Abandoned Child

Marital Children

Before the Adoption Act 1988, it was not possible to adopt children born to married parents. This meant that many children in long-term foster care, who would have benefited from adoption, could not be adopted.

The Adoption Act 1988 removed the previous restriction on adopting marital children. The Act seeks to fit within narrow constitutional grounds by providing narrow circumstances in which the consent of parents might be dispensed with, where there had been an abandonment of parental rights. The Bill was referred to the Supreme Court by the President and was upheld.

High Court Order Required

The High Court may authorise an adoption in these circumstances. However, it must be satisfied that:

• it is proper to make the adoption order;
• the parents have, for physical or moral reasons, failed in their duty to the child for at least 12 months;
• such failure is likely to continue until the child is 18 years old;
• the failure constitutes an abandonment of parental rights under the Constitution;
• by reason of the failure, the State should supply the place of the parents.

The child must be in the custody of the applicants and live with them. The court must be satisfied that it is in the best interests of the child to make the order allowing the Adoption Authority to make an adoption order.

2015 Referendum

Subsequently, in 2015, the Constitution was amended to provide:

Article 42A

1                      The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights.

2          1º         In exceptional cases, where the parents, regardless of their marital status, fail in their duty towards their children to such an extent that the safety or welfare of any of their children is likely to be prejudicially affected, the State as guardian of the common good shall, by proportionate means as provided by law, endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.

2º         Provision shall be made by law for the adoption of any child where the parents have failed for such a period of time as may be prescribed by law in their duty towards the child and where the best interests of the child so require.

3                      Provision shall be made by law for the voluntary placement for adoption and the adoption of any child.

4          1º         Provision shall be made by law that in the resolution of all proceedings—

i           brought by the State, as guardian of the common good, for the purpose of preventing the safety and welfare of any child from being prejudicially affected, or

ii          concerning the adoption, guardianship or custody of, or access to, any child,

the best interests of the child shall be the paramount consideration.

2º         Provision shall be made by law for securing, as far as practicable, that in all proceedings referred to in subsection 1º of this section in respect of any child who is capable of forming his or her own views, the views of the child shall be ascertained and given due weight having regard to the age and maturity of the child.

Parents

The court must hear the parents of the child and other persons it believes appropriate. Where they do not appear, the court may make an order, provided they have had the opportunity to appear. Where their identity is not known, measures must be taken to ascertain and identify them.

The parents must be heard. Any other persons whom the court believes it ought to hear should also be heard. The court may make an order in their absence if they fail to appear, having been given the opportunity.

Where the parents cannot be identified, the appropriate measures are to be taken to try to identify and find them. An order may be made where their whereabouts are not known at the time of the making of the application and during the period of 12 months immediately preceding that, and all appropriate steps have been taken to trace them.

If the Child and Family Agency is to besatisfied that every reasonable effort has been made to support the parents of the child to whom the declaration relates.

Abandonment of Parental Rights

The failure on the part of the natural parents must constitute an abandonment of the child. The parents may be deemed to have abandoned the child where they fail fundamentally in their duties to the child. This may happen, for example, where there has been physical abuse.

It may amount to failure if the parents refuse or do not fulfil a parental role. The placement of a child for adoption of itself is not abandonment.

Abandonment of parental rights is a relatively high test. It may occur where a child has been abused and mistreated.  Strong evidence must be put forward of abandonment.

An abandonment may arise for physical or moral reasons. It need not be intentional and may arise due to the incapacity of the parents arising from mental illness or other severe psychiatric conditions.

Physical violence or manifested risk of it may be sufficient to constitute abandonment. A mere placement for adoption in itself is not abandonment. Accordingly, where the child is placed for adoption, and the parents subsequently remarry, the placement of itself would not constitute abandonment.

Orders by High Court

On an application being made, the High Court by order may authorise the Authority to make an adoption order in relation to the child in favour of the applicants and to dispense with the consent of any person whose consent is necessary to the making of the adoption order.”,

Before making an order the High Court shall be satisfied that—

• for a continuous period of not less than 36 months immediately preceding the time of the making of the application, the parents of the child to whom the declaration relates, have failed in their duty towards the child to such extent that the safety or welfare of the child is likely to be prejudicially affected,
• there is no reasonable prospect that the parents will be able to care for the child in a manner that will not prejudicially affect his or her safety or welfare,
• the 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,
• by reason of the failure, the State, as guardian of the common good, should supply the place of the parents,
• the child at the time of the making of the application, is in the custody of and has a home with the applicants, and for a continuous period of not less than 18 months immediately preceding that time, has been in the custody of and has had a home with the applicants, and
• that the adoption of the child by the applicants is a proportionate means by which to supply the place of the parents.”,

In considering an application for an order the High Court shall have regard to the following:

• the rights, whether under the Constitution or otherwise, of the persons concerned (including the natural and imprescriptible rights of the child);
• any other matter which the High Court considers relevant to the application,

The Court shall in so far as is practicable, in a case where the child concerned is capable of forming his or her own views, give due weight to the views of that child, having regard to the age and maturity of the child. In the resolution of any such application, the best interests of the child shall be the paramount consideration.