## Facts

- Under Irish adoption law then in force, an unmarried mother who wished to place a child for adoption gave a “first consent” and later a “second consent,” and she could withdraw consent before an adoption order was made.
- An unmarried father’s consent was generally not required unless he married the mother after the birth, was appointed guardian, or obtained custody.
- The natural parents (unmarried at the time) arranged for their baby daughter (born July 2004) to be placed for adoption through the Health Service Executive (HSE) adoption service.
- The baby was initially placed in temporary care and, in November 2004, was placed with a married couple who intended to adopt her (the prospective adopters).
- The mother signed the statutory consent documentation (including the initial consent required to begin the process).
- In September 2005, before any adoption order, the mother withdrew consent and asked for the child to be returned.
- The prospective adopters refused to return the child and brought proceedings in the High Court seeking to retain custody and to secure adoption on the basis of the child’s best interests.
- In January 2006, the natural parents married, forming a marital family protected by Articles 41 and 42 of the Constitution.
- In February 2006, the natural parents issued Article 40.4 proceedings (habeas corpus), contending that the child was being unlawfully detained because there was no longer valid consent and no adoption order.
- Evidence from child-care professionals indicated that the child had formed a strong attachment to the prospective adopters; transfer would likely cause serious distress but could be managed with careful planning.
- The High Court treated the mother’s conduct in placing the child for adoption as abandonment and a failure of parental duty, made the child a ward of court, and left day-to-day custody with the prospective adopters.
- The natural parents appealed to the Supreme Court.

## Issues

1. Whether, after the natural parents married, the Constitution required the child to be returned to the marital family unless “compelling reasons” under Article 42.5 justified keeping the child outside that family.
2. Whether the natural parents’ decision to place the child for adoption, and the period during which the child lived with the prospective adopters, amounted to abandonment or a constitutional failure of duty of the kind contemplated by Article 42.5.
3. Whether the child’s continued retention by the prospective adopters, after withdrawal of consent and in the absence of an adoption order, was unlawful for the purposes of Article 40.4.
4. How the child’s attachments and the risk of harm on transfer affected the constitutional analysis and the order to be made.
5. Whether an Article 40.4 order could provide for a managed, phased return rather than an immediate handover.

## Decision

- The Supreme Court allowed the appeal.
- It held that once the natural parents married, the child was within a constitutionally protected marital family, and the constitutional starting point was that the child’s welfare was to be found within that family.
- The Court rejected the High Court’s conclusion that the natural parents’ actions, taken within the statutory adoption process and followed by a request for return, amounted to the kind of abandonment or failure of duty required to displace the marital family under Article 42.5.
- The Court concluded that the “compelling reasons” threshold was not met: there was no sufficient showing that, for physical or moral reasons, the parents had failed in their duty to such a degree, and for such duration, that the State should supply their place.
- The Court determined that the child had to be released from the prospective adopters’ custody and returned to the natural parents.
- Recognizing the real risk of distress and harm from abrupt change, the Court directed that the return be carried out through planned arrangements (including a phased transition) designed to reduce the impact on the child.

## Legal Principles

- A marital family enjoys strong constitutional protection; in custody disputes between a marital family and third parties, there is a strong presumption that the child’s welfare is to be found within the marital family.
- Removing a child of married parents from that family (including to facilitate adoption) requires the strict conditions reflected in Article 42.5: exceptional circumstances, parental failure of duty “for physical or moral reasons,” and a failure that is sufficiently serious and enduring to warrant the State supplying the parents’ place.
- A decision to place a child for adoption through the statutory scheme, and a period in pre-adoptive placement, does not by itself establish constitutional abandonment or the Article 42.5 level of parental failure.
- The child’s bonding and the risk of trauma on transfer are serious welfare considerations, but they do not, without proof meeting the Article 42.5 threshold, justify keeping the child outside the marital family.
- Article 40.4 (habeas corpus) is available to test the lawfulness of a child’s detention in third-party custody; where detention is unlawful, the court may shape practical directions for the child’s safe return, including a staged transfer.

## Conclusion

The Supreme Court held that, once the natural parents married and sought their child’s return, constitutional protection of the marital family controlled unless the demanding Article 42.5 standard of parental failure was proven; because that standard was not met, the child’s continued retention by the prospective adopters could not stand and the Court ordered the child’s return to her parents with arrangements for a phased transition to limit harm.


N. v. Health Service Executive, [2006] 3 I.R. 449 (2006)