The Supreme Court ordered an infant to be released from the custody of a couple and returned to her parents, while directing that the arrangements for the transfer be considered at a further hearing.
In a judgment delivered on 13 November 2006, Chief Justice Murray said the child’s welfare required her return to her parents. He agreed with conclusions in judgments by three other members of the Court and focused on the form of the order in the Article 40.4 proceedings.
The parents had withdrawn their consent to the adoption and sought the infant’s return. The couple’s custody had been lawful when the child was placed with them and continued while the proceedings were pending. Murray said that entitlement had ended: the couple were no longer entitled as of right or in law to custody, and the infant was released from that custody.
The Court also considered how to give effect to the return while protecting the child’s welfare. Murray said a transfer from a couple to whom the infant had become attached to her natural parents should, as far as practicable, minimise adverse effects. The parties shared the view that professional supervision and arrangements should ease the transition, but the hearing had not included detailed evidence on how a phased transfer should work.
The judgment said the Supreme Court had jurisdiction to make ancillary or interim orders needed to protect the rights and welfare of a very young child during the transition. The Health Service Executive was described as particularly well placed, and responsible, to provide professional advice and supervision. The parties were directed to make further submissions, and the matter was to be listed in the immediate future on a date to be notified by the Registrar.
Pending that further determination, the Court made an interim order authorising the infant to remain with the couple. The order directs her release from their custody and return to her parents, but leaves the manner and arrangements for that transfer to the Supreme Court. The interim custody arrangement applies until a further order in that matter.