Parents who fail in their duty to their child can be held to have "abandoned" that child, the Supreme Court decided yesterday when it authorised the making of an adoption order in favour of the foster parents of a 13-year-old boy.
A High Court hearing on the matter four years ago was told a welfare officer first became involved when she found the child's parents were absent and the boy was tied by a string to a window in such a manner that he could not lie down.
Yesterday the Supreme Court held the word "abandon" in Section 3 of the 1988 Adoption Act has a wider legal meaning than that of parents simply physically deserting a child. Ms Justice Denham said the legal term could be used where, by their actions, parents had failed "in their duty so as to enable a court to deem that their failure constituted an abandonment of parental rights".
An appeal to the Supreme Court was brought by the natural parents of the child against a High Court finding that an adoption order could be made in favour of the foster parents. A year after the child was born he went to the foster parents, where he remained until he was returned on foot of a District Court order to his natural parents in 1989.
When he was about three years old, the boy was returned to the same foster care following investigations by officers of a health board.
After hearing evidence, the High Court held the boy had been admitted to a hospital late in 1989 with an arm fracture, bruising all over his body and stripe marks on his buttocks suggestive of beatings with a strap. The natural parents denied assaulting or beating the child.
The High Court found the child was subject to gross physical abuse over a considerable period of time which on three occasions caused bone fractures. His injuries were left untreated by his parents. The court held the parents were guilty of substantial cruelty to and neglect of the child.
In 1990 a Fit Persons Order was made committing the child to the care of a health board until he was 16 and the board returned the child to the original foster parents, with whom he has lived since.
The High Court judge found that while the child had quickly physically recovered, he had been psychologically damaged. He suffered from nightmares and would wake up screaming and in a sweat. He did not want to visit his natural family.
During the Supreme Court appeal, Ms Ann Dunne SC, for the natural parents, argued there had been no evidence before the High Court of injury to the child by the parents and said the judge was not entitled to infer the parents committed the injuries.
Ms Dunne also submitted the High Court was not entitled to infer the parents had abandoned the boy. She argued the boy, when aged 16, should be entitled to decide if he wanted to be adopted.
Delivering the Supreme Court's judgement yesterday, Ms Justice Denham said there was unequivocal unchallenged evidence of non-accidental injuries occurring over a period of time to the boy. The injuries occurred when the parents had custody.
Of "special importance and relevance" was a psychiatrist's evidence that the post-traumatic stress experienced by the boy would continue and he should not be exposed to his parents until his late teens or early twenties and then only if he expressed a wish to see them.
Ms Justice Denham went on to set out what constituted "an abandonment on the part of parents" under Section 3 of the 1988 Act. She said there must be strong evidence to establish a "failure of duty by parents towards the child". In this case, she was satisfied there was such evidence.
She believed the post-traumatic stress disorder would continue at least until the child was 18 years old and she accepted the parents by acts or omissions had failed in their duty to the child. That failure constituted an abandonment of parental rights within the meaning of Section 3 of the Act, she found.
The other four members of the court agreed with the judgment.