Baby Ann the loser in tug-of-love heartbreak
Tuesday November 14 2006
A BABY girl is to be taken from the only mother and father she has ever known to live with the strangers who are her natural parents.
Two-year-old Baby Ann is to be removed from a foster home and returned to her natural birth parents after a landmark Supreme Court ruling yesterday.
The little girl will almost certainly now be taken from the couple she has known as her mother and father since she was four months.
In a unanimous decision, the five-judge Supreme Court said that, in the interests and welfare of the little girl, Ann must go back to her birth parents who are in their twenties.
The decision was handed down fewer than two weeks after the government announced a controversial referendum on the rights of children. The logistics surrounding the phased handover of the child will be decided by the court next week.
Yesterday there was an emotional reaction to the decision.
Some experts claimed Baby Ann could be damaged by the process.
Children's Minister Brian Lenihan said the verdict was a "difficult and sensitive" matter involving the welfare of children in the adoption process, with conflicting claims being made for the custody of a child placed in pre-adoption foster care.
Chief executive of the Children's Rights Alliance, Jillian van Turnhout, said: "There were no winners in this case. However, the child is the greatest loser as her rights were not and could not be taken into account by the Supreme Court."
Ms Turnhout said she was saddened that "the outcome in this case hinged on the legal entitlements of two different sets of adults rather than on what was in the best interest of baby Ann".
The couple who are losing Ann said they do not think they would be "physically, mentally or emotionally able" to watch the handover.
Yesterday four Supreme Court judges, along with Chief Justice John Murray, delivered separate judgments. They came to one unanimous decision to allow the appeal which clears the way for the return of Baby Ann to her natural parents.
Twenty minutes before she formally retired from the court, Mrs Justice Catherine McGuinness, the author of the Kilkenny Incest report, said she was allowing the appeal with "reluctance and some regret".
She said: "I remain uncertain and apprehensive about the effects of a transfer of Ann's custody, and about her future in general."
Judge McGuinness has regularly voiced criticism of the position of the child in the Constitution.
"The present case must, however, be decided under the Constitution and the law as it now stands," she said.
Given up
The student couple, who cannot be named, gave the little girl up for adoption in November 2004. When Ann was four months old she moved to the home of her prospective adopters.
In September 2005, following a supervised access visit with her daughter, Ann's mother wrote to the Adoption Board withdrawing her consent to the adoption and sought the return of the child.
At that stage, the couple also decided to get married and twice cancelled their wedding before finally getting married in January of this year at a register office in Derry.
The student couple had appealed to the Supreme Court after a High Court judge ruled their baby should remain with it prospective adoptive parents.
Yesterday the Supreme Court ruled the basis of Ann's present custody with her foster parents is unlawful and she must be returned to her natural parents on a phased and sensitive basis. The recent marriage of the couple was critical to the Supreme Court decision and marked "a metamorphosis" in the court proceedings involving Ann.
The Supreme Court overturned an earlier ruling that held that Ann's natural parents, while motivated by the best interests of their child, were guilty of a failure of duty to her and had, in effect, abandoned her.
Yesterday, all five Supreme Court judges overturned the finding of a failure of duty and ruled that the necessary "compelling reasons" had not been shown to displace the constitutional presumption that Ann's welfare would be best achieved in the custody and care of her natural parents.
Another crucial factor in the court's decision was that, in light of her birth parents' marriage and the provisions of the Adoption Act, there was now, as Ms Justice Catherine McGuinness noted "no realistic possibility" that Ann could be adopted.
Mr Justice Adrian Hardiman noted that one of the most most disturbing features of this case is the time which elapsed since the natural mother requested the return of her child.
"At that time she had been with the proposed adopters for 10 months and was about 14 months old .
"She has now been in their care for 24 months," the judge said.
In his judgment, Mr Justice Nial Fennelly said the appeal concerned a distressing dispute regarding the custody of a child. He said it was impossible to ignore the enormous trauma involved.
"No decision of the court will satisfy everybody. Any decision will it was cause hurt," he said.
The outcome of the case he said was certain to cause distress to one or other of the two couples involved.
"Both couples are of the highest character. Sadly they are divided rather than united in their devotion to the welfare of the child," he said. There was, the judge said, a basic constitutional principle that a child's welfare is best served in the heart of its natural family.
Family
Judge McGuinness said the couple could not be held to have failed in their duty towards Baby Ann or to have abandoned their rights as parents .
If Ann she said stayed with the other couple in what amounts to continuing fostertage, this would give rise to practical problems and there would be no way of guarding against future litigations in relation to her continuing care.
Mrs 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.
Prior to the student couple's marriage, Ann was placed with highly suitable prospective adopters the judge said. But , once the marriage of her natural parents took place, Ann and they became a constitutional family with all the concomitant rights and presumptions.
That marriage marked "a metamorphosis" in the court proceedings involving Ann - it was no longer the best interests of the child but the lawfulness or otherwise of the other couple's custody of her.
Mr Justice Adrian Hardiman described the case as a tragic one. "Its result will, of necessity, inflict enormous grief and loss on one of the contending couples. The tragedy lies in the fact that neither deserves this fate, both are caring conscientious people, fit and capable in every way to be the guardians of a child."
Mr Justice Hugh Geoghegan said the expert evidence did not establish that the bonding of Ann to the prospective adopters was so strong that severe damage would probably result if she was returned to her birth parents.
Mr Justice Fennelly said Ann was born when her parents, both students, were in their early twenties.
Dearbhail McDonald and Ann O'Loughlin
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She is old enough to know that this is just not right
Little girl is the greatest loser, say care workers
Mothers forced to return their adopted babies still grieving
Invisible children do not have vital second chance
