The High Court has dismissed Patricia Breaden’s proceedings against the Adoption Authority of Ireland, finding that prolonged delay and the loss of key witness evidence created a real and serious risk of an unfair trial or unjust result.
Mr Justice Garrett Simons delivered the judgment on 5 September 2019. The proceedings concerned events surrounding the adoption of Ms Breaden’s daughter, born in July 1979, when Ms Breaden was 16. Her pleaded claim against the Authority was that it failed to ensure she could give informed consent. The court stressed that it was not deciding the underlying merits of that claim.
The Authority argued that the claim was statute barred and that the proceedings should be dismissed for inordinate and inexcusable delay. The judge declined to decide the limitation issue on the application, which was heard on affidavit evidence. Ms Breaden relied on a consultant psychiatrist’s report concerning post-traumatic stress disorder and her ability to consider legal action. The judge said the evidence of disability was scant, but that the disputed issue required oral evidence and cross-examination. He made no finding that she had been under a disability or that any such disability had been caused by the Authority.
The court found the delay in prosecuting the case after it was filed in August 2015 to be inordinate and inexcusable. In particular, Ms Breaden had not replied to the Authority’s notice for particulars, served in November 2015. The judge said the questions raised were critical to a fair determination and should have been answered years earlier. He considered the pre-filing delay separately and did not decide whether it was excusable.
The judge also found a real and serious risk of an unfair trial if the claim proceeded. The events at issue occurred in 1979 and 1980, and the proceedings began more than 35 years later. The principal Cúnamh social worker had died; another Cúnamh social worker had no specific recollection of meeting Ms Breaden; and Anne McCarthy, the Adoption Authority social worker who witnessed a questionnaire and affidavit, also had no specific recollection of her dealings with her. The contemporaneous documents included affidavits recording Ms Breaden’s consent to the adoption, while her pleaded case said she did not understand the documents. The court said a fair assessment of that dispute required evidence from the principal participants and an opportunity to test credibility.
The order dismisses the proceedings against the Adoption Authority. The judgment does not state that the proceedings against Cúnamh were dismissed; that defendant’s separate motion had been adjourned generally.