An Irish Judgment of Solomon?

Who would be a judge, when faced with two sets of parents willing to provide a home to a child? Yesterday, the Supreme Court decided N v Health Service Executive [2006] IESC 60 (the ‘Baby Ann’ case). Reversing the High Court, the Supreme Court held that a two-year-old girl who has lived with her prospective adoptive parents since she was three months old is to be returned to her natural parents on a phased basis. It was a desprately difficult decision, and my heart goes out to everyone affected by the decision.

There is extensive coverage in today’s media. (eg RTE | Irish Examiner | Irish Independent | Irish Times | Blúire | Martina Devlin | Ursula Kilkelly. Update: later media commentary: Darius Whelan | John Waters | Kildare Nationalist | Sarah Carey | Village).

The case turned on principles of adoption law considered in the light of the Constitution (as they emerge, in particular, from the decision of In re JH [1985] IR 375); the facts were difficult; and there was no easy answer. Nevertheless, the Supreme Court’s decision was, in the event, unanimous. One point stands out. It was put this way by Hardiman J:

… it is necessary to emphasise as strongly as possible, once again, that the action of a mother in placing her child for adoption can never be, either in fact or in law, regarded as a failure in the mother’s duty towards the child, or as one of the number of acts or omissions constituting such a failure. If this is not firmly recognised, the whole basis on which adoption (and possibly fosterage) takes place will be undermined …

The Court’s unanimity at least had the virtue of certainty. As Fennelly J put it:

It is impossible to ignore the enormous trauma involved. No decision of the court will satisfy everybody. Any decision will cause hurt. This is why it is imperative to adhere to clearly established principle. Uncertainty of jurisprudence may cause greater trauma. Clarity should enable problems or conflicts to be resolved quickly. In this case, there is a primordial constitutional principle that a child’s welfare is best served in the heart of its natural family. It is well-established and widely known. There must be compelling reasons to rebut that presumption. I do not believe that there was sufficient evidence to rebut the presumption in this case.

Only time will tell whether the certainty will also prove to be as wise as Solomon‘s similar judgment (see 1 Kings 3:16-28, to which Hardiman J made reference).