The Supreme Court allowed an appeal by a married couple seeking the return of their young daughter, who had been living with foster carers after an adoption placement. It set aside the High Court orders and directed that the child be released from the carers’ custody to her parents, with the transfer carried out gradually and in line with expert advice.
The judgment, delivered by Mr Justice Geoghegan on 13 November 2006, arose from an inquiry under Article 40.4.2 of the Constitution. The High Court had found the child’s custody with the carers lawful, discharged a conditional inquiry order and placed the child in wardship while leaving day-to-day care with the carers. The Supreme Court substituted its own orders.
The couple had been university students when the mother became pregnant in 2003. Their daughter was born in July 2004 and entered foster care shortly afterwards. The parents initially took steps towards adoption, but their consent was later withdrawn. After the couple married in January 2006 and the child’s birth was re-registered, Mr Justice Geoghegan said a legal adoption was no longer possible under the Adoption Act 1952, as amended.
The judgment said that, where the child’s parents are married, the Constitution creates a presumption that the child’s welfare is best served within that family. The parents could be refused custody only if there were “compelling reasons” or a relevant failure of duty under Article 42.5. The judge rejected the High Court’s conclusions on both grounds.
On the risk of harm from disrupting the child’s bond with the carers, the Supreme Court accepted that a transfer could cause distress and carried risks. But the expert evidence described how a carefully planned, gradual move, supported by professionals, could help a young child adapt. The judge also relied on evidence supporting the parents’ ability to provide suitable care. He concluded that the evidence did not establish compelling reasons to deny them custody.
He also rejected the finding of failure of duty. The parents’ earlier decision to place the child for adoption, and the period when the carers met her day-to-day needs, did not amount to abandonment or a constitutional failure of parental duty, he held.
The order requires the child’s release to her parents, but does not call for an abrupt handover. The court said an ancillary order should direct how the transfer takes place, given the child’s infancy and the evidence that it should be gradual and guided by appropriate experts.