Supreme Court told adoption of girl against birth mother’s wishes is ‘not proportionate’

Allowing the adoption of a 17-year-old girl against the wishes of her birth mother is ‘not proportionate’ to the situation, the Supreme Court has been told.

The Court of Appeal (COA), by a 2:1 majority, gave the go-ahead last August for the girl, identified as Miss B, to be adopted by her foster mother who has continuously cared for her since she was a few months old.

Miss B, who has a moderate learning disability and developmental delay associated with foetal alcohol syndrome, expressed a desire to be adopted by the woman.

Her birth mother has appealed the COA’s orders, including one that dispensed with the need for her consent to the adoption.

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At the Supreme Court on Tuesday, Mary O’Toole SC, for the birth mother, said the adoption has the “life-long consequence” of extinguishing the legal link between Miss B, now aged 18, and her birth parents.

There was an onus on the Child and Family Agency (CFA) to explore family reunification during Miss B’s upbringing, but there is no evidence this was done, she said. If the relationship between her client and Miss B had been fostered by the CFA it “would likely have resulted in reunification”.

The woman had significant difficulties in the years surrounding Miss B’s birth, including domestic violence and being isolated from her family, the court heard.

She turned to alcohol, but she “managed to bring herself back from the brink” by attending residential rehab and follow-up programmes when Miss B was a toddler, said Ms O’Toole. She has been abstinent since 2007 and has been caring for her other children, counsel added.

Access to Miss B became more difficult when the birth mother moved closer to relatives and the CFA did not provide financial assistance to enable the mother to travel to her daughter, Ms O’Toole said. It was left to the birth mother and foster mother to arrange access, she added.

Despite the barriers, Miss B “really enjoys” time spent with her biological mother, and there is “clearly no belief” there is a threat to her during these meetups, said Ms O’Toole.

Adoption is not proportionate in this case due to the nature of the birth mother-daughter relationship and the CFA’s “failure” to look at family reunification, she said.

Representing the CFA, Dervla Browne SC urged the seven-judge court to uphold the COA’s majority ruling. The birth mother’s failure in her duties is “not a historical failing” but one that existed three years before the adoption declaration as she did not take action in relation to her child, she said.

The CFA’s predecessor took “every step they possibly could” to reunify the child and her mother, but two critical windows of opportunity were missed by the birth mother.

Mr Justice Maurice Collins said it was “striking” there was no independent evidence about Miss B’s mental capacity, wishes and understanding of the adoption.

The COA’s judgment overturned a June 2022 decision of the High Court’s Mr Justice Max Barrett, who did not believe the adoption served her best interests. While she indicated a desire to be adopted by her foster mother, who she refers to as “mum”, he was “not entirely persuaded” Miss B fully understood the significance of adoption.

The COA majority found the High Court had afforded excessive weight to the birth mother’s complaints that the CFA had failed to provide reasonable access support.

It was inevitable that the adoption order would result in the severance of the legal ties between Ms B and her birth family but, on balance, it will provide very substantial security, certainty and stability for a young person with moderate disabilities, the COA said.

Both courts accepted Miss B was loved deeply by her birth and foster mothers.

In agreeing last November to hear the appeal, the Supreme Court said the case raises matters of “profound public importance” concerning court orders authorising the adoption of children whose parents fail in their duty to them in light of the constitutional provision for State intervention in family life.

The appeal continues on Wednesday before Chief Justice Donal O’Donnell, Ms Justice Elizabeth Dunne, Ms Justice Iseult O’Malley, Mr Justice Seamus Woulfe, Mr Justice Gerard Hogan, Mr Justice Brian Murray and Mr Justice Collins.