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.
Although the nurse is no longer pursuing the adoption, she is still challenging the authority’s failure to explain to her the statutory procedure for adopting the child after she expressed interest in doing so, her attorney told Newsday on Monday.
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 inte
