Judge criticises Tusla 'system failure' that lead to 'last-minute' adoption application

This rush could have been avoided if “necessary and timely action” was taken years ago to advise and counsel the individuals involved, the judge said.

The CFA must make an effort to create a “new regime” for foster care situations where it is apparent for some time that adoption is being considered or likely to be considered, the judge said.

A High Court judge has criticised the “system failure” that led to an eleventh-hour adoption application and caused stress and upset to a teenager’s birth mother.

In a recently published judgement, Mr Justice John Jordan said it was with a “considerable degree of reluctance” that he granted approval for the “last-minute” adoption of a 17-year-old boy by his foster parents who have cared for him for almost all of his life.

While approving the application as in the boy’s best interests, the judge emphasised his concerns about Tusla, the Child and Family Agency’s (CFA), approach to adoptions that could have been foreseen years beforehand.

This rush could have been avoided if “necessary and timely action” was taken years ago to advise and counsel the individuals involved, he said. In Ireland, adoptions can only be carried out before a child turns 18.

The lateness of this application, which came as the boy approached his 18th birthday, left his birth mother “between a rock and a hard place” in opposing the application, as the child’s life has passed by, the judge said.

Unless the court shows its disapproval of the repeated pattern of late applications, the CFA “will consider that no application is refused” if the child wants the adoption, he said.

The CFA must make an effort to create a “new regime” for foster care situations where it is apparent for some time that adoption is being considered or likely to be considered, he said. In this case, the CFA should have discussed adoption with the foster parents many years ago, he said.

The Adoption Authority of Ireland, he noted, had dealt with the matter with expedition. The court’s “overarching consideration” is the best interests of the child but there is a danger in using it as a “trump card”, he said.

Birth mother

The rights of the birth mother are also relevant and this mother had put forward “very valid arguments” about the lateness of the application and her difficult position.

In her affidavit, the mother said she is “prepared to accept the wishes of [her son] if he desires to be adopted”. She did not feel the boy would want to come back into her life and wanted what was best for him, the judge noted.

The birth mother has not had access to her son for the last decade, although she said she tried unsuccessfully to get access in more recent years, Mr Justice Jordan said. She said she was in a different place in her life when her son went into care and she has kept a distant eye on him over the years.

The CFA sought to rely on the lack of access as grounds to support proof of abandonment, in the legal sense, by the birth mother.

The judge said her absence was “equally indicative of a failure by the Child and Family Agency to promote and support the birth mother” with her difficult relationship with the social workers and her personal challenges.

The “only thing” stopping the court refusing to grant the adoption approval is the damage it could do to the boy and the knowledge his birth mother does not want him to be damaged in any way, the judge said.

Through his foster parents, the boy has had a good, loving and nurturing home for almost all of his life and he has “thrived”, the judge noted. The teenager’s voice can be heard “loud and clear” in favour of adoption and there “isn’t any doubt” the adoption is in his best interests, the judge said.