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	High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> B. (W.H.) & Ors v. An Bord Uchtala [2004] IEHC 110 (27 May 2004) URL: http://www.bailii.org/ie/cases/IEHC/2004/110.html Cite as: [2004] IEHC 110

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THE HIGH COURT

HC 214\04

[2000 108M]

IN THE MATTER OF THE ADOPTION ACTS 1952 - 1988 AND IN THE MATTER OF S. 3 OF THE ADOPTION ACT 1988 AND IN THE MATTER OF L.R. AN INFANT

BETWEEN:

W.H.B. AND W.S. AND E.S.

APPLICANTS

AND
AN BÓRD UCHTÁLA

RESPONDENT

Judgment of O'Higgins J delivered the 27^th day of May 2004.

In these proceedings the first named applicant is the Health Board and second and third named applicants are a married couple. The infant named in the title was born on the 24^th March, 1987 and has been in the care of the Health Board since April 1987 and has resided with the second and third named applicants since 15^th April, 1987 when she was about three weeks old.

These proceedings were commenced by special summons dated the 25^th August, 2000. By Order of the High Court (O'Neill J., 10^th October, 2003) a guardian ad litem was appointed in respect of the sister of the infant, the subject matter of this application, and separate representation was granted to her. The natural parents of the infant were joined as notice parties to the proceedings by Order of the High Court dated 20^th June, 2003. The application is resisted by the parents of the child as well as by her sister through her guardian ad litem.

The background.

This case has an unhappy background. The natural parents of the child, the subject matter of the proceedings, were married in March 1980 and separated in 1996. There were five children of the marriage.

D - Born 8^th August 1980.

S - Born 9^th June 1983 - R.I.P. 3^rd March 1985

E - Born 16^th June 1984 - R.I.P. 5^th September 1985

L - Born 24^th March 1987 - the child the subject matter of these proceedings

Lor - Born 3^rd December 1992 - who is represented in these proceedings by her guardian ad litem.

Prior to the birth of the child, the subject matter of these proceedings, medical records indicated that her sister, S., died in March, 1985, having swallowed an open safety pin. Her other sister, E., died some months later on the 5^th September, 1985 of what appeared to be a cot death. However, a doctor involved questioned the cause of death at the time. In or about 1996, the child's mother disclosed that she had smothered the child. She was subsequently tried for murder and convicted of manslaughter and on the 29^th April, 1999 a sentence of seven years was imposed but suspended on certain conditions.

The first child of the family, D., made complaints of chronic physical and emotional abuse, including an attempt by his mother to smother him. Concerns were also expressed that the child's mother had allegedly sexually interfered with her son. He was received into the voluntary care of the Health Board on 6^th December, 1985 and a fit person order was made in respect of him on the 4^th April, 1986. In those

circumstances when the Health Board became aware that the mother was expecting another child it was concerned with the safety of that child who is the subject matter of these proceedings. The child was born on the 24^th March, 1987. A place of safety order was obtained on the 5^th April 1987. The child was placed with the applicants on the 15^th April, 1987 and a fit persons order was made on the 15^th May, 1987. The child, L., has lived with the foster parents without interruption since that date although, in 1993, the natural parents applied unsuccessfully for discharge of the fit person order. In September 1996, L. was made aware of her mother's admissions concerning the death of her sister.

The application.

When she was about nine or ten years old L. (the child at the centre of these proceedings) discovered that it was possible for children to be adopted even in circumstances where there natural parents were married. At that time she first expressed the wish to be adopted. The Health Board conducted inquires and the Board was satisfied that it would be in the best interest of L. to be adopted. An application to the board was commenced by letter of the foster mother to the Health Board dated 13^th August, 1997. On the 12^th March, 1999 a hearing was conducted by An Bórd Uchtála. Pursuant to the requirements of s.2 of the Adoption Act, 1988, An Bord Uchtála was satisfied that if an order under s.3(1) was made in relation to the child to whom the application for the adoption order related, it would be proper to make the adoption order. It adjourned the application pending the determination of these proceedings. Prior to a decision, the natural mother was heard by the Board and the board was aware of her strong opposition to adoption. The Board had also in its possession a letter from the natural father received by it on 9^th December, 1998. There has been a long delay between the hearings of the Board until the hearing of this application, which will be addressed later in this judgment.

The application before this court was supported by the Health Board, though not by all of its personnel having dealings with the child. It was opposed by the natural parents of the child (who have separated since) and by L, the younger surviving sister of L, the subject matter of these proceedings, through her guardian ad litem. The mother was opposed to the making of the order on the grounds that there was no failure of parental duty and/or abandonment and also on the grounds that it was not in Lor's or L.'s best interest.

The Law

Section 3 of the Adoption Act, 1988 sets out the statutory requirements for the making of an order; it reads as follows:

3 (1) Where persons in whose favour the Board has made a declaration under s. 2(1) (referred to subsequently in this subsection as "the applicants") request the health board in whose functional area they ordinarily reside to apply to the court for an order under this section -

(a) if the health board considers it proper to do so and an application therefore in accordance with paragraph (b) of this subsection has not been made by the applicants, the health board may apply to the Court for the order, and

(b) if, within the period of 3 months from the day on which the request was given to the health board, the health board either-

(i) by notice in writing given to the applicants, declines to accede to the request, or

(ii) does not give the applicants a notice under subparagraph (i) of this paragraph in relation to the request but does not make an application for the order under paragraph (a), the applicants may apply to the Court for the order, and, if an application under paragraph (a) or (b) of this subsection is made and it is shown to the satisfaction of the Court -

(I) that -

(A) for a continuous period of not less than 12 months immediately preceding the time of the making of the application, the parents of the child to whom the declaration under section 2(1) relates, for physical or moral reasons, have failed in their duty towards the child, (B) it is likely that such failure will continue without interruption until the child attains the age of 18 years, (C) such 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, and (D) by reason of such failure, the State, as guardian of the common good, should supply the place of the parents,

(II) that the child -

(A) at the time of the making of the application, is in the custody of and has a home with the applicants, and (B) for a continuous period of not less than 12 months immediately preceding that time, has been in the custody of and has had a home with the applicants, and

(III) that the adoption of the child by the applicants is an appropriate means by which to supply the place of the parents, the Court may, if it so thinks fit and is satisfied, having had due regard for the rights, whether under the Constitution or otherwise, of the persons concerned (including the natural and imprescriptible rights of the child), that it would be in the best interests of the child to do so, make an order authorising the Board to make an adoption order in relation to the child in favour of the applicants.

(2) Before making an order under subsection (1), the Court shall, in so far as is practicable, give due consideration, having regard to his age and understanding, to the wishes of the child concerned.

I propose to deal with these matters seriatim.

Failure of duty.

The undisputed fact in this case is that since L. was three weeks old until the present day – she has lived with her foster parents. They and they alone discharged all of the duties that would normally be undertaken by parents. The natural parents have had no involvement of any kind in the upbringing of the child. The child has seen her mother on approximately 2 occasions in the last 7 or 8 years and has had even less contact with her father. Neither the mother nor the father have made any attempt to parent the child at any time during her life other than the unsuccessful attempt made in 1993 to have the fit persons order revoked. It is true, however, that the parents had very considerable access to the child for the first few years of her life. Unfortunately that access has not been sustained. The child and her parents are virtual strangers - indeed the mother told Ms. Treacy, the psychologist who was L's guardian ad litem in the District Court, that she felt that L. was a "total stranger to me". There are many reasons for the failure of access including the illness of the mother and the less than ideal cooperation of the foster parents, to which I will refer again. They did not, however, prevent the mother from having access to her child. In my view, the failure of the access to continue must be mainly attributed to the sad and dreadful actions of the mother in relation to the death of the sister of L. and the publicity attendant on the court case which followed. This made it quite natural that the child, who was 9 or 10 years old at the time, did not want to see her mother. The parents have no plans to undertake any parenting activities in respect of L. until she reaches 18 years. In those circumstances it is clear that the parents failed to fulfil their parental duties and it is likely "that such failure will continue without interruption until the child attains the age of 18 years. . ."

Section 3(1)(I)(A) of the Adoption Act, 1988 obliges the court to be satisfied that the failure of the parents was due to "physical or moral reasons". I reject the submission of Mr. Rogers, on behalf of the guardian ad litem, that the matters that caused a fit person order to be made in respect of L., shortly after her birth, are not properly matters which are capable of supplying the proof required under s. 3(1)(I)(A) of the Act on the basis that those matters arose many years ago and not in the course of the twelve month period, "immediately preceding" the time of the making of the application. In my view, Mr. Durcan SC is correct in his submission that, although the failure must relate to the period of twelve months immediately preceding to the making of the application, it is not essential that the physical or moral reasons for the failure must be evidenced by conduct which has taken place within that twelve month period. In my view, the court is entitled and obliged to have regard to the reasons for the failure to fulfil the parental duties, not only would be unrealistic to disregard the reasons for such failure merely on the basis that those reasons were attributable to events more than twelve months prior to the bringing of the application, but there is nothing in the Act requiring such an interpretation.

In my view, if the failure were due to a combination of physical or moral reasons the requirements of the legislation would be met because, notwithstanding the word "or" in the legislation, it seems unlikely that the legislators intended to strictly compartmentalise the physical and the moral reasons. I am satisfied that the words "physical reasons" should be interpreted so as to encompass mental illness. I accepted in the case of Southern Health Board and M.D. and J.D., v. An Bórd Uchtála (unreported, O'Higgins J., High Court, 20^th December, 2001) that it would be an anomaly if mental incapacity, no matter how severe, accounting for the failure of the parent in his or her duty towards the child, would preclude the making of an adoption order (other than on grounds of moral failure). The unfortunate actions of the mother in respect of the brother who suffered physical abuse on an ongoing basis, (as well as emotional and sexual abuse) and her sister who was smothered were the prime reasons why L. was taken into care and were properly and understandably the cause of great concern. The death of S., another sister of L. gave rise for concern and was part of the circumstances in which L. was taken into care. I wish to make it clear, however, that the decision in this case is made on the basis that the mother is entitled to be presumed innocent of her death. The fact that L. has lost contact with her mother for many years following the disclosure of the mother's actions cannot be attributed to any unreasonable behaviour of L. or her foster parents but must be held to be a consequence of the actions of the mother, especially the actions giving rise to the manslaughter conviction. The combination of those actions and the illness of the mother satisfy the court that, in her case, the failure of duty was due to physical or moral reasons, as provided for by the Act. It is clear and is not in dispute that the mother has suffered from psychiatric illness for many years (at least from 1985) and she continues to be troubled with mental ill health. It is regrettable that psychiatric evidence was not furnished to the court in this case. The father must be considered to have acquiesced in this behaviour of the mother in that he was living at home and failed to take any action to prevent ongoing abuse notwithstanding that such would have been readily apparent to him if he exercised appropriate parental care. He has not seen L. for many years and has not attempted or even aspired to have any involvement parenting her.

Abandonment

Having made the forgoing findings it is necessary for the court to consider the question of abandonment because as was stated by Finlay C.J. in the Adoption (No. 2) Bill, 1987 [1989] I.R. 656 at 664.

"The sub-clause clearly envisages that there might be cases where such a failure was established but an abandonment of rights was not proved".

In deciding whether the failure amounts to an abandonment of all parental rights I must have regard to the circumstances outlined above in which neither the mother or the father, apart from the first three weeks of L.'s life, has never parented L. and has no plans to do so. I have to have regard to the mother's evidence in which she states her aspirations with regard to L. are just "to be her friend and to think she can talk to me and after all those years just to have a relationship with her". L.'s father did not give evidence but in the statement told the court that sometime in the future he would like to build "some sort of relationship" with L. The meaning of the concept of abandonment was pointed out by Denham J. in the case of Southern Health Board v. An Bord Uchtála [2000] 1 I.R. 165 at pp. 177-178 as follows:

"The section does not require that there be an intention to abandon. While there may well be cases under s. 3 where there is simple abandonment of a child and an intention to abandon a child, these are not the only circumstances where s. 3 may be applied. The legal term 'abandon' can be used also where, by their actions, parents have failed in their duty so as to enable a court to deem that their failure constitutes an abandonment of parental rights. The parents in this case did not abandon FO'D in the sense of deserting him physically in a place, but that does not preclude the operation of the section."

The word abandon has a special legal meaning in the Act. At pp. 178 - 179, in the same case, Denham J. explained the concept as follows:

"The third step is to determine whether the failure constitutes abandonment. In this case it is not simple abandonment in the ordinary meaning of the word. The question is whether it should be deemed to be an abandonment within the legal term. The evidence must be such that it established the parents by acts or omissions so failed in their duty to the child that the circumstances are such that they may be deemed to have abandoned the child."

Certain matters are relied on by counsel both for the natural mother and for the guardian al litem for Lor as counter- indicating a finding of failure and/or abandonment. They are:

1. The bringing of an application for access between L. and Lor in early 2001 and in seeking improved access for herself.

2. The role played by the mother in having a guardian ad litem appointed for Lor in these proceedings.

3. The fact that the mother took opportunities to involve herself in issues concerning the welfare of Lor and D.

4. The fact that the mother signed an order in putting L. into voluntary care of the health board from the age of 16 to the present time.

5. The fact that the following evidence was given by L:

"Q: Even with all of that she is somebody who whatever the troubles and agonies there were … and there were plenty of troubles and agonies … she never gave up on her family as best she could.

A: Yes".

6. The response to the query from An Bórd Uchtála - stating the mother's position on adoption - was relied on as tending to disprove the contention that L. was abandoned.

I will deal with these matters seriatim:

1. The application under the Childcare Act, 1991 was taken at the initiative of the mother and, as it transpires, helpful both to L. and Lor. This is not of itself incompatible with the finding of abandonment. The letter of 18^th February is concerned with the mother's access to Lor and does not mention L. The letter of 28^th October is concerned with access to Lor and with establishing access to L. as well and the letter of 2^nd December is the first to concern itself with access between the sisters. I cannot accept that seeking to exercise a right of access is an attempt to discharge parental duties. The fact that an application is taken in relation to access merely shows that the mother wanted access - it does not address the question of abandonment.

2. The intervention of the natural mother to have a guardian ad litem appointed for Lor in these proceedings shows concern for Lor's position but does not address the question of failure and/or abandonment in relation to L. at all.

3. The fact that the mother became involved in the therapy for D., her son, shows admirable concern for his welfare. However, it does not address the question of whether the parents totally failed in their duty L. and whether that failure constitutes an abandonment in the legal sense of the word.

4. The signing of an order putting L. in voluntary care of the Heath Board does not, in my view, address the question of abandonment. It would be wrong to interpret that action of voluntary committal as one of abandonment: however, it would be equally wrong to interpret it as evidence to the contrary.

5. As appears from the context in which the evidence was given, L. agreed with a suggestion of counsel that the "mother never gave up on her family as best she could". I think it is unreal to interpret that as agreeing that there had not been failure to discharge parental duties or an abandonment. In my view, it was merely an the acknowledgement by L. that her mother wanted access and was involved in the lives of her remaining children

6. Mr. Rogers S.C. submits that the writing of the letter dated 11^th July 1997, in the context of the proposed adoption, was "engaging directly in the welfare of her children by taking a formal position in relation to the adoption". The response to a query in relation to adoption is not in my view of any significance in deciding the whether there was a failure of parental duty on the part of the mother or whether there was abandonment. The level of engagement involved in taking a position in response to a query cannot be said to be of any significance.

The contents of such a letter could, in some circumstances, be of very considerable importance in making a decision as to whether there was abandonment or not. A clear, informed and calm consent to adoption might, in certain cases, be regarded as evidence bearing on the question of failure or abandonment. It would be wrong, however, to attach any weight to the initial conditional and provisional consent to adoption contained in that letter. I accept the position as expressed in the report of Mr. Moran dated 23^rd February 1998 where he said ". . . due in part to the many challenges that M. is presently facing, her views on the adoption have a tendency to change back and forth". It is clear that for many years the mother has vigorously opposed adoption and continues to do so. However her motivation for doing so may be primarily out of interest for Lor or persons other than L. because her evidence was that she would still oppose adoption even if she felt it were in L.'s best interest. The court rejects the submission that in the years following the mother's disclosure of the killing of the child the mother displayed "a radical change of personality, mind, intent and behaviour" which counsel contended were evidenced by some of the matters discussed above.

In my view, neither the fact that in the early years the mother and father exercised a considerable amount of access, nor the mother's application in 2001 for increased access on her own behalf (in respect of which the court made no order), counter- indicate a finding of abandonment of parental rights. It is clear that the mother wanted more contact with her daughter. It is clear that L.'s present aspirations are to have a better relationship with her but go no further.

The court has considered the matters above but cannot conclude that they are of sufficient cogency to negate the rest of the evidence which compels the court to find a total failure of parental duty. Although readily accepting that failure to discharge parental duties does not automatically constitute an abandonment of the child, in the circumstances of this case the court is satisfied that there was abandonment in the legal sense explained by Denham J. in the passage already referred to.

Although I accept that the facts in this case differ from the facts found in the Northern Area Health Board v. An Board Uchtála and P.O.D [2002] 4 IR 252, there are nonetheless striking similarities. I refer to a passage of the decision of McGuinness J. at p. 276 where she said:

"Here the notice party has agreed to the continuing care of J. by the second and third named applicants over virtually J's entire life to date."

In the instant case, since 1991, and the failure to discharge the fit person order, no steps have been taken by either birth parent to attempt to exercise their parental duties and they must be taken to have acquiesced, if not agreed, to the continuation of the order in circumstances where over the period since 1991, they have failed to seek any review of that order.

"She is in addition happy that this situation could continue. She has allowed and willingly continues to allow J. to become in a practical sense a member of the second and third applicants' family. She has, in my view, abandoned the custody and care of her daughter to the second and third applicants."

It is clear that some of those remarks have application in the present case also. There are no expressions of interest, intention or even aspiration to, on behalf of either parent to supply a parenting role in respect of L. I cannot conclude that the mother is "happy" that the situation pertaining since 1991 should continue. However, she has acquiesced in the present arrangements. She has allowed - and continues to allow - and has not expressed unwillingness to allow - L. to become, in a practical sense, a member of the applicants family.

"She has left and will continue to leave to them the crucial decisions regarding J's health, education and the carrying into effect of those decisions, together with the by no means insubstantial financial costs that arise from them."

Those remarks are applicable in the present case as well. I consider that in a real and that the situation in the present case as, in the Northern Health Board case, that:

". . . This situation amounts in a real and objective sense to abandonment of her rights as a parent".

Is adoption appropriate?

Having satisfied the requirements of s.3 (1) (I) A,B,C, above, the court has to decide whether the State, as guardian of the common good, should supply the place of the parents; and whether the adoption of the child by the applicants is an appropriate means by which to supply the place of the parents. In deciding the above matters the court is obliged to take into account the wishes of the child. In the circumstances of the present case, given the age and maturity of L. and the fact that she has shown a consistent desire to be adopted for the past seven years, it is appropriate that very considerable weight be given to the child's wishes to be adopted. It is clearly a case where the State, as guardian of the common good, should supply the place of the parents.

L.'s best interest

In the light of all the foregoing findings the court must be satisfied, having regard to the rights of "persons concerned", that it would be in L.'s best interest to be adopted. I propose to deal with those matters now.

The evidence is overwhelming that the adoption would be in the best interest of L. I am satisfied, on the unchallenged evidence of this part of the evidence of L. and her foster mother that the initiative for adoption came from L. herself and not from her foster parents. When she was about ten years old she saw a soap opera on television which led her to believe that adoption could take place even if her natural parents were married. Ms. Toolis, principal social worker, gave evidence that L. "is very firmly placed" with the foster parents and "she has been there since she was born, she identifies totally with them, she is now of an age where she able to look for information on her birth family and I think that she has developed into quite a mature articulate clever girl and I think this is down to the upbringing she had with . . .". L., who is now seventeen, gave evidence herself. She impressed the court as being an articulate, thoughtful, mature and courageous person. She also impressed the court as being a truthful witness. When asked why it was important for her to be adopted she said

"…it is really hard for me to explain it because it is really, really personal. They have reared me since I was a baby. They have acted as my parents and they have done everything that parents do. … I want it to be legal that they are my parents because they brought me up. They have done everything that parents do. They have been there for me all the time. … I just want it to be formalised how I feel."

She wanted recognition to be given to her position in the foster parent's household and described that matter as "extremely important" to her. She said that she would be really badly upset if the order were not made because it would be as if she was ignored and as if the State did not want to recognise how she felt.

The foster mother also gave evidence that it was important to L. to be adopted and she thought it would give her more security. Her evidence was that it was important to L. but also to herself and her husband and that the application was not made just to please them.

Ms. Treacy also considered that adoption is in L.'s best interest. It was clear to her that L. had "identified with them as being Mam and Dad" and her reasons were based on L.'s very strong attachment to her foster parents. She could not see that any loss or damage could accrue to L. by the making of the order.

Mr. Moran is a principal medical social worker and is also involved with CLANN - the adoption committee of the health board. He knew L. from birth. He was "amazed" that "even when she was ten years old she articulated a lot of what she said in court". He considered that adoption would be extremely important for L.

The wishes of the child are deep felt, well thought out, reasonable and quite understandable.

I consider that her desire to be adopted is not as a result of "people-pleasing" in the sense of a desire to please her foster parents. It has been a genuine and heartfelt desire of her own for many years. In this regard while "people pleasing", in the sense of an excessive desire to please others, was at one time a source of concern of Ms. Toolis. However, she considers that such tendency has dissipated. The report of Ms. Tracy also refers. L. in her evidence, was scornful at such a suggestion that her attitude was not her own or that she was pressurised. She, however, told the court:

"Normally kids are going to say to older adults - - they are not going to disagree with them. I am not the type of person that would like to hurt someone's feelings"

and explained, in relation to one event, how the impression of people pleasing could have been formed. I have no doubt that the desire for adoption is L.'s own, although no doubt would be a sense of delight to her foster parents as well. I have no hesitation in concluding from the evidence that the foster parents have fared excellently in raising L. and that they are extremely suitable people to adopt her.

The objections on behalf of Lor

Mr. McEvoy, the guardian ad litem appointed on behalf of Lor, the younger sister of L, objected on her behalf to the making of the order. Mr. McEvoy gave evidence to the court and furnished a report dated 25^th April, 2000. His report and evidence was given from the point of view of protecting the best interest of Lor. Prior to compiling the report, he had face to face interviews with Ms McCabe, Social Worker for Lor., Ms. Claire O'Hare, Social Worker for L., Ms. Teresa Toolis, Principal Social Worker with the Health Board, Ms Anna Gill, Team Leader with the Health Board, Mr. Paul Murphy, Child Care Manager. He also had face- to- face interviews with the mother and the father, the foster mother and the aunt and the child, the subject matter of his report. He consulted with Mr. Cunningham, a social worker who has conducted research into adoption issues, and had a telephone conversation with Ms. Tracey, the guardian ad litem for L., in the relevant District Court proceedings. He told the court that Lor 'adores' her elder sister and opposed the adoption on the basis that Lor was fearful of losing contact with her sister. In the event of an adoption, Lor feared that the relationship would be effectively terminated in the event of an order being made. At p. 13 (ii) of his report he says

"There is disunity of opinion within the Western Health Board Personnel in relation to the adoption of L. itself. Ms. Teresa Toolis, Mr Seamus Moran and Ms. Claire O'Hare are in outright favour of the adoption. Mr. Paul Murphy and Ms. Anna Gill have "mixed feelings" and Ms. Raphael McCabe believes that it is not in L.'s best interest. Ms. McCabe believed that L. has been alienated from her family over the years and that post adoption there will be no access between L. and Lor Ms. McCabe wants a fair deal for Lor Mr. Paul Murphy and Ms. Anna Gill both state that they believe the adoption not to be in Lor's interest as she will not have continued access with her sister L. Mr. Sean Ryan, also states that the natural parents and the aunt of the child, the subject matter of these proceedings are opposed to the adoption order on the grounds that it is neither in the interest of L. nor Lor."

It appears, however, to be the position that Anna Gill is in favour of the adoption, and believes that post-adoption contact would be maintained between L. and Lor, though perhaps at a different level.

The position of the natural father is slightly unclear. Although he opposed adoption in his letter to the health board and has never expressed consent to the adoption in his statement to this court he merely said:

It is very difficult for me to go against L.'s wishes here and I feel that if the order is put in place the relationship between L. and Lor will fall apart".

It appears that he opposes adoption not on the basis that it is against L.'s best interests but on the basis that access between the sisters would not be maintained after adoption.

However, it has to be said that the natural mother, in her evidence to the court, did not state directly that it would be against the interests of L. although she considered that access between the sisters was equally beneficial to both and feared it would not continue if L. were adopted.

The guardian ad litem, Mr. McEvoy in his report stated "there was overwhelming evidence" to suggest that access between the sisters will not continue should an adoption order be made. Although he found the evidence of L. to this court to be impressive, having heard her evidence might consider changing the word "overwhelming", he was still of the view that it was probable that the contact would not continue between L. and Lor following adoption. It is regrettable that prior to compiling his report he did not elicit the views of Sarah Treacy on the question of access between the sisters in the event of an adoption, because she had prepared a meticulous and exhaustive report in the context of the District Court proceedings, and is familiar with both of children. She had had extensive contact with L., was very familiar with the history of the case and was in a particularly good position to form a view on the matter. Although he did speak to her on telephone that topic of post-adoption access between the sisters was not discussed. In particular, he did not take into account the specific points in her report at p. 25 which reads as follows:

"(v) With respect to her developing relationship with Lor, L. was very positive. She reported to the guardian ad litem that it felt more like a normal sister to sister relationship now as the conversation and laughter flowed naturally between them. L. continued to present to the guardian ad litem as being very caring and protective of Lor. In regard to the access arrangements L. expressed, it was a relief that since the Court proceedings had begun, things had begun to improve and there were much fewer problems around access arrangements overall. In terms of the level of contact with Lor, L. expressed that she was happy with it at present, but perhaps it could be increased over the summer holidays next year or could include an overnight stay at sometime in the future.

vi. Of central concern to L. however, is the fact that Lor does not know the truth concerning T. (the mother). L. expressed that she was worried that Lor might figure it out herself and that this might result in anger towards L. and others. In L.'s opinion either Lor's psychologist or her social worker should inform her of the truth step by step. L. indicated to the guardian ad litem that she was keen to support Lor in any way possible during this process and answer any questions where possible."

The failure to consider the above matters is unfortunate in view of the fact that he agreed that it constituted "powerful evidence" that "there was a good relationship between L. and Lor and that if anything L. was anxious to continue and perhaps even have an increase in contact".

There are real concerns from the guardian ad litem and from Ms. McCabe Lor's social worker that, should an order be made, L. would not continue to be in contact with Lor. These concerns were expressed on the basis that:

(1) Historically, the rate of contact between the sisters has been less than satisfactory. In 2001, it was necessary for the natural mother to take proceedings in the District Court to have such access increased.

(2) Although a great deal of work has been done in the District Court proceedings and the relationship between the sisters has improved nevertheless problems continue in relation to access between the sisters and the access agreed in court has not been implemented in full.

(3) A factor causing concern is the fact that there was a request from L., the subject matter of these proceedings for access to be lessened.

(4) Moreover, even if the contact were maintained the very fact of adoption and the fact that L. following adoption would be part of another family would, of itself, have adverse effects on Lor. This view was expressed both by Mr. McEvoy and Ms. McCabe.

(5) Concerns were also expressed by Mr. McEvoy that the influence of the foster parents was a factor giving rise to concern that contact would not continue in the event of an adoption order being made. Ms. McCabe also expressed concerns.

(6) The absence of health board involvement in L.'s life (should an adoption be made) was also seen as a problem by Mr. McEvoy in the maintenance and fostering of access between the sisters.

The detrimental effect on Lor of losing contact must be viewed in the context of the following circumstances which would be likely to make such loss more damaging to Lor:

(1) She had suffered the physical separation from her parents.

(2) She had suffered the loss of her sisters S. and E. (even though they were dead before her birth).

(3) She had suffered the loss of contact with D., her brother.

(4) She had suffered loss of contact with two other children who had the same foster parents and who are now gone.

(5) There are plans to tell her in the near future of the actions of her mother in smothering her sister which will be an additional source of trauma that should be taken into account. All these matters should be taken into account in accessing the detrimental effect of loss of contact with L. from a prospective of Lor

I accept that should Lor lose contact with L. that would represent a serious loss to her and in the words of Ms. McCabe would be "cause of enormous grief and sadness" (However the phrase 'enormous grief' used by Ms. McCabe is slightly debased by its use also in the context of not being able to play with L.'s toys in L.'s house).

There is, moreover, a strong perception that the foster parents have been less than helpful in facilitating access and that they are, at least, partially responsible for problems with access. The evidence in court of the foster mother did little to dispel those reservations in that she did not seem to acknowledge the existence of any problems or insight into how other people could have formed that perception. I can understand that given (a) the history of the actions of the natural mother, (b) the unsuccessful attempt to remove the fit person order in 1993, (c) personality differences between the natural parents and foster parents and the lack of good rapport between them and (d) the experience of another child in their care being seriously damaged by natural parents when given access, the foster parents have not been as encouraging of the relationship both between L. and her mother and L. and Lor. as they might have been. That is regrettable but hardly surprising. On the other hand, I am not prepared to hold that they have deliberately and intentionally obstructed access or have tried to diminish it. It may well be that they were overprotective of L. and may have inadvertently isolated L. further from her parents. The main reason for such isolation, however, is to be found not in the actions of the foster parents but the actions of the mother.

In this regard the report of Ms. Treacy is particularly pertinent. The foster mother made records relating to access between L. and Lor. when she realised that there were escalating problems with access which were being attributed to the actions of the foster parents. Based on the foster mothers records concerning access between L. and Lor between 14/10/00 - 18/05/02:

17 access visits went ahead as planned.

13 changes were made by the foster parents of Lor (relating to a change of date or venue).

There were 6 occasions on which the time/location was changed at late notice (i.e. within 24 hours max.) by Lor's foster parents.

12 visits took place at or near Lor's foster home.

9 visits - in a town nearer to L.'s home.

3 visits - in a town very approximately equidistant from the houses of both girls.

Ms. Treacy considers the number of changes attributable to Lor's foster parents "a little higher" but, did not consider the number of changes made at short notice as significant as the foster mother of L. considered them to be.

The foregoing documentation prepared by the foster mother shows, at the very least, the concern felt by the foster parents to deal with the perception that they were less than helpful with the access arrangements. It does not, however, demonstrate that such perceptions were unfounded.

It is important to state, however, that I do not believe that they will hinder or discourage access between L. and Lor. should an adoption order be made.

Other difficulties in relation to access have been posed by the distance between the homes of the two sisters which is in excess of fifty miles and by the fact that at the present stage of her life L. has other activities, interests and demands on her time. In that context I do not consider that any significance should be attached to the fact that, in the context of her particular circumstances at that time, L. considered that an decrease of access from once a month to once a fortnight was too much and wanted access to be less than ordered by the court.

The misgivings expressed by Mr. McEvoy, Ms. McCabe and shared by the parents and Mr. Murphy has to be given serious weight and respect but they have to be balanced against the rights and wishes of the applicant. The strength to be attached to the misgivings expressed on behalf of Lor must be assessed in the light of the evidence of L. herself dealing with the areas of concern. I have already indicated that she was a most impressive witness. The evidence of L. herself with regard to her sister is highly important and the following is particularly relevant:

Q: How do you feel towards her as a person?

A: I think she is lovely

Q: What is she like?

A: She is really is really sweet. She is really funny as well. We do have some things in common. I know there is a big age difference but we have this freaky thing. Both of us are good at art. We both like drawing and stuff. We kinda like the same films as well, some of them, we have this weird thing for dogs as well.

The age difference between the sisters is also a factor to be taken into account in considering the past difficulties and future probabilities concerning access. Furthermore the fact that some of the access took place in a small country town with limited attractions for an active teenager should not be ignored. As Lor leaves childhood I consider that there is every likelihood that the relationship between the sisters will develop and become stronger. The evidence of L., in that regard, is important. Her evidence was that it is easier to spend time with her sister now than when she was younger, and that things will get better when her sister gets older because "we will probably have pretty much the same interests". She felt that the common ground between them is getting more. This view was also expressed by Ms. Treacy. L. reacted strongly to the suggestion that if an adoption order is made that she might stop seeing her sister. She said:

"That is rubbish, I would never ever stop seeing Lor, I don't even know how that came out I wouldn't, I would have to be so cruel to do that. I am just not like that. I would never".

She expressed her intention to continue to see Lor. regardless of the outcome of the court case.

I accept that evidence. In my view, L. will continue to have contact with her sister. I consider, therefore, that the misgivings as to what might happen to the relationship between the sisters should the adoption take place expressed on behalf of Lor are unlikely. The loss of contact is unlikely to occur. L.'s attitude towards her sister will not be different. She expressed the reason as follows:

"Because no matter what she will always be my sister. We are bonded by blood and that is that".

Any perception of loss that Lor will feel at L. being no longer part of her family in the legal sense and which was articulated by the guardian ad litem is of far less importance in the context of a good rapport with L. and is capable of being allayed by the visits of L. Any perception of loss is likely to diminish fade into insignificance if as is probable, the relationship between L. and Lor. thrives and flourishes.

The fact that Lor will learn unpleasant things about her mother is undoubtedly likely to be traumatic for her. The trauma however could be very much alleviated with the sisterly support of L.

It is fair to say that had Lor's fears concerning the proposed adoption of L. been expressed to L. herself, she would have been in a position to offer reassurance and comfort to Lor.

In my view, the grounds for opposing the order on the basis that it will be harmful to Lor must fail. It is, therefore, unnecessary to decide the extent to which the court should have regard to the interests of Lor if the court considered the adoption order sought by L. were to be significantly detrimental to the interests of Lor.

However, since the matter was the subject of submissions I consider it appropriate to express a view s. 9 of the Adoption Act, 1998 provides that the Adoption Act, 1988 and the Adoption Acts 1952 and 1974 shall be "construed together as one." Section 2 of the Adoption Act, 1974 provides as follows:

"In any matter, application or proceedings before the Board or any court relating to the arrangements for or the making of an adoption order, the Board or the court, in deciding that question, shall regard the welfare of the child as the first and paramount consideration."

Mr. Rogers argues that, notwithstanding this provision, the interests of Lor have to also to be regarded as "the first and paramount consideration".

He relies on s. 3 of the Guardianship of Infants Act, 1964 which reads as follows:

"Where in any proceeding before any court the custody or guardianship or upbringing of an infant, or the administration of any property belonging to or held in trust for an infant, or the application of the income thereof, is in question, the court, in deciding that question shall regard the welfare of the infant as the first and paramount consideration".

It is submitted that this provision requires that the welfare of Lor be regarded as "the first and paramount consideration" in these proceedings and thus be of equal status to the position of L. I cannot accept such a contention in view of the clear and specific words of s.2 of the Adoption Act, 1974. In any event it appears to this court that if these proceedings are about the custody, guardianship or upbringing of an infant, that infant is L. and not Lor. Although the question of access to Lor is extremely important and a consideration to be given due weight and attention I do not think the "upbringing" of Lor. is really in question in these proceedings. Nor does this case concern her guardianship or custody. In my view, the court has to take the interests of L. as being the first and paramount consideration. However, it is clearly obliged to take other considerations into account as well including the issues in relation to Lor about which evidence has been given.

I wish to add that, in my view, the fact that L. is seventeen now is of great significance. In reality, regardless of whether an order is made – it will be up to L. whether she continues and develops a relationship with her sister. I consider that inadequate weight was given to this reality both by Mr. McEvoy and Ms. McCabe. For a person aged seventeen, access can be facilitated and encouraged – coercion is not a realistic option. Also, although it is useful to have structures put in place by the health board, I do not consider that L. would lose those supports following an adoption order because the Board will be still involved with fostering the relationship between the sisters through the involvement of social workers on behalf of Lor. Also, I am entitled to take into account assurances in that regard given by Mr. Durcan SC and the solicitor on behalf of the Board. I do not accept the contention that such assurances are worthless because they do not have any legal status to bind L. should she be adopted. Because of L.'s age - it is her attitude towards Lor and not the legal status of support structure that will determine the successor failure of the relationship. For the same reason I do not accept the contention that, in the absence of a court order, the results, brought about following the District Court proceedings and in a large measure because of them, "will be set at nought".

Another argument is advanced on behalf of Lor against adoption. Mr. Rogers submits that, because Lor is part of a family unit with the rights guaranteed under s.41 of the Constitution, there is no power in the court (absent some wrong by Lor) to make the order sought because to do so would in the words of Mr. Rogers "deconstitute" the family unit as it is presently constituted - that is one which includes L. I cannot accept that argument. The matter was specifically dealt with in the judgment of the Chief Justice in The Adoption (No. 2) Bill, 1987 [1989] I.R. 656 case where the following passage occurs at p. 663:

"The court rejects the submission that the nature of the family as a unit group possessing inalienable and imprescribtible rights, makes it constitutionally impermissible for a statute to restore to any member of an individual family constitutional rights of which he has been deprived by a method which disturbs or alters the constitution, of the family, if that method is necessary to achieve that purpose. 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 so construed so that upon the failure of that benefit, to the children of a family, should not be so 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."

The Supreme Court rejected the contention that the nature of the rights of a family unit under Article 41 of the Constitution made it impermissible for the statute to make an order of adoption in an appropriate case if such order was necessary to restore the constitutional rights of which a child had been deprived. It specifically contemplated such an order being made in a situation which "disturbs or alters the constitution of the family". Moreover, as regards the contention that the matter has not been addressed in the case law note the following passage in the case of Southern Health Board v An Bord Uchtála: MOD and MOD Notice parties [2000] 1 I.R. 165 at p. 174:

"It was contended that no due regard was paid to the right of F.O'D., his siblings or his family as members of a family."

It appears from the foregoing that the position of the rights of the family were specifically an issue in that case.

In deciding this case I have had regard to the position of the parents and their objections and the rights of Lor. I have also taken into account the position of L.'s brother. He is out of contact with L. and the rest of the family and has not got a real relationship with L., who has not seen him for many years.

I do not think that considerations of the extended family are such to counter, still less preclude the making of an order. In this regard, it is clearly of relevance that the relationship between L. and members of her extended family are dependent on her decisions and not on the making of an order. It is worth noting in this context that L.'s aunt is reported by Ms. Treacy as saying of the proposed adoption that "it wouldn't make a difference to L.'s relationship with her birth parents or extended family member at this stage". Although she is reported by Mr. McEvoy as being opposed to the adoption as being in the interests neither of L. or Lor.

Delay.

There has been a very considerable delay in this case. Mr. McEvoy submits that it is such as to render the case inherently unsatisfactory and such as to warrant the court refusing the order sought. I was referred to the cases of H v. United Kingdom (Unreported, European Court of Human Rights, 26^th May, 1987) where in the judgment of the Court of Human Rights the following passage appears:

"The reasonableness of the length of proceedings is to be assessed according to the particular circumstances and having regard, notably, to the complexity of the case, to the conduct of the parties and the authorities concerned and to what was at stake in the litigation for the applicant; in addition, only delays attributable to the State may justify a finding of failure to comply with the' reasonable time' requirement".

Counsel for the mother cited the case of Paulsen - Medalen and Svensson v Sweden (Unreported, European Court of Human Rights, 19^th February, 1988), the following passage occurs in par. 39:-

"According to the Courts case law, the reasonableness of the length of proceedings is to be accessed, in particular, in the light of the complexity of the case and the conduct of the applicant and that of the relevant authorities. In cases concerning restrictions on access between a parent and a child taken into public care, the nature of the interests at stake for the applicant and the serious irreversible consequences which the taking into care may have on his or her enjoyment of the right to respect for family life require the authorities to act with exceptional diligence in ensuring progress of the proceedings".

It is submitted that the delay in the present case is such that the court should, in its discretion, refuse to make the order sought because of the length of time since the institution of these proceedings. It is desirable to go into some detail as to the progress of this case and also the proceedings in the District Court.

Mr. Durcan, Solicitor for Health Board compiled a chorology of events to illustrate what happened during that litigation. It may be summarised as follows:

March 1999: On the 12^th March the registrar of the Adoption Board wrote to the senior Social Worker of CLANN confirming that the adoption board had made a declaration in favour of the applicant under s.2(1) of the Adoption Act, 1988. On the 22^nd March she, in turn, wrote to the senior social worker of the health board advising her of the position.

April 1999: The senior social worker instructed Mr. Durcan,Solicitor in this matter. On the 22^nd April he forwarded the papers to counsel seeking advices and on the 29^th April he received some initial advices.

May 1999: In May 1999, he forwarded the letter to the senior social worker seeking a meeting or consultation.

July, August, September 1999: In July, a meeting took place between solicitor, counsel and senior social worker. Counsel's advices were considered and instructions taken in relation to this. On July 5^th, the solicitor wrote to counsel with further instructions. On August 28^th, counsel responded to the solicitors and sought further information. On September 16^th, the solicitor sent counsel's letter to senior social worker.

October 1992: On October 27^th 1999 the solicitor sent reports received from the Health Board to counsel.

January 2000. A notice seeking access under s.37 (2) of the Child Care Act, 1991 issued in the District Court. These were the access proceedings brought by the mother to try and obtain access for herself and L. and also to increase the level of access between L. and Lor. In effect, an informal decision was taken to put the adoption proceedings on hold pending the outcome of these access proceedings in the District Court. This decision was taken because it was felt that the outcome of the access proceedings might have a strong bearing on the adoption proceedings. It is fair to say that the access application was protracted because of the complex nature of the case and the necessity to monitor the success of the arrangements mandated by the court. The following is a summary of the chronology of the access application.

The District Court proceedings:

January 2000:

January 6^th Application issued.

January 19^th The District Judge ordered a report be held from a clinical psychologist and the matter was adjourned for mention to the 16^th February. The matter continued to be adjourned from time to time pending the availability of the report from the psychologist. That report is undated but a copy was received by the solicitor for the mother on 14^th July, 2000. The matter was adjourned for mention to the Ballina District Court on July 24^th and adjourned to September 25^th, 2000. On that date an order was made by Judge Devins setting out terms of access and the matter was adjourned to Ballina District Court in March 26^th, 2001. On March 26^th, 2001 a further order was made ordering the provision of an updated report and specifying that L. continue obtaining professional assistance and specifying access terms and adjourning the matter until October 2001. A further order was made on October 2001 by consent with the respect to access. On September 25^th, 2001 the matter was put in for March 2001 and an order was made for an updated report to be provided by Dr. Greeley the Psychologist. The matter was adjourned in the District Court until the 22^nd, August 2001 on that basis. Between 25^th, October 2001 when the case was adjourned by consent until March 2002 there was extensive correspondence with the solicitor and the legal aid board in relation to the legal aid board's difficulty in getting a guardian al litem. On March 2002, an order was made by consent for the regulating access and providing that a guardian ad litem report be furnished prior to the adjourned date and the matter was adjourned to June 24^th, 2002. A guardian ad litem was nominated following the hearing of the case on the 25^th March, 2002. The report is extremely detailed and comprehensive and runs to some 84 pages. That report was not available until November 28^th. On the 28^th November the matter was adjourned to see if agreement could be reached as to the recommendations of the guardian ad litem and the matter was adjourned to the District Court on December 19^th, 2002 for mention. On that date it was adjourned until the 16^th, January 2003 to see if agreement could be reached and an order was made by consent detailing access terms specifying planning meetings and regulating contact. That was the final order in relation to the access proceedings. There was no absolute reason why the proceedings in the adoption case were left in abeyance pending the outcome of the access proceedings in the District Court. The decision was taken in the context of the facts of the case. As the natural parents and the prospective adoptive parents lived close together it was hoped there would be an open adoption and an ongoing relationship with L. and her natural parents in the event of such adoption. Moreover, there was no unanimity within the health board as to whether adoption was desirable. It was thought that the possibility of an open adoption with access to the natural parents would be difficult to achieve if the access difficulties being experienced were to continue. It was correctly perceived that the success or otherwise of the access arrangements arrived at would have an important implications for the running of an even the outcome of the adoption case. The case was a difficult one in relation to the factual matters and professional assistance in the form of expert report had to be obtained. Moreover on the 27^th September, 2000 Mr. Durcan, solicitor wrote to the senior social worker and referring to the hearing of the case on the 25^th September, 2000 said

"The District Judge also expressed very serious reservations about the processing of an adoption application in this case. Clearly, the case gives rise to a number of serious issues which I feel should be discussed. In the said regard I would happily meet with you and other workers involved at a mutually convenient time".

The matter again was adjourned on various occasions between October 2001 and January 2002. Again, in the context of the District Court proceedings, a matter came into the Judges list in 2002 but was adjourned generally with liberty to renter. In April 2003, following the final order in the District Court notice of intention to proceed was issued served and filed. In June 2003, a notice of motion of High Court seeking orders for directions was made in. In June 2003, O'Neill J. joined the notice parties and gave directions as to service and in October same year he directed that a guardian ad litem be appointed with respect to Lor.

The explanation proffered for the delay in this case is largely bound up with the desirability of putting matters in abeyance pending the District Court proceedings. Those proceedings were very protracted mainly because of their complex nature, of what was trying to be achieved and partly contributed to by the difficulty in getting suitable professionals to provide reports. It appears that a decision was made that it would be more helpful if the proceedings were kept on hold pending the outcome of the District Court proceedings in view of their possible impact on the adoptive proceedings. That was a reasonable position to adopt: it was one with which the District Judge apparently agreed and affords a reasonable explanation for the delay. The fostering of relationships between people who had undergone unhappy experiences and undergone profound difficulties in life and who were young and vulnerable required professional tact, and a great deal of time. It must be understood, also, that these proceedings were taken on by the mother of the child the subject matter of the proceedings. At least three of the adjournments were by consent. The delay subsequent to the termination of the District Court proceedings was not inordinate. Even though the reasons for the delay are understandable, and in my view, not totally unreasonable, nevertheless a delay of such a length of time is regrettable and undesirable. Such delay would be normally be regarded as totally unacceptable but in the context of the unique circumstances of this case and the relationship between the access and adoption proceedings, the delay is explicable. I do not consider that the interests of any party to these proceedings have been prejudiced by reason of the delay. The position of the foster parents is that they were not responsible for any of the delay. The position is that by reason of the access proceedings the issues of access and relationships are clearer than they were previously. I am not persuaded that the position of the parents has not been prejudiced by the period of the delay. In some respects the position of the natural mother is stronger in that at least now she is able to maintain to the court that she has had some contact with her child. The relationship with Lor is strengthened. Lor is now able to claim more convincingly than she could have earlier that the adoption order would be to her detriment since her relationship with her sister is stronger now than it was before.

Section 2(2) of the Adoption Act, 1988 provides as follows:

"Where —

(a) an order is made under section 3(1), and

(b) an appeal against the order is not brought or the order is confirmed on appeal by the Supreme Court.

the Board, if so requested by the persons in whose favour the order was made, shall, notwithstanding anything in section 10 of the Principal Act, unless it is satisfied that the relevant circumstances have so changed since the date of the making of the declaration under subsection (1) in relation to the matter that it would not be proper, having regard to the Acts and this Act, to do so, make an adoption order in relation to the child to whom the order under section 3(1) relates in favour of the persons aforesaid."

It is clear from that that changes in circumstances have to be taken into account by the Board prior to making an order.

It must also be borne in mind that the child most affected by these proceedings was not guilty of any delay. In those circumstances the court considers the delay in this case, while clearly undesirable, does not justify the court in refusing an order which it would otherwise make. This is so whether the delay is to be taken from the time of the Adoption Board making its determination in March 1998 or from the date of issuing the High Court proceedings.

Having considered carefully all the requirements of the Act, I think it is fitting in this case and I am satisfied that it would be in the best interests of L. to make the order sought. Accordingly, I make an order authorising the Board to make an adoption order in respect of this remarkable and courageous young person.