A two-year-old girl who has lived with her prospective adoptive parents since she was three-months-old is to be returned to her natural parents on a phased basis following a landmark Supreme Court decision today.
The five-judge court unanimously upheld an appeal by the natural parents of the girl, known as Baby Ann, against a High Court decision directing that Ann remain with her prospective adoptive parents.
The necessary compelling reasons had not been put forward to displace the constitutional presumption that's Ann's welfare would be best achieved in the care and custody of her natural parents, it held.
It ruled the basis of Ann's present custody with the prospective adopters is unlawful and that she must be returned to her natural parents on a phased and sensitive basis to be decided by the court in line with professional advice.
The circumstances of that return will be discussed before the court next week.
Ann was born in July 2004 when her natural parents - Couple A - were unmarried students and they placed her for adoption.
This was done in November of that year, and since then Ann has remained with the prospective adoptive parents- Couple B — although no final adoption order has been made.
Couple A married in January 2006, which constituted them as a family unit under the Constitution and started proceedings to regain custody of Ann.
In a ground-breaking High Court decision last month, Mr Justice John MacMenamin ruled that Ann would be psychologically damaged if she was taken away from her prospective adoptive parents.
He held her natural parents, while motivated by the best interests of their child, were guilty of a failure of duty to her. Yesterday, all five Supreme Court judges rejected those findings.
Another crucial factor in the court's decision, Ms Justice Catherine McGuinness noted, was that, in light of her birth parents marriage and the provisions of the Adoption Act, there was now "no realistic possibility" that Ann could be adopted by Couple B.
In his judgment, Mr Justice Nial Fennelly said that the esence of the finding of failure of duty was the decision to place Ann for adoption and to leave her in the care of Couple B.
This was "a dangerous approach" as it raised the possibility in every case of placement for adoption that failure of duty was involved.
In deciding against returning Ann to her birth parents, the trial judge was relying on a future event — the evidence of Couple B that they felt they would be unable to co-operate with a phased return of Ann.
The proospective adoptive father had said such an experience would be hell.
However, this was really opinion evidence and Couple B had an obvious interest in the outcome in that an assertion of inability to co-operate was in their own interest, Mr Justice Fennelly said.
Ms Justice McGuinness said this was at all times intended to be an open adoption with the natural parents to have future access to Ann at stated intervals.
To find that a placement for adoption either wholly or partially amounted to a failure of duty represented a threat to the stability of the statutory system of adoption, she added.
Minister for Children Brian Lenihan said it was "too early to say" whether a change to the Constitution was necessary to address the issues raised in the case.
He said he had not yet read all five judgments and would need time to study them because he was not sure they necessarily agreed with one another.
"But clearly it shows the wisdom of the announcement [on a referendum to enshrine children's rights in the Constitution] made by the Taoiseach last Friday week that we do need to look at this area, because the fact that in a custody dispute, however complex, it took such a long period of time and such a detailed consideration of the constitutional provisions to arrive at a definitive conclusion does trouble me."
"Anything we submit to the people on this must give the courts clear guidance on how to approach these questions. And if there is a deficit in that guidance it has to be addressed," he said.