The Supreme Court has dismissed an appeal by P. O’D against a High Court order authorising An Bord Uchtála to make an adoption order for J. O’D in favour of her long-term foster parents, W.H. and P.H.
In a judgment delivered by Mrs Justice McGuinness on 17 December 2002, the court confirmed the High Court’s decision under section 3(1) of the Adoption Act 1988. The order authorises the Board to make the adoption order; the judgment does not state that the Board had already made it.
J. had lived with W.H. and P.H. continuously since August 1989, after entering the care of the local health board as an infant. The Supreme Court noted that they had provided her home and day-to-day care, and that J. regarded them as her parents. She has cerebral palsy. The judgment records that P. O’D had been unable to provide that care because of mental illness and disability, and had agreed to J. remaining in the foster parents’ care, while consistently opposing adoption and wishing to retain some contact.
The appeal challenged the findings required by the 1988 Act, including whether P. had failed in her parental duties and whether that failure amounted to abandonment of all parental rights. The Supreme Court upheld the finding of a total failure of parental duty for physical reasons, which the court said included mental disability, and agreed that the failure was likely to continue until J. turned 18.
The court did identify an error in the High Court’s reasoning on abandonment. The trial judge had found both that P.’s failure was caused by her disability and that, with assistance, she could have cared for J. to a minimum degree. The Supreme Court considered those conclusions contradictory. It nevertheless held, on the evidence, that P.’s long-term transfer of J.’s care to W.H. and P.H. constituted abandonment in the special legal sense used in the Act. It said that her opposition to adoption and wish for visits did not, by themselves, negate that conclusion.
The Supreme Court also upheld the findings that adoption was an appropriate way for the State to supply the place of the parents and that it was in J.’s best interests, with due regard to the rights of those concerned. The High Court had interviewed J., then almost 12, who expressed a clear wish to be adopted by W.H. and P.H. and to continue seeing P. from time to time. The Supreme Court said the appeal was dismissed and the High Court order confirmed.