Adopting Persons
Cases
S. W., Applicant
[1957] IR 178
High Court. 10 Oct. 1956
CASE STATED by An Bord Uchtala, pursuant to s. 20, sub-s. 1, of the Adoption Act, 1952, for the determination of a question of law arising on an application for an adoption order.
The Case Stated was as follows:
“1. An Bord Uchtala being the Board appointed by the Government under the Adoption Act, 1952, there was received by the Board on the 22nd day of June, 1955, an application in the prescribed form in the name of Mrs.” S. W. for an adoption order in respect of a female child,” C. A. R.
“2. At a meeting of the Board on the 6th day of March, 1956, at 45 St. Stephen’s Green in the City of Dublin the said application was heard by the Board and the applicant was present and gave evidence in support of the application.
3. The undermentioned facts were either proved or admitted:
4. That the applicant was born on the 24th day of October, 1924;
5. That the applicant was of the Roman Catholic faith and that the Roman Catholic faith was her religion since birth;
6. That the applicant was an Irish citizen;
7. That on the 13th day of January, 1946, in the City of London, England, the applicant gave birth to the child,” C. A. R.;
8. That the applicant was a single woman when the child,” C. A. R., “was born to her;
9. That the child,” C. A. R., “has been brought up in the Roman Catholic faith;
10. That on the 28th day of September, 1947, the applicant married” J. A. W. “according to the rites of the Roman Catholic Church in England;
11. That the said” J. A. W. “was not of the Roman Catholic faith;
12. That at the date of the hearing of the application so far as the applicant was aware, her husband was still not of the Roman Catholic faith;
13. That the said” J. A. W. “was not the father of”C. A. R.
14. That on the 7th day of July, 1948, a daughter,”K. W., “was born of the marriage;
15. That the applicant and her husband had not been living together for about eight years prior to the 6th of March, 1956, the applicant stating that her husband had deserted her;
16. That the applicant’s husband had been contributing the sum of 10/- per week towards the support of the applicant and the child,” K. W.
17. That the applicant’s husband was not a party to the application and, so far as the applicant was aware, had no knowledge of the application.
18. The applicant testified to the Board that, to the best of her information, knowledge and belief, her husband was living with another woman in England and that there were children of this union.
19. The Board found:
(a) the child,” C. A. R., “to be the illegitimate child of the applicant;
(b) the child,” C. A. R., “to have been under the care of the applicant since birth;
(c) the applicant and the child,” C. A. R., “to be residing in the State;
(d) the applicant to have attained the age of 21 years;
(e) the applicant and the child,” C. A. R., “to be of the same religion.
(f) the applicant to be of good moral character, to have sufficient means to support the said child and to be a suitable person to have parental rights and duties in respect of the said child.
20. The Board, under the provisions of s. 19, sub-s. 5, of the Adoption Act, 1952, accepted the application of the 22nd June, 1955, the applicant having shown the Board reasonable cause for her failure to apply before the 1st day of January, 1955.
21. In the course of the hearing the question arose whether, as a matter of law, the Board were entitled to grant the application having regard to the facts 1, that the applicant’s husband was not a party to the application, and 2, that the applicant and her husband were not living together.
22. The applicant requested a case stated for the opinion of the High Court, pursuant to s. 20 of the Adoption Act, 1952. The question for the opinion of the High Court is whether the Board was entitled in law to grant the application having regard to the facts (a) that the applicant’s husband was not a party to the application; and (b) that the applicant and her husband were not living together.”
The Case Stated was dated the 27th September, 1956, and was signed by the Registrar of An Bord Uchtala and sealed by the official seal of the Board.
R. N. Cooke for the applicant:
The Act has not only provided, by s. 9, sub-s. 1, that the Board may make an order for the adoption of a child by an individual applicant, but has precluded, by s. 11, sub-s. 2, the adoption of a child by more than one person, save in the case of a married couple living together. In this case, the child resides in the State (s. 10 (a)), she is illegitimate (s. 10 (c)), and, although she was over seven years of age at the date of the application, she was under the applicant’s care from a date before the passing of the Act, and consequently, by virtue of s. 19, the provisions of s. 10 (b), which would otherwise preclude the making of an adoption order in view of the child’s age, do not apply. The applicant is the mother of the child (s. 11, sub-s. 1 (b)), she has attained the age of twenty-one years (s. 11, sub-s. 3 (b)), she resides in the State (s. 11, sub-s. 4) and is an Irish citizen (s. 11, sub-s. 5). She is of the same religion as the child (s. 12, sub-s. 2); the Board was satisfied that she was of good moral character, had sufficient means to support the child, and was a suitable person to have parental rights and duties in respect of the child (s. 13, sub-s. 1). The applicant being the mother and the person having sole charge of the child, her application in writing constituted “the consent of every person being the child’s mother or guardian or having charge of or control over the child” within the provisions of s. 14, sub-s. 1. The Board was of opinion that there was reasonable cause for the applicant’s failure to apply for an adoption order within two years after the commencement of the Act (s. 19, sub-s. 5).
There is no provision in the Act expressly precluding a married woman who is separated from her husband from legally adopting a child or precluding a married woman, whether living with her husband or separated from him, from legally adopting a child without his consent; it is provided merely that, in such a case, the adopted child can acquire no rights as the lawful child of the husband. A similar position would obtain in the case of a married man who applied for an adoption order. It is submitted, therefore, that this case falls so clearly within the terms of the Act that the Board has no power to refuse to grant the adoption order.
The effect of making the adoption order would be (a) to make the child an Irish citizen, if she is not already an Irish citizen, and (b) to place the child in the same position as a legitimate child of the applicant by a marriage previous to that with J. A. W., and consequently to entitle the child to share the applicant’s estate equally with her half-sister, K. W., in the event of the applicant’s death intestate, and also, in the event of K. W. dying intestate and unsurvived by parents, husband or children, to confer rights of succession to the estate of K. W. on the child or on her children as a lawful sister of the half-blood or her children.
There was no appearance for An Bord Uchtala.
DAVITT P. :
We are satisfied to answer the question set out in this Case Stated, “Yes.”
We have carefully followed the arguments on the construction of the Act addressed to us by counsel for the applicant. This case comes within the ipsissima verba of the Act, and is eminently a case in which the adoption order sought should be made.
HAUGH J. :
I agree.
MURNAGHAN J. :
I agree.
Solicitor for the applicant