The High Court has allowed a woman’s damages action over the adoption of her child in the 1970s to proceed, ruling that she did not have to challenge the adoption order as a precondition of pursuing her claim.
In a preliminary judgment delivered on 31 May 2013, Mr Justice Ryan refused applications by the defendants to stop the action or require other parties to be joined. He stressed that the decision was not final and did not determine any of the issues the defendants may raise at trial.
The plaintiff, identified in the judgment as P.M., was a teenager and unmarried when she had the baby. The child was placed for adoption and an adoption order was made. In proceedings begun in 2001, she alleges that the first defendant, D.C., and the Health Service Executive, which succeeded the health board responsible for the adoption agency, were involved in taking the child for adoption without her knowledge or consent, or consulting her.
Her pleaded claims include negligence, breach of duty, breach of statutory duty and breach of constitutional rights. She also alleges fraud and undue influence concerning documents said to have been signed or written by her. She claims psychological harm. These are allegations, not findings in the preliminary judgment.
The plaintiff has not sought to invalidate the adoption order. Her counsel said she did not wish to disturb the arrangements and was seeking damages for the alleged wrongs. The defendants argued that findings about consent could undermine the order, which remains presumed valid unless a court declares it invalid under section 50 of the Adoption Act 2010. They submitted that relevant parties, including the adoption authority and the now-adult adopted person, should be notified and given an opportunity to participate.
Justice Ryan concluded that the existing adoption order did not, by itself, operate like an issue estoppel preventing the damages claim. He said the law did not require a plaintiff to seek invalidation of an adoption order before claiming damages. He also noted that section 50 allows a court, in specified circumstances and after hearing those it considers should be heard, to withhold a declaration of invalidity.
The judge fixed a date for the action to be heard. The defendants remain free to argue at trial that the plaintiff’s failure to challenge the order affects her claim. The court said the parties should consider how the case can be heard and determined while respecting the interests of everyone concerned.