The Supreme Court allowed an appeal by a married couple seeking the return of their young daughter, setting aside the High Court decision that had refused to transfer her from prospective adoptive carers. The court held that the evidence did not establish compelling reasons why the child’s welfare could not be secured within her constitutional family. It directed that an order be made in accordance with the Chief Justice’s proposal; this judgment does not set out the terms of that proposal.
The couple, identified in the judgment by pseudonyms as Brian and Catherine Byrne, had placed their daughter with David and Eileen Doyle for prospective adoption when she was four months old. No adoption order had been made. Catherine withdrew her consent in September 2005 and sought the child’s return. The couple later married and applied for custody under Article 40.4.2 of the Constitution.
The High Court, in a judgment delivered by Mr Justice McMenamin in June 2006, refused to return the child. It found a failure of parental duty and concluded there were compelling reasons against return, including the child’s established attachment to the Doyles and the risk of harm if custody were transferred without careful cooperation.
The Supreme Court rejected the finding of failure of duty. Justice Fennelly said the Constitution required a clearly demonstrated failure for physical or moral reasons before the State could supply the role of parents. The trial judge had not found either kind of failure, and the adoption placement itself could not be treated as a failure of duty.
The court accepted expert evidence that the child had formed strong bonds with the Doyles and that an abrupt transfer could cause lasting emotional and psychological harm. The experts agreed that any transfer would need to be phased and sensitive, with cooperation from both sets of parents. But Justice Fennelly found no evidence that the Byrnes would refuse to cooperate, and said the trial judge’s general references to mistrust did not establish that the necessary cooperation was impossible.
Justice Fennelly applied the constitutional presumption that a child’s welfare is to be found within the family, unless compelling reasons show otherwise. He also noted that because the Byrnes were married, the child could not be adopted in the ordinary way and would remain legally their child if she stayed with the Doyles. He concluded the evidence was insufficient to rebut the presumption and would allow the appeal.