The Adoption Authority of Ireland v The Child and Family Agency & ors

Factual and Procedural Background

This opinion arises from a case stated pursuant to section 49(2) of the Adoption Act 2010 by the Adoption Authority of Ireland ("the Authority") at the request of the Child and Family Agency concerning an application for an adoption order by a married couple who are the foster parents of a minor child ("the Child"). The foster parents seek to adopt the Child.

The Child was born in 2001 and is a ward of court. Both birth parents are deceased, having died intestate. The birth mother died in 2008 and the birth father in 2012; the birth father was not the legal guardian. The Child has been in long-term foster care under the Child and Family Agency since 2001, following severe injuries caused by the birth mother. Various care orders have been made, including a wardship order in 2015, with the foster mother appointed guardian of the Child’s fortune.

The foster parents applied for an assessment and a declaration of eligibility and suitability to adopt in 2015, which was granted by the Authority. The Office of the Wards of Court confirmed it had no objection to the adoption. The case raises questions of law concerning the necessity and manner of obtaining or dispensing with consent to adoption where persons whose consent is required are deceased, and the procedural requirements under the Adoption Act 2010 and its amendments.

Legal Issues Presented

1. Whether the consent of a deceased birth parent or guardian is required for an adoption order.
2. If consent of a deceased person is required, whether an application to the High Court under sections 26(1)(d) and 54(2) of the Adoption Act 2010 is necessary in every such case.
3. Whether the requirements of section 54(2) of the Adoption Act 2010 are automatically satisfied when a person whose consent is necessary is deceased.
4. Whether, if the child is a ward of court and the Office of the Wards of Court has no objection, it is necessary to apply to the High Court to dispense with the consent of a deceased person.
5. Whether, where a deceased person whose consent is necessary is replaced by a consenting birth father who is not a guardian, an application to dispense with consent is required.
6. Whether the Authority must obtain High Court approval under section 30 of the Adoption Act 2010 before making an adoption order without consulting a relevant non-guardian who is deceased.

Arguments of the Parties

Child and Family Agency's Arguments

• The plain reading of the Adoption Act 2010 indicates that the Authority must obtain the High Court’s authorisation or sanction to dispense with any required consent, including in cases involving deceased persons.
• The legislative framework mandates High Court approval for departures from the normal consent procedure, with no alternative procedure provided.
• Death alone does not constitute abandonment; additional evidence is required to satisfy the abandonment test under section 54(2).
• Where the child is a ward of court, the High Court’s sanction is explicitly required, and this protection should not be removed in cases of deceased parents.
• Consent by a birth father who is not a guardian does not obviate the need for court dispensation of consent from deceased persons; no legislative intention exists to elevate non-guardians’ consent above that of guardians.
• The Authority must obtain court approval under section 30 before making an adoption order without consulting a relevant non-guardian who is deceased; absence of such provision in the 2017 Amendment Act supports this position.
• Legislative intent supports maintaining existing protections; unclear or oblique statutory amendments are presumed not to effect fundamental changes without clear language.

Foster Parents' Arguments

• The central question is whether it is necessary to apply to court to dispense with consent of every person required under section 26 when that person is deceased.
• Requiring an application under section 54(2) in every case involving deceased persons is an unnecessary obstacle to adoption, particularly in this case where the foster parents are exemplary carers.
• The additional test of abandonment under section 54(2) may be inapposite for deceased persons.
• The notice parties do not specifically address each question but emphasize practical difficulties and the best interests of the Child.

Adoption Authority of Ireland's Position

The Authority adopted a neutral stance on the application.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court examined the statutory framework of the Adoption Act 2010, particularly sections 26, 30, 31, and 54, and their interplay with the facts of the case. It noted that the Act requires consent from specific persons, including the child's mother, guardian, or other persons having charge or control, and sets out detailed procedures for how consent must be given, including formal written consents and the possibility of withdrawal prior to an adoption order.

The Court highlighted that the statutory provisions contemplate consent being given by living persons with capacity, and do not expressly address consent requirements or procedures when a person whose consent is required is deceased. The Court reasoned that it is practically and legally impossible for a deceased person to give or withdraw consent as required by the Act.

Regarding the requirement to apply to the High Court for dispensation of consent under sections 26(1)(d) and 54(2), the Court found these provisions are designed for living persons unable or unwilling to give consent, not deceased persons. It rejected the submission that death equates to abandonment under section 54(2), noting that the precedent case D.W. involved specific facts of pre-existing abandonment prior to death.

The Court considered the statutory consultation procedures under section 30, which require the Authority to consult relevant non-guardians, including fathers who are alive. It found that the section’s provisions do not logically extend to deceased persons, as the procedural obligations (such as counseling and consultation) cannot be fulfilled in such cases.

The Court also addressed the statutory protections provided where the child is a ward of court, noting the separate requirement for High Court sanction, but concluded that where the Office of the Wards of Court has no objection, no additional application to dispense with consent of deceased persons is necessary.

Finally, the Court emphasized the overriding statutory obligation to act in the best interests of the child and the absence of clear legislative intent to require court dispensation of consent for deceased persons. It concluded that requiring such applications would impose unnecessary procedural obstacles without statutory basis.

Holding and Implications

Holding: The Court answered the questions of law posed as follows:

• No, it is not necessary to dispense with the consent of a deceased person whose consent to adoption would otherwise be required.
• In this case, no application to the High Court under sections 26(1)(d) and 54(2) is required to dispense with consent of deceased persons.
• Section 54(2) requirements are not automatically satisfied by the death of a person whose consent is necessary.
• No application to dispense with consent is required where the child is a ward of court and the Office of the Wards of Court has no objection.
• The question concerning a birth father who is not a guardian consenting to adoption does not arise on the facts of this case.
• No application under section 30 is required where a relevant non-guardian is deceased.

Implications: The decision clarifies that the statutory consent requirements under the Adoption Act 2010 do not extend to deceased persons and that no court application is required to dispense with consent in such circumstances. This removes procedural obstacles in adoption cases involving deceased birth parents or guardians. The ruling does not establish new precedent beyond the facts of this case and confirms the necessity of interpreting statutory consent provisions as applying only to living persons capable of giving consent.