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 which 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.

The High Court’s Mr Justice Max Barrett had said while Ms B indicated a desire to be adopted by her foster mother, who she referred to as ‘mum’, the judge 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 girl’s father never played any meaningful part in her life, the court heard.

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.

On Wednesday, Mr Justice Gerard Hogan, on behalf of the Supreme Court, dismissed the appeal saying the majority of the CoA was correct in finding the High Court had erred in its decision.

Visitation

Earlier, Mr Justice Hogan said Ms B, who was born in 2004, has resided with her foster mother her whole life who provided her with a loving and happy home.

Ms B’s birth mother had fortnightly access to her as a young infant, but from 2008 that became less frequent due to the foster mother moving some distance from where the child was living.

As part of her case objecting to the adoption, the birth mother argued the CFA had failed in its duty to ensure she could visit her daughter by providing financial support to allow her travel for visits.

Mr Justice Hogan said it was unnecessary to form a concluded view on this matter given that it did not change the fact Ms B resided with her foster mother all her life.

It was only fair to say, he said, that in the interval the birth mother had, to her great credit, managed to turn her life around from circumstances of profound adversity. She had successfully raised her two older children and given them a good education and now lived in a stable home of her own.

In ruling the adoption was correct, the judge said that section 54(2A)(a) of the Adoption Act 2010 provided that the court must be satisfied that for a “continuous period of not less than 36 months” immediately preceding the adoption application the parents had failed in their duty towards the child “to such an extent that the safety or welfare of the child is likely to be prejudicially affected”.

He did not think one could realistically suggest this condition had not been satisfied in the present case.

In relation to another provision of the Act, as to whether birth parents are unable to care for the child to the extent that her safety or welfare would be prejudicially affected, Mr Justice Hogan agreed with the CoA that any conclusion to the contrary simply overlooks what the CoA described as “the lived reality” of Ms B.

He also found a provision in relation to abandonment of parent rights had been satisfied. The birth mother had left to the foster mother all the critical decisions regarding Ms B’s education and wellbeing, he said.

The fact that the birth mother visited her fairly regularly during the course of her childhood cannot take from the reality of abandonment of parental rights vis-à-vis Ms B, he said. He also found the statutory condition in relation to the proportionality of the adoption order had been satisfied.

In relation to the constitutional rights of the parent and child, the judge said it seemed the adoption would in fact be in Ms B’s best interests.

He further found there was no conflict in principle between the precepts underpinning Article 8 European Convention on Human Rights (EHCR), covering respect for family life, and the fundamental principles contained in Article 41, Article 42 and Article 42A of the Constitution on the other.