THE Privy Council has dismissed an appeal by the Children’s Authority in a paediatric nurse’s fight against the authority’s adoption practices.
She was unable to adopt a six-year-old child who was abandoned at the hospital at birth.
The nurse is no longer pursuing the adoption, the judgment said.
In a decision delivered on Monday, Lords Briggs, Stephens, and Lady Arden upheld the Court of Appeal’s decision giving the nurse permission to pursue her case against the authority, which is responsible for adoptions in Trinidad and Tobago.
Lord Stephens, who delivered the ruling, said public-law requirements of procedural fairness were issue- and fact-sensitive, and courts can dismiss a claim for judicial review in cases where, at the leave stage, the legal position of the public body was “entirely clear.”
But he said, in the authority’s case, its legal position on what the nurse was required to do as part of the adoption process was not entirely clear.
The nurse, who was represented by attorney Farai Hove Masaisai, appealed an August 7, 2020, decision by Justice Jacqueline Wilson to dismiss her judicial review application on the basis that it was devoid of merit and was unarguable.
In overturning Wilson’s decision, Justices of Appeal Gregory Smith and Mark Mohammed held that procedural irregularities by public bodies could be challenged and noted that the nurse was not told of some of the defects in her adoption application until she came to court.
Smith, who delivered the ruling, said it appeared the nurse’s application was not given proper consideration, adding that the court was satisfied that, on the face of it, a case had been made out for review.
“At the end of the day, the court is the final arbiter of the welfare of the child,” he said, adding that whatever allegations were made can be dealt with at the full hearing of the claim. The Privy Council agreed with this position.
At the procedural appeal hearing in August 2020, the Children’s Authority agreed not to proceed with the child’s adoption.
The nurse subsequently withdrew her request for an order requiring the authority to consider the application so that her judicial review claim would not impede the child’s adoption, as perspective adopters had already been identified.
The Privy Council judges asked for a copy of their ruling to be given to the Family Court judge handling the child’s adoption, which had been put on hold because of the legal challenges.
According to the nurse’s claim, she cared for the child from birth. He was born on September 9, 2015.
He spent a month and ten days in the neonatal intensive care unit and was released into his mother’s care on October 9, 2015. The child’s mother returned him to the hospital the next day and he stayed in the paediatric intensive unit for another month. He was then transferred to a ward, where the nurse continued to care for him, providing emotional stability, physical contact and financial needs.
The claim says the child’s mother never returned for him and he remained at the hospital for one and a half years before the authority removed him.
On August 29, 2016, the nurse expressed an interest in adopting him and being a foster parent, since they had established a bond.
She was encouraged to foster him until the assessment was made for adoption.
The nurse submitted her application to adopt him on November 24, 2016, and was told the assessment would be done in December.
She claimed she was never told of any supporting documentation, including a police certificate of good character for herself and those in her household, needed for the application.
On February 9, 2017, the child was moved from the ward and taken into a foster home. When she tried to get an update from the authority on her adoption application, the nurse said she was told she “would never be able to adopt” the child and was told not to return to the authority’s offices.
After writing to the Health Minister and the director of the authority, she was told of a date for the assessment, which gave her hope. But it never took place and after her attorneys sent a pre-action letter to the authority, she was told she had not submitted a proper application.
She filed the judicial review application and it was only then was she told she should have submitted a police character certificate.
In its submissions, the authority told the Court of Appeal the child was in the custody of prospective adopters, a married couple, with whom he had been matched, and was thriving in their care.
In her decision, Wilson said there was no dispute that the nurse failed to submit a police certificate of character in support of her application.
“Therefore, notwithstanding the defendant’s alleged failure to engage with the applicant on her application, it cannot be said that the application met the requirements of the regulations and that the applicant was unfairly excluded from consideration by the defendant.
She added, “The defendant’s failure to advise the applicant of a legal requirement, duly published in the regulations, cannot be elevated to the threshold of unreasonableness or unfairness.”
Smith, in his decision, said the authority, in the face of allegations that it behaved badly and disgracefully, could not say, “Well, so what? The child has already been in care.”
He held it would be contrary to good administrative practice, and considered if the authority was doing something that was an abuse of power or were disgraceful, it should be examined “if only for the benefit of the entire system” of adoption.
At the Privy Council, the authority, represented by attorney Ravi Heffes-Doon, submitted it was not arguable that fairness required it to inform the nurse of the statutory requirements for her application.
Masaisai argued that the obligation of fairness did arise, and this obligation was not only for the benefit of all applicants but also for children who may be adopted.
As part of the Privy Council’s ruling, the judges ordered that no one should publish the child’s name, any biological family member or prospective or actual adoptive family.