The High Court has ruled that the Adoption Authority of Ireland does not need a separate order dispensing with the consent of a deceased parent before it can make an adoption order. The ruling answered questions of law referred by the Authority in a case concerning a proposed adoption by a child’s foster parents; it did not itself make an adoption order.
The judgment concerned K.R., whose birth mother died in 2008 and birth father died in 2012. K.R. had been in the Child and Family Agency’s care since infancy and became a ward of court in 2015. The Office of the Wards of Court had said it had no objection to the proposed adoption. The foster parents had received a declaration of eligibility and suitability to adopt.
The Agency had asked whether a deceased person’s consent had to be dispensed with under the Adoption Act 2010, including through an application to the High Court under section 54. The foster parents argued that requiring such an application in every case would create an unnecessary obstacle. The Adoption Authority took a neutral position.
Mr Justice MacGrath said the Act’s consent provisions required a living person capable of giving consent in the prescribed way. The legislation provided no procedure for obtaining or dispensing with the consent of someone who had died. He concluded that section 26 was not intended to apply to a deceased person, so there was no consent to dispense with in those circumstances.
The judge also said death alone would not establish the statutory grounds for dispensing with consent under section 54. He distinguished an earlier case in which the court had considered the parent’s conduct before death and found evidence of abandonment in that case’s particular circumstances.
Because K.R. was a ward of court, the judgment said the High Court’s sanction remained separately required under section 26(1)(a) for the wardship aspect. But where the Wards of Court office and committee had no objection, the judge said a further application to dispense with a deceased parent’s consent was not necessary.
The court also addressed consultation with a relevant non-guardian, such as a father who is not a guardian. It said section 30’s consultation process was directed at a living person. On the facts, the question about a father who had consented did not arise, because K.R.’s father was deceased and had not consented. The court answered that High Court approval was not required in this case for the consultation issue.
The judge answered “no” to whether consent had to be dispensed with, whether a section 54 application was required in this case, whether section 54’s requirements were automatically met by death, whether a further application was needed because of wardship, and whether approval was required under section 30 in this case. He said the question about a consenting non-guardian father did not arise on these facts.