A seven-judge Supreme Court has unanimously upheld a decision that the adoption of a teenage girl by her foster mother, against the wishes of her birth mother, is correct.

It followed a majority decision of the Court of Appeal (COA) overturning a June 2022 High Court judgment that found the adoption of the girl, who was 17 at the time, would not serve her best interests. The girl, who is now a young woman and referred to as Ms B, was born with foetal alcohol syndrome with associated global development delay and a moderate general learning disability.

This syndrome was due to her birth mother drinking alcohol to excess during the first trimester of her pregnancy in order to cope with emotional, physical and sexual abuse by her husband, and not knowing she was pregnant at the time.

At the hearing, lawyers for the birth mother told the Supreme Court that an application for the child to be adopted by her foster mother was made at “the 11th hour” before she reached her 18th birthday.

The birth mother was a victim of domestic violence, had her three children taken into care while she was treated for an alcohol problem. Two of her children were later returned to her and she raised them successfully. The third, who had a learning disability, remained in foster care but contact with her birth mother was maintained. The adoption was challenged by the birth mother, who won her case in the High Court but lost on appeal.

The Court of Appeal allowed for the adoption and, because the girl was about to turn 18, the adoption order was allowed to proceed on the understanding it could be set aside should the Supreme Court find in favour of the birth mother. The High Court’s Mr Justice Max Barrett had said that, while Ms B indicated a desire to be adopted by her foster mother, who she referred to as “mum”, he was “not entirely persuaded” she fully understood the significance of adoption.

The case began when, in anticipation of the girl reaching 18, the Child and Family Agency (CFA) applied to the High Court for orders authorising the Adoption Authority to make an adoption order for her and dispensing with the consent of her birth mother, who had consented to the original fostering arrangement. The natural father never played any meaningful part in the child’s life.

The birth mother objected to the adoption and, after the CFA successfully appealed the High Court decision to the COA, the Supreme Court granted a further appeal by the birth mother. Mr Justice Gerard Hogan, on behalf of the Supreme Court, dismissed the appeal saying the COA majority was correct in finding the High Court had erred in its decision.

Earlier, Mr Justice Hogan said Ms B, who was born in 2004, has resided with her foster mother her whole life. The foster mother provided her with a loving and happy home, the judge said. Ms B’s birth mother had fortnightly access to her as a young infant, but from 2008 that became less frequent due to the birth mother moving some distance away from where the child was living.

Mr Justice Hogan said this was a case in which “human tragedy and hope were mixed”. He said there had been “plenty of human tragedy: appalling domestic violence, coercive control, alcohol abuse and foetal damage have never been far from the facts of the case.”

He added “yet there is hope as well”, saying the birth mother had turned her life around in an impressive fashion and looks after two of her children in “a manner which does credit to all concerned”.

The making of an adoption order in Ms B’s case was also a sign of hope, the judge said, adding that it “cemented the emotional bonds of family and security for which she doubtlessly subjectively yearns and objectively needs”. He said there was hope too to be found in the “generous and altruistic” manner in which the foster mother had “opened her house and her heart for the needs and welfare of Ms B”.

Judge Hogan said while none of these cases are easy, he found himself obliged to conclude that the adoption would satisfy the statutory and constitutional criteria that the best interests of the child should be paramount, “an institution which is designed to meet the deep-seated human needs for family stability, security and ties”.

He said adoption was more than simply a question of a name or a right to inherit or the entitlement to look to others for guidance in the making of important decisions. He said adoption was a question of status which had lifetime consequences well beyond the issue of care while the person is a minor.

“The making of an adoption order reflects the fact that a new family relationship has been created and this is one which is underpinned and supported by the State and its legal system. The ties created by an adoption do not cease when a child reaches adulthood, there is a lifelong value to the relationship created by adoption.”

NB – This is a guide for information purposes only and does not constitute legal advice. If you have an issue requiring legal advice, please contact any of the team at Nolan Farrell & Goff LLP, whose numbers can be found on our website www.nfg.ie, or email info@nfg.ie.