Extending the Re B Doctrine: Adoption as a Proportionate Measure for Near-Adult Foster Children Without Special Needs

1. Introduction

Child and Family Agency & H.L.M. v Adoption Authority of Ireland & Ors concerns an application under section 54 of the Adoption Act 2010 (as amended) to authorise the foster mother (second applicant) to adopt L.T., a 17-year-old who has lived with her since 2010. Both birth parents opposed the application, arguing that they had not abandoned their parental rights and that adoption was disproportionate given L’s imminent majority and absence of special needs.

The High Court (Jackson J.) granted the order, holding that all statutory proofs under s.54(2A) were met and that adoption was a proportionate and child-centred response consistent with Article 42A of the Constitution. The ruling builds directly on the Supreme Court’s decision in Re B ([2023] IESC 12) but pushes the boundaries by:

Applying the Re B analysis to a child who is cognitively typical and on the cusp of adulthood;
Clarifying that abandonment of parental rights can be found even where there has been continuous—albeit limited—supervised contact;
Prioritising the mature wishes of the child as determinative in the proportionality assessment.

2. Summary of the Judgment

After a detailed review of affidavits, social-work reports and L’s own written letter, Jackson J. found:

Failure of duty (s.54(2A)(a)) – for at least 36 continuous months the parents failed in their duty in a way endangering L’s welfare.
No reasonable prospect of parental care (s.54(2A)(b)) – given the lived reality since birth, neither parent could realistically resume full care.
Abandonment of parental rights (s.54(2A)(c)) – citing Northern Area Health Board, limited supervised access did not negate abandonment in the “special legal” sense.
State substitution and residency requirements (s.54(2A)(d)–(e)) were undisputed.
Proportionality (s.54(2A)(f)) – adopting the Re B dicta, the Court held adoption is the only measure that can deliver the lifelong security L explicitly seeks.
Balancing of rights (s.54(3)) – L’s constitutional rights, best interests and mature wishes outweighed the parents’ residual family rights.

Consequently, the Court authorised the Adoption Authority to make the adoption order.

3. Analysis

3.1 Precedents Cited

Re B [2023] IESC 12 – Supreme Court framework for s.54(2A) proofs and proportionality. Although B had special needs, Jackson J. transplanted the reasoning to a neuro-typical teenager, signalling broader applicability.
Southern Health Board (2000) & Northern Area Health Board (2002) – Defined abandonment as abandonment of parental rights, not physical desertion.
Re JB & KB [2018] IESC 30 – Confirmed Article 42A mandates a child-centred, best-interests approach.
G. v An Bord Úchtála [1980] IR 32 – Historical reference on abandonment and constitutional balance.

3.2 Legal Reasoning

a) Statutory matrix. The Court tracked each limb of s.54(2A), meticulously cross-referencing affidavit evidence and social-work notes. Particular emphasis was placed on L’s near-18 status, yet the Court held the temporal proximity to adulthood does not dilute the statutory tests.

b) Abandonment. Relying on Denham J. and McGuinness J., the Court reiterated that abandonment is an objective standard focusing on who in fact makes fundamental decisions for the child. The parents’ long-term acquiescence in voluntary care, coupled with their inability to assume decision-making, satisfied this criterion.

c) Proportionality and Article 42A. Adopting Hogan J.’s explanation, Jackson J. underscored that adoption is a status change with lifelong consequences, not a mere guardianship solution. L consciously feared non-adoption; thus, the measure was the least intrusive and most meaningful way to vindicate her rights.

d) Best-interests calculus. Section 19 factors (wishes, stability, continuity of care, and family relationships) decisively pointed toward adoption. The Court gave substantial weight to L’s articulate, hand-written request.

3.3 Potential Impact

Broader application of Re B. The decision confirms that the Supreme Court’s analytical template is not confined to children with disabilities.
Elevated status of the child’s mature wishes. Where a teenager demonstrates understanding, those wishes may tip the proportionality balance even against active parental opposition.
Practice guidance for Tusla and AAI. Agencies may feel fortified in bringing late-stage adoption applications for long-term foster children.
Clarification on “abandonment.” Continual supervised access will not preclude a finding of abandonment if decision-making rests elsewhere.
Possible legislative review. The Court echoes Hogan J.’s criticism that current legislation still bears the imprint of the 1988 Act; policy makers may revisit thresholds in light of Article 42A.

4. Complex Concepts Simplified

Section 54 Adoption Order – A High Court authorisation permitting AAI to adopt a child where parental consent is absent.
Abandonment (legal sense) – Not physical desertion. It means parents have effectively ceded decision-making and responsibility for the child’s welfare to others for a prolonged period.
Guardian of the Common Good – Constitutional doctrine where the State steps in to protect a child’s welfare when parents cannot.
Proportionality – The remedy (adoption) must be no more than is necessary to protect the child’s rights and welfare, considering less drastic alternatives.
Voluntary Care Arrangement – Parents consent to the Child and Family Agency taking the child into care without a court order; can be revoked by parents but here it never was.

5. Conclusion

Child and Family Agency & H.L.M. v Adoption Authority of Ireland affirms that late-stage adoptions are lawful and proportionate where the lived reality demonstrates long-term foster integration, even in the absence of special needs and despite enduring—though limited—parental contact. The decision:

Extends the Supreme Court’s Re B framework to a broader cohort of foster children;
Clarifies the objective nature of abandonment of parental rights;
Elevates the mature child’s own wishes as a pivotal factor in the best-interests analysis;
Signals to practitioners that adoption remains the gold-standard legal security for foster children approaching adulthood.

As a precedent, the case will likely streamline future High Court applications under s.54 and embolden the Child and Family Agency to pursue adoption where, objectively, parental functions have long since migrated to the foster family.