THE HIGH COURT
2001/33M
FAMILY LAW
IN THE MATTER OF THE ADOPTION ACTS 1952-1988
IN THE MATTER OF J. O'D, AN INFANT
BETWEEN:
THE AREA HEALTH BOARD AND W.H. AND P.H.
APPLICANTS
AND
AN BORD UCHTALA
RESPONDENT
AND
P. O'D.
NOTICE PARTY
Judgment of Mr. Justice Herbert delivered the 3rd day of May, 2002
THE FACTS
1. The uncontradicted evidence of Ms., T. McC., now Senior Social Worker with the relevant Health Board, based upon records in the possession of the Health Boards and the Local Authority going back to 1965, is that the natural mother, (hereinafter referred to as P.), of the infant, (hereinafter referred to as J.), was born on the 16th July, 1967, one of a family of five boys and fours girls. Her father was an alcohol abuser. He regularly assaulted his wife and his children. They existed in circumstances of the utmost privation lacking proper food, clothing and household goods. P. had problems with school attendance. Ultimately she and a number of her siblings were taken into voluntary care. While in care she was examined by Dr. N. a consultant psychiatrist. Dr. N. told this Court that she diagnosed P. on the 19th May, 1982 as being mildly mentally handicapped with behaviour problems and difficulties communicating with her peers and others.
2. In 1984 P. attended Dr. S., a consultant psychiatrist, because of problems of seriously aggressive behaviour and an inability to relate to people. He found her to be apathetic and monosyllabic with indications of psychosis. He prescribed a course of medical treatment. P. was educated in a school for persons with special needs until she was 18 years of age. During her final year in school she was assessed by the National Rehabilitation Board and was considered suitable for placement in sheltered workshop training. In 1985 and 1986 she received sheltered workshop training but she voluntarily left that training and went to live first with her brother W. and then despite the expressed concerns of Social Workers returned to live in the family home.
3. In 1998 she became pregnant with J.. She attempted suicide by taking an overdose of drugs. Ms., G. arranged for P. to be admitted to a Mother and Baby Home and J. was born in the hospital of the area on the 29th December, 1988. Post partum P. was totally unresponsive to the needs of the baby. She was unable to feed or to care in any way for the baby and this placed the new born and the mother herself at serious risk.
4. Ms., H., Solicitor, was by Order of this Court made on the 25th May, 2001 appointed to be Guardian ad Litem to P.. Ms. H. gave evidence that on the 20th September, 2001 P. told her that after the birth of J. the putative natural father visited P. and the baby in the Mother and Baby Home. P. said that she did not have a happy relationship with this man, that he was violent towards her and she decided that she did not want anything more to do with him as he was not a good man.
5. The Court has had evidence that this man was notified by registered post on the 26th June, 1998 of the hearing before An Bord Uchtala. The registered letter was returned marked, "not known". He was personally served by a Summons Server with notice of these proceedings. The Summons Server, Mr. R. gave evidence of the service and I am totally satisfied in this regard. This man has not appeared before this Court nor has he instructed any person to appear on his behalf. Counsel informed the Court that he never provided maintenance for either mother or child and his name does not appear on the Birth Certificate of J.
6. Ms. H. informed the Court that at this interview on the 20th September, 2001, P. had stated that she felt unable to cope with the baby after the birth. She left the Mother and Baby Home as she felt she was not getting enough help in minding the baby. She went to live with her brother but she was unable to stay there as his wife was ill with depression. She then decided to return with the baby to the family home. She (P.) was unable to cope with the situation. The baby was very difficult and cried continuously. She agreed with Ms. G. to place the baby in the voluntary care of the Health Board so that the baby could be properly looked after and to give herself a respite. The exhibited Voluntary Care Form signed by P. on the 13th February, 1989 gives the circumstances leading to the admission as, "unable to care for child".
7. J. was christened into the Roman Catholic Church on the 5th February, 1989. P. is a member of that church. Foster parents were found for the baby but were unable to cope because the baby was very difficult. In March, 1989 J. was placed in a Group Home for Children. Counsel informed the Court that in July, 1989 Mr. and Mrs. H., had been approved as Long-term Foster Parents for J.. On the 17th August, 1989 W.H. and P.H., became long-term foster parents for J.
8. Mrs. P.H., told the Court that she and her husband were informed that J. was a perfectly normal baby. She was their first child. They had been married on the 16th August, 1980. Mr.. H., was then a Senior Engineer with the area Local Authority. Both were then about 37 years of age and members of the Roman Catholic Church. Mrs. H., told the Court that J. was a very difficult baby and cried a great deal. She and her husband were very concerned about the baby and had her medically examined on a number of occasions. In about June, 1990 J. was diagnosed as suffering from Cerebral Palsy with right Hemiplegia. Ms., McC., told the Court that when P. was informed of this she was quite unable to understand and looked to Mr. and Mrs. H., and to the Social Workers to put right whatever was wrong with the baby. Mr. and Mrs. H., particularly Mrs.. H., had a good relationship with P. and brought J. frequently to see her and P. came to their house to visit J.. In 1992 Mr. H., had an opportunity of obtaining promotion but this involved moving to the Dublin area. He and his wife discussed this with P. and with the Social Workers for the Health Board. Ms. McC. told the Court that she asked P. if she would consent to Mr. and Mrs. H., adopting J.. P. said she would not consent because she feared that if she did the visits would stop especially if Mr. and Mrs. H., moved to Dublin. She felt that they might even leave the country altogether and she would never see J. again. Mrs. H., told the Court that P. and Social Workers agreed to their moving to the Dublin area and taking J. with them. After Mr. and Mrs. H., had moved to Dublin arrangements were made for P., accompanied by her sister M., to come to Dublin to see J.. P. was unable to travel on her own.
9. Unfortunately, in late 1992 P's health showed signs of serious deterioration. In November, 1992 P. was referred to Dr. N. the consultant psychiatrist by her general medical practitioner suffering from weakness, lack of energy and appetite and depression. Dr. N. prescribed anti depressant medication and P. appeared to respond well to this treatment. In March, 1993 P. was admitted as an in-patient to the Mental Treatment Unit of the County Hospital for a period of three weeks suffering from severe emotional disturbance with abusive and aggressive behaviour. Her illness was very severe and appeared to be background related. After her discharge as an in-patient she continued to be monitored at out-patient clinics. In December, 1994 P. was too unwell to travel to Dublin for her customary Christmas visit to J.. From the evidence of Dr. N. and Ms. McC., P's illness lasted about two years. Ms. McC. told the Court that in 1995 P. saw J. on four occasions, twice in Dublin and twice in the home of her sister M.
10. In September, 1997 P. again came under the care of Dr. N.. She was very seriously ill with severe depression and suicidal ideation. She had a fixed idea that she was dying from cancer. She was suffering very severe headaches and was unable to care for herself in any way even as regards basic hygiene. She was suffering from delusions and paranoid ideas. People she felt were out to, "get her" and she was hearing voices and seeing visions. Dr. N. concluded that P. was suffering from chronic schizo-affective psychosis overburdening a degree of mild mental handicap. Dr. N. told the Court that this condition is permanent and can only be controlled by regular injections of Phenothiazine medication which is a major anti psychotic with a strong sedative action. During the course of her treatment grave concerns arose as to whether P. had suffered sexual abuse and whether the perpetrators were her father and an older brother named J.
11. At this time P. had been told by Ms. McC. that Mr. and Mrs. H., had applied to adopt J.. They had mentioned the matter to Ms. McC. first in 1991 and raised the issue again with her in 1994. Mr. W., Registrar of An Bord Uchtala told the Court that a formal application was made to the Bord on the 16th May, 1997. Ms. McC. gave evidence that she explained the nature of the application to P. and that P. refused to give her consent to the adoption.
12. On the 1st September, 1997 Dr. N. raised the issue of adoption with P.. Dr. N. recorded in her Report dated the 5th September, 1997 which was proved in Court, that when she and Ms. McC. had discussed this matter in the past with P. she could not bring herself to allow it and she stated that J. was the only thing she had left in life. P. had even threatened suicide. On these occasions Dr. N. considered that P. was suffering from depression. By the 1st December, 1997 Dr. N. considered that P. was doing well but had severe difficulties in coping and required a lot of support which was not available in the home environment. P. stated that her main fear was that if she agreed to an adoption she would never see her daughter again and would not have the right to visit the child. She told Dr. N. that she would consider the matter and give an answer on the 8th September, 1997. Her answer given on that date was that she would accept the long-term fostering but she would not consent to J. being adopted by Mr. and Mrs. H.
13. On the 20th November, 1997 P. was admitted to the Mental Treatment Unit of the County Hospital with a diagnosis of mild mental handicap, depression and schizo-affective psychosis. She came under the care of Dr. M., senior house officer to Dr. N.. She was treated with anti psychotic medication. She was discharged on the 5th December, 1997. In a Medical Report on that occasion Dr. M. stated as follows:-
"This 30 year old female was admitted with the complaint of feeling that she is going to die. She was feeling low and was convinced that she was going to die. She was not actively suicidal, but felt her life was not worth living. Recently she had given up her depot injection and was staying in bed most of the time. She was "under pressure" at home as her older brother who had abused the patient in childhood was living in the family home. He had been coming home drunk late at night. Her mother was in hospital for the past few days and the patient was unable to cope without her mother. Her daughter is in long-term foster care and Social Workers were threatening to make her adoption final and the patient was upset about same. She basically needed long-term care due to handicap, psychosis and chaotic home situation. During her stay in hospital she was commenced on another antidepressant named Zispin 30mgs, nocte after stopping her Lustral and she restarted her depot injection. She started making good progress after a few days and she was discharged to a Hostel".
14. Dr. N. told the Court that in April, 1998 P. had told her that she missed J. a lot. She was concerned as to whether she had done the right thing in placing her in care and that maybe she could have taken care of her herself. Dr. N. said that she had assured P. that she could not have reared J. because of her own serious ill health. P. was concerned that if Mr. and Mrs. H., went ahead with the adoption that there would be no more visits or contact with her child.
15. Having regard to the medical reports to which I have adverted and to the possible impact of an adoption on P's then very precarious health, Ms. McC. told the Court that the Health Board decided at that time not to support the application of Mr. and Mrs. H. Mr. and Mrs. H., nonetheless continued with their application.
16. Mr. W., Registrar of An Bord Uchtala told the Court that on the 25th August, 1998 P. gave evidence under oath to the Bord. She was accompanied on that occasion by Ms. McC.. P. told the Bord that she wanted the child fostered but not adopted. She wanted to keep her right to see the child. She said that if J. was adopted she understood that she would never see her again. She said that J. was her flesh and blood and she should never be adopted and even if she had access this would not change the situation. The procedures for and the consequences of an Adoption Order were explained to P.. It was explained to her that it would be a matter for Mr. and Mrs. H., and J. if they wished to keep in contact with her. P. was told about the possibility of an application to the High Court and advised as to her right to appear and be heard and represented at the hearing or any such application. An Bord Uchtala made a declaration under Section 2 of the Adoption Act, 1988 on the 13th October, 1998. This was notified to P. on the same date. A Special Summons was issued on the 8th March, 2001 seeking an Order pursuant to Section 3 (1) of the Adoption Act, 1988.
17. On the 11th August, 1999 P. was admitted to hospital as an in-patient because her family were taking a vacation and she was unable to accompany them. She was discharged on the 1st September, 1999. While in hospital she was visited by a Social Worker and by Mr. and Mrs. H., and J.. She was discharged into the care of her own general medical practitioner. The Community Psychiatric Nurse was to visit and P. was to attend the local Day-Care Centre. Her medical treatment consisted of anti psychotic, anti ulcer, hypnotic and other medication.
18. In June, 2000 she was again admitted to hospital as an in-patient. Dr.N. told the Court that she spoke to P. often at this time. She said that she would occasionally ask P. about J. just as a point of conversation. After P. was being discharged from hospital she and her mother were rehoused on the recommendation of Dr. N. and Ms. McC.. Despite this Dr. N. told the Court that the situation was chaotic. P's mother was approximately 70 years of age, mildly handicapped and in need of care. P. did the cooking and looked after her mother as best she could even though she was barely able to look after herself. They attended the Day-Care Centre and made frequent visits to their general medical practitioner.
19. The Health Board sought a further opinion from Dr. N. which she gave in the form of a medico-legal report dated the 17th July, 2000. She stated her conclusions as follows:-
"In spite of all the above P. is capable of functioning in the community in a very limited fashion. She has very poor self care skills and neglects personal hygiene, diet etc. unless she has on-going supervision. If she had her way she would exist on minerals, sweets etc. She may in the future be a suitable case for medium to long-term care. This has already been suggested in the past but P. is reluctant to stay in hospital as a long-stay patient and also has been reluctant to remove permanently to our psychiatric hostel in the community although a place there has been offered to her. She is very conscious of the stigma and in addition usually wants to return home to look after her mother. While an out-patient she normally attends the Psychiatric Out-Patient Clinic and also the Day Hospital where she is followed up by the Community Nurse and Nursing Staff generally.
I understand that the reason for the present concern is that the final adoption of her daughter, J., is going through. Solicitors are anxious to know her capacity to understand issues such as her daughter's placement for adoption. Although P's intellectual functioning is somewhat limited she does have a basic capacity to understand. There are a lot of references in the notes to her concerns about the adoption in earlier years. These were based on emotional reasoning i.e. she felt her daughter was the one good thing that had happened in her life and did not want to sever all connection as she saw it. In addition she was concerned about the amount of contact with her daughter and felt that should the adoption become final she might lose all contact with her in the future. However, in latter years P. has become more accepting and is now resigned to the fact that the adoption is in the best interests of J.. Social Worker, Ms. McC. has reassured her quite frequently that the adoptive parents have promised to keep in touch particularly at critical times i.e. Christmas, New Year and birthdays. She is now prepared to give her consent".
20. There is agreement on all sides that apart from the period in 1993 and 1994 when P. was seriously ill, P. has seen J. on at least two or three occasions every year. Ms. McC. told the Court that she spoke to P. again during the year 2000 about Mr. and Mrs. H., still wishing to adopt J.. P. told her that she did not have the same fears now about access because a long time had passed and Mr.. and Mrs.. H., had always continued the access. P. still felt that she should not sign a consent because of what J. might think of her later, - "that I had signed her away". She was satisfied that J. was in good hands and she liked Mr. and Mrs. H., who had always treated her with respect and kindness.
21. On the advice of Senior Counsel the matter was transferred to the Health Board of the Area where Mr. and Mrs. H., and J. now resided. Based on the report of Dr. N. of the 17th July, 2000 and the advice of Ms. McC. and Ms. K. the Health Board decided to reverse its earlier decision and to support the application of Mr. and Mrs. H.. P. was offered the services of a solicitor who would explain to her the provisions of the Adoption Act, 1988. During the course of cross-examination, Mr. R., Senior Counsel instructed on behalf of P. put to Ms. McC. that P. was encouraged to believe that ongoing access to J. was secure in the event of an adoption. Ms. McC. accepted that P. had great concern about whether she would ever see J. again if she consented to an adoption. Ms. McC. strongly disagreed with the statement in Dr. M's report that, "Social Workers were threatening to make her adoption final and the patient was upset about same". She said that the Social Workers were very aware of P's mental problems and tried to deal with the matter in as sensitive a manner as they could. Ms. McC. stated that she had spoken to P. in March, 2000. She told P. that the Health Board had asked Dr. N. for a new report. She, (Ms. McC.), had spoken to Dr. N. on the telephone but had never seen Dr. N's report of the 17th July, 2000. Ms. McC. agreed that in a Report dated the 23rd March, 2000 she had stated, speaking of P.:-
"She recently expressed a view that she would not mind if the adoption went ahead although she would not want to strictly consent".
22. Ms. McC. said that this did not mean that P. would give her consent. It was a question of how much she would mind if an adoption order was made. It had been put to McC. that P. had been burdened about consenting since 1995 and this was largely responsible for her illness. Ms. McC. indicated that she did not believe that these were cause and effect but considered that this was a matter for the opinion of Dr. N.. Ms. McC. accepted that post adoption access was a possibility only and could not be guaranteed but she felt that it was altogether likely having regard to the facts to date.
23. Ms. McC. said that she did not believe that P. could live on her own. She survived and that was exactly all it was. She agreed that P. had been told that she should not take the baby to her own family home. She said that while the baby was with P. in the Mother and Child Home the staff were very concerned at her ability to cope. Ms. McC. said that it was her opinion that P. was not then, is not now and never would be in a position to care for J.. She agreed that P's concern about not seeing J. again and not wanting J. to think ill of her did indicate that she "cared" for J. but that this was using the word in a different sense. She accepted that as a Social Worker for J. she wanted what she considered was best for J. even if it caused distress to P. and in her opinion for J. to be adopted by Mr. and Mrs. H., was the best thing for her. It would give J. stability and security for the rest of her life and not just up to the age of 18 years.
24. Ms. McC. told the Court that she had been involved in J's case since 1992. She was very impressed by the wholehearted way in which Mr. and Mrs. H., had devoted themselves to J. even after the Cerebral Palsy with all its problems had been diagnosed. Her function was to monitor the foster placement and she always found J. to be happy and secure. It was clear that J. loved Mr. and Mrs. H., and M.. Mr. and Mrs. H. had spared no expense in seeking to remedy the physical and mental problems caused by the Cerebral Palsy and their unstinting care had achieved remarkable results for J.. Ms. McC. said that in her opinion P. does not have a full capacity to care for herself without ever considering J. She said that P. had no training or expertise as regards how to live a normal life. She and her mother were scarcely able to maintain their home. In her opinion P. had a low I.Q., and lacked all parenting skills. In the Mother and Child Home she was incapable of noticing whether the baby was hungry or thirsty or required changing. She could not sterilise bottles or prepare proper food. She could not get up at night to feed or to change the baby and she did not realise when to call a nurse or a doctor. Ms. McC. was of the opinion that as the child grew older P. would not be able to care for the child or ensure that she went to school.
25. Ms. McC. said that J. started life without the support of a functional family and had three different placements in the first 6 months of her life. She said that J. calls P. "mother" but does not see her or treat her as a nurturer. Ms. McC. said that she absolutely believed and was totally convinced that Mr. and Mrs. H., were committed to allowing J. whatever relationship she wished with P.. They did not want to upset P. nor were they trying in any way to keep J. away from P.. In her opinion Mrs. H., in particular really cared for P. and deeply regretted this difference with her. Ms. McC. stated that in her opinion Mr. and Mrs. H., were absolutely devoted to J. as if she was their natural child and wanted everything that was best for her. She said that she believed that adoption by Mr. and Mrs. H., would give J. security and self esteem for life.
26. Ms. K. said that she had been involved as a Social Worker in J's case since 1996. In her opinion J. had totally bonded with Mr. and Mrs. H.. J. saw them as her mother and father and saw M. as her brother. Mr. and Mrs. H., in their turn were in her opinion devoted to J.. They had done and continued to do everything possible to enable her to overcome the physical and mental disabilities associated with the Cerebral Palsy. They had provided, entirely at their own expense, extra tuition, speech therapy, ophthalmic treatment, music lessons, swimming lessons, gymnastic training and equestrian training. Despite the learning difficulties caused by the Cerebral Palsy because of the total support of Mr. and Mrs. H., J. had been able to remain at all times in mainstream classes during primary education and would shortly continue in mainstream education at second level. J., she felt had become fully integrated into the wider family of Mr. and Mrs. H., and had all the extra affection and support of this large family group. J's moral and religious education has been fully fostered and she received Holy Communion according to the rites of the Roman Catholic Church. Ms. K. informed the Court that Mr. and Mrs. H., were valuable members of their local community and had a full clearance from An Garda Siochana.
27. Ms. K. told the Court that Mr. and Mrs. H., actively sponsored contact between P. and J. even when P. herself did not actively seek it. Mr. and Mrs. H., had met P's mother and her siblings. She stated that in her opinion J's emotional and social life was entirely bound up with Mr. and Mrs. H., and M.. She believed that J. herself wished to be adopted by Mr. and Mrs. H. In her opinion such an adoption was overwhelmingly in J's best interests.
28. Ms. K. admitted in cross-examination that the Social Workers of the Health Board were very much in favour of J. being adopted by Mr. and Mrs. H., and had sought to convince P. to give her consent. She agreed that she had never assessed J. in the company of her natural mother. In her opinion J. had no emotional attachment to P.. She agreed that P. had a wholly genuine fear that if an adoption took place she would never see J. again. Ms. K. accepted that Mr. and Mrs. H., could not legally be obliged to continue the access after adoption but it was her firm opinion from what she had come to know of them and from their past attitude that they would always continue and encourage this access. In particular she cited the fact that after access had become suspended for two years while P. was seriously ill it was Mr. and Mrs. H., though having moved to Dublin, renewed the access. Ms. K. accepted that P's inability to care for J. was due in addition to other matters to the fact that J. had been a very difficult baby because of the undetected Cerebral Palsy, that P. was without a proper home and was the victim of an abusive father, brother and boyfriend.
29. Dr. N. said that in her opinion P. could never have cared for the child. P. was barely able to care for herself. P. lacked all capacity to make decisions and was very open to external influences. Most of the day she spent in bed and then watching television, smoking, eating sweets and drinking fizzy drinks. P. had a disability allowance of £85.00 to £90.00 per week and she spent almost three quarters of this on cigarettes. P. required long-term in-patient treatment but even though she improves greatly with nursing and constant care she will not remain in the Hostel because of her consciousness of a stigma of "being in a place for mentals". Even when rational and in good form for her P. has poor self-care skills. She requires constant encouragement as regards personal hygiene, proper nutrition and other basic social and survival skills. She could not live, - or even survive, - on her own. Her condition requires constant monitoring. Because of her mental impairment, recurring depression and severe psychiatric illness she could never care for J.. P. wished to remain in contact with J. but had never expressed a desire to take care of her. Dr. N. accepted that this was a very tragic situation and everyone felt very deeply for P. but in the opinion of Dr. N. and that of at least two of her professional colleagues P. would be quite unable to look after J..
30. Ms. H. said that on the 20th September, 2001 she directly asked P. had she ever considered having J. to come to live with her. P. responded that she had discussed it with her family. Their attitude was that she would have to do something about it herself. She said that she felt she could not cope given her illness and depression. When Ms. H. visited P. on the 8th October, 2001 P. told her that she wanted things to remain as they were. She felt that an adoption would take away her rights as a parent. She said that she would like to see J. on her own as she felt that this would help them communicate better and improve their relationship. Ms. H. said that she expressed to P. the view that it was unlikely that J. would return to live with her as it would be too difficult for J.. She said that she also suggested to P. that J's wishes in this regard should be taken into account.
31. Mr. and Mrs. H., both gave evidence. Mrs. H., confirmed what the Social Workers had already told the Court. She said that in 1992 J. required surgical treatment to lengthen her achilles tendon and a similar operation was required in 2000. They had been advised that a further operation would probably be necessary. J. required intensive physiotherapy and swimming, horse riding and gymnastic exercises to help strengthen and co-ordinate her limbs. At night and after school J. had to wear lower limb splints and carry out special exercises daily. Up to age nine she suffered from night time incontinence because of the Cerebral Palsy. A squint due to the Cerebral Palsy had to be corrected and this required ophthalmic treatment at Our Lady's Hospital for Sick Children, Crumlin. Also as a result of the Cerebral Palsy J. had problems with speech and required ongoing speech therapy. Though not dyslexic J. had difficulties with reading as a result of the Cerebral Palsy and needed extra tuition outside school hours and additional help from her husband and herself but particularly from Mr. H., to help her keep up with the other children. They were delighted to have achieved this.
32. Mrs. H., told the Court that J. is aware that she is fostered and that M. is adopted. She said that J. wants to be like M.. Mrs. H., said that she felt a little let down by while at the same time understanding P's fears about access. She and her husband have always maintained the access even when P. showed little interest and they intended to continue the access so far as it was in their power so to do. She and her husband had always done their best to inculcate in J. a love and respect for P.. J. always cheerfully and without compulsion or inducement agrees to visit P. whenever they suggest it.
33. Mrs. H., said that she and her husband love J. like she was their own natural daughter. P. never suggested that J. be returned to her. They wanted J. to have self esteem, stability and security now and in the future. They wanted her and M. to be equal in every way. They wanted to protect her and to provide for her. In seeking to adopt her they were considering her needs and not theirs. She said that even if they were not successful in the application while they would be very sad for J's sake it would not in the least affect their love and devotion to her. They were totally in every way committed to her. These proceedings whatever their outcome would not change their relationship with P.. They were both totally committed to maintaining the connection between P. and J.. They sincerely believed that this was important for J., - for her proper development as a person.
34. Mrs. H., said that though J. is improving all the time she still requires constant special care. She said that she and her husband hope that they will always be able to give her that care. Before they sought to adopt J. she, Mrs. H., discussed it with P.. P. listened to what she had to say but did not really respond. They do not think any less of P. because she would not give a written consent to the adoption. They understand her fears, but they have always been open to anything P. ever wanted by way of contact with J. and adoption would not change this. They were doing this, - seeking the adoption, - not for themselves but for J..
35. Mr. H., stated that he confirmed and agreed with everything his wife had told the Court. He said that J. and M. were warm and affectionate towards each other. They saw each other as brother and sister. He said that he and his wife both came from large families and that both children got on wonderfully well with their many "aunts", "uncles" and "cousins". J., he said, wants to be adopted, - to be like her "brother" M.. He believed that adoption would be good for her self esteem, her self confidence and security. He felt that he and his wife should do everything they could to give her a normal stable loving family life.
36. P. gave evidence on oath. She told the Court that she knew she was there because Mr. and Mrs. H., wanted to adopt J.. She said she did not want J. to be adopted because she was her daughter. She said she was happy that J. should remain in foster care with Mr. and Mrs. H. She said that she was satisfied that J. was happy where she was. She said that she did not want J. to become J. H., but wanted her to remain J. O'D. She said that she had never abandoned J.. She said that if she had been in her full health she would have kept J. and looked after her. She agreed that for the last 12 years and more she had played little part in J's life. She said that this was not her fault but was due to her illness and long periods of depression. She said that she always went to see J. when she could. She acknowledged that even when she was sick and in hospital Mr. and Mrs. H., had brought J. to see her. She said that she hoped they would continue to act as J's foster parents.
37. P. said that it was very upsetting for her that people would think that she did not care about J. and had abandoned her. Everyone always told her that she could not cope with J.. If she got her full health back, especially if she got some encouragement, she felt that she could get a job in a restaurant in a local town and look after J.. She said that the new house had three bedrooms. She accepted that her mother was 70 but she said that her mother could look after herself. P. accepted that she had not discussed these matters with her mother or with her sister M. or her brother W.. She said that Dr. N. and the Social Workers were always on to her to agree to an adoption. She said that she did not want to give up J.. She was afraid that if Mr. and Mrs. H., got the adoption they would never bring J. to see her anymore. She said that now that her health was better she would like to come to Dublin more often to see J. and hoped that Mr. and Mrs. H., would bring J. to see her more often and let them have a few hours together alone so that she could talk to J. and get to know her better.
38. I saw J. informally in chambers in the presence of the lady stenographer, Ms. K., Solicitor and Ms. Q., Solicitor. I did not ask her to take an oath. I found her to be a happy intelligent and open child giving no discernible indication of any physical disability or speech or learning impairment.
39. J. told me that her "mum", (Mrs. H.,), said to her would she like to be adopted. She said that she would love to. She wanted to be the same as her "brother" M.. She said that M. was nice to her and did not call her names or pull her hair. She told me that he is 11 and she is 12 years of age. She said that she loved her "mammy T." as well and would always visit her. She said that she did not mind seeing more of her but was very emphatic that she did not want to stay with her. She told me about gym every Saturday and her other activities including her membership of the Girl Guides. She said that she loved all her family and her friends. She told me all about her "H., cousins" and about going on holidays to them. She said that she liked her Aunt M. and her O'D., cousins. She said that they were great fun but she would not like to stay with them. She said that she liked her granny, (P's mother), and would always like to go to see her.
THE LAW
NUMBER 30 OF 1988
ADOPTION ACT, 1988
AN ACT TO PROVIDE, IN EXCEPTIONAL CASES, WHERE THE PARENTS FOR PHYSICAL OR MORAL REASONS HAVE FAILED IN THEIR DUTY TOWARDS THEIR CHILDREN, FOR THE SUPPLYING, BY THE ADOPTION OF THE CHILDREN, OF THE PLACE OF THE PARENTS AND FOR THAT PURPOSE AND OTHER PURPOSE TO AMEND AND EXTEND THE ADOPTION ACTS, 1952 TO 1976.
3. (1) Where persons in whose favour the Board has made a declaration under section 2 (1) (referred to subsequently in this subsection as "the applicants") request the health board in whose functional area they ordinarily reside to apply to the Court for an order under this section -
(a) if the health board considers it proper to do so and an application therefor in accordance with paragraph (b) of this subsection has not been made by the applicants, the health board may apply to the Court for the order, and
(b) if, within the period of 3 months from the day on which the request was given to the health board, the health board either -
(i) by notice in writing given to the applicants, declines to accede to the request, or
(ii) does not give the applicants a notice under subparagraph (i) of this paragraph in relation to the request but does not make an application for the order under paragraph (a),the applicants may apply to the Courts for the order,and, if an application under paragraph (a) or (b) of this subsection is made and it is shown to the satisfaction of the Court -
(I) that -
(A) for a continuous period of not less than 12 months immediately preceding the time of the making of the application, the parents of the child to whom the declaration under section 2 (1) relates, for physical or moral reasons, have failed in their duty towards the child,
(B) it is likely that such failure will continue without interruption until the child attains the age of 18 years,
(C) such failure constitutes an abandonment on the part of the parents of all parental rights, whether under the Constitution or otherwise, with respect to the child, and
(D) by reason of such failure, the State, as guardian of the common good, should supply the place of the parents,
(II) that the child -
(A) at the time of the making of the application, is in the custody of and has a home with the applicants, and
(B) for a continuous period of not less than 12 months immediately preceding that time, has been in the custody of and has had a home with the applicants,
and
(III) that the adoption of the child by the applicants is an appropriate means by which to supply the place of the parents, the Court may, if so thinks fit and is satisfied, having had due regard for the rights, whether under the Constitution or otherwise, of the persons concerned (including the natural and imprescriptible rights of the child), that it would be in the best interests of the child to do so, make an order authorising the Board to make an adoption order in relation to the child in favour of the applicants.
(2) Before making an order under subsection (1), the Court shall, in so far as is practicable, give due consideration, having regard to his age and understanding, to the wishes of the child concerned.
(3) The Court may, of its own motion or on application to it in that behalf, make an order adding such other persons as it thinks fit as parties to proceedings under subsection (1), and may, in the case of a person added as a party to any such proceedings under this section, make sure order as it considers just in respect of -
(a) the payment of any costs in relation to the proceedings that are incurred by the person and are not paid by another party to the proceedings if legal aid in respect of them under any scheme operated by or on behalf of the State for the provision of legal aid has been refused, or
(b) the payment by the person of any costs in relation to the proceedings that are incurred by any other party to the proceedings.
(4) The health board concerned shall be joined as a party to proceedings under subsection (1) (b).
(5) Proceedings under this section shall be heard otherwise than in public.
(6) The functions conferred on a health board by section 2 (1) and subsection (1) of this section shall be functions of the chief executive officer and any deputy chief executive officer of the board.
(7) A request to a health board under subsection (1) may be given to the board by handing it, or sending it by prepaid post, to an officer of the board at premises of the board and the request shall be deemed, for the purposes of paragraph (b) of that subsection, to be given to the board on the day on which it is so handed or posted.
4. (1) Subject to the provisions of this section, the Court shall not make an order under section 3 (1) without having heard the parents of the child concerned and any other persons who, in the opinion of the Court, ought to be heard by it.
(2) Where the parents concerned (or either of them), having been requested to give evidence to the Court at the hearing of an application for an order under section 3 (1), fail or refuse to do so, the Court may, if it so thinks fit, notwithstanding the absence of the evidence of the parents or, as the case may be, of either of them, make the order.
(3) Where the parents concerned (or either of them), fail to respond to such a request as aforesaid, the failure may be taken by the Court, for the purposes of subsection (2), to be a failure by the parents or, as the case may be, by either of them to give evidence to the Court at the hearing concerned.
(4) Notwithstanding subsection (1), where the Court is satisfied -
(a) that the identity of the parents concerned (or of either of them) is not known to the persons applying for an order under section 3 (1) and is not known to the Board and that all appropriate measures have been taken to ascertain that identity, or
(b) that the whereabouts of the parents concerned (or of either of them) at the time of the making of the application for such order, and their whereabouts during the period of 12 months immediately preceding such time, are not known to the parties making the application and are not known to the Board and that all appropriate measures have been taken to ascertain those whereabouts, the Court may, if it so thinks fit, notwithstanding the absence of the evidence of the parents concerned or, as the case may be, of either of them, make the order.
(5) Notwithstanding subsection (1), where the Court is satisfied that the parents concerned (or either or them) are incapable by reason of mental infirmity of giving reliable evidence to the Court, the Court may dispense with their evidence or that of either of them, as the case may be, on the hearing of an application for an order under section 3 (1) and may, if it so thinks fit, notwithstanding the absence of such evidence, make the order.
40. It is manifest that under the terms of Section 3(1) of this Act, the Court has no power or right whatsoever to consider what might or might not be in the best interests of the child sought to be adopted unless each of the circumstances specified in sub paragraphs (I), (a), (b), (c), and (d): (II), (a), and (b), and the first requirement of (III) has first been proven in evidence. It is not necessary for the Court to comprehensively determine the extent of the duties of parents towards their children but this duty clearly extends to nourishing, clothing and providing a home for the child and providing for the physical and moral welfare and education of the child. [See In Re A.N.M., (an infant) and Eastern Health Board -v- An Bord Uchtala, (1999) I.L.R.M., 577]. The failure to discharge this duty does not have to be shown to be blameworthy, but it must be shown to be "total in character" and proof of "mere inadequacy of standard in the discharge of the parental duty" will not suffice. [See in Re: The Adoption (No. 2) Bill, 1987, (1989) I.R. 656].
41. The Court has to consider whether the Applicants have discharged the onus which lies on them of satisfying the Court on the balance of probability that it is not likely that the parents or either of them will resume the discharge of these parental duties before the child attains the age of 18 years. In my judgment, "physical reasons" as the cause of a failure by parents to discharge this duty includes a failure due to disease infirmity or incapacity of mind or body, [See P.W. -v- A.W. (21st April 1980) High Court per Ellis J., also Southern Health Board -v- An Bord Uchtala, (2000) 1 I.R. 165 (Supreme Court) per Keane J., (as he then was) at page 181]. In my view schizo-affective psychosis particularly in combination with severe recurring depression is the very sort of circumstance intended by the Oireachtas to be covered by the term, "physical reasons". There is no evidence in this case which renders it necessary for the Court to consider the issue of, "moral reasons".
42. As regards Section 3 (1), (I), (c), of the Act, in the case of the Presidential Reference under Article 26 of the Constitution, to which I have already adverted, Finlay C.J., states as follows at p. 664 of the Report:-
"The concept of abandonment of paternal rights falls to be considered after it has been established that a failure of parental duty for physical or moral reasons has continued for more than 12 months and is likely to continue until the child attains reaches 18 years of age. The sub-clause clearly envisages that there might be cases where such a failure was established but an abandonment of rights was not proved. An abandonment could be established by evidence of the conduct of the parent or parents concerned, which would in certain cases include statements made by them and/or the nature and type of the failure in duty which had been established. A mere statement by a parent or parents that they wish to abandon a child would not necessarily constitute proof in any particular case of the fact of the abandonment but may do so. Failure of parental duty established under sub-clause (i)(A) and (B) is not of itself evidence of abandonment. The necessity for the proof of the abandonment indicates a special regard for the constitutionally protected parental rights."
43. It was pointed out by Denham J., in the case of Southern Health Board -v- An Bord Uchtala, (2000) I.R. 165, (Supreme Court : Barrington, Keane, Murphy and Lynch J.J., concurring), at p. 177, that this subsection is capable of raising images of a father or mother deserting or forsaking a child which could be most distressing to parents. However, the learned Supreme Court Judge held that in the Section the word "abandonment" is used in a very special way as a special legal term. Denham J., held as follows:-
"The legal term "abandon" can be used also where, by their actions parents have failed in their duty so as to enable a Court to deem that their failure constitutes an abandonment of paternal rights." (p. 178).
44. It is important to keep in mind that this subsection, (I)(C), is concerned solely with the rights of parents and whether there is or is not evidence sufficient to establish that these rights have been abandoned. There is no evidence in this case that the child was ever physically abandoned by her natural mother or that the child was deserted or forsaken by her, "with the knowledge that there is no one to look after it", to borrow a phrase of Finlay, P., (as he then was), in the case of S. -v- Eastern Health Board, (The High Court February 1979). I consider it to be of the utmost importance that this be clearly stated at the first appropriate opportunity.
45. As interpreted by the Supreme Court in the Adoption (No 2) Bill, 1987 Presidential Reference (above cited), sub-clause (I)(D), requires the Court to determine whether the place of the parents should be supplied and whether it is appropriate that this should be done by the State as guardian of the common good. Finally, as provided by subsection (III) the Court must consider whether the adoption of the child by Mr. and Mrs. H., is an appropriate means by which to supply the place of parents.
CONCLUSIONS
46. In the six weeks post partum it was found by the medical and other experts that P. was totally and in every way unable to care for J. and that this placed them both at serious risk. On the 13th February 1989 P. voluntarily placed the infant in the care of the Health Board with the agreement that the child could be placed in foster care or in residential care. The reason given in the Voluntary Admission to Care, Form for this placement was that P. was unable to care for the baby and the stated probable duration of the placement is given as about three months. Unfortunately, after eight months the infant was still in the Group Childrens Home. P. never sought the return of her daughter. On the 17th August 1989 Mr. and Mrs. H., became J's foster parents on a long term basis. Since that date J. has been continuously in the custody of Mr. and Mrs. H., and has had her home continuously with them.
47. It is abundantly and incontrovertibly clear from the evidence that the putative natural father has never acknowledged J. as his daughter. His name does not appear on her birth certificate as her father. No proceedings have been taken to establish paternity. In her Affidavit sworn on the 27th of March 2001 Ms. K. deposed that she was aware of the identity of the natural father and that he was aware of J's birth. She deposed that since J. was six months old he has had no involvement with her and has made no financial contribution towards her. Ms. K. does not state the source of this knowledge. This man was informed in advance of the proceedings before An Bord Uchtala and before this Court and did not appear and was not represented before either. His name does not appear on the Voluntary Admission to Care, Form completed on the 13th February 1989. P. told Ms. H. her Guardian ad Litem, that this man had visited her and the baby in the Mother and Baby Home. P. said that she did not want anything more to do with him as he was violent towards her and was not a good man. This man did not seek an order appointing him a Guardian of the Child. There was no evidence before the Court that P. and he ever had a, "family life" or a "common home" together. In the circumstances it is not necessary for the Court to consider him further.
48. The inexorable weight of the evidence obliges the Court to find that P., for physical reasons and not for moral reasons has totally failed in her duty towards J. for a continuous period of not less than 12 months immediately preceding the making of this application. This does not involve any finding of blameworthiness on her part. The Court finds that this failure has not been due to, "externally originating circumstances such as poverty", but is solely due to mental illness, chronic severe depression and a mild impairment of mental function. The Court is satisfied on the balance of probability that there is no likelihood of P. resuming the discharge of her duty towards J. before J. reaches the age of 18 years.
49. There is no evidence that since that the 13th February 1989 P. has ever attempted or expressed any intention or willingness to resume her parental duty towards J.. She was satisfied that Mr. and Mrs. H., were providing in every possible way for J.. P. told the Court that everyone had always told her that she could not cope with J. herself. On the evidence that certainly was and is the opinion of Dr. N. and the Social Workers. There is no evidence that P. ever challenged or rebelled against this idea even during the years when she had a considerable degree of remission from her medical symptoms. She did tell the Court that if she got her full health back, especially if she got encouragement she felt that she could obtain employment locally in a restaurant and look after J. and that there was a bedroom available in the new house which she shared with her mother. P. accepted that she had not discussed this idea with her 70 year old invalid mother, or with her sister M. or with her brother W. who offer her the only support she gets from her own family.
50. In my judgment P. is aware that unfortunately it is altogether improbable despite advances in medical science, that she will ever get her full health back. Her present relatively stable condition requires constant medical care and extensive and carefully monitored drug therapy. The evidence of Dr. N. and the Social Workers, uncontradicted by any contrary medical or sociological opinion, is to the effect that even in her present very improved condition P. is scarcely able to look after herself and could not look after or care for J. ignoring altogether the question of providing for her. P. told the Court that now that her health was better she would like to see more of J. and enjoy some hours together with her on her own so that they could get to know each other better. In my judgment, the fulfilment of this, "entirely commendable aspiration," to borrow the phrase of O'Higgins J., in the case of Southern Health Board and M.D, and J.D. -v- An Bord Uchtala (The High Court: 20th December 2001), is all that P., having regard to the evidence, could realistically ever hope to achieve for the foreseeable future. The Court is absolutely satisfied on the balance of probability that the total failure, for physical reasons, of P. in her parental duty towards J. will continue without interruption until J. attains the age of 18 years.
51. There is no question of any actual physical abandonment of J. by P. arising on the evidence in this case. The word, "abandonment" as has been pointed out by the Supreme Court in the decision in Southern Health Board -v- An Bord Uchtala (2000) I.R. 165, to which I have referred earlier in this judgment is used in a very special legal sense in section 3(1)(I), (C), of the Adoption Act 1988. Even a total failure by a parent in his or her duty towards their child does not necessarily predicate an abandonment of that parent's rights in respect of the child. Such a failure, for example, could arise from a sudden and catastrophic illness or injury in which case it could scarcely be argued that the sufferer or victim by reason of their inability to care for the child had abandoned all their rights in respect of the child. However, in the absence of some overwhelming disability or incapacity a total failure of parental duty to a child where the parent, could have cared to some extent for the child, even though inadequately and not without the maximum available amount of family and public assistance, must give rise to a presumption of fact that such parent had abandoned the rights as well as the duties. This presumption could of course be rebutted by evidence, including statements of the parent, inconsistent with abandonment. In my judgment the standard of proof is the general standard in civil cases, - the balance of probability. The Oireachtas could have provided in the legislation for a higher standard of proof and I believe that the Court must assume that the failure to so provide was deliberate and intentional. However, because of the gravity of the situation and the potential consequences for everyone affected by the application, in my judgment the Court should within this ordinary standard of civil proof require a higher than usual degree of cogency from the evidence to establish the alleged abandonment so that any facts or inferences suggesting the contrary should carry a proportionally greater weight. I believe that this is reflected in the judgments in the case of Western Health Board -v- An Bord Uchtala (1995) 3 I.R. 178, and in other judgments.
52. In my judgment a refusal to consent to adoption, even where long persisted in and combined with an expressed desire for communication with, including opportunities to see the child, is not in itself, in the face of a total failure of all parental duty towards the child, sufficient evidence of non abandonment of parental rights in respect of the child. To reach a contrary conclusion would be to accept that the object of the Oireachtas in enacting the Adoption Act 1988 could be set at nought by the whim of even the most utterly neglectful reprehensible and abusive parent.
53. Despite the opinion of Dr. N., Ms. McC. and Ms. K. that P., as it was so graphically put by Ms. McC. "could not then could not now and would never be able to care for J.", I find that apart from a number of months post partum, during the entire of the years 1993 and 1994, and for two periods amounting in total to five months in 1997, P., if afforded maximum family, public health and social welfare assistance could have cared for J., even if very inadequately. I find that her condition was not such as to prevent her from caring for J., "to even a minimum degree", to adopt the phrase of Keane J., (as he then was), in the case of Southern Health Board -v- An Bord Uchtala (2000) 1 I.R. 165 at 181. I find that P. was aware, - save perhaps during the periods to which I have adverted when she was very ill or severely depressed, - that as her mother she had rights in respect of J.. She signed the Voluntary Admission to Care, Form on the 13th February 1989, authorising J.'s placement in the care of the Health Board. In 1992 Mr. and Mrs. H., consulted her before moving to Dublin with J.. In 1992, 1994, 1997, 1998, 2000 and 2001 she resisted all attempts by Dr. N., the Social Workers and even Mrs. H., to persuade her to consent to the adoption and wanted the long term fostering of J. by Mr. and Mrs. H.., to continue. She told this Court that she did want J. to lose the name of O'D.
54. I find that P's reasons for refusing to consent to the adoption were principally a fear that Mr. and Mrs. H., would never bring J. to see her or permit her to see J. again and of almost equal importance a concern that J. might in later life come to believe that she had deserted or disowned her.
55. I find that after the expiry of the initial respite period of about three months in 1989 P. did not seek the return of J. from the care of the Health Board and did not at anytime thereafter assert any right in respect of J. against the Health Board. At no time since the 17th August 1989 when Mr. and Mrs. H. became J's foster parents has P. ever sought her return or sought to remove J. from their care to the care of someone else, such as a member of her own family. Save as above she has not made any decisions whatsoever with respect to any aspect of J's life or care. Since June 1990 when through the exertions of Mr. and Mrs. H., J. was diagnosed as a victim of Cerebral Palsy P. has not sought to be consulted about any aspect of her vital medical care, including two surgical procedures. To sum up the evidence, P. has totally given over control of every aspect of J's life, physical and spiritual, to Mr. and Mrs. H. for a continuous period of almost 12 years immediately preceding the making of this application, Mr. and Mrs. H., have been J's parents in everything but legal right.
56. P's sole concern has been to see J. from time to time depending upon her own state of health. Having regard to the whole of the evidence I am not satisfied that the firm and resolute resistance of P. to the adoption of J. by Mr. and Mrs. H., and her expressed anxiety to remain in contact with her daughter are sufficient indications of a non abandonment of her parental rights. I feel that the conduct of P. has been such as to clearly indicate and constitute an abandonment, in its special legal sense of her parental rights with regard to J.. It is important to note that there is absolutely no blameworthiness indicated in this finding nor any suggestion that P. deserted or forsook her child.
57. Subsection 3(1), (II), (D), requires the Court to be satisfied that because of the failure of P. in her duty towards J. that parents should be supplied for J.. The evidence establishes that J. is 13 years and 4 months old plus or minus a few days. She is on the threshold of adolescence. She is moving into the very demanding world of second level education and teenage social adjustment. These transitions will be particularly challenging for her because of physical and intellectual impairments caused by the Cerebral Palsy. Dr. N., the Consultant Psychiatrist, and the Social Workers were all emphatic in their opinion as experts that it is necessary and appropriate that J. be adopted without further delay and that Mr. and Mrs. H., are the proper persons to undertake the role of adoptive parents. No expert evidence was offered in support of any contrary view.
58. J. herself expressed to me an overwhelming desire to be adopted by Mr. and Mrs. H. I find on the evidence that she has become totally bonded to them as her "father" and "mother" and to M. as her "brother". She has become an integrated member of the wider H., family group. For more than 12 years, Mr. and Mrs. H., have provided J. with a loving, caring and stable home in which she has thrived in every possible way. I find that Mr. and Mrs. H., for utterly selfless reasons, thinking only of the present and future welfare and happiness of J., wholeheartedly wish to become her adoptive parents.
59. On the evidence no alternative course exists or has been proposed or even suggested other than the continuation of the long term fostering of J. by Mr. and Mrs. H., until she becomes 18 years of age. I find on the evidence having considered the respective rights and interests of J., P., J's natural father, the wider O'D. family, Mr. and Mrs. H., and the Community (the subsection specifically in this context identifies the State as "guardian of the common good"), that the State should supply the place of parents for J..
60. I find that J. is now and was at the time of the making of this application and for a continuous period of not less than 12 months immediately preceding that time in the custody of Mr. and Mrs. H., and had and has her home with them during this period. Having regard to all the evidence and in particular the matters to which I have adverted in the immediately preceding paragraphs of this judgment, the Court is satisfied that the adoption of J. by Mr. and Mrs. H., would be an appropriate means by which to satisfy the place of parents.
61. The Court is satisfied that it has been unequivocally established by the evidence that it is in the interests of J. that an order be made authorising An Bord Uchtala to make an Adoption Order in relation to J. in favour of Mr. and Mrs. H. In arriving at this conclusion on the evidence the Court has had due regard to the legal, statutory and constitutional rights and interests of all persons concerned as heretofore identified. In the course of his judgment in the matter of the Reference to the Supreme Court of the Adoption (No 2) Bill, 1987, (1989) I.R. 656, Finlay C.J. at p. 665 held that a determination of this nature must not be made by the Court, "on some simple material test", but,
"Would necessarily involve proper consideration of all the consequences, from the point of view of the child of bringing it by adoption out of the family into which it was born and into an alternative family".
62. In my judgment matters essential to be considered would be the physical and mental wellbeing of the child including its emotional, behavioural, intellectual, educational, cultural and moral development. These matters are reflected in the provisions of Article 42 and Article 41 subsections 1 and 2 of the Constitution. The United Nations Convention on the Rights of the Child, 1990, - though not part of the domestic law of this State, - in its preamble recognises that a child for the full and harmonious development of his or her personality should grow up in a family environment in an atmosphere of happiness love and understanding.
63. The Court has already found that for all but 7 months and 19 days of her life J. has been in the custody of Mr. and Mrs. H., and has had her home with them. Apart from approximately six weeks immediately after her birth she has not been in the custody of or remained for even a period of 24 hours with P. or any member of the extended O'D. family. As I have already stated as regards P. herself no censure or criticism of the wider O'D family is intended by this finding. The inescapable reality of this case is that to J. the wider O'D., family are uncles aunts and cousins whom she is happy to visit in the company of the people she identifies as her parents, - that is Mr. and Mrs. H., - but to whom she has no other attachment. Though no evidence was called specific to J's case, I believe that the Court may in the absence of positive evidence to the contrary, accept what has been established with regard to other children in similar situations in many cases in this Court, (albeit in the context of Section 3 of the Adoption Act, 1974), that to separate J. now from Mr. and Mrs. H., after she has become totally bonded to them by every tie of affection, emotion and trust would as a matter of probability result in catastrophic consequences for her future development as an individual and as a citizen of this State [see J.K. -v- V.W. (1990) 2 I.R. 437: E.F. & Anor -v- An Bord Uchtala (1997) I.F.L.R., 6 (S.C.): State M.G. -v- A.H. & M.H. (1984) 4 I.L.R.M. 237].
64. There is no evidence that P. or any member or members of the O'D., family even now and assuming the maximum encouragement and assistance from community and state agencies, could supply the care and nurturing which this particularly vulnerable young girl requires to maintain her progress and to achieve her potential. Above and beyond all evidence of financial security now and into the future, social position and educational advantage, the Court finds that Mr. and Mrs. H., have at all times ensured and are committed to ensuring that J. has and will always be surrounded by a happy, loving and stable family environment.
65. In my judgment it is not in the best interests of J. that she should remain to the age of majority in long term foster care solely for the purpose of upholding rights derived from the bond of blood between mother and child where those rights to date have found no expression whatsoever in the life of the child and which on my assessment of the evidence are now irretrievably incapable of finding such expression. In my judgment J. does not really comprehend the full significance of adoption. I believe she sees it as something the Court can do which in some very important but not very well understood way will bind Mr. and Mrs. H., and M. inseparably to her and which will make her equal with him. As so understood this is something which she unreservedly and wholeheartedly desires. I am satisfied that the Court should attach considerable weight to her wishes having regard to her age and to her degree of understanding in this matter.
66. Mr. and Mrs. H., voluntarily and under oath undertook to this Court that they would do all in their power to maintain the visits between J. and P.. Under the Law as presently formulated the Court cannot impose an obligation on Mr. and Mrs. H., so to do or make it a condition for granting the order sought. However, I am satisfied from the evidence of the manner in which to date they have always taken the initiative in taking J. to see P. and in encouraging and enabling P. to come to see J. that Mr. and Mrs. H., will in the future continue to encourage access between J. and P.. J. told me that she would always love her mammy T. and would like to continue to visit her and her O'D., cousins. The Court is aware that this matter of continued access to J. has greatly troubled P. and has caused her great anxiety. I believe that her concerns though natural and very understandable will prove to be unfounded and that Mr. and Mrs. H., will in the future honour their undertaking to this Court, to the Social Workers and to An Bord Uchtala. P. has trusted Mr. and Mrs. H., with the total care and custody of her daughter for more than 12 years. With no urging from her they not only maintained but took the initiative in encouraging continued contact between J. and P.. If one may in any way predict future by an examination of past behaviour it is altogether unlikely that Mr. and Mrs. H., will change their views as regards access merely because an adoption order is made in their favour.
67. The Court being satisfied on the evidence and having regard to the rights legal statutory and constitutional of all persons concerned in this case including J. that it is in the best interests of J. so to do, will make an order authorising An Bord Uchtala to make an Adoption Order in relation to J. in favour of Mr. and Mrs. H.