The Supreme Court allowed an appeal by the birth parents of a two-year-old child who had been placed with prospective adopters, concluding that the evidence did not meet the demanding constitutional test for keeping her in their custody. The judgment was delivered by Mrs Justice McGuinness on 13 November 2006.
The child, called “Ann” in the judgment to conceal identities, was born in July 2004 to unmarried parents. They agreed to place her for adoption, and she moved to the care of prospective adopters in November 2004. The adoption was intended to be open, with the birth parents having future access. The mother later withdrew her consent and sought the child’s return. The prospective adopters refused, citing the child’s best interests.
The parents married in January 2006 and began proceedings under Article 40 of the Constitution, challenging the lawfulness of the child’s continued custody. The High Court had found that the parents failed in their duty and abandoned the child, and that compelling reasons justified keeping her with the prospective adopters. It made the child a ward of court while leaving day-to-day care and control with them.
The Supreme Court rejected the finding that the parents had failed in their duty or abandoned their rights. It said that placing a child for adoption in the belief that it was in her best interests could not, by itself, amount to failure of parental duty. The court also pointed to the planned future access under the open-adoption arrangement as inconsistent with an intention permanently to abandon parental rights.
Expert evidence warned that an immediate transfer would likely cause severe psychological harm. The experts considered a gradual, supported transfer possible, though it could still cause lasting harm. The court acknowledged the uncertainty and the practical difficulty of arranging such a transfer, but held that this evidence did not establish compelling reasons why the child’s welfare could not be achieved with her parents.
The judgment explained that the parents’ marriage brought the case within the constitutional protections and presumption applicable to a married family. The court therefore had to apply the test in the earlier Supreme Court decision In re J.H. It also noted that the child’s adoption by the prospective adopters was no longer realistically possible following the parents’ marriage and the child’s birth re-registration. Keeping her with them indefinitely would leave her in an insecure and anomalous position, with potential for further disputes over custody and access.
The appeal was allowed. The judgment excerpt supplied here does not set out the Supreme Court’s operative order beyond that result.