Parental rights and the welfare interests of a child are the twin determinants of an adoption application. Though necessarily inter-dependent they must be legally accounted for separately. Before a court can grant a non-consensual application it must be satisfied that the grounds for dispensing with parental consent and the welfare interests of the child can both be independently fulfilled. This chapter focuses on the former half of the adjudicative equation.
The forum for resolving non-consensual applications is adjudicative rather than administrative. Nevertheless the discretionary element is also present. Then there is the fact that the statutory grounds are not the exclusive source of authority for determining such applications. Another factor to be taken into account is the lack of reported judgements, particularly in Ireland. This is a considerable problem when it comes to testing out the extent to which decisions relating to non-consensual adoptions are based solely on judicial interpretation of the statutory grounds. But these grounds still provide the best and most explicit statement of the limits imposed on parental rights in the context of adoption. They therefore provide also a telling indicator of the balance struck in each jurisdiction between private parental rights and public interest in asserting the welfare interests of a child.
The approach
taken is to first identify the significant characteristics distinguishing
the statutory grounds of both jurisdictions. Then the other important and
characteristic influences with a bearing on the adjudicative process in
each jurisdiction are located and identified. Finally, the consequences
of the foregoing insofar as they highlight significant differences in the
definition and weighting given to parental rights in each jurisdiction
are considered.
The distinction between consent for placement and consent for adoption is significant for the purposes of examining differences in the legal rules applicable at both stages. In Ireland statutory grounds for dispensing with consent only exist in relation to applications for an order under the 1952, 1974 and 1988 Acts. In Northern Ireland the same statutory grounds apply at both stages.
Ireland
The
Adoption Act 1952.
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Initially,
the only form of non-consensual adoption legislatively acknowledged was
that available under s. 14(2) of this Act when the mental infirmity or
unknown whereabouts of a parent or guardian provided grounds for the Board
to dispense with the consent of that person1. These grounds
rested on a recognition that if the holder of parental rights was rendered
completely unable to exercise them then that person forfeited the authority
necessary to take decisions in respect of the proposed adoption of his
or her child. This became a legal reference point for the 1988 Act and
is now a characteristic feature of the grounds for dispensing with consent
in this jurisdiction.
The
Adoption Act 1974.Back to Top
Characteristically, the main piece of legislation providing for the possibility of non-consensual adoptions in Ireland is predicated on the validity of a prior voluntary decision by an unmarried mother to place her child for adoption. The grounds in s. 3 for dispensing with the necessity for consent to the making of an order become operative only if the consent to placement can be affirmed. Indeed the legislative intent would seem to have been to allow the adoption to be consolidated on the basis of the binding nature of that initial agreement.
The judiciary have subsequently built on this foundation in two ways. Firstly, much attention has been given to testing the veracity of the mother's initial consent to placement. Caselaw reveals considerable judicial inconsistency as regards the determining of whether the contractual elements of a valid parental consent have been satisfied. From the judgements it is clear that some judiciary have approached the issue of the validity of that consent from the position of a presumptive legal rule that the welfare of a child would be best advanced by parental care2. Therefore, because of factors such as undue parental pressure it might be expected that an unmarried mother may not have been in a position to give a full free and considered consent. On the other hand, some judiciary seem to have approached the issue from the position that it should be presumed that a mother intended the consequences of her decision3. Therefore, in the absence of conclusive evidence proving invalidity then her consent must be held to be valid. Such has been the force of the latter presumption that even when that consent is given shortly after the birth of the child concerned it has nevertheless been found to be valid4. This is in marked contrast to the legal rule in Northern Ireland which holds that de facto such a consent given within six weeks of the birth will be invalid5.
Secondly, the judiciary have developed the legislative caveat to a right of parental withdrawal. The 'best interests' test contained in s. 3(i) and conditioning the exercise of that parental right has generated considerable caselaw6. In their judgements the judiciary can be seen asserting the view that a child has an entitlement to establish and maintain bonds with his or her carers. The risk of 'psychological damage' that may result as a consequence of a mother retracting or failing to endorse an earlier valid consent and demanding instead the return of her child has attracted considerable judicial attention7. Arguably the point has now been reached whereby an onus rests on such a parent to satisfy the court that a resumption of her parental role would not cause 'psychological damage'. Failure to convince may entail forfeiting her claim that it would not be in the child's 'best interests' for the adoption to proceed.
The fact that
no statutory grounds (except those that might exist under s. 14(2) of the
1952 Act) exist to dispense with consent at time of placement is in itself
one of the most telling characteristics differentiating the law of adoption
in the two jurisdictions8. It is a hallmark of the fundamentally
consensual nature of adoption in this jurisdiction that responsibility
for that decision is one which the legislators have left to parents. The
fact that such grounds as exist under the 1974 Act to provide for the possibility
of non-consensual adoption do so only in respect of the consent of an unmarried
mother and then become operative only if she has already given a valid
consent is also very characteristic.
The
Adoption Act 1988.Back to Top
The introduction of grounds of parental failure and their application to both married and unmarried parents marked an uncharacteristic broadening of the adoption process in this jurisdiction. This was achieved by building the operative terms of the 1988 Act around key constitutional principles9. This ensured that any interpretation of the statutory grounds would remain wholly subject to constitutional principles. Also, and most characteristic, is the fact that the grounds are not synchronised with those which constitute criminal conduct under the terms of child care legislation. This is important. Parental failure as defined under the 1908 Act or the 1991 Act and as confirmed by the issue of a related order can never in itself be sufficient to satisfy the grounds of parental failure under the 1988 Act. For the purposes of the latter, the conduct giving rise to parental failure must be such that it discloses not mere culpability, however grave, but actual incapacity amounting to an 'abandonment' of all parental rights and responsibilities10. It must be such as to vitiate a parent's locus standi inrespect of the child in question almost as completely as if that parent had died. Then there is the fact that the form of parental failure must be due to physical or moral reasons11. This places an emphasis on the causes rather than the effects of such failure. These aspects of parental failure are characteristics of adoption which are singular to this jurisdiction and serve to restrict the application of grounds for non-consensual adoption to a very narrow definition of culpability.
Northern Ireland
There are
several characteristic aspects of the grounds for non-consensual adoption
in this jurisdiction. They may be seen in relation to adoption by third
parties and by parents or relatives.
Third
party adoptions.Back to Top
The specific
synchronisation of some of the culpability grounds with those of child
care legislation is a distinctive characteristic12. Then there
is the fact that such grounds exist to dispense with consent at time of
placement13. That non-consensual adoptions often result from
voluntary admissions to care is again significantly differen14.
The judicial reliance on the grounds of 'unreasonableness' in the overwhelming
majority of such cases indicates the distinctive significance of a discretionary
interpretation of matters constituting a deficit in adequate parentin15.
That persons with no legal status as approved adopters or as recipients
of direct placements may, on the grounds solely of tenure, be entitled
to adopt is again very different16.
First
party adoptions.Back to Top
The fact that
in this jurisdiction a non-consensual adoption may refer to a lack of consent
in relation to the proposed adoption by a former spouse of a respondent's
legitimate child has no counterpart in Ireland17.
In both
jurisdictions the authority to dispense with parental consent does not,
or has not always, derived exclusively from the statutory grounds. In Ireland
the Constitution has had a continuing bearing on judicial interpretation
of statutory grounds. In Northern Ireland the wardship jurisdiction has
had a considerable influence in shaping judicial principles.
Articles 41
and 42 have had a restraining influence on any legislative intent or act
of judicial discretion aimed at extending the interventionist powers of
the boards in respect of a marital child18. The 'inalienable
and imprescriptible rights' of parents could be qualified by means of the
coercive powers of child care legislation but, until the introduction of
the 1988 Act, could not then be abrogated as a result of a non-consensual
admission of the child to the adoption process. Whereas the 'compelling
reasons' test has been broadened by that Act to now permit occasional instances
where this may occur in favour of third party applicants, the influence
of the Constitution may be seen in the absence of any equivalent legislative
powers to favour first party applicants.
The wardship jurisdiction has played an important part in extending the interventionist powers of the Boards in relation to both marital and non-marital children. In the years immediately preceding the introduction of the 1987 Order, the judiciary were able to employ the discretionary powers available in wardship to enable the Boards to make non-consensual adoption placements. This they did by advising the Boards that a child subject to a care order could be warded in certain circumstances. Once a ward, then the High Court was prepared to make available powers which the legislature had failed to provide; authority to place a child for adoption despite parental opposition where the facts indicated that an eventual adoption application could be successful19. Such a use of judicial discretion to supplement the statutory powers available to the Boards is a distinctive characteristic in matters affecting the upbringing of children in this jurisdiction. So also is the fact that it is equally applicable in respect of marital or non-marital children. That such powers were available to Boards for the purpose of giving precedence to the welfare interests of a child, but were unavailable to the parent of a child in care, is also characteristic20.
This difference
between the two jurisdictions as regards the bearing of the Constitution
and of judicial discretion in wardship on the statutory grounds available
to the respective public child care agencies, is very significant. Significant
in itself is that the result has been the capacity or incapacity to counter
a parental veto on an adoption placement. Significant also in that it reveals
the different extent to which judicial discretion is available in the two
jurisdictions.
The definition and weighing of parental rights
The statutory grounds for dispensing with parental consent have a quite different application in the two jurisdictions. The rights of parents in relation to those grounds are very dependent upon judicial interpretation.
Under the 1952 Act and the 1974 Act parental failure or culpability is not the issue. Under the 1988 Act it is the tenure of the foster-parent, not the failure or culpability of the parent nor any specific onus on health board to promote the welfare of the child concerned, which triggers the adoption option. Under the Act parental failure in whatever form must be a factor. This gives rise to compulsory state intervention which causes the displacement of parent by a state licensed carer. The latter, and not the board, then determines whether or not the adoption process is to be commenced21.
At the hearing,
parental failure itself is relevant only insofar as in an extreme and sustained
form it accounts for, and may be predicted to continue accounting for throughout
childhood, a complete abandonment of parental rights. Failure is no more
than evidence of such abandonment.
Under the 1987 Order culpability itself may ground authority for either an adoption placement or an adoption order. A single culpable act may suffice22. But many other forms of parental conduct may be held to constitute 'unreasonableness' and so ground an application to dispense with parental consent. Significantly, that conduct need not be the product of willful parental intent or negligence. It may have prompted a voluntary admission or a compulsory committal to state care. Neither is it of any legal consequence that it causes lay in matters outside parental control, for example in the fact that a mother however caring was simply too young to sustain consistent care responsibility23. In short, culpability is not an ingredient essential to the grounds in this jurisdiction.
Moreover, though the legislative intent was that these grounds would address the issue of parental consent, independently of any consideration of welfare, this has been subverted by judicial discretion24. The judicial importation of welfare as a factor which may provide a test of parental reasonableness is a significant and characteristic indication of the extent to which welfare has undermined parental rights in this jurisdiction.
There is also the fact that a Board may trigger non-consensual application by way of the freeing procedures. This it may do prior to placement, so there can be no question of carer tenure being a contributing factor25. The statutory grounds are then applied in the context solely of past parental conduct with adoption no more than an abstract future possibility. The issue is then fought directly between parent and Board.
Finally, these
grounds may also be relied upon by a first party applicant, i.e. a natural
parent applying to adopt a marital child in the face of opposition from
a divorced parent. This is a most distinctive measure of the difference
between the two jurisdictions in relation to the statutory grounds for
dispensing with parental consent.
The differences between the two sets of grounds for dispensing with consent are many, significant and clearly represent the singular characteristics of each adoption process. They may be summarised in terms of the legal rules operating in respect of the parties, the authority to place for adoption and in relation to certain aspects of the grounds.
In Ireland, the parties in non-consensual applications are almost invariably the natural parents and the adopters26. That is to say non-consensual applications are effectively treated in law as being almost exclusively private matters to be resolved by a contest between first and third parties. In Northern Ireland, the parties in such applications may well be first parties e.g. a natural father opposing an application from his ex-wife and new husband. Moreover, the freeing procedures may be invoked by a Board in respect of a child subject to a care order and fostered with prospective adoptive applicants. If successful this removes the parental rights factor from a subsequent adoption application and then leaves the adopters and the Board as the principal parties27. Then there is also the fact that in Northern Ireland unlike Ireland any carer and specifically a foster-parent may, by virtue of length of tenure alone, become a non-consensual applicant28. In short, the range of those eligible in each jurisdiction to become parties to such applications reflects the respective breadth of social role served by adoption in each.
In Ireland there is no legal congruity between grounds for removing the rights of an abusing parent and grounds for dispensing with his or her consent for placement. In Northern Ireland there are specific grounds which are synchronised to permit such a transference from public child care proceedings to private adoption proceedings and there are the 'reasonableness' grounds which may be used to the same effect29. There are also proceedings available for orders in wardship or freeing to facilitate such a transference. In Ireland, the vast majority of non-consensual adoptions turn on the legal weight attached to recognising the private right of a parent to make an initial valid decision to place her child for adoption30. In Northern Ireland they occur because public authority has removed a parent's right to decide against an adoption placement. There are also differences in relation to a tenure factor. In Ireland carer tenure is always a pre-requisite31. In Northern Ireland a freeing order is available with no specific prospective adopter in mind32. These differences are indicative of the legal emphasis on recognising and protecting the private exercise of parental rights in Ireland, as opposed to the emphasis on early public intervention to challenge their exercise in Northern Ireland with follow-through powers which allow an adoption placement decision to be one which rests on public rather than private authority.
Culpability is insufficient in itself to dispense with parental consent in Ireland. It is a pre-requisite but must amount to incapacity and is coupled to a tenure condition if it is to ground a non-consensual application under the 1974 or 1988 Acts33.
In Northern Ireland culpability can be sufficient in itself but is not a prerequisite34. The 'reasonableness' grounds provide considerable discretion for dispensing with the consent of a non-culpable parent. Moreover, the cause of parental failure is all-important in Ireland35.
In Northern Ireland it is specifically the effects rather than the cause which is all important in terms of the 'reasonableness' grounds36 . Finally, because in Northern Ireland all applications, family and third-party, are subject to mandatory professional screening so there is much greater probability of a public interest factor being brought to bear in non-consensual applications, particularly through the 'reasonableness' grounds. These differences indicate the much more pervasive public interest in parental competence in Northern Ireland and its discretionary application.
- Though, as is evident from the Board's annual reports, this provision was seldom availed of and has never resulted in more than one adoption in any recent year.
- See, for example, the judgement of Kenny J in G v An Bord Uchtála 1980 IR 32, where he stated:
- "The blood-link between the (mother) and her child means that an instinctive understanding will exist between them which will not be there if the child remains with the (prospective adopters)."
- Also that of O'Hanlon J in RC & PC v An Bord Uchtála & St Louise's Adoption Society (8th Feb 1985) unreported where he remarked:
- "I cannot help feeling that a baby and growing child would always be better off with its natural mother if she is a devoted and concerned parent and can provide in a reasonable manner for the physical as well as the emotional needs of the child."
- See, for example, the decision in NB & TB v An Bord Uchtála HC 18th Feb 1983 where, despite counselling, the parent failed to use the information given to her before agreeing that her child be placed for adoption and was unable to subsequently plead a lack of informed consent as a basis for invalidating her placement decision. See, also TH & NH v An Bord Uchtála & Ors 20 Nov 1981 where it was held that the death of the parent after her placement decision but before a final consent was sought could not invalidate the first decision.
- This being the case in PM & GM v An Bord Uchtála HC 27 Nov 1984 where a twenty-seven year old unmarried mother, who had received detailed social work advice and counselling prior to the birth, was held to have given a valid consent when she agreed to a placement two days after the birth.
- See, Article 16(3) of the 1987 Order.
- See, for example, G v An Bord Uchtála 1980 IR 32 where Walsh J pointed out that the best interests of the child only fall to be considered after confirmation that the mother had abandoned or surrendered her rights and The State (PM) v GM & JM 27th Nov 1984) unreported, HC.
- See, for example, the decision in SM & MM v An BordUchtála (1975) IR 81 where Lynch J found in favour of the adopters because: 'If the child were now removed from this environment and placed into another .... this would probably result in grave psychological injury to the child, possibly resulting in delinquency at a later age.'
- Only to a very limited degree such powers are available to the Board within the terms of s. 14(2) of the 1952 Act.
- So, under Article 42.5. it is permissible for the State, in exceptional circumstances, to supply the place of the parents.
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