The Adoption Board can ignore the rights of a natural father only in extreme and exceptional circumstances
THE ADOPTION Board will discuss at its meeting today the latest High Court judgment on adoption. Last week the court ruled that the board must make a genuine attempt to consult the natural father of a child placed for adoption, where he has had a close and ongoing relationship with the child, even if the mother objects on the grounds that he is violent. Such allegations must be independently corroborated in future.
The case arose from an application to adopt a child by the mother and her husband, who was not the child’s father. The adoption order was made in June 2007, when the child was six. Last week the High Court quashed the adoption order on the grounds that the natural father had not been consulted, and it must now go back to the Adoption Board for consideration, which must include consultation with the father.
The law has stated since 1998 that a natural father who has had a relationship with his child has a right to be consulted about a proposed adoption, and that the Adoption Board must make a “reasonably practicable” attempt to consult him. This followed an amendment of the 1952 Adoption Act, in the light of a ruling in the European Court of Human Rights in 1994 that a failure to consult the father breached his rights under the convention.
Prior to this, Irish law was clear: the father of a child had no rights under the Constitution if he was not married to the child’s mother. Under the 1998 Act, the natural father of the child is listed among those to be consulted by the Adoption Board when considering an adoption application. However, the board can decide this would be inappropriate in the light of “the nature of the relationship between the father and the mother, or the circumstances of the conception of the child”.
For example, if the child was born as a result of rape, or as a result of a casual sexual encounter where the father was unaware of the pregnancy, the board would not be obliged to inform him of a proposed adoption.
In the case decided last week, the child was born in 2001, 16 months after her parents met when her father was aged 19 and her mother 15. The father was a member of the Defence Forces, and the mother was at school, which she left when she became pregnant. Both were living at home at the time. He left the Army when the child was born.
The mother gave evidence that the relationship was fraught both before and after the birth of the child, and that the father attempted to strangle her in the course of an argument, resulting in a criminal charge, later withdrawn.
Despite these difficulties, the couple took joint tenancy of a local authority property in July 2003. However, the mother said that within months she returned home with the child as a result of the father’s violence. In December of that year there was another row, following which the father set the house on fire. He was charged with arson, but before the trial took place he absconded to the UK.
Two and a half years later, in the summer of 2006, he returned, contacted the Garda, and stood trial for arson, receiving a suspended sentence. In 2007 he sought access to his daughter in the District Court, where he found she had been adopted by the mother’s husband, thereby extinguishing his parental rights.
When the mother and her husband had applied for the adoption order in 2006 she said she did not know of the whereabouts of the father, except that he was “somewhere in England”. She asked that she be notified of any attempt to contact him, “as he is very violent”. The Adoption Board decided not to contact him. The board considered it was reasonable to believe he could be a threat to the mother, and this was relevant to the welfare of the child. However, in this case the father denied many of the allegations, and said many of the problems arose from his depression. He said he had an ongoing relationship with his daughter from her birth until December 2003.
Referring to the rulings of the European Court of Human Rights, Mr Justice Iarfhlaith O’Neill said if it is established that a relationship exists between the child and its father, “a very high threshold must be reached to demonstrate that those ties have been extinguished by subsequent events”.
He did not agree with the proposition that it was always mandatory to contact the natural father where an adoption was being sought. The board did have discretion to withhold notification, but only in extreme and exceptional circumstances, he said.
Referring to the issue of the threat of violence, Mr Justice O’Neill said that while it was understandable that the board would be concerned about it, this was essentially a matter for the Garda rather than the board. He added that allegations of violence made by one parent against the other must be corroborated by independent witnesses.
He stressed that there was a difference between a decision to notify the father and a decision to make an adoption order. Factors that might be taken into account, in the best interests of the child, when making an adoption order, might be premature to consider at the stage of deciding to notify him.
He said holding that the adoption order was invalid would not adversely affect the welfare of the child, who knew her natural father. Indeed, the knowledge that her father was heard in the adoption application was more likely to advance her wellbeing than knowing he was refused the opportunity.
Carol Coulter is Legal Affairs Editor