamin J.'s (very detailed and lengthy) ruling. But if the Supreme Court appeal goes ahead, as was indicated in the newspapers after the ruling became public, we may genuinely come to a milestone in Irish family law. The hearing and decision will presumably be this side of Christmas, given the time-sensitive nature of the matter. After all, the longer the delay, the greater the prejudice to the natural parents' case.

2 Comments:

Anonymous PD said...

Forget this family law nonsense! What about the Jehovah's Witness decision? It's like one of those fiendishly difficult constitutional law problem questions. First I thought Justice Abbot got it right (on the basis that he was protecting the family) but if the husband was there, that complicates things no end...hard to see the state winning this one! Would love to see it go to the SC: could have the first unenumerated right (to refuse treatment on religious grounds, or better yet, the right to die) in 20 years!

Thu Sep 28, 09:49:00 PM GMT+1  
Blogger Karole said...

Re Ward of Court is only 10 or 12 years old, is it not? After all Denham J. was on the court so it can't be 20 years. I started writing a blog post on the Jehovah's Witness case, but without access to the written judgment (if any), it's very difficult to comment. All I'll say is rather Abbott J. than me. I didn't realise there was a father in the picture. The argument that the child would have no one to care for it would then be weakened, though perhaps not fatally. A.G. v X is (arguably) authority for the (perhaps countereintuitive) proposition that the right to life is engaged even where a person's proposed course of conduct will result in their own death. Is an appeal not now moot, since she has presumably been given the blood transfusion? almost certainly not, but what has done cannot now be undone. Any appeal will be interesting alright - there be what Prof. Kelly would call "deep constitutional waters".

Thu Sep 28, 10:42:00 PM GMT+1  

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