The Supreme Court has begun hearing a case involving a challenge by a birth mother against the adoption of her child by her long term foster mother.
Lawyers for the woman told a seven-judge Supreme Court this morning that an application for the child to be adopted by her foster mother was made at "the 11th hour" before she reached her 18th birthday.
The adoption was challenged by the birth mother, who won her case in the High Court but lost on appeal.
The Court of Appeal allowed for the adoption and, because the girl was about to turn 18, the adoption order was allowed to proceed on the understanding it could be set aside should the Supreme Court find in favour of the birth mother.
Senior Counsel Mary O'Toole told the court today it was a most unusual case in that the child, referred to as "B", had been in foster care for almost all her life, but had maintained contact with her birth mother.
The woman had three children who had been taken into care while she dealt with alcohol problems. Two of the children had been returned to her care soon after treatment and she had successfully raised them and put them through third level education without further incident, the court was told.
Ms O'Toole said the woman had been treated successfully for her alcohol problem and had never relapsed.
She had pulled herself "back from the brink" having been the subjected to domestic violence around the time of her daughter's birth.
She had contact with the child at the centre of this case over the years but it became more sporadic when she moved to anther county and there was a lack of finance to facilitate visits.
However, Ms O'Toole said the contact continued and the foster mother often took the girl to meet her birth mother, allowing them to spend a few hours alone together without any concern.
She said it was their case that it was not proportionate for a court to grant an adoption order due to a number of reasons, including the nature and quality of the relationship between the birth mother and child, notwithstanding the fact that they had been in care.
She said there was a failure by the Child and Family Agency (CFA) to look at the issue of family reunification and there was "no real evidence that they ever did that".
She said her client had been told by social workers to concentrate on the two children who had been returned to her when she completed her treatment.
Ms O'Toole said perhaps uniquely in these types of cases the prospect of reunification "would have been pretty good".
She said there was nothing to suggest that an adoption order was necessary in this case and that a refusal of an order would not affect the child in any adverse way as there was no requirement for them to be returned to the birth mother.
She said from the time the other two children were returned to the birth mother the onus was on the CFA to explore options for family reunification and they "did the opposite".
A High Court judge who ruled in favour of the birth mother had previously criticised the CFA for failing to support a relationship between "B" and her birth mother.
However, the Court of Appeal ruled there was no reasonable prospect that either biological parent would be able to care for "B" in a way that would not affect her safety or welfare.
That court held that it was inevitable the adoption order would sever the legal relationship between birth mother and daughter but said on balance it would provide substantial security, certainty and stability for a young person who has a moderate learning disability.
It found the High Court had afforded excessive weight to the birth mother’s claims that the CFA had failed to provide reasonable access support.
Lawyers for the CFA said every step possible was taken to reunify the girl with her birth mother.
Senior Counsel Dervla Browne said two critical windows of opportunity were missed by the birth mother, firstly when B was a baby and later when the mother decided to move to another county with her other children, who the mother says she had to prioritise.
She did this in the knowledge that her daughter was being well cared for by the foster mother.
Ms Browne said the Court of Appeal had correctly dealt with the case and said the birth mother's failure in her duties was "not a historical failing," but one that existed three years before the adoption declaration as she did not take action in relation to her child, she said.
That was "an immediate, continuing parental failure which is established in this case," she said.
There is "more than enough evidence before the court". The COA was correct in finding adoption was proportionate.
The court was told the girl was in favour of the adoption. However, the court queried the level of evidence as to her mental capacity, noting there was no independent evidence about her capacity and understanding of the adoption.
The Supreme Court agreed to hear a subsequent appeal as the case raised matters of profound public importance concerning a section of the Adoption Act dealing with court adoption orders for children whose parents had failed in parental duties.
The court will have to consider the legislation and the Constitutional issues arising.
It will hear submissions from the Child and Family Agency and the Adoption Authority, the Irish Human Rights and Equality Commission and the Attorney General.
The hearing is expected to last at least two days.
