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N & anor. v. Health Service Executive & ors.

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Court/Judicial body:Supreme Court of Ireland
Date:November 13, 2006 CRC
Provisions:Convention on the Rights of the Child (general reference)
Other international provisions:Council Regulation (EC) No 2201/2003 of 27 November 2003: jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibilityEuropean Convention on Human Rights, Article 8: Right to a private and family life
Domestic provisions:Irish Constitution, Articles 40 (Personal Rights), 41 (The family), 42 (Education)Guardianship of Infants Act 1964The Adoption Acts 1952 to 1998

Case summary

Background:The dispute related to the proposed adoption of a child. The biological parents originally consented to the adoption, and the child had been placed with the proposed new adoptive parents. However, late in the process the biological parents changed their minds and attempted to withdraw from the adoption process. They also, at that stage, married, a move which was made and/or timed, at least in part, and/or timed to improve the likelihood that the child would be returned to them, but which was also determined by the courts to genuinely reflect the biological parents’ commitment to each other. By the stage at which they withdrew consent, the proposed adoptive parents had the right to and did apply to the court requesting that custody be awarded to them. The proposed adoptive parents made it clear that they would not participate in a phased and gradual transfer of the child back to the biological parents, and following evidence that it would be disruptive and potentially harmful to take the child from a stable home and from what the child considered to be her family, the court of first instance determined that it was against the interests of the child to be returned to the biological parents. This decision was then reversed on appeal.

Issue and resolution:Adoption. The Supreme Court unanimously upheld the decision of the court of appeal, awarding custody to the child’s biological parents.

Court reasoning:The Court followed the reasoning of the earlier Supreme Court decision In Re J.H., an infant [1985] I.R. 375, which determined that the laws on adoption and custody must be viewed through the constitutional presumption that a child’s welfare is best served by being with her biological family unless there are strong reasons to suggest that this would not be possible. Given that there was no evidence to suggest that the child’s biological parents were incapable of caring for her, the Court felt compelled to rule that the child’s interests would best be served by residing with her biological parents.
Excerpt citing CRC and other relevant human rights instrumentsfrom the opinion of Justice McGuinness:“It is perhaps striking that the one person whose particular rights and interests, constitutional and otherwise, were not separately represented, whether by solicitor and counsel or through a guardian ad litem, was the child herself. No doubt this was, in part at least, due to the form of the proceedings, where the issue to be decided by the court was whether Mr and Mrs Doyle’s present custody of the child was lawful. In my personal view, however, and bearing in mind the terms of such international instruments as the United Nations Convention on the Rights of the Child, or EU Regulation 2201/Nov. 2003 (Brussels 2 bis), this situation should at the very least give pause for thought.”

Notes:Although the decision of the court was unanimous, one judge was critical of the law as it stood, in that the question of the best interests of the child should have been, but was not, paramount. The judge authoring the decision, Justice McGuinness, implied that she would have, in applying the tests of the best interests of the child, awarded custody to the proposed adoptive parents rather than the natural parents; however, she was bound by the Constitution not to do so. Key excepts from the judgment of Justice McGuinnessfollow: “It must, however, be recalled that the unanimous medical evidence of the two leading psychiatrists in In Re J.H. was in every way parallel to the evidence in the present case. Both short term and long term dangers were pointed out, and Lynch J. had considerable doubts about the general attitude of the natural mother to the prospective adopters. Yet the test set by Finlay C.J. in his judgment – compelling reasons why the child’s welfare could not be achieved within the natural family – is so exacting that it would be difficult to see it being met other than in the most extreme circumstances. This is particularly so when the test is given the added weight of being set in the context of the constitutional declaration of the rights of the family and of parents, and the related constitutional presumption that the welfare of the child is to be found within the family. These constitutional rights and presumptions apply, of course, to the legally married family alone.” “Given the evidence before the High Court and the conclusions drawn from that evidence by the learned trial judge, the probability is that there was a full agreement to place the child for adoption. In such a case, the central issue before the court to which all evidence would be directed would be the best interests of Ann. On 9th January, 2006 the Byrnes intermarried. I have no doubt that their marriage reflected their commitment to each other and their determination to recover custody of their child; it admittedly also reflected their legal advice. Once the marriage took place the Byrnes became a constitutional family with all the concomitant rights and presumptions. The present Article 40 proceedings were then initiated. The central issue to be considered by the court underwent a metamorphosis; it was no longer the best interests of the child but the lawfulness or otherwise of the Doyles’ custody of her. When deciding whether the Doyles’custody of Ann is in accordance with law it is no longer possible for the court to follow the original approach of Lynch J. in In Re J.H. – “to look at it through the eyes, or from the point of view of the child”. It is clear that the court is bound by the decision in In Re J.H.; the full rigour of the test established in that case must be applied. Ann, on unchallenged evidence, is now a happy and secure little two-year-old girl. She is in the loving care of David and Eileen Doyle whom she knows as her father and mother. She has the love and companionship of Eileen Doyle’s mother, whom she sees as her grandmother, and of other extended family and friends. She faces an uncertain future. The expert evidence as to whether she will suffer long term harm by being transferred to the care of her natural parents is predictive rather than certain. But so too is the assessment evidence of S. C. concerning the parenting ability of the Byrnes. Indeed the very concept of a presumption is in itself predictive rather than certain. In common with Lynch J. in In Re J.H., I remain uncertain and apprehensive about the effects of a transfer of Ann’s custody, and about her future in general. Nevertheless, I do not consider that the medical and other evidence before the High Court judge met the heavy burden of establishing that there were compelling reasons that her welfare could not be achieved in the custody and care of her natural parents.” “In his judgment, Geoghegan J. refers to the fact that in “some quarters” the decision taken by the Supreme Court in In Re J. has been subjected to criticism. The learned judge rightly expresses the view that unless and until the Constitution itself is amended there is no justification for that criticism. I am in agreement with this view. The judgment of this court, as expressed by Finlay C.J., reflects the unequivocal wording of Articles 41 and 42 of the Constitution, as does the judgment of the court in In re The Adoption Bill 1987 (already cited). It would be disingenuous not to admit that I am one of the “quarters” who have voiced criticism of the position of the child in the Constitution. I did so publicly in the report of the Kilkenny Incest Inquiry in 1993. The present case must, however, be decided under the Constitution and the law as it now stands. With reluctance and some regret I would allow this appeal.” CRIN Comments:CRIN believes this decision is inconsistent with the CRC. Under Article 3 of the Convention, the best interests of the child should be a primary consideration in all actions that concern them, which undoubtedly includes adoption proceedings. Here, despite it having been determined that it would be in the best interests of the child to remain with her adoptive parents, the child was returned to her biological parents. In addition, as noted by Justice McGuinness, there was no attempt to determine the views or represent the interests of the child herself. CRC Article 12 would dictate that the court seek out the opinion of any child involved in a legal proceeding, giving the views of that child due weight in accordance with the child’s age and maturity. Citation:[2006] IESC 60 Link to Full Judgment: This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice. Related Instruments: European Convention for the Protection of Human Rights and Fundamental Freedoms Countries Ireland CRIN does not accredit or validate any of the organisations listed in our directory. The views and activities of the listed organisations do not necessarily reflect the views or activities of CRIN’s coordination team.

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