In a case centring on interpretation of the legal basis on which a parent may be deemed to have "abandoned" a child, the Supreme Court yesterday dismissed an appeal by the natural mother of a teenage girl against the making of an adoption order relating to the girl.
The order was made in favour of a couple who have cared for the girl, who has a significant disability, since she was seven months old. The prospective adoptive mother wept as the court delivered its decision.
The natural mother, who has a history of mental illness, was not in court, while the natural father, who had a history of violence towards the mother, was said to have played no role in his daughter's upbringing outside of visiting the child once shortly after birth. The case centred on the legal interpretation of "abandonment" as set out in the Adoption Act, 1988.
Delivering judgment, Ms Justice McGuinness, sitting with Mr Justice Hardiman and Mr Justice Geoghegan, said the natural mother came from an extremely deprived family and was herself as a child placed in the voluntary care of a health board for a time. In 1982 she was diagnosed as mildly mentally handicapped and in 1984 was found to have indications of psychosis.
She was 21 years old when her daughter was born, totally unresponsive to the baby's needs and unable to feed for or care for her in any way. The child was admitted to voluntary care with the local health board when she was six weeks old. At seven months she was placed in long-term foster care with the couple seeking to adopt her and has lived with them since. The couple also adopted another child with whom the girl is said to have a close relationship.
When the girl was 18 months old, she was diagnosed with a significant disability, and, at a High Court hearing, the court was told the couple had spared no expense or effort in seeking to remedy the physical and mental problems caused by that disability. The girl was described as having an excellent relationship with her foster parents.
Ms Justice McGuinness said the foster parents had established a good relationship with the girl's natural mother when the girl was young, and the natural mother had visited the girl from time to time.
However, in late 1992 the mother's health deteriorated and there was no contact with the girl until 1994, when she saw the child once. She saw her four times in 1995 and, due her illness, just twice in 1996. In 1997 the mother was diagnosed with chronic schizo-affective psychosis, which condition was permanent.
The mother continued to suffer from that illness, and conditions in her family home were chaotic. She had occasional access visits to her daughter from 1997 to 2001, about twice a year. She wanted her daughter to remain in the permanent long-term foster care of the couple where she could visit her, but was opposed to adoption. The couple, however, wanted to adopt.
The Adoption Board was willing to make the required order, provided an order was made by the High Court.
In that court, the girl told Mr Justice Herbert she wished to be adopted by the couple, whom she regards as her parents, and the local health board also supported the proposed adoption. In May 2001 the High Court made the order authorising the Adoption Board to make an adoption order.
Upholding that decision, Ms Justice McGuinness said she agreed with the trial judge that the mother's inability to care for her child was not blameworthy but was due to mental and physical reasons.
She also agreed that the natural mother was more a visitor than a parent to the child and that, as a matter of probability, there was no likelihood of the mother resuming the discharge of her duty towards the girl before she reached the age of 18.
While agreeing with the High Court's finding of abandonment in the case, Ms Justice McGuinness said she disagreed with the High Court's basing that finding of abandonment on the trial judge's conclusion that, if the mother had been given maximum family, public health and social welfare assistance she could have cared for her child, even if very inadequately.
Judge McGuinness accepted the arguments by counsel for the mother that there was inherent contradiction in holding that the mother had for physical reasons totally failed in her duty towards her child and holding that she could have cared for the child but had failed to do so.
The question was whether the mother's failure of duty amounted to abandonment in its special legal meaning. Failure of duty did not necessarily amount to abandonment. In this case, the mother had abandoned the custody and care of her daughter to the foster parents and left to them the crucial decisions regarding the child's health and education and the carrying into effect of those decisions.
"In my view, this situation amounts in a real and objective sense to abandonment of her rights as a parent," the judge said. The infrequent visits by the mother to her daughter were also not inconsistent with the reality of her abandonment of her position as a parent.
The foster parents had made it clear they were happy for the mother to visit, and there was no reason to believe they would not continue those visiting arrangements.
