Adoption Procedures I

Cases

In the Matter of an Application by the Adoption Authority of Ireland under Section 30(5) of the Adoption Acts 2010 – 2017 (As Amended) and

In the Matter of a Proposed Adoption of IBO

(A Minor, Born [Redacted])
[2020 No. 289 MCA]

High Court [Approved]

2 February 2021

unreported
[2021] IEHC 378
Mr. Justice Jordan

February 02, 2021

JUDGMENT
1. This is an application by the Adoption Authority for; –

(1) an Order, pursuant to s.30(3) of the Adoption Acts 2010-2017 granting approval to the applicant to make an Adoption Order in respect of the child, IBO without consulting the child’s father, in circumstances where the applicant is satisfied that it would be inappropriate for it to consult the father in respect of the adoption of the child;
(2) in the alternative, an order pursuant to s.30(5) of the Adoption Acts 2010-2017 granting approval to the applicant to make an Adoption Order in respect of the child, IBO, without consulting the child’s father, in circumstances where the mother is unable and/or unwilling to reveal the identity of the father of the child;
(3) such further and other relief that the court shall deem fit.
2. The application is grounded on the affidavit of Mr. Mark Kirwan, the Manager of the Domestic Adoption Unit of the Adoption Authority which affidavit was sworn on the 8th December 2020.

3. The child’s date of birth is [REDACTED] 2003.

4. The averments in the affidavit grounding the application and the exhibits accompanying it deal in a comprehensive manner with the background circumstances.

5. Insofar as the background to the application is concerned, the following is the position: –

(a) On the 12th August 2017, the mother of the child married an Irish citizen, X, the applicant for the Adoption Order.
(b) The declaration of eligibility and suitability in respect of the applicant was issued and is dated the 30th October 2019.
(c) The biological father of the child does know of the child’s birth and is registered on the child’s birth certificate.
(d) The mother does not know whether the father is married or in a civil partnership.
(e) The relationship between the mother and the father lasted for nine years. They were in a romantic relationship and lived together as partners. The relationship continued for a period of five months after the child’s birth and the mother, father and child lived together for that period of five months.
(f) The father may not know of the proposed adoption. However, there was extensive communication with close relatives of his advising of the proposed adoption and the consequent need to get in touch with the father. It seems most improbable that news of the proposed adoption did not reach him.
(g) The father has not been appointed a guardian of the child pursuant to a court order or otherwise.
(h) There was an informal access agreement in respect of the child up until 2015.
(i) The father and the child do not have an ongoing relationship. He last saw the child in 2009 in [REDACTED].
(j) The mother has provided the father’s name, his date of birth and what she described as his [REDACTED] PPS number along with his last known address and his last known work address. The evidence proves that she does appear to have co-operated fully in the efforts to reach the father and ascertain his views.
(k) The mother was born on [REDACTED] 1978. She and the applicant for the Adoption Order have been in a relationship since 2006 and were married in 2017. The mother and the applicant for the Adoption Order have a daughter of their marriage who is now eight years of age.
(l) The father was involved in parenting the child for the first five months of her life, together with her mother. Following their separation, the father had access with the child every second weekend, but contact became more sporadic as time progressed. In 2006, the mother began a relationship with her current partner (the applicant for adoption) and both she and the child relocated to Ireland with the father’s consent in 2007.
(m) Once the mother and child relocated to Ireland the mother says that there was very little contact between the father and the child. The mother contacted the father once per month to facilitate the child speaking to him on the telephone.
(n) Between 2008 and 2013 the father reportedly had telephone contact at Christmas and on the child’s birthday. It appears that contact took place in 2014 on her birthday and that was when the father last spoke with the child. The had previously met with him on two occasions in [REDACTED] in 2008 and 2009.
(o) Between 2013 and 2015 the mother says that she attempted to contact the father with a view to getting him to sign an application for an Irish passport. She failed ultimately and she applied to the District Court in Dublin in 2015 to dispense with his consent and obtained the necessary order.
(p) The father has been identified by name but efforts made to locate him in order to consult with him have failed. The social worker attempted to telephone and email the father on the 16th July 2018 using the contact details which had been provided by the mother. The email did not deliver and the telephone number that had been provided was not in use.
(q) The social worker contacted International Social Services and the Embassy of [REDACTED] with a view to making contact with the father. In addition, a person acquainted with the birth mother informed the father’s mother (the child’s grandmother) of the situation and it appears that the grandmother did not wish to become involved in the matter.
(r) The mother contacted the father’s brother on social media but did not receive a response.
(s) The social worker contacted the [REDACTED] Tax Agency on the 14th August 2018. However, the efforts made to trace the father by this route failed. The last known address that the agency had recorded in respect of the father dated back to 2015. They did however have addresses for the paternal grandmother and paternal grandfather. The social workers sent correspondence to the father’s mother and his father respectively. The letter to the paternal grandmother was retuned marked “insufficient address/refused”. The letter to the paternal grandfather was delivered but no response was received.
(t) The child is obviously aware of her father’s existence and her mother has told her about their relationship.
(u) The social worker has met with the child who has stated that she is not curious to obtain more information about her father and she does not wish to have a relationship with him at this time. She believes that she can rely on her mother to communicate information in respect of her father to her in the future – should she wish to obtain further details.
(v) It is clear from the evidence that the child is in favour of the proposed adoption and considers the applicant to be her “dad” in circumstances where he has cared for her since 2007.
6. It is clear from the evidence that the child wishes the adoption to proceed and it is also clear from the evidence that it is in the best interests of her welfare that the adoption is allowed to proceed.

7. Amongst the documentation exhibited are: –

(a) An email from the social worker dated the 14th of August 2018 and addressed to the [REDACTED] Tax Agency seeking information in relation to the father, and the response to that email.
(b) A letter dated the 7th September 2018 (together with proof of postage of same), addressed to the father’s mother (the child’s grandmother) seeking information in respect of her son and informing her of the proposed adoption.
(c) A letter dated the 7th September 2018 (together with proof of postage of same), addressed to the father’s father (the child’s grandfather) seeking information in respect of his son and informing him of the proposed adoption.
(d) An Order of Judge Marie Quirke of the Dublin Metropolitan District Court dispensing with the father’s consent to issue a passport for the child.
8. The mother has given a full, free and informed consent to the making of the order and wishes the Adoption Order to be made.

9. The Authority treated the application in this case as one in which family life within the meaning of Article 8 of the European Convention on Human Rights is engaged. It is the practice of the Authority to designate applications where there is evidence of an active relationship beyond the fact of paternity as applications involving ‘family life’ in this sense.

10. Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 provides as follows: –

‘1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.’

11. This practice is applied in recognition of the Authority’s obligations under s.3(1) of the European Convention on Human Rights Act 2003, that it perform its functions in a manner compatible with the obligations imposed by the Convention, including the provisions of Article 8. The Authority makes a point that it is particularly conscious, in this context, that the European Court of Human Rights ruled in Keegan v Ireland18 EHRR 342 1994 that the adoption of a child without the knowledge of a father with whom the child has had a relationship in the period after birth was a violation of Article 8.

12. The Authority’s general approach in this regard is also cognisant of the provisions of s.6(b) of the Guardianship of Infants Act 1964, as amended by s.49 of the Children and Family Relationship Act 2005, which extends automatic guardianship for an unmarried father where he has cohabited with the mother for a period of twelve months not less than three consecutive months of which involved cohabitation with the child.

13. In dealing with this matter, the Board has been concerned to ensure that information derived from conversations held with the birth mother are not the only source of evidence. Indeed, much of the narrative relies on information she has provided which is untested. Against that, there is no reason to doubt the narrative and the independent enquiries and documentary evidence is consistent with the mother’s narrative.

14. In the Child and Family Agency’s report dated the 13th February 2020, it is stated that the birth mother informed the social worker that a friend of hers had spoken to the paternal grandmother who indicated that she did not want to get involved. It was also stated in the report that the birth mother had sent a Facebook message to the birth father’s brother. However, no verifying documentation in this regard was provided by the Child and Family Agency – and no further information was given regarding whether the social worker had been provided with the birth father’s brother’s contact details or had contacted him. The Authority was conscious of the High Court decision in S (W) v Adoption Board[2009] IEHC 429, [2010] 2 IR 530 in which it was held that the Authority’s predecessor was not entitled to simply accept the uncorroborated or unsupported statements of the birth mother regarding consultation with the birth father.

15. As far as the Authority was concerned, several issues also arose from material provided regarding correspondence with the Department of Foreign Affairs. For example, in a response to a query by the Child and Family Agency to the Department of Foreign Affairs, it was indicated to the Department in January 2020 that the birth father was on Facebook and that details regarding his sister and brother were also available there. As the Board considered that this was up-to-date information regarding the birth father and family members, including some who had not previously been referred to, it considered it was appropriate and necessary that efforts would be made to pursue these lines of inquiry because of s.30(2) of the Adoption Acts 2010-2017. At the Board meeting of the 10th March 2020, it was decided to request the Child and Family Agency to seek to obtain contact details for such relatives, whether from the birth mother or by other means. An email was received from the Child and Family Agency by the Authority on the 26th May 2020 indicating that the social worker had contacted the birth mother and that the birth mother had informed her that she was only aware of a brother and the mother. It was stated that a message was sent to the brother and mother by the social worker and no response was received. It will be noted however that the information provided by the [REDACTED] tax authorities had also provided an address for the paternal grandfather – but that correspondence to that address yielded no reply.

16. At its meeting on the 7th July 2020, the Authority decided to request the Child and Family Agency to make efforts to effect personal service on the birth father by whatever means appropriate prior to the Board’s next meeting. The Child and Family Agency indicated prior to the meeting in September 2020 that it was unable to effect personal service. This is hardly surprising as all efforts had failed to ascertain the whereabouts of the birth father.

17. The birth mother became aware that the birth father was living in [REDACTED] in 2013 and she contacted him via Facebook on the 18th October 2014 regarding a passport application for [REDACTED]. He responded and advised that he would support the new passport application but he was subsequently not contactable. He did not contact his daughter for her birthday or Christmas in 2014. The birth mother subsequently made an application to the District Court on the 17th April 2015 to dispense with his consent for [REDACTED] passport application and it was granted by the court. The birth mother has had no contact with the birth father since the 18th October 2014. He has not contacted her since and her phone number has not changed.

18. The birth mother contacted or endeavoured to contact the birth father in August 2017 via Facebook as his daughter wanted contact with him – but she received no response.

19. The birth mother subsequently endeavoured to contact the birth father on the 5th May 2018 via Facebook stating that she needed to talk to him as she wanted to advise him of the proposed adoption. She did not receive a response to this message. She added his mother on Facebook on the 21st May 2018 and sent a message to her stating that she needed to contact the birth father and requested his contact details – but she did not receive a response to this message.

20. A friend of the birth mother informed the paternal grandmother of the proposed adoption and advised the paternal grandmother that the birth mother was seeking to contact the father. The paternal grandmother advised that she did not want to get involved.

21. The birth mother also sent a Facebook message to the brother of the birth father requesting the birth father’s contact details – but she received no response to this message.

22. In 2019 the birth mother applied for and obtained an updated birth certificate in respect of the child. She was aware that the new birth certificate from the [REDACTED] authorities would be automatically updated to state if the named birth father was registered as deceased. The updated birth certificate stated that the birth father was categorised as ‘emigrated’.

23. The Child and Family Agency corresponded with the [REDACTED] Probation Service [in another country] in November of 2019 to establish if the birth father was in prison at that time. A response was received on the 19th November 2019 indicating that there was no such person in a [REDACTED] prison. A similar inquiry of the [REDACTED] probation authorities [in yet another country] in November 2019 received no reply.

24. The Child and Family Agency also made inquiries of the [REDACTED] police/[REDACTED] police in early 2020 and of the Irish Embassy in [REDACTED] – but nothing useful came of these inquiries.

25. Under s.19 of the Adoption Act 2010, in any matter, application or proceedings under this Act the court must regard the best interests of the child as the paramount consideration in the resolution of the application. In this case the Court has ample evidence that it is in the child’s best interest that the adoption proceed.

26. It is noteworthy that s. 30 does not afford any discretion to the Authority. This can be contrasted with s.18 of the Adoption Act 2010 which provides: –

(1) If an accredited body is unable to consult a relevant non-guardian of a child for the purposes of section 17(2), the accredited body shall in a form and manner approved by the Authority, notify the Authority to that effect.

(2) The Authority may, if satisfied that the accredited body has taken such steps as are reasonably practicable to consult any relevant non-guardian, authorise the accredited body to place the child for adoption.

27. In W.S., quoted above, the decision of O’Neill J. can be distinguished on its facts. In this case, the evidence satisfies the Court as a matter of probability that: –

(a) The father has in effect made himself non-contactable.
(b) The mother has been forthcoming and cooperative in providing all the information available to her to enable contact to be made with the birth father.
(c) The background circumstances prove that it is the father who has ceased contact with his daughter and her mother.
(d) It is apparent that the Authority, the Child and Family Agency and the birth mother have taken all the steps that are reasonably practicable to enable consultation with the birth father concerning the proposed adoption to take place.
(e) Efforts of the Child and Family Agency and of the Adoption Authority to make contact with the birth father – as detailed in this judgment – have occurred independently of the birth mother and have been unsuccessful. The Authority has taken all the steps that are reasonably practicable to try to locate with and consult with the father.
28. This Court is satisfied that a purposive approach is required in the interpretation of s.30. A child centred approach is appropriate to the interpretation of the section in circumstances where the welfare of the child is the first and paramount consideration.

29. Non-notification of a birth father can create a risk as identified by O’Neill J. in W.S., that the process may be flawed or kiltered by the sole reliance on one-sided information that may turn out to be inaccurate or otherwise unreliable. This can cause a grave risk of a very serious breach of the natural father’s constitutional right to fair procedures and natural justice and his rights under the Convention, resulting in a very serious injustice being done to the natural father and, by extension, the child, if the natural father is excluded from the process on the basis of reliance solely on information supplied by the mother. However, those concerns do not arise in the circumstances of this case. The fact of the matter here is that every effort has been made to involve the birth father but those efforts have failed because he cannot be found. He has not been excluded but has rather excluded himself. The Court is alert to the possibility that he might be unable to make contact. However, there is no evidence to support or to suggest that this is so and the Court considers it a remote possibility given all of the evidence.

30. The position in relation to the child’s father is that he cannot be located and he has had no involvement in the child’s life for several years. The last contact was in 2014 and the father has since absented himself from the lives of the mother and child.

31. It is the position that the mother has been able to provide the name and a body of information concerning the father which, in the ordinary course of events, ought to be regarded as sufficient identification of the father. However, the practical reality is that the information provided falls short of information sufficient to identify him in the sense of pointing to him as an individual who can be located with the benefit of the information available with a view to ascertaining his views in relation to the proposed adoption. A name and address or phone number will usually adequately identity a person as they can be located with that information and thus be found as an individual. Such information may however prove to be inadequate to locate or find the person who will thus remain unidentified if there is nobody found to match the name and details. Yet, a person may be adequately identified without a name or an address.

32. For example, I may provide an adequate and viable identification of an individual by saying – “ he is the tall young red haired man who drives the white D reg jeep, with the blue kayak always on the roof, and who pulls up between 2 and 3 pm outside house Number 21 across the road each Saturday afternoon”. This identifies the individual because, if correct, he will be there and located then – as the person I spoke of. Of course, visual identification of a person I know well is usually best. After that, DNA tests and the like bring identification to another level. But in the context of Section 30 the identification spoken of is about providing the name and actual whereabouts, or means to locate the whereabouts, of the person with whom consultation is to take place.

33. If one adopts a purposive approach to s.30 one must have regard to the actual purpose of the section which is to ensure that the authority takes such steps as are reasonably practical to ensure that every relevant non-guardian of the child is consulted in relation to the adoption. It is in this context that the section speaks of the Authority (in sub. 5), after first obtaining the approval of the High Court, making the Adoption Order without consulting the father if, –

(a) the mother or guardian of the child either refuses to reveal the identity of the father of the child, or provides the Authority with a statutory declaration that he or she is unable to identify that father, and
(b) the Authority has no other practical means of ascertaining the identity of that father.
34. In the circumstances here the mother is in a position to provide a name and pertinent details concerning the father but is unable to identify him in practical terms with a view to permitting the consultation mentioned in the section to proceed. This Court has pointed to this issue and apparent omission in the Act. Section 30(5)(a) should probably read “…a statutory declaration that he or she is unable to identify and locate the father and is unable to provide sufficient information to allow the identification and location of that father to be ascertained …”.

35. Section 30(2) provides: –

‘(2) Subject to this section, on the receipt of an application for an adoption order, the Authority shall take such steps as are reasonably practicable to ensure that every relevant non-guardian of the child is consulted in relation to the adoption.

36. Section 30(3) provides: –

(3) Where the Authority is satisfied that, having regard to —

(a) the nature of the relationship between the relevant non-guardian of a child and the mother or guardian of the child, or

(b) other than in a case where the relevant non-guardian of the child is a person referred to in paragraph (b), (c) or (d) of the definition of “ relevant non-guardian “ , the circumstances of the conception of the child, it would be inappropriate for the Authority to consult the relevant non- guardian in respect of the adoption of that child, the Authority may, after first obtaining the approval of the High Court, make the adoption order without consulting the relevant non-guardian concerned.

37. The position is that the section requires consultation with every relevant non-guardian in relation to the adoption and obliges the Authority to take such steps as are reasonably practicable to ensure that this is done. On the face of it, it seems quite clear that the Authority has taken all such steps as are reasonably practicable to ensure that the father of the child is consulted in relation to the adoption. Despite exhaustive efforts it has not been possible to open a line of communication with the father although considerable information and detail is available in relation to who he is. It is not known where he is. It might in these circumstances be argued that this application is unnecessary. However, the section does not afford a discretion to the Authority in the way s. 18 does and the Authority is correct to proceed with an abundance of caution given all of the circumstances.

38. The Authority is entitled to take the view that it is in this case inappropriate for it to consult the relevant non-guardian in respect of the adoption of the child because it has proved to date impossible to get in contact with him. Although further exhaustive efforts might be successful in tracing him and ascertaining his opinion in relation to the proposed adoption it is likely that further forensic work in this regard would take many months or years and might or might not prove successful. The Court cannot ignore the fact that the father has removed himself from the life of the mother and daughter for many years. He has had no contact since 2014 and has not bothered to keep open any line of communication. His disappearance from the life of mother and child for many years is perhaps indicative of him attaching little importance to his relationship with his child. If he valued the relationship surely he would maintain contact and would have done so over the years.

39. As the child is reaching the age of majority at the beginning of [REDACTED] there is no time to spare and the Authority is correct in forming the view that it would be inappropriate for the Authority to consult the father in respect of the adoption having regard to the relationship between the father and the mother – and put simply because he has made himself non-contactable. The relationship between he and the mother ended many years ago. Both have moved apart to the point that the mother knows his name and who he is but simply cannot find him. The family that they once formed came to an end by mutual agreement over 17 years ago. Contact with the child after the separation did take place in the early years but was limited after the mother relocated to Ireland with the fathers agreement in 2007 – and the last contact was in 2014.

40. The Court has considered granting the approval under Section 30(5) but to do so would ignore the mothers naming of and provision of details concerning the father and would be to ignore that she has not sworn the statutory declaration mentioned in that sub-section. She is entitled to take the view that she cannot swear a statutory declaration in the terms of the sub-section. The Court considers it necessary to consider the purpose of Section 30 and weigh the competing rights involved. Doing so permits the granting of the approval under Section 30(3) as the Court is satisfied that the father has for many years not been, and is not, interested in maintaining a relationship with his daughter – much less in being available to be consulted about her proposed adoption.

41. In the circumstances this Court will make the order sought pursuant to s.30(3) of the Act approving the making of the Adoption Order without consulting the father of the child.

In the Matter of an Application by the Adoption Authority of Ireland (The Applicant Herein) under Section 30 of the Adoption Acts 2010 to 2017 and

In the Matter of a Proposed Adoption of AB

(A Minor, Born on —————)
[2021 No. 225 MCA]

High Court [Approved]

23 November 2021

unreported
[2021] IEHC 829
Mr. Justice Max Barrett

November 23, 2021

JUDGMENT
SUMMARY
Lex non cogit ad impossibilia (‘The law requires nothing impossible’ and thus does not compel a person to do that which that person cannot possibly perform). Hence the counselling of a mother or guardian (as appropriate) contemplated by s.30(4) of the Adoption Act 2010 cannot possibly be done (and is not required to be done) where, the mother or guardian is dead at the time when that counselling would otherwise fall to be done. In such circumstances, and bringing the same maxim to bear, s.30(5) falls to be construed as indicated hereafter.

1. This is a case which has a sad beginning, arising from a tragic instance in which, some years ago, a non-Irish mother died soon after childbirth and the child she delivered also died. As a result, a non-national child (the ‘Child’) with whom the mother had come to Ireland ended up being placed in foster-care here. Very extensive efforts, utilising various different persons, including diplomatic and less formal actors, have unfortunately failed to identify who the Child’s natural father is. There is, however, a happy ending to the story. The child’s foster-mother here in Ireland wishes to adopt the Child, now a teenager, and the Child in turn wishes to be adopted by the foster-mother. So this is one of those life-affirming cases which sometimes crop up on the Family List and suggest that goodness and happiness are still abundant in the world.

2. In the circumstances presenting, the Adoption Authority has come to court seeking either of order (i) or (ii) hereafter, leaving the court to decide which is the more appropriate form of order: (i) an order pursuant to s.30(3) of the Adoption Acts 2010-17 approving the making of an order for the adoption of the Child without consulting the natural father in circumstances where the Authority is satisfied that having regard to the nature of the relationship between the natural father and the natural mother of the child, it would be inappropriate for the Authority to consult the natural father; and/or (ii) an order pursuant to s.30(5) of the said Acts approving the making of an order for the adoption of the Child without consulting the natural father in circumstances where the natural mother is unable to confirm the identity of the natural father and the applicant has no other practical means of ascertaining the natural father’s identity.

3. Normally, this type of application would be approved on the day in court without need for a written judgment. Here, however, although the court indicated on the day of the application that it would make an adoption order, it also indicated that it would give a written judgment because of the issue arising as to which of the two provisions would be the more appropriate provision to rely upon in terms of making the order sought.

4. Section 30(3) of the Act of 2010 provides as follows:

“(3) Where the Authority is satisfied that, having regard to – (a) the nature of the relationship between the relevant non-guardian of a child and the mother or guardian of the child, or (b) other than in a case where the relevant non-guardian of the child is a person referred to in paragraph (b), (c) or (d) of the definition of ‘relevant non-guardian’, the circumstances of the conception of the child, it would be inappropriate for the Authority to consult the relevant non-guardian in respect of the adoption of that child, the Authority may, after first obtaining the approval of the High Court, make the adoption order without consulting the relevant non-guardian concerned .”

5. In this regard, an affidavit sworn for the Adoption Authority contains, amongst other matters, the following averments:

“ 29. I say that it is appropriate for an order to be made pursuant to s.30(3) in the circumstances of the within case….The Mother came to Ireland alone and was compelled to place the Child in the voluntary care of the CFA as she had no-one to look after [the Child] …while she was in hospital. I say that while there is very limited information available about the relationship between the Mother and the Father, the evidence does not indicate that the relationship was in existence at the time the Mother travelled to Ireland or that the Father had any involvement in the Child’s life prior to then.

30. The Child has resided in care since the day [the Child] …came to Ireland…. [The Child] has been placed with the Applicant [since a very young age] ….The identity of the Father is not known and despite extensive efforts, the Father has not come forward in the last [stated number of] …years.

31. I further say that the evidence presented to the Authority indicates that the nature of the relationship between the Father and Child is non-existent and that the Child has no knowledge of [the Child’s] …birth father. I say, in particular, that the Father has never applied for guardianship, access to or custody of the Child at any point in the Child’s life nor has the Father ever met the Child since [the Child] …has been in this jurisdiction.

32. I say therefore that the Authority is satisfied that having regard to the nature of the relationship between the natural father and natural mother of the Child, and the absence of any detailed information pertaining to same, as well as crucially, the nature of the relationship between the natural father and the Child, it would be inappropriate for the Authority to consult the Father in respect of the adoption of the Child. ”

6. When one looks to the best interests of the Child (considered later below) it seems to the court that one can properly state in this case not just that it is impossible for the Authority to consult the natural father but also that in all the circumstances it would now be inappropriate to do so as this would not be consistent with the best interests of the Child. Thus it seems to the court that an order can properly be made under s.30(3).

7. Section 30(5) of the Act of 2010 must be read in conjunction with s.30(4). Between them those two provisions provide as follows:

“(4) If the identity of the father…is unknown to the Authority and the mother or guardian of the child will not or is unable to disclose the identity of that father, the Authority shall counsel the mother or guardian of the child, indicating – (a) that the adoption may be delayed, (b) the possibility of that father of the child contesting the adoption at some later date, (c) that the absence of information about the medical, genetic and social background of the child may be detrimental to the health, development or welfare of the child, and (d) such other matters as the Authority considers appropriate in the circumstances.

(5) After counselling the mother or guardian of the child under subsection (4) , the Authority may, after first obtaining the approval of the High Court, make the adoption order without consulting that father if – (a) the mother or guardian of the child either refuses to reveal the identity of that father of the child, or provides the Authority with a statutory declaration that he or she is unable to identify that father, and (b) the Authority has no other practical means of ascertaining the identity of that father. ”

8. In this regard, an affidavit sworn for the Adoption Authority contains, amongst other matters, the following averments:

“ 34. Despite the efforts made in the within application, I say that the Authority has not been able to ascertain the identity of the Father. The materials supplied to the Authority by the CFA indicate that the Father is unknown and cannot be identified. It has been confirmed that the Mother’s husband is not the Child’s Father and the two men who have been proposed by the maternal family as a putative birth father cannot be accurately identified, located, or traced.

35. Where the CFA has made all reasonable efforts to identify the Father, I say that the Authority has no other practical means of ascertaining [the Child’s] identity.

36. I say, however, that in light of the Mother’s death in 2008, the Authority has not been provided with a statutory declaration of the Mother that she is unable to identify the Father as is required by s.30(5), nor has it been provided with evidence of counselling pursuant to s.30(4) of the Acts.

37. In this situation, however, I say that it would be contrary to the rights and interests of the other interested parties, and, in particular to the best interests of the child, for the application to be obstructed by the inability of the Authority to obtain a statutory declaration from the Mother in relation to the Father’s identity in circumstances where she has died….I say that where a mother has died, the requirement to provide a statutory declaration does not arise, given that s.30(4) and (5) envisage a type of positive action that only may be carried out by a living person. In practical terms, a statutory declaration cannot be obtained from a deceased person and it is difficult to see how the counselling as mandated by s.30(4) could apply where a mother is deceased. ”

9. Lex non cogit ad impossibilia, i.e. ‘The law requires nothing impossible’ and does not compel a person to do that which they cannot possibly perform. Thus the counselling of a mother or guardian (as appropriate) contemplated by s.30(4) of the Act of 2010 cannot possibly be done (and is not required to be done) where the mother or guardian (as appropriate) is dead at the time when that counselling would otherwise fall to be done. In such circumstances, and bringing the same maxim to bear, s.30(5) falls to be construed as though the words “ After counselling the mother or guardian of the child under subsection (4)” and item (a) that follows had been excised from that provision. Otherwise s.30(5), in such circumstances, would rest on the performance of an impossibility. Obviously the High Court in such cases would want to be presented with the type of evidence that has been presented here, showing that every reasonable effort has been made to ascertain the identity of the father (and here, as mentioned, very extensive efforts have been made) before it could properly conclude that the Authority is in a situation where “ no other practical means of ascertaining the identity of [the] …father ” present. When one looks to the best interests of the Child (considered below) it seems to the court that in all the circumstances presenting here an order may also issue under s.30(5). The court sees nothing in the foregoing that is not reconcilable with the conclusions reached in The Adoption Authority of Ireland v. The Child and Family Agency and Ors[2018] IEHC 632.

10. When it comes to the best interests of the Child, the court respectfully adopts and agrees with the reasoning proffered by the Adoption Authority in the pleadings in this regard, i.e:

“ 38. [I] t is in the best interests of the Child that the adoption application be permitted to proceed and that [the Child’s]… best interests must operate as the overriding consideration for [the court]…. The application engages the Child’s rights and interests in respect of [the Child’s]… family life, personal welfare, sense of identity and self, and related physical, psychological and emotional needs. Moreover, the information supplied indicates that the Child has expressed a strong wish to proceed with the adoption. This is a matter to which regard must be had given [the Child’s]… age and maturity…which [the Child]… is entitled to have taken into account in determining the application. ”

11. Given (i) the rights and interests of the parties in the determination of the application, (ii) the age, views and needs of the child, (iii) the requirement that the Child’s best interests be regarded as the paramount consideration; (iv) the limited information concerning the relationship between the Father and Mother; and (v) the absence of any relationship between father and child throughout the Child’s life to this time (and, so far as same may be predicted, likely for all time), and taking something of a ‘belt and braces’ approach to the form of order that will issue, the court is satisfied to grant (a) an order pursuant to s.30(3) approving the making of an order for the adoption of the Child without consulting the natural father; and also (b) an order pursuant to s.30(5) approving the making of an order for the adoption of the Child without consulting the natural father.

In re J.H. (inf.)

[1985] IR 378

Lynch J. 379
H.C.

10th August 1984

Preliminary
This case concerns the future life of a child, who is a girl, and who is hereinafter referred to as the child. The applicants are the prospective adopting parents of the child, and are hereinafter collectively referred to as
the adopting parents, and individually as the adopting father and the adopting mother, respectively. The respondents are An Bord Uchtala, hereinafter referred to as the Board, but the real respondents are notice parties, namely, the natural parents of the child, who are hereinafter collectively referred to as the parents, and individually as the father and the mother, respectively.
The proceedings commenced by special summons issued on the 7th February, 1984, between the adopting parents as applicants and the Board as respondents in which, inter alia, the adopting parents sought an order pursuant to s. 3 of the Adoption Act, 1974 authorising the Board to dispense with the consent of the mother to the making of an adoption order in favour of the adopting parents in respect of the child, and giving custody of the child to the adopting parents. The special summons was supported by an afidavit sworn jointly by the adopting parents on the 3rd February, 1984. Subsequently the mother was added as a notice party and a replying affidavit was sworn by her on the 21st May, 1984.
The matter came for hearing on oral evidence before me on the 6th and 7th June, 1984. On the 7th June, 1984, I added the father as a notice party on his consent given by counsel and solicitor instructed by the mother in these proceedings who are also instructed by the father, and by consent I dispensed with the service of any documents on or by him. On the same day I added An tÁrd-Chláraitheoir as a notice party and made an order prohibiting him from re-registering the birth of the child pending the outcome of these proceedings and until further order. The oral evidence concluded on the 7th June, 1984, and I heard legal submissions from counsel for the parties on the 12th July, 1984.
The Facts
The child was born on the 25th September, 1982. It was cared for by the mother for one week during her stay in the nursing home and was then placed with foster parents, with whom it remained for just short of three months. On the 22nd December, 1982, the child was placed for adoption with the adopting parents and has been with them ever since, and they applied to adopt the child in February, 1983.
The adopting father was born in 1955. The adopting mother was born in 1951. The adopting parents married in 1977. It transpired that the adopting parents were unable to have children of their own and accordingly they decided to adopt a child or children. They first adopted a boy who had been born in 1981. The boy was placed with them for adoption in the month of June, 1981, and an adoption order was duly made thereafter. This adoption has been eminently successful, and since the child joined the home of the adopting parents in December, 1982, she and the boy have become, as sister and brother, the children of the adopting parents.

No issue was raised in the pleadings, affidavits or in the course of the oral evidence before me as to the suitability of the adopting parents to adopt the child, and it is manifest that they are of excellent character and disposition and suitable to adopt the child. As no issue was raised as to their suitability, it is not necessary for me to review the evidence which establishes their many attributes that qualify them to be adopting parents.
The indorsement of claim on the special summons includes a claim for a declaration that the mother has abandoned her rights to the child. It seems to me that this claim inferentially questions the suitability or fitness of the mother to have custody of, or alternatively to rear, the child. It is therefore necessary to consider the mother and her circumstances in somewhat greater detail than was necessary in the case of the adopting parents.
The mother was born in 1941. Her father was a bank official and the family, comprising her father and mother and two brothers, she being the eldest child, lived in a provincial town. The mother was educated to leaving certificate standard in a convent boarding school and thereafter pursued third level education for three years but did not obtain a degree. Her student life ended about 1963 and she was then intending to seek employment when her mother became seriously ill. As a result, the mother had to stay at home to look after her mother and thus lost the opportunity of getting paid employment. At the same time, her father was suffering from a heart condition from which he died suddenly in 1976. Her mother died in the summer of 1981 whereupon the mother became the absolute owner of the house in which she had been living with her parents since in or about 1962, her two brothers having long since married and gone to live elsewhere. In addition to the house, the mother was also left by her parents sufficient means to enable her to live comfortably and in addition to support, rear and educate the child.
The mother had known the father for some years before her mother died. Subsequent to the death of her mother the mother became intimate with the father in late 1981 and became pregnant by him with the child in December, 1981. Both during the pregnancy and thereafter the mother wished to keep and rear the child herself but she decided against doing so for the sake of the child, having knowledge of cases where young illegitimate children being reared by their unmarried mothers had been treated cruelly by the society in which she lived. Accordingly she placed the child in fosterage on leaving the nursing home: she consented to its placement for adoption in December, 1982; and she consented to its adoption in February, 1983. The mother ultimately withdrew her consent to the adoption of the child in correspondence and discussions with the Board and with a social worker employed by the adoption society between December, 1983, and February, 1984.
The mother refused an offer of marriage by the father during her pregnancy because she did not want to marry at a time when the father might marry her more because of the pregnancy and the pending birth of the child than because of a real wish to marry her for herself. The mother and the father continued to associate and she became pregnant by him again in February, 1984, with a child which is expected in October, 1984. The mother and the father intermarried on the 26th March, 1984.
A conflict arose on the evidence of Dr. Paul McQuaid on the one hand and of Mrs. Anne Murphy, social worker and Ms. Marie Louise Colbert, senior social worker, on the other hand as to the stability of the mother’s character. Having heard not only the evidence of these three witnesses but also of the mother herself, I am quite satisfied that the mother is of stable character and sound common sense. She is an intelligent and effective person and, insofar as she was uncertain at times as to what she should do in relation to the child, this was due to the conflict between her longing to keep and rear the child herself and her belief that adoption rather than being reared in a one parent family would be best for the child in the social climate in which she lived. I am satisfied that the mother never abandoned or deserted the child or abandoned her rights to the child and that she is a fit person to have custody of and to rear the child.
The father was born in 1926. He was previously married and has four grown up children, all of whom are self supporting. His first wife died in 1979 after an illness of some ten years duration during which time the father looked after his wife and four children. He is a self employed man of stable character and sound common sense. He always acknowledged that he was the father of the child and he is a fit person to have custody of and to rear the child.
At the time of their marriage on the 26th March, 1984, neither the father nor the mother was aware of the provisions as to re-registration of the birth of the child in the Legitimacy Act, 1931, or the Adoption Act, 1964. Having been advised as to these provisions they applied to re-register the birth on the 6th June, 1984, shortly before the commencement of the hearing before me, as a result of which I made the order already referred to prohibiting the re-registration of the birth pending the determination of these proceedings.
The Law
In the course of submissions by counsel on behalf of the parties I was referred to Articles 40, 41 and 42 of the Constitution, to the Adoption Acts, 1952 and 1976 and to the following decisions of the Superior Courts: In re O’Brien, an Infant [1954] I.R. 1; Ryan v. The Attorney General [1965] I.R. 294; In re J., an Infant [1966] I.R. 295; The State (Nicolaou) v. An Bord Uchtala [1966] I.R. 567; M. v. An Bord Uchtala [1977] I.R. 287; S. v.Eastern Health Board (Unreported, High Court, Finlay P., 28th February, 1979); G. v. An Bord Uchtala [1980] I.R. 32; Mulhall v. Haren [1981] I.R. 364; McC. v. An Bord Uchtala [1982] I.L.R.M. 159; McF. v. G. and Ors. [1983] I.L.R.M. 228 and B. v. An Bord Uchtala (Unreported, High Court, Barron J., 13th February, 1983).
Prior to the enactment of s. 3 of the Adoption Act, 1974, the natural mother of an illegitimate child had an absolute right to refuse or withdraw her consent to the adoption of her child, whereupon no adoption order could be made. It was submitted on behalf of the parents that the problem which s. 3 of the Adoption Act, 1974, was designed to remedy was the situation which arose where the natural mother would neither consent to the adoption of her child nor undertake the task of rearing the child herself, thus leaving her child and the prospective adopters in a very unsatisfactory situation. It may be that the foregoing was the main problem motivating the enactment of s. 3 of the Adoption Act, 1974, but the section as enacted has a wider application. Nevertheless the section must be read consistently with the continuing right of a natural mother to refuse, or withdraw, her consent to the adoption of her child, without such refusal or withdrawal being liable to be automatically overridden by an order of the court under the section should the prospective adopters apply for such an order. Section 3 of the Adoption Act, 1974, does not purport to repeal or abolish the natural mother’s right to refuse or withdraw her consent to the adoption of her child and indeed that right has been reiterated in s. 3, sub-s. 1 (c) (i) of the Adoption Act, 1976.
The court must therefore respect a natural mother’s right to refuse or withdraw her consent to the adoption of her child and should only override such refusal or withdrawal where the particular circumstances of the case make it clear that it is necessary for the welfare, or in the best interests, of her child to do so. In this case it is not clear that it is necessary for the welfare or in the best interests of the child to override the mother’s withdrawal of her consent to the adoption, where there now exists a stable and prosperous home available to the child with the parents. Or, to quote from the judgment of Finlay P. in G. v. An Bord Uchtala [1980] I.R. 32, at p. 49 of the report:
“I am clearly satisfied on the evidence before me that the welfare of this child does not in any sense overwhelmingly require that she should remain in the custody of her present custodians and not be returned to the custody of her mother.”
Furthermore, there can be no doubt but that the child has been legitimated by the marriage of the parents and that these three persons now constitute a family within the meaning of that term as used in Articles 41 and 42 of the Constitution: see In re J., an Infant [1966] I.R. 295.
Were it not for my order prohibiting the re-registration of the birth of the child such re-registration would probably have been effected by now, in which event the child would no longer be capable of being adopted. As re-registration has not in fact been completed by virtue of my order, the child remains capable of being adopted, but in considering whether to make an order under s. 3 of the Adoption Act, 1974, the Court must bear in mind the provisions of Articles 41 and 42 of the Constitution.
The law of this State made no provision whatever for the adoption of children until the enactment of the Adoption Act, 1952. Adoption is, therefore, the creature of statute and exists only insofar as the statutes and of course the Constitution provide for and permit it. Section 10 of the Adoption Act, 1952, provides, inter alia, that an adoption order shall not be made unless the child is illegitimate or an orphan. By virtue of this section once a child was legitimated under the provisions of the Legitimacy Act, 1931, by the subsequent marriage of its parents it became incapable of adoption: see In re J., an Infant [1966] I.R. 295; M. v. An Bord Uchtala [1977] I.R. 287.
Section 2 of the Adoption Act, 1964, altered this situation where the birth of the illegitimate child had not been re-registered, notwithstanding the subsequent marriage of its parents. Such failure to re-register, apart from ignorance of the statutory provisions as to re-registration, would probably arise most often where the father did not acknowledge his paternity or, even though acknowledging his paternity, did not wish to accept responsibility for rearing his child. Neither of these situations arises in this case. Section 2, sub-s. 1 of the Adoption Act, 1964, concludes with the proviso “that the father of the child gives his consent to the making of an adoption order or such consent is dispensed with in accordance with section 14 of the Principal Act.” By the interaction of this proviso and s. 3 of the Adoption Act, 1974, the consent of the father to the adoption of the child may be dispensed with by the court if the father agreed to the placing of the child for adoption.
The onus therefore lies on the adopting parents to prove that the father agreed to the placing of the child for adoption before they can invoke the jurisdiction conferred on the court by s. 3 of the Adoption Act, 1974. The adopting parents case on this issue is that the father’s agreement to the placing of the child for adoption should be implied from the circumstances of the case. It is not suggested that the father consented to the actual adoption of the child as distinct from agreeing to the placing of the child for adoption.
The adopting parents’ case is that the father acquiesced in the placing of the child for adoption by the mother, and that it should therefore be inferred that he agreed to the placing of the child for adoption. However, the father had no power to prevent the mother from placing the child for adoption when she did so: see The State (Nicolaou) v. An Bord Uchtala [1966] I.R. 567. Nevertheless, even though the father had no power to prevent the mother from placing the child for adoption, the adopting parents correctly submit that the father could positively agree to the placing of the child for adoption. The court should not, however, infer such an agreement on the part of the father from acquiescence in the mother’s decision to place the child for adoption when he had no power to prevent such placing by her, as readily as it might otherwise draw such inference if the father had power to prevent such placing of the child for adoption.
I do not think that the facts of this case justify an inference that the father agreed to the placing of the child for adoption within the meaning of that term as used in s. 3, sub-s. 1 of the Adoption Act, 1974. It follows that the powers conferred on the court by s. 3, sub-s. 2 of the Adoption Act, 1974, do not arise in this case for want of the conditions precedent to such powers as contained in s. 3, sub-s. 1 of that Act.
The only proceedings before me are those in which the primary relief sought by the adopting parents was an order under s. 3 of the Adoption Act, 1974. It follows from the foregoing judgment that I must refuse the order sought to authorise the Board to dispense with the consent of the parents to the making of an adoption order in respect of the child and that I must also refuse the order sought granting custody of the child to the adopting parents. I am informed that other proceedings have been instituted claiming general custody of the child and I assume that these proceedings have been issued on behalf of the parents. It is unfortunate that these proceedings were not ready to come before me for trial concurrently with the present proceedings so as to achieve finality in the matter. It is most undesirable that there should be any further significant delay in determining what should be the future for the child. The parties indicated at the outset that this case may well go on appeal to the Supreme Court no matter which way I decided it, but even if that is so it seems to me very desirable that the parties should endeavour to arrange that the child be introduced to the parents through the adoption society whilst preserving anonymity as between the adopting parents and the parents. I would hope that some such arrangement might be worked out between the parties and their legal advisers.
The case is one where it was, of course, completely proper for the adopting parents to bring the proceedings and I accordingly certify to this effect, and that it is a case in which the Attorney General’s scheme providing for costs should operate.

The second set of proceedings, involving claims and cross-claims pursuant to the provisions of the Guardianship of Infants Act, 1964, were heard by the High Court, in circumstances which are set out sufficiently in the judgment, infra, on the 20th, 21st and 24th September, 1984.

Preliminary
This judgment is supplementary to and to be read with a judgment delivered by me on the 10th August, 1984, in a matter between the same contending parties arising under the Adoption Acts, 1952 to 1976. I shall refer to the parties by the same terminology as used by me in that judgment.
The present two cases are claims and cross-claims by the parents and the adopting parents, respectively, to the custody of the child. Many of the facts relevant to these claims have already been found by me in my previous judgment. Moreover in hearing and deciding these claims I have treated the evidence given on the hearing of the Adoption Acts claim as being given also in these cases. However, I heard further evidence and submissions from the parties particularly relevant to these claims on the 20th, 21st and 24th September, 1984.
In the meantime an interlocutory application had been made to me on behalf of the parents on the 6th and 13th September, 1984, seeking access to the child and this access ultimately took place on the 19th September, 1984, in the presence of the adopting parents’ other child, the boy, and of Mrs M. and another representative of the adoption society.
During the hearing of the interlocutory application for access, I decided also that I should hear these claims as they are so inextricably bound up with the Adoption Acts claim, and notwithstanding that I had already delivered judgment in the Adoption Acts claim. Furthermore I was informed that my judgment in the Adoption Acts claim was under appeal and I decided that I should dispose of these claims as soon as possible in order that the whole matter comprising all three cases should go on appeal as one composite case in the event of an appeal from my judgment in these cases, and hence also the hearing during the long vacation.
The Facts
No issue is raised in these cases (nor was raised in the Adoption Acts case) by the parents as to the suitability of the adopting parents to adopt the child. On the other hand the adopting parents’ claim (as they did in the Adoption Acts case) that the parents, and in particular the mother, by their conduct have abandoned and abdicated their rights to the child.
The child was with the mother in the nursing home for the first week after its birth. It was then placed with foster parents because the mother felt that to rear the child herself as an unmarried mother was not in its best interests. The mother paid either the whole or a substantial part of the cost of fosterage, as appears from correspondence between her and Mrs. M. Approximately three months later the mother agreed to the placing of the child for adoption, in the then bona fide belief that that was best for the child. At no stage was the mother unmindful of the welfare of the child and at all stages the father wished that the mother would keep the child, and accordingly I reject the claim that either the mother or the father by his or her conduct abandoned or abdicated their rights to the child.
On the 20th and 21st September, 1984, in addition to the evidence of lay witnesses, I also heard evidence from two doctors specialising in psychiatry called on behalf of the adopting parents, namely, Doctor Paul McQuaid, who had also given evidence on the hearing of the Adoption Acts claim, and Doctor J. Gerard Byrne. The evidence of these medical men is particularly relevant to the issue of the general custody of the child, and no contradictory medical evidence was called on behalf of the parents.
Doctor Byrne also gave evidence of the medical history of the parents as ascertained by him from enquiries authorised by them from their respective general and other medical practitioners. From this evidence it is clear that the father has suffered from blood pressure since at least 1979, but that this condition is, however, controlled by taking one tablet per day, and also that he suffered more recently a small partial detached retina which has not however required any medical treatment. These conditions had not been disclosed by the father either to Doctor McQuaid or Doctor Byrne, but on the other hand they are not serious conditions nor such as to affect his present capacity for work or his capacity to parent the child. The mother has had some psychiatric trouble from about the year 1977 but this seems to be more associated with overstrain due to trying to look after her elderly ill mother, who was a very difficult person to deal with in her latter years.
Again this condition had not been disclosed by the mother either to Doctor McQuaid or Doctor Byrne, but as in the father’s case, it is not a serious condition nor such as to affect her capacity to parent the child to any significant degree.
I regard as very important evidence relevant to the issue now arising as to the general custody of the child the uncontradicted evidence of the two psychiatrists as to the effect on the child of transferring her from the custody of the adopting parents to the custody of the parents. On that evidence, which I accept, I am satisfied that there is an appreciable risk of long-term psychological harm to the child by such a transfer. The evidence did not, however, indicate whether it is more or less probable that such long-term harm may occur, but it did establish to my satisfaction that the risk of such harm is sufficiently proximate that considerable weight must be given to that risk in deciding these claims and counterclaims for custody of the child. There would of course be an immediate upset for the child from which she would probably recover within a relatively short time, but, while not ignoring such short-term distress, it is the risk of long-term detrimental effects that is more important and to be taken into account in deciding the question of custody.
There is an abundance of evidence, which is not challenged, and which I accept, that the adopting parents are exceptionally well suited to be adopting parents and to care for, rear and educate the child and generally to provide for her welfare as defined in s. 2 of the Guardianship of Infants Act, 1964.
The child is clearly bonded to the adopting parents and the boy as though they were her own parents and brother respectively. Any sundering of these relationships will cause considerable immediate suffering to the child and a real possibility, if not a probability, which it is impossible to say one way or the other, of long-term serious harm.
The Law and Conclusions,
Section 3 of the Guardianship of Infants Act, 1964, provides that in deciding any question relating to the custody of the child I must regard the welfare of the child as the first and paramount consideration.
In the context of this case, and bearing in mind the secure and happy home which the child at present enjoys, I think that I can best give effect to that section by asking and answering the question: “Is there anything really worthwhile to be gained for the child by transferring her from the adopting parents to the parents?” Dealing with the problem in this way is to look at it from the child’s point of view, as required by s. 3 of the Act of 1964.
Many relevant factors arising on the evidence and on the law have been emphasised to me by counsel on both sides in their able and helpful arguments. There is the sundering of established ties already referred to. There will also be the substitution for relatively young parents of relatively elderly parents who are also going to have to cope with a new born infant expected in October, 1984. The father is 29 years older than the adopting father. The mother is 10 years older than the adopting mother. In addition, the adopting mother has diabetes and the father has a detached retina in the left eye.
On the other hand, if the child is left with the adopting parents her and their position is anomalous in law. The child is now the legitimated daughter of the parents. As the birth of the child has not yet been re-registered, the child technically remains capable of adoption but not without the consent both of the father and the mother. That consent is manifestly not available and therefore for practical purposes the child is now incapable of adoption. Succession rights will exist as between the child and the parents but none between the child and the adopting parents. The parents are and remain guardians of the child under s. 6 of the Guardianship of Infants Act, 1964. The parents have rights in regard to the education of the child under Article 42 of the Constitution.
If one looks at the claim to custody through the eyes of the parents they have a very strong case to be awarded custody of the child. If, on the other hand, one looks at the claim to custody through the eyes of the adopting parents they also have a very strong case to be awarded the custody of the child. That is why it is so very important in the circumstances of this particular case to look at it through the eyes, or from the point of view, of the child and the best way of doing so is, in my view, by posing and answering the question which I have already put above.
I have come to the conclusion that the answer to my question is that there is not anything really worthwhile to be gained for the child by transferring her from the adopting parents to the parents. If custody were changed I think that the risk of long-term psychological harm, and therefore of unhappiness, is sufficiently proximate to outweigh the contrary factors referred to above.
I therefore award custody of the child to the adopting parents but there has to be access for the parents.
Until such time as any appeal to the Supreme Court has been decided, anonymity should still be preserved as between the parents and the adopting parents, and for this reason the same arrangements for continuing access should apply as were adopted for the purpose of the access had on the 19th September, 1984. This, of course, requires the co-operation and assistance of the adoption society and of its staff and, in particulars, Mrs. M., and I should like to say that their co-operation and assistance is very much appreciated by the Court.
I direct that the first access by the parents hereafter should take place during the sixth week following the birth of the child which the mother was expecting during the trial of these cases. Thereafter, and until the month of September, 1985, access is to take place during every third week following the date of the last previous access unless the parties otherwise agree between themselves. From the 1st September, 1985, access is to take place every second week until the parties otherwise agree between themselves.
In the long term it will be necessary for anonymity to be abandoned so that the parents and the adopting parents may meet and discuss the child’s future welfare, especially as regards education. I hope that arrangements as to such meetings and discussions will be amicably agreed between the parties and that the necessity for further applications to the Court will thus be avoided.
These proceedings were properly brought by the parents and the adopting parents respectively in the interests of the child and I certify that the Attorney General’s scheme as to costs should therefore operate in these cases, treating these cases as one composite case involving a claim and cross-claim for the custody of the child.

From the orders made by the High Court pursuant to these judgments, the adopting parents appealed against the refusal to make an order pursuant to s. 3 of the Adoption Act, 1974, and the natural parents appealed against the order granting custody of the infant pursuant to s. 3 of the Guardianship of Infants Act, 1964, and also against the order restraining An tArd-Chláraitheoir from re-registering the birth of the child pursuant to the provisions of the Legitimacy Act, 1931. The appeals were heard by the Supreme Court on the 26th and 27th February, 1985. At the opening of the appeals, it was agreed that counsel for the natural parents should address the Court first.

Supreme Court

Finlay C.J.
27th March 1985

The infant named in the title, who is a girl, was born on the 25th September, 1982, to M.C. (hereinafter called the mother), who was then unmarried. The father of the infant was M.C., whom I will hereinafter refer to as the father. As the time of the birth of the infant the mother and father were not married, though both were free to marry. The infant was cared for by her mother for a week after her birth in the hospital in which she was born. The mother then arranged for her to be placed in foster care. She visited her whilst in such care from time to time.
On the 18th November, 1982, the mother signed a consent for the placement of the infant for adoption. On the 22nd December, 1982, the infant was placed with K.C. and A.C. (hereinafter called the adopting parents) with a view to being adopted by them. The infant has remained in the custody and care of K.C. and A.C. since that time. In the beginning of the month of December, 1983, the mother withdrew her consent to the adoption of the infant by communicating in writing to An Bord Uchtala.
On the 26th March, 1984, the mother and father of theinfant were married. The adopting parents issued proceedings in the High Court by special summons on the 7th February, 1984, seeking, inter alia, an order pursuant to s. 3 of the Adoption Act, 1974, authorising An Bord Uchtala to dispense with the consent of the natural mother to the making of the adoption order and seeking a further order granting custody of the infant to them pursuant to the provisions of that Act.
After compliance with the usual procedures of giving notice to the mother of the infant, these proceedings came on for hearing before Mr. Justice Lynch, and were at hearing on the 6th and 7th June and the 12th July, 1984. Judgment was reserved and was given by Mr. Justice Lynch on the 10th August, 1984. On the 7th June, 1984, in the course of the hearing, the learned trial judge firstly made an order adding the father as a party to the proceedings and, secondly, made an order adding An tArd-Chláraitheoir as a party and restraining him, pending the determination of those proceedings, from re-registering the birth of the infant under the provisions of the Legitimacy Act, 1931.
On the 10th August, 1984, Mr. Justice Lynch made an order refusing the claim of the adopting parents for relief pursuant to the provisions of the Adoption Act, 1974, and also continued the order restraining An tArd-Chlaraithaoir from re-registering the birth of the infant until after the expiration of a period of 21 days from the date of the perfection of that order. From the judgment delivered by him at that time it is clear that the grounds for this refusal, and the only grounds, were a finding that the father of the infant had not agreed to the placing of the child for adoption and, that, having regard to the provisions of s. 21 of the Adoption Act, 1964, and s. 3 of the Adoption Act, 1974, the Court had no jurisdiction to make an order under s. 3 of the Act of 1974.
On the 22nd May, 1984, the parents had issued a summons under the Guardianship of Infants Act, 1964, claiming custody of the infant and naming the adopting parents as the defendants. The adopting parents issued a summons on the 21st June, 1984, under the Guardianship of Infants Act, 1964, claiming custody of the infant. These last two proceedings were heard in the High Court on the 20th, 21st and 24th September, 1984, and judgment was reserved. On the 15th October, 1984, judgment was delivered by Mr. Justice Lynch and custody of the infant was awarded to the adopting parents with rights of access to the parents. By a further order, dated the 17th October, 1984, Mr. Justice Lynch continued the order restraining An tArd-Chlaraithaoir from re-registering the birth of the infant pending the appeal against the decision of the High Court in the summons under the Adoption Acts.
From these decisions of the High Court the adopting parents appealed against the decision refusing their application for an order under s. 3 of the Adoption Act, 1974, and the parents appealed against the order granting custody under the Act of 1964 to the adopting parents, and also against the order restraining An tArd-Chlaraithaoir from re-registering the birth of the child.
Issues on the Appeal
Upon the hearing of these appeals the adopting parents did not pursue their appeal against the refusal of their application under s. 3 of the Adoption Act, 1974. Whilst conceding that the consequential confirmation of the order made by Mr. Justice Lynch on the 10th August, 1984, should lead to the discharge of his order dated the 17th October, 1984, continuing the restriction on the re-registration of the birth of the infant, counsel on behalf of the adopting parents wished not to consent to the removal of that restriction. This was on the ground that it was possible, in the event of the adopting parents being successful in upholding the decision of Mr. Justice Lynch with regard to the custody of the child made on the 15th October, 1984, that they could persuade the parents to abstain from re-registering the child and to give consent to its adoption.
In short, the issue which arose on the appeal by the parents against the order granting custody of the infant to the adopting parents was as to whether the learned trial judge had applied the right test having regard to the fact that they are now married, that the infant is now their legitimate daughter, and has that status even before re-registration of her birth.
In the course of his judgment given on the 15th October, 1984, Mr. Justice Lynch held that the issue before him must be determined in accordance with s. 3 of the Guardianship of Infants Act, 1964, regarding the welfare of the infant as the first and paramount consideration and that, on the evidence, the way in which he could give effect to that section was by asking and answering the question: “Is there anything really worthwhile to be gained for the child by transferring her from the adopting parents to the parents?” In the course of his judgment he answered this question in the negative, by finding that the risk of long-term psychological harm to the infant arising from her separation from the custody and care of the adopting parents, with whom she had been continuously living for almost two years at the date of his judgment, was sufficiently proximate to outweigh contrary factors likely to arise in the future from her continued custody by the adopting parents. These contrary factors included the fact that the infant was the legitimate child of the parents; that they had a right to be involved in and make decisions concerning her education and that she would have Succession Act rights against her parents but not against her adopting parents. On behalf of the adopting parents, it is contended that this was the correct legal test to apply, and that the conclusions of facts, on its application, are supported by the evidence. This submission was largely based on an assertion that, in the absence of a challenge to the constitutional validity of s. 3 of the Act of 1964 when applied to the case of a legitimate child which has not been made in this case, s. 3 must be given its clear and literal meaning. On behalf of the parents it was submitted that, having regard to the constitutional rights of the infant as a member of a family provided by Articles 41 and 42 of the Constitution, s. 3 must be construed as meaning, in the case of a legitimate child, that its welfare as defined in the Act must be deemed to be best served by being in the custody of its own parents and of its family, unless it were established that there were compelling reasons why its custody should be found elsewhere. In this context reliance was placed on the fact that the family of which the infant is a member now consists not only of the parents but of a child born to them since the hearing in the High Court, who is another daughter.
The Law
In the course of the submissions before this Court, the following cases were referred to: In re O’Hara [1900] 2 I.R. 232; The State (Williams) v.Markey [1940] I.R. 421; In re J., an Infant [1966] I.R. 295; M. v. An Bord Uchtala [1977] I.R. 287; G. v. An Bord Uchtala [1980] I.R. 32; W. v. W. (Unreported, High Court, Ellis J., 21st April, 1980); J. v. C. [1970] A.C. 668 and J. v. D. (Unreported, Supreme Court – 22nd June, 1977).
Having considered these decisions and the relevant provisions of the Constitution I have come to the conclusion that the principles of law applicable to this case are as follows.
1. The infant, being the child of married parents, now legitimised, has in addition to the rights of every child, which are provided for in the Constitution and were identified by O’Higgins C.J. in G. v. An Bord Uchtala [1980] I.R. 32 at p. 56, rights under the Constitution as a member of a family, which are: (a) to belong to a unit group possessing inalienable and imprescriptible rights antecedent and superior to all positive law (Article 41, s. 1); (b) to protection by the State of the family to which it belongs (Article 41, s. 2); and (c) to be educated by the family and to be provided by its parents with religious, moral, intellectual, physical and social education (Article 42, s. 1).
2. The state cannot supplant the role of the parents, in providing for the infant the rights to be educated conferred on it by Article 42, s. 1, except “in exceptional cases” arising from a failure for moral or physical reasons on the part of the parents to provide that education (Article 42, s. 5).
3. The Act of 1964 must, if possible, be given an interpretation consistent with the Constitution: see East Donegal Co-Operative v. The Attorney General [1970] I.R. 317; McDonald v. Bord na gCon [1965] I.R. 217.
In the case, therefore, of a contest between the parents of a legitimate child – who with the child constitute a family within the meaning of Articles 41 and 42 of the Constitution – and persons other than the parents as to the custody of the child, as this case is, it does not seem to me that s. 3 of the Act of 1964 can be construed as meaning simply that the balance of welfare as defined in s. 2 of the Act of 1964 must be the sole criterion for the determination by the Court of the issue as to the custody of the child. To put the matter in another way, it does not appear to me that this is a case, as would be the situation in a contest between the parents of a legitimate child as to which of them should have general custody, where the Court could or should determine the matter upon the basis of the preferred custody, having regard to the welfare of the child as defined in s. 2 of the Act.
A child of over two years of age, as this infant is, in the dominant or general custody of persons other than its parents and continuing in such custody against the wishes of its parents, cannot be said to enjoy the right of education by its family and parents granted by Article 42, s. 1 of the Constitution. And no additional arrangements, as were indeed put in train in this case by the orders of the High Court for access by its parents to the child or participation by them in the decision-making processes concerning its education, could alter that situation. Furthermore, notwithstanding the presumption of validity which attaches to the Act of 1964 and the absence of a challenge in these proceedings to that validity, the Court cannot, it seems to me, as an organ of the State, supplant the right to education by the family and parents which is conferred on the child by the Constitution unless there is established to the satisfaction of the Court a failure on the part of the parents as defined in Article 42, s. 5 and “exceptional circumstances”.
I would, therefore, accept the contention that in this case s. 3 of the Act of 1964 must be construed as involving a constitutional presumption that the welfare of the child, which is defined in s. 2 of the Act in terms identical to those contained in Article 42, s. 1, is to be found within the family, unless the Court is satisfied on the evidence that there are compelling reasons why this cannot be achieved, or unless the Court is satisfied that the evidence establishes an exceptional case where the parents have failed to provide education for the child and to continue to fail to provide education for the child for moral or physical reasons.
This interpretation of the provisions of the Act of 1964 gains support from the decision of the High Court in In re J., an Infant [1966] I.R. 295, and in particular from the judgment of Mr. Justice Henchy, then a judge of the High Court, where, at p. 308 he stated:
“Having regard to the inalienable right and duty of parents to provide for the education of their children, and their right in appropriate cases to obtain custody of the children for that purpose, I consider that s. 3 must be interpreted in one or other of the following ways: first, by regarding it as unconstitutional, or, secondly, by reading it in conjunction with Articles 41 and 42 as stating, in effect, that the welfare of the infant in the present case coincides with the parents’ right to custody.”
It also finds support from the conclusions of Ellis J. in W. v. W. (Unreported, High Court 21st April, 1980). In G. v. An Bord Uchtala [1980] I.R. 32, Mr. Justice Walsh, dealing with the provisions of s. 3 of the Act of 1964, stated at p. 76:
“The word ‘paramount’ by itself is not by any means an indication of exclusivity; no doubt if the Oireachtas had intended the welfare of the child to be the sole consideration it would have said so. The use of the word ‘paramount’ certainly indicates that the welfare of the child is to be the superior or the most important consideration, in so far as it can be, having regard to the law or the provisions of the Constitution applicable to any given case.” (Emphasis supplied).
In J. v. D. (Unreported, Supreme Court 22nd June, 1977), the judgment of O’Higgins C.J. clearly indicates he felt that a consideration of the welfare of the child, as defined in s. 3 of the Act of 1964, was sufficient reason to refuse custody to the father, who was the sole suriving parent of the children concerned. The judgment also contains specific findings that the father had been guilty of conduct which, having regard to the provisions of ss. 14 and 16 of the Act of 1964, would in any event have disentitled him to custody. Such findings go close to equating with a finding, though the matter is not dealt with in the judgment, of an exceptional case where, for moral or physical reasons the parent has failed in his or her duty to provide for the education of the child, and in which the State can accordingly intervene to provide for that care and education by other means. In so far, however, as that judgment may be construed as clearly indicating that in the case of legitimate children, paramount consideration of their welfare as defined in the Act of 1964 can be applied as the sole test without regard to the provisions of Articles 41 and 42 of the Constitution, I must, respectfully, refuse to follow it.
Since the appropriate test, namely, whether there exist compelling reasons why the welfare of the child cannot be secured to it in the family unit and by the parents, was not applied by the learned trial judge in the court below and was not present to his mind in the careful judgment which he delivered, I consider that, notwithstanding the litigation that has already occurred and the importance from the point of view of all the parties, including the infant, of a speedy and final determination of its future, the case should be remitted to Mr. Justice Lynch in the High Court, to be considered further by him either on the evidence as it exists or on such further evidence as he may consider material in accordance with this test. I would, therefore, allow the appeal of the parents and direct the further trial of this issue before Mr. Justice Lynch in the High Court.
I would dismiss the appeal of the adopting parents against the order refusing them relief under s. 3 of the Adoption Act, 1974, which was not pursued by them in this Court, and having regard to that decision I am satisfied that the order restricting the re-registration of the birth of the child must be set aside.

Griffin J.
I agree.

Hederman J.
I agree.

McCarthy J.
I agree with the judgment of the Chief Justice. I refer, in particular, to that part of his judgment where he says:
“I would, therefore, accept the contention that in this case s. 3 of the Act of 1964 must be construed as involving a constitutional presumption that the welfare of the child, which is defined in s. 2 of the Act in terms identical to those contained in Article 42, s. 1, is to be found within the family, unless the Court is satisfied on the evidence that there are compelling reasons why this cannot be achieved, or unless the Court is satisfied that the evidence establishes an exceptional case where the parents have failed to provide education for the child and to continue to fail to provide education for the child for moral or physical reasons.”
In the instant appeal, there can be no suggestion of this being the exceptional case set out in the second alternative. The key issue is whether the Court is satisfied on the evidence that there are compelling reasons why the welfare of the child, as defined, cannot be achieved within the family, in other words that there are compelling reasons why the child should be in custody other than that of her parents. It may seem inappropriate in a case so inevitably distressing as this, to speak of a burden of proof; I would merely wish to emphasise that the “compelling reason or reasons” must, in my view, be clearly established. Since the question posed by the learned trial judge was, in the circumstances, not the appropriate one I agree with the views of the other members of the Court that there must be a further determination by Mr. Justice Lynch upon the evidence already heard and such further evidence as he may hear. I wish to emphasise, however, that I express no view as to whether on the evidence already heard it would be open to conclude that the compelling reason or reasons required had been established. I concur in the order proposed.

Finlay C.J.
Mr. Justice O’Hanlon, who is unable to be present today, has authorised me to say that he agrees with the judgment which I have delivered.

The proceedings relating to the custody of the infant were re-entered before the High Court, and were heard on the 3rd, 5th and 10th May, 1985.

Lynch J.
21st May 1985

Preliminary
This judgment is supplemental to my two previous judgments and to the judgment of the Supreme Court, and I use the same terminology to refer to the various parties in this judgment as in my previous judgments.
The Issues
What I have now to decide is whether the parents or the adopting parents should have the general custody of the child. This must be decided on the basis of ss. 2 and 3 of the Guardianship of Infants Act, 1964, read in the light of Articles 41 and 42 of the Constitution.
In effect, in the circumstances of this case, this means that the welfare of the child, meaning the religious and moral, intellectual, physical and social welfare of the child is the first and paramount consideration, but it must be assumed that such welfare is to be found within the family, comprising the parents, the child and their other daughter born on the 28th September, 1984, unless there are compelling reasons why this cannot be achieved.
In considering this issue, I have had regard to all the evidence which I have heard in the case in June, 1984, September, 1984 and on the 3rd and 5th May, 1985. I heard further legal submissions in the case on the 10th May, 1985.
The evidence on the previous occasions, and even more strongly on this occasion, is that there will be a very considerable short term upset for the child, and I accept that evidence. The evidence of medium and longer term psychological consequences is also even stronger on this occasion than on the previous occasions, although it remains subject to the reservation that it is predictive evidence and not certain evidence, and to some extent at least it depends on the quality of the parenting which the parents will be able to provide for the child.
The capacity of the father to fulfil the role of father to the child has never been seriously called in question. On this occasion Dr. Paul McQuaid confirmed that he was impressed by the father. It is the capacity of the mother adequately to fulfil the role of mother to the child and to cope in general with two young children that has been challenged.
I was somewhat disturbed on this occasion at the attitude of the mother to the adopting parents. She seems to think that they have done her wrong. This is not so. The problems and the heartbreak that arise in this case stem from the mother herself. She ignored the wishes of the father and first placed the child for adoption in November, 1982, and, secondly, consented to its adoption in February, 1983. She then delayed for almost a year before finally and clearly withdrawing her consent. In the meantime, as a result of the mother’s placing the child and consenting to its adoption, the adopting parents had taken it into their home in the reasonable hope and expectation that the child would become theirs by adoption. They cared for it in exemplary fashion and gave it a happy and a healthy home. They naturally have come to love the child as their own, and the child to love them likewise, and their attitude in seeking to complete the adoption with the aid of the courts and to retain custody of the child is no wrong to the parents.
The parents also underestimate the problems which may arise if the child is transferred to them. The intention (now abandoned at my suggestion) that they would call the child J. being the name given to it by the mother in September, 1982, rather than R., being the name by which it has been called by the adopting parents for the last two and a half years, is an illustration of this.
Nevertheless, the foregoing does not in itself constitute compelling reasons why the welfare of the child cannot be achieved in the parents’ family.
In the transcript of the hearing in September, 1984, Doctor Gerard Byrne, the psychiatrist, said at Q. 71, that the mother should be a capable parent, at Q. 85, he said that she is a strong character and at Q. 275, he said that there was no reason why she should not parent. In the course of the evidence given on this occasion in May, 1985, Doctor Enda O’Byrne said that the parents could cope with rearing two young children, though having some reservations or doubts relating to the mother. Doctor Gerard Byrne, the psychiatrist, on this occasion also thought that the extra 10 or 11 months since the time when I first had to consider this case, during which the child has advanced from the age of 20 months to two years and eight months, could be some help to lessening the adverse effects of a transfer. Doctor Paul McQuaid stated on this occasion that there was no study of children reclaimed by married natural parents and how they progressed thereafter.
I remain uncertain and apprehensive regarding the medium and long term effects of a transfer of custody now. Nevertheless, such transfers do occur from time to time in society, owing to some calamity such as the death of both parents in an accident, or more rarely the death of both due to illness and, indeed, occasionally owing to their incapacity without death due
to illness and especially mental illness. There appear to be no studies to show what are the effects of the transfer of children in such cases to the good homes of uncles or aunts, or even in the case of the death of the parents to the good homes of strangers by adoption.
I am satisfied that the parents can and will provide a good home for the child if it is transferred to them. I do not think that such adverse effects as may result from such transfer have been sufficiently established to such a degree as to rebut the constitutional presumption that the welfare of the child is to be found within its constitutional family, or amount to compelling reasons why this cannot be achieved.
I, therefore, award custody of the child to the parents. I adjourn the matter for discussion between counsel for both sides and further submissions as to the best way of implementing this judgment……

 

 

 

V.C. v. J.M. and G.M.

[1987] IR 510

Barron J. 512
H.C.

Barron J.
15th April 1986

The plaintiffs seek relief under the provisions of s. 3 of the Adoption Act, 1974.
The mother of the infant is now in her middle thirties. She is the youngest of a family of four. She left school at the age of seventeen having obtained her Intermediate Certificate and then obtained employment as a telephonist/receptionist with a commercial firm where she remained for approximately 8 years until she married in December, 1975. The child of this marriage was born in January, 1977. The marriage was not very successful and the parties separated in August of that year. The mother returned with her baby son to reside with her parents. Her mother was then and still is virtually an invalid and was looked after by her father who was then retired. Early in 1979 the mother formed an association with a married man. She left her parents’ home and went to live with her son with a female friend in the latter’s flat. In the course of this association she found that she was pregnant. When she discovered this she moved to a flat on her own with her child. Sometime in January, 1980, she was advised by a member of the staff at the Rotunda Hospital to seek aid from the Rotunda Girls Aid Society.
She made her first visit to the adoption society on 23rd January, 1980, where she met the administrator, Mrs. R., who assigned her to one of the social workers employed by the society, Mrs. C. At this meeting the mother explained to Mrs. C. the full circumstances of her pregnancy and that although she was a married woman, her husband was not the father of the child she was carrying. She explained that she did not want to see the child after it was born and that she wanted to have it adopted. She explained that her parents were unaware of her pregnancy; that she could not let them know that she was pregnant and that as she lived at home she would have to give up her child. Mrs. C. explained to her that no decision as to adoption could be made until after the child was born. She explained what was involved in adoption, the meaning of placement for adoption and that it was open to the mother at any time to change her mind. On the 8th February, 1980, the mother had a further interview with Mrs. C. On this occasion Mrs. C. tried to impress upon the mother the need for her to see the child after its birth. She says that she suggested to the mother the possibility of an adoption in Northern Ireland since in that jurisdiction her married state would have been no obstacle to such a course. She says that the mother rejected this suggestion. The mother for her part says that adoption in Northern Ireland was suggested by Mrs. C. on one occasion but that was in the course of the final telephone conversation between them in mid-August, 1980.
On matters of actual fact I prefer the evidence of Mrs. C. to that of the mother so far as that evidence relates to interviews or meetings between the two of them. Mrs. C. gave evidence from notes attached to the mother’s file with the adoption society which she herself had prepared contemporaneously. The mother on the other hand had little recollection of her meetings and appointments with Mrs. C. This was the last meeting between the parties before the birth of the child. Another meeting had been arranged but was not kept by the mother. I am satisfied that at this stage the mother was prepared to accept adoption as being the only means of achieving her aim of keeping the birth secret from her parents. Fostering would have suited her better, but unfortunately the society offered only two options, assistance to keep the child or else arrangements for the child to be adopted. As the former was not possible for her (so she thought) the only alternative available if the adoption society was to help her, was that of adoption.
The infant was born on the 21st March, 1980. The mother saw it and it was then transferred to a separate unit in the hospital. However, after a couple of days, it was returned to her and remained with her until she left the hospital. The mother was visited by Mrs. C. once while she was in hospital. But the mother says that it was on the 22nd March, 1980, while Mrs. C. says it was on the 24th March. On this occasion, the mother signed Form 10, being the appropriate form consenting to placement for adoption. The form is dated the 24th March and this is more probably the correct date. I am satisfied that Mrs. C. read the entire form to the mother and explained it fully to her and that the mother was aware that in certain circumstances her consent to adoption could be dispensed with. However, it is also common case that the mother said to Mrs. C. before she signed the form, “I can change my mind can’t I,” and that Mrs. C. replied “Yes, you can.” They then discussed where the child was to go when it left hospital. Mrs. C. explained that it would go to Temple Hill Nursery and that from there it would be placed with prospective adopters, but that this would not be done without the mother’s approval. A discussion took place about the cost of the child’s care while in the nursery. Mrs. C. says that this was a formality and that she had not expected the mother to contribute. The mother says that she was aware of other mothers who had contributed to the care of their children at the nursery and that she was led to believe that by signing the form she would not then have to make such contribution. It was common case that the mother was not going to pay for the upkeep of the child in the nursery and there seems to have been no good reason why the cost of upkeep should have been mentioned. Nevertheless I do not accept that the mother signed form 10 solely on the understanding that this would enable her to avoid having to contribute for the upkeep of the child while it was at the nursery.
On leaving hospital, the mother returned with her son to her parents’ home where she received from time to time telephone calls from the society in a manner that did not alert her parents to the fact that she was the mother of a second child. Soon after returning home she obtained full-time employment which she retained at all material times.
Mrs. C. says that the mother came in to her on the 2nd May, 1980, when her whole situation was fully discussed. She says that the mother expressed her firm decision to allow the child to be adopted and that she wanted the placement to take place as soon as possible. The mother for her part has no recollection of this meeting.
While the child was in the nursery she was visited regularly by the mother. When the mother went to visit her on Saturday, 6th July, 1980, she learned for the first time that the child had been placed with the applicants some nine days before that. Mrs. C. accepts that the failure to notify the mother of the intention to make the placement was a result of a complete misunderstanding on her part, it being common case that she was to have been told in advance of any intended placement. The mother was extremely upset, telephoned Mrs. R. and arranged to see her the following Monday. She did so and I am satisfied was exremely upset. Nothing was done to try to get the child back to the nursery but a meeting was arranged with Mrs. C. This took place on the 15th July, 1980, when it is common case that the mother was so distressed that she could not stop crying throughout the entire interview. Both Mrs. C. and Mrs. R. accept that the mother was totally devastated by what had occurred.
Nevertheless the mother appeared to be co-operating. A further meeting was made for the 1st August, 1980, on which date the mother and the friend with whom she had stayed during the early part of her pregnancy swore affidavits for the purpose of establishing that the child was illegitimate. This was the last occasion upon which Mrs. C. met the mother as she ceased her employment with the society in that month. Her only other communication with the mother was on the 15th August, 1980, when she rang her at her home to say goodbye. Mrs. C. says that on the 1st of August, 1980, the mother was happy about the adoption and felt that she had made the right decision. She said that she found her an assertive person and articulate about her wishes. The mother for her part found Mrs. C. wonderful to deal with which suggested there was little measure of disagreement between them. The mother did not seem to me to be a particularly assertive person. She seemed to me to be lacking to some extent in commonsense and to be the sort of person who could only see one aspect of her problems at any one time. She seemed totally incapable of planning in advance or of co-ordinating her various problems. Consequently she appeared to me to be the sort of person who would be prepared to accept any interim situation which met her particular requirement for the time being. She accepted the actual fact that her child was in a good home with prospective adopters because this gave it a temporary security and enabled her to live at home. But as her behaviour subsequently shows, she never regarded this as the final situation.
After Mrs. C. ceased to be involved with this particular adoption, the society did not pass the file to any other of its social workers. This in itself contributed to the present position. In the absence of any such trained social worker who would have been in a position to assess the subsequent behaviour of the mother, the mother dealt only with Mrs. R. and Father O’D. the administrator and director respectively of the society. Neither is a trained social worker and neither was in a position to realise that the mother in reality did not want adoption. Mrs. C. would have realised this and as she said in evidence, if she had had any serious indication that the mother was changing her mind, she would have told the committee of the society and supported the mother. Both Mrs. R. and Father O’D. treated the mother with kindness and did what they could to allay what they thought were her fears, but they never grasped the reality of her intentions.
There were several pointers to this reality. Early in September, 1980, the mother contacted the defendant Board by telephone and was put through to L.C. a senior social worker with the Board. She explained to her how she could not tell her parents about the child; that she had then a job and could afford fostering, which was what she wanted. L.C. agreed to contact Father O’D. on her behalf and told him that the mother was in doubt about the adoption. A meeting was arranged for the 19th September, 1980, but not kept. At this time the mother wrote to Father O’D. and perhaps explained in that letter why she was unable to keep her appointment. However this letter has been lost, though Father O’D.’s reply dated the 18th September, 1980, has been put in evidence. It is clear from this reply that the mother had in her letter to Father O’D. expressed her fears and disappointment at what had occurred. The mother eventually met Mrs. R. and Father O’D. in October or perhaps November of that year. Both Mrs. R. and Father O’D. accept that at this meeting the mother was very depressed and that both thought that she might have wanted her child to be returned to her. Each of them has said that an offer was made to the mother to get her child back for her but that she rejected such offer. Had a trained social worker been present at this meeting I am satisfied that such worker would have appreciated that the mother at least was having second thoughts about adoption and that it was a matter of considerable urgency to reassess the situation.
Sometime after the child had been placed with the adopters without the mother’s knowledge, T.A., a friend of one of the mother’s married sisters, learned what had happened and what a serious emotional blow this had been to the mother. She was herself married with three children. Having discussed the matter with her husband she expressed herself willing to take the infant as a temporary measure. After discussing the matter with the mother she agreed to go into the society to explain what the mother wanted and to take custody of the child. She had two meetings with Father O’D. Although he has no recollection of these meetings, when the facts were brought to his mind they seemed familiar to him. I am satisfied that the meetings took place. At the first meeting, T.A. explained why she had come, but Father O’D. does not appear to have realised that she was not only offering to foster the child, but was doing so at the express wish of the mother. He led T.A. to believe that the mother was perfectly happy with the proposed adoption. Thinking that she might well have misunderstood the mother’s wishes she did not press her request. She returned to the mother and confirmed from the mother that what she had been told already was the correct position. She then arranged to see Father O’D. on the second occasion. On this occasion they both appear still to have been partially at cross purposes. Father O’D. did agree to arrange a meeting between T.A. and the prospective adopters. This however never took place. The evidence suggests that these meetings took place sometime in the month of September, 1980.
Following these efforts, the mother either saw or telephoned Mrs. R. once a month until early 1982. The pattern of these meetings and calls I accept was basically the same. The mother was longing to see her child and seeking to persuade Mrs. R. to arrange this and Mrs. R. was telling her that the child was in a good home and was well off. I am satisfied that both Mrs. R. and Father O’D. treated the mother with extreme kindness and at all times were trying to alleviate her hurt and disappointment. But as I have indicated neither Mrs. R. nor Father O’D. appreciated that what the mother was looking for was not kindness but her daughter.
In April, 1982, the pressure by the mother to visit the child had reached the state where the adoption society agreed to arrange a meeting between the adopters and the natural mother. This meeting took place in the rooms of the society and lasted for something up to two hours. In the course of the meeting each side appears to have told the other much of their own background. The mother told the adopters about the father of the child and the adopters told her about their family and how the child fitted in. The mother heard them refer to the child by the name which they had given her which caused her considerable distress and made her realise that they regarded the infant as theirs and that she had in reality lost her child. The adopters say that she did not ask to see the child. It was such an emotional meeting that probably the reason for it was lost in such emotion. The adopters say that she told them that there was nothing to worry about and that “she could never take the child from that lady.” Whatever was said, the meeting did not advance the situation towards any finality. The mother had already arranged at that stage to go to the Adoption Board for the purpose of giving evidence as to the circumstances of the illegitimacy of the birth of the child. Three days later she attended the Board, gave evidence as to the circumstances of the birth and informed the Board that she had no intention of consenting to adoption for her child.
At this stage so far as the Board was concerned the child was not eligible for adoption. The mother did not wish the child to be adopted and the child had been placed with adopters for something just short of two years. No one addressed themselves to the problems which this situation had then caused and would continue to cause if it was allowed to continue. Nothing appears to have happened for a year. Then on the 17th May, 1983, the mother came into the adoption society with a friend for the purpose of asking to get her child back. Correspondence then took place involving the mother’s solicitors, the adopters, the society and the Board. The mother’s solicitors wrote to the society seeking a return of the child. This letter in large measure pinned her claim to the fact that the child had been taken from the nursery at Temple Hill without the mother’s consent. The prospective adopters were not prepared to return the child. The attitude of the adoption society was that they had placed the child for adoption on the mother’s instructions. The attitude of the Adoption Board was that it had no power to restore custody of the child to its mother nor to grant her visiting rights. Following this correspondence nothing was done by anyone. The prospective adopters were advised that it would be in their interests to take no steps. The mother took no steps because she could not afford the costs of doing so.
Although no further evidence was adduced before the Board in relation to the illegitimacy of the infant nothing further appears to have happened until the Board at its meeting on 10th January, 1985, deemed the infant eligible for adoption. This it did notwithstanding the fact that no further evidence as to illegitimacy was put before the Board and presumably in the face of a decision made in April, 1982, that it did not then have sufficient evidence to make such a declaration. The society was informed of this decision by letter dated 20th February, 1985. On 16th May, 1985, Mrs. R. wrote to the mother to inform her that the society had received notification from the Board that the child had been declared to be illegitimate and further indicated that as the form consenting to the legalisation of the adoption order was unsigned the Board had asked the society to establish if the mother was or was not willing to complete the form. The mother replied to Mrs. R. by letter dated 28th May, 1985, in which she again made the positive point that the entire of the problems which had arisen had arisen because the child had been taken from the nursery and placed with the prospective adopters without the consent of the mother. She clearly refused to sign any further papers. Following knowledge of the mother’s attitude the prospective adopters then commenced these proceedings.
I have set out the facts chronologically as they affect the adoption society, the Adoption Board and the mother. However, contemporaneously the mother was seeking housing from her local housing authority. She had applied in 1977 for housing but had not been successful. In 1980 she made a further application for housing from the authority. This application form appears to have been filled in prior to the birth of the child but not actually sent to the authority. Following the birth further details were included on the form which was received by the authority on 25th April, 1980. On that form she indicated that the members of her family included herself, her son who was then aged three years and a second baby due but not yet born. She appended a note to the form saying “I am being forced to give this child up for adoption because I have no accommodation for the child.” After the birth of the child she appears to have added the words “a baby girl born 21/3/80 in care.” On the second page of the application there was a further note saying “any correspondence re: housing please keep second baby confidential as my mother is very ill and is not to be reminded.” On the third page she sets out: “I have to give my daughter up for adoption as I have no home for her (in care at the moment).” And finally at the bottom of the page is written “it is very unfair that I have been living in the borough all my life and have applied for housing since 1978 and still have not even a flat to move into with my son and the new baby I have to part with the baby over same I can’t bring her home.”
On 12th May, 1981, the mother furnished a letter from her doctor to the authority of which the body was as follows:”
“This lady has been attending this surgery for the past two years. She had a baby in March 1980 ” in addition to her son who is four years. The baby girl is for possible adoption because the patient lives now with parents (since leaving husband) and cannot take baby there. She is anxious to keep the baby and would do so if she had accommodation of her own. She is upset by the thought of having to lose the baby which in turn is affecting her health. If you can help in this respect I should be grateful.”
In November, 1982, the mother made a further application for housing from the local authority. On this occasion she indicated that the members of her family included herself, her son aged five and three quarters and her daughter aged three years who she stated was in foster care and at the end of this form she set out a note as follows: “If I was housed I could work part-time, mind my son myself saving £25 p.w. alone. Take back my daughter who is being fostered I do not want her adopted but if I leave it much longer there will be a court case.” The mother was finally housed by the local authority in the summer of 1983 and went to reside in a house so provided with her son. It was in the knowledge that this housing was being provided for her that she made the positive step in May, 1983, of asking to have her child handed back to her. Evidence was given about these applications not only by the mother but also by an official from the housing department of the local authority concerned. I am satisfied from the evidence that the mother made repeated calls to the authority of a frequency of approximately once every two to three weeks to see whether or not any housing was available to her.
The basic question to be determined is whether the mother agreed to her child being placed for adoption. The test to be applied to ascertain whether or not such consent was given is set out in the judgment of Finlay P. (as he then was) in S. v. Eastern Health Board (Unreported, High Court, 28th February, 1979) and repeated by him in J.M. and M.M. v. An Bord Uchtala (Unreported, High Court, 27th November, 1984). The test which he sets out is as follows:”
“Having regard to these decisions I am satisfied that the test which I must apply to each of the separate alleged agreements to place for adoption is that they must have been made freely with full knowledge of their consequences and under circumstances where neither the advice of persons engaged in the transaction nor the surrounding circumstances deprived the mother of the capacity to make a fully informed free decision. I am not, however, satisfied that evidence that in any particular case a mother either sooner or later after the making of such a decision changed her mind is of itself evidence of the invalidity of the agreement to place.”
In my view, the mother did not have at any material time any full realisation that by signing Form 10 or by allowing her child to remain with the adopters that she might be unable to get her child back. At her first meeting with Mrs. C. she was assured that she could change her mind if she wished. In hospital this was confirmed to her specifically, even though s. 3 of the Act of 1974 was also explained to her. More so, she was told that the child would not be taken from the nursery without her consent. Up till the time that the child was taken from the nursery, there was no intention on the part of the mother to consent to any step which might result ultimately in her losing her child. In my view it is essential before there is a valid consent to placement for adoption that the mother should be aware that, by virtue of that fact alone, she might not, however unlikely it might be, be entitled to have her child returned to her. This was never the mother’s understanding of her position. Clearly, as appears from the housing application in 1982, she was aware that litigation could arise, but I accept that she did not appreciate that the signing of a form might in any circumstances be sufficient. Undoubtedly there is the evidence of Mrs. C. that on the 3rd May, 1980, the mother appeared to confirm her decision to allow the child to be placed for adoption. However, this was still governed by the assurances made to her that she could change her mind and that in any event the child would not be taken from the nursery without her approval.
Once the child had been placed with the adopters, there is no evidence to establish a free consent with full knowledge of its consequences uninfluenced by any outside factors. No one gave her any advice as to her rights in the circumstances which had occurred. She may have appeared to Mrs. C. in July, 1980, to be satisfied, but during that month certainly she was extremely upset and not in any position to reach a decision of such importance. It seems to me that the entire of the mother’s actions following the actual placing of the child until she expressly repudiated adoption in April, 1982, were attributable to the fact of such placement and her efforts to reverse that fact. There is nothing in her behaviour which can be taken as an unequivocal acceptance of the placement with the full knowledge of what that meant. As I have already said it would appear that the contrary would have been apparent to any trained social worker if one had been put in charge of the case. The mother also says that it was in the back of her mind that her child could not be adopted. I do not think that this factor bore as heavily with her as she now thinks. She was perfectly happy to consider adoption before the birth of the child and when she was aware of the problem caused by her married status. I accept the mother as a truthful witness. As she feared, her feelings changed once the child had been born and she had it with her. She never intended that it should leave the nursery as a child for adoption. This is further supported by her solicitor’s letter in May, 1983, and her own in March, 1985, in both of which the kernel of her complaint is that the child was taken from Temple Hill nursery without her consent.
In the course of the present hearing I asked counsel to consider whether illegitimacy of the child was a matter for the Board since it seemed to me that perhaps this was a matter exclusively for a court. However I am satisfied that it is properly a matter for the Board. There are a number of matters upon which it must be satisfied under the Act of 1952 before it makes an adoption order. The eligibility of the child for adoption is one such matter. Having regard to the provisions of the Sixth Amendment of the Constitution (Adoption) Act, 1979, I am satisfied that not only can the adoption order itself not be impugned by virtue of the provisions of that Act but that equally any step taken by the Adoption Board to enable it to make such an order is likewise incapable of being impugned. Nevertheless, the Board, particularly where there must be a substantial doubt, as in the present case, whether it will or will not regard the child as eligible for adoption, must act within a reasonable time. This is all the more important where, as here, the Board, through its senior social worker, was aware that the mother had doubts from a very early stage about adoption.
Delay is particularly damaging in relation to applications under s. 3 of the Act of 1974 because it allows the relationships between the child and its mother and between the child and its would-be adopting parents to be altered. Evidence given to these courts in these and similar cases is overwhelmingly to the effect that bonding between a child and would-be adopters commences at six months of age and is completed by the age of twelve months, and certainly by the age of eighteen months, and that any breaking of this bond is detrimental to the welfare of the child. Yet in too many cases the matter comes before the court in circumstances in which its decision must be materially affected by the factor of bonding. This all too clearly is one of those cases.
On my finding that there was no agreement to place for adoption the plaintiffs’ application for relief under s. 3 fails. I must now consider the question of the custody of the infant. On the evidence which I have heard the welfare of the infant requires without any doubt that it should remain in the family surroundings in which it has been for the last six years. As the mother herself indicated when giving evidence she knows that she has lost her child and is in reality seeking an order for access. On the evidence which
I have already heard there is nothing to indicate whether such access, if allowed to the mother, would or would not benefit on the one hand or harm on the other hand the infant. I am not prepared to make any order at this stage for access in the absence of evidence that it would be in the infant’s benefit that such an order should be made. There will accordingly be an order giving custody of the infant to the plaintiffs without any further order as to access. There will be liberty to all parties to apply.

Supreme Court

Henchy J.
31st July 1987

The question in this case is whether, when the mother signed the form expressing her consent to the placement by the adoption society of her illegitimate child for adoption, her consent was free and fully informed. It is entirely a question of fact. In the High Court it was answered by the trial judge in favour of the repudiating mother. Now we are asked on appeal to substitute a contrary conclusion for that of the trial judge. For the purpose of an appeal from a judge of the High Court to this Court, facts may be divided into two categories.
Firstly, there are primary or basic facts. These are determinations of fact depending on the assessment by the judge of the credibility and quality of the witnesses. It is for the determination of those facts that a viva vocehearing takes place. Because those facts depend on the oral evidence given and accepted in the High Court, this Court on appeal will not normally reverse such findings. Even if it deems different findings to be more appropriate, or even if the findings made seem to it to be incorrect, this Court will not normally interfere with them. That is because it has not had the advantage of seeing and hearing the witnesses as they gave their evidence. It is only when the findings of primary fact cannot in all reason be held to be supported by the evidence that this Court will reject them: ” see Northern Bank Finance v. Charlton [1979] I.R. 149.
Secondly, there are secondary or inferred facts. These are facts which do not follow directly from an assessment or evaluation of the credibility of the witnesses or the weight to be attached to their evidence, but derive from inferences drawn from the primary facts. Once the primary facts have been established viva voce, their consequences or implications for the purpose of the matters in issue must be found by a process of deduction from the facts found or admitted, rather than by an assessment of the witnesses or of the weight or the correctness of their evidence. In regard to such secondary facts, the advantage of the High Court judge who saw and heard the witnesses is of such minor importance that this Court will feel free to draw its own inferences, if it considers that the inferences drawn by the judge in the High Court were not correct. Such secondary facts include all matters which are evaluative of the primary facts. The law to this effect follows from a series of decisions, two of the most recent of which are that of this Court in Northern Bank Finance v. Charlton [1979] I.R. 149 and that of the House of Lords in Whitehouse v. Jordan [1981] 1 W.L.R. 246. The jurisdiction of this Court in a case such as this is akin to that which it exercises in a case stated, where all the primary facts have been found by the referring judge and this Court is asked to evaluate those facts by way of answers to specific questions, which are stated as questions of law but often are essentially questions of fact.
In this appeal there is no dispute as to the primary facts. What is in issue is whether those facts justified the judge’s inference from them that when the mother signed the necessary form she did not then fully and freely consent to the placement of her illegitimate child for adoption. That question required a conclusion as to her state of mind at the relevant time, so it was necessarily a matter of inference or opinion rather than a matter of primary fact. This case comes within the general rule that the state of a person’s mind at a particular time is to be inferred from what was said or done, or left unsaid or undone, at or about the time in question. It is for this Court, on a consideration of the same primary facts as were accepted by the trial judge, to decide if the inference drawn is the correct one.
The decided cases show that the test to be applied in determining whether a consent to placement signed by the mother should be held to be binding on her is whether she then freely and fully gave her consent, in the knowledge of what she was doing and of its consequences. It would also seem to follow from the decided cases that this test must be applied in the light not only of what happened on the occasion of the signing but also in the context of the proximate relevant circumstances before and after the event. The fact that the mother later repudiated the consent is in itself of no probative value.
In applying that test in this case the relevant primary facts seem, in brief, to be as follows.
1. On the 23rd January, 1980, the adoption society’s social worker met the mother, who said that she was expecting a child and wanted to have it placed for adoption. The social worker counselled her to postpone that decision until after the child was born.
2. On the 8th February, 1980, the mother again met the social worker and discussed the proposed adoption. The mother affirmed her intention to have the child adopted within the State.
3. On the 21st March, 1980, the child was born.
4. On the 24th March, 1980, the social worker met the mother in the hospital and explained to her that her options about the child were still open. However, the mother said she had decided to have the child adopted. The social worker read out the form (Form 10) recording the consent to placement for adoption, and, as the trial judge expressly found, explained it fully to her. The social worker told the mother that if she changed her mind she could telephone, and that in any event she would see the mother in her (the social worker’s) office within a week or two. The mother signed Form 10.
5. On the 2nd May, 1980, the mother called to the social worker in her office and affirmed that she had come to a definite decision to have the child adopted. In fact, according to the social worker, she was upset that the adoption society had not yet found adopters. Far from going back on her consent to placement, the mother said she wanted the child adopted as soon as possible. In consequence, according to the social worker, she (the social worker) felt confident that she could place the child with adopters without further discussion with the mother.
6. Meanwhile the child had been put into a children’s home pending placement. The mother visited the child there on a number of occasions.
7. On the 27th June, 1980, the adoption society placed the child with the adoptive parents but, unfortunately, without informing the mother in advance.
8. On the 9th July, 1980, the mother telephoned the social worker, who apologised for not having given the mother advance notice of the placement. The social worker recorded this telephone conversation at the time and in particular recorded that the mother said that “it (the placement) was probably the best thing that had happened.”
9. The social worker next saw the mother on the 25th July, 1980, when she again apologised for having placed the child with the adoptive parents before telling the mother. The social worker offered to arrange a farewell session in the office between the mother and the child. The mother gave thought to that suggestion and then said she did not think it necessary.
10. On the 1st August, 1980, the social worker met the mother and her sister for the purpose of getting affidavits sworn by them so as to complete the adoption procedures. The mother on that occasion affirmed that she was determined to go ahead with the adoption. She and her sister then each swore an affidavit establishing, for adoption purposes, that the child was illegitimate. That was the last contact the social worker had with the mother. The foregoing summary seems to me to cover all the pertinent circumstances during the relevant proximate period. It should be noted that underlying those findings of the trial judge lies his conclusion that wherever the evidence of the mother differed from that of the social worker, it is the evidence of the latter that should prevail.
From those now undisputed facts as to what happened at and around the time in March, 1980, when the mother signed the form giving her consent to the placement of her child for adoption, I am coerced to the conclusion that she then freely and fully gave her informed consent to the placement. The evidence of the social worker would in itself be sufficient to prove that. But apart from that consideration, the mother’s conduct between January and August, 1980, is compatible only with that conclusion. This is not a case of an immature young woman who was rushed into an ill-considered agreement to have her illegitimate child adopted. The mother in this case was a married woman with one legitimate child, who after mature consideration and ample and careful counselling signed a formal agreement to place her illegitimate child for adoption. If there had been any want of true consent on her part, one would have expected her to repudiate the paper consent as soon as possible, and certainly to do so when the adoption society acted on foot of it and placed the child with the adoptive parents. Instead of so doing, she on more than one occasion confirmed the consent and it was not until long afterwards that she sought to repudiate it. Such a later repudiation cannot be reconciled with her previous conduct. It was, in my opinion, no more than an afterthought. As such it could not negative the full and free consent given earlier.
I would allow this appeal and, as the child is now seven years old and is integrated into the family of the adopters, I would make an order under s. 3 of the Adoption Act, 1974, authorising the Adoption Board to dispense with the mother’s consent to adoption, on the ground that it is in the best interests of the child that what is now an adoption in fact should become also an adoption in law. Pending the making of the necessary adoption order, the adoptive parents will of course continue to have custody of the child.

Griffin J.
I agree with the judgment of Henchy J.

Hederman J.
I agree with the judgment of Henchy J.

McCarthy J.
This appeal turns on the question as to whether or not the mother agreed to her child being placed for adoption. Barron J. applied the test as formulated by Finlay P., as he then was, in S. v. Eastern Health Board (Unreported, High Court, 28th February, 1979):”
“Having regard to these decisions I am satisfied that the test which I must apply to each of the separate alleged agreements to place for adoption is that they must have been made freely with full knowledge of their consequences and under circumstances where neither the advice of persons engaged in the transaction nor the surrounding circumstances deprived the mother of the capacity to make a fully informed free decision. I am not, however, satisfied that evidence that in any particular case a mother either sooner or later after the making of such a decision changed her mind is of itself evidence of the invalidity of the agreement to place.”
In the course of argument, reference was made to other decisions but it was not suggested that the test postulated by the learned President was not the correct test.
Barron J. expressed his conclusion as follows:”
“In my view, the mother did not have at any material time any full realisation that by signing Form 10 or by allowing her child to remain with the adopters that she might be unable to get her child back. At her first meeting with Mrs. C. she was assured that she could change her mind if she wished. In hospital this was confirmed to her specifically, even though s. 3 of the Act of 1974 was also explained to her. More so, she was told that the child would not be taken from the nursery without her consent. Up till the time that the child was taken from the nursery, there was no intention on the part of the mother to consent to any step which might result ultimately in her losing her child. In my view it is essential before there is a valid consent to placement for adoption that the mother should be aware that, by virtue of that fact alone, she might not, however unlikely it might be, be entitled to have her child returned to her. This was never the mother’s understanding of her position. Clearly, as appears from the housing application in 1982, she was aware that litigation could arise, but I accept that she did not appreciate that the signing of a form might in any circumstances be sufficient. Undoubtedly there is the evidence of Mrs. C. that on the 3rd May, 1980, the mother appeared to confirm her decision to allow the child to be placed for adoption. However, this was still governed by the assurances made to her that she could change her mind and that in any event the child would not be taken from the nursery without her approval.
Once the child had been placed with the adopters, there is no evidence to establish a free consent with full knowledge of its consequences uninfluenced by any outside factors. No one gave her any advice as to her rights in the circumstances which had occurred. She may have appeared to Mrs. C. in July, 1980, to be satisfied, but during that month certainly she was extremely upset and not in any position to reach a decision of such importance. It seems to me that the entire of the mother’s actions following the actual placing of the child until she expressly repudiated adoption in April, 1982, were attributable to the fact of such placement and her efforts to reverse that fact. There is nothing in her behaviour which can be taken as an unequivocal acceptance of the placement with the full knowledge of what that meant. As I have already said the contrary would appear to have been apparent to any trained social worker if one had been put in charge of the case.”
The notice of appeal alleges that the trial judge mis-directed himself in law and in fact:”
(a) in finding that the notice party (the mother) did not agree to the placing of her child for adoption;
(b) (c), (d) and (e) in failing to note and give due weight to certain parts of the evidence;
(f) in failing to find that the mother had abandoned her natural and constitutional rights in respect of her child; and
(g) in failing to uphold and vindicate the natural and constitutional right of the infant to a secure upbringing and education as the legitimate child of a married family possessing the family rights set out at Articles 41 and 42 of the Constitution.
No oral argument was advanced in respect of the latter two grounds of appeal. Most of the argument centered upon the alleged failure of the trial judge to give due weight to certain evidence. Unless it can be demonstrated that the trial judge wholly failed to have regard to evidence or misconstrued evidence, in my view an appeal does not lie on a question of weight of evidence.
It may be implied that the argument involved a contention that this Court should substitute its conclusion of fact as to whether or not in all the circumstances the alleged agreement passed the test already cited. Certainly, no argument was advanced nor was any authority cited in support of a proposition that in a case concerning the state of mind of an individual at a given time, where a trial judge, with all the advantage of seeing and hearing the witnesses, came to one conclusion, this Court, on a basis of substituting its own inference from primary facts, may infer a conclusion different from that of the trial judge. I would not, however, wish to rest my judgment, in a case of this kind, merely upon the fact that the point was not argued. Henchy J., in his judgment just delivered, has identified the difference between primary or basic facts and secondary or inferred facts. In Northern Bank Finance v. Charlton [1979] I.R. 149 O’Higgins C.J. said at p. 180:”
“However, if the finding in question depends on the judge’s view of the evidence or on inferences he draws from such evidence, then the court of appeal, while respecting this view, will nevertheless disagree if another view or a different inference be the proper one. This distinction was recognised in a different form by Viscount Simonds in Benmax v. Austin Motor Co. Ltd. [1955] A.C. 370 when he adopted the terms “perception” and “evaluation” as used by Professor Goodhart in writing on Appeals on Questions of Fact (1955) 71 L.Q.R. 402. At p. 373 of the report, having referred to the relevant rules, which are similar to our rules, he said:”
‘This does not mean that an appellate court should lightly differ from the finding of a trial judge on a question of fact, and I would say that it would be difficult for it to do so where the finding turned solely on the credibility of a witness. But I cannot help thinking that some confusion may have arisen from failure to distinguish between the finding of a specific fact and a finding of fact which is really an inference from facts specifically found, or, as it has sometimes been said, between the perception and evaluation of facts’.”
In the same case Henchy J. also dealt with this distinction of primary and secondary facts. At p. 190 he said:”
“Thirdly, for appeal purposes, questions of fact fall into two categories: those the answers to which give a factual resolution of conflicting oral testimony and those the answers to which do not resolve conflicts of oral testimony but are in the nature of an evaluation of facts found or admitted. The answers to the former are usually matters of pure fact (e.g., whether a defendant driver applied his brakes before the collision), whereas the answers to the latter are in the nature of an opinion or a value judgment (e.g.,whether, if the defendant did not apply his brakes before the collision, he was negligent). In regard to the former, a court of appeal is bound to recognize the unique advantages which the court of trial had in giving its answers, whereas such considerations do not buttress the answers given to the latter type of question.”
The law then is clear, but its application may be limited. In the Northern Bank Case [1979] I.R. 149 the instances suggested were concerned with road traffic accidents ” the jury or the judge finds as a fact that the driver was on the wrong side of the road or driving at a given speed; an appellate court can reverse a finding as to whether or not this was negligence;
in the Northern Bank case itself the inference to be drawn was one of fraud; in Benmax v. Austin Motor Co. Ltd. [1955] A.C. 370 it was one of originality and in Whitehouse v. Jordan [1981] 1 W.L.R. 246 one of negligence. A fortiori we have not been referred to any case in which the conclusion of a trial judge as to the state of mind of an individual at a given time was reversed or set aside by a court of appeal on the basis of substituting the inference that would be drawn by the court of appeal from other established or uncontested facts for the reason, I would think, that the state of a person’s mind is itself a primary fact. If there were an abundance of evidence by a variety of witnesses as to statements made by an individual at a given time but the individual, himself, testified that he did not know what he was saying, a trial judge might well conclude that the statements made did not represent the state of mind. Equally well, the converse would be true in respect of statements made to an individual. This, in my view, is not a question of inference from fact but of the fact itself. Indeed, this appeal was conducted on that basis.
I am far from saying that I would have come to the same conclusion as the trial judge as to the state of mind of the mother and I recognise in full the force of what is contained in the judgment of Henchy J. identifying various instances that might well lead to a contrary conclusion. That, however, is not, in my view, the function of a court of appeal in dealing with the state of a person’s mind. The trial judge had the opportunity, if I may adopt the descriptive words of Henchy J. in the Northern Bank Case [1979] I.R. 149, at p. 189, to experience “the mood of the trial, the demeanour of witnesses, the essential nuances of particular responses, and many other features of the trial which, although they may have been crucially determinative in the judicial ascertainment of the facts, may have become blurred or lost when the oral evidence was reduced to writing.” I am content to recognise that the learned trial judge, who plainly gave the deepest consideration to all relevant matters, was entitled to come to the view which he did and I would dismiss this appeal.

Gannon J.
For the purpose of this appeal this Court has as its only record of the proceedings in the High Court a transcript of the evidence which does not include any indication of the arguments or submissions on law or on fact addressed on behalf of the parties to the learned trial judge. The written judgment delivered by the learned trial judge contains summaries of the evidence and references to some of the legal authorities adopted by him for his guidance in the application of the law. This Court is not aware of what legal argument was addressed to or considered by the learned trial judge at the hearing at first instance. Upon the hearing of the appeal arguments addressed to this Court were presented for the purpose of showing that the conclusions drawn by the learned trial judge on matters of fact on the one part were, or on the other part could not reasonably be, supported by the evidence. Such arguments were founded upon analyses of the written judgment of the learned trial judge, comparisons of its content on matters of fact with the transcript of evidence, and submissions based upon constructions of the meanings of sentences chosen from the judgment and from the transcript. Omissions from the judgment of reference to some matters of fact dealt with in the evidence as appearing from the transcript were also pointed out. It was argued that the learned trial judge “paid undue regard to”, “attached too much weight to”, and “attached too much importance to” facts established by evidence upon which there was no conflict. It was also argued that the preference by the learned trial judge for the evidence on some matters on which there was conflict was inconsistent with his preference on other areas of conflict in the evidence. While both parties agree that the legal principles to which the learned trial judge makes reference in his judgment are the correct principles to be applied, it was submitted on the one hand that they were correctly applied and on the other that “they were not applied fully to all the facts”.
In the absence of any record of what legal argument was addressed to the learned trial judge it must be assumed that the references by him in his judgment to S. v. Eastern Health Board (Unreported, High Court, Finlay P., 28th February, 1979) and to J.M. and M.M. v. An Bord Uchtala (Unreported, High Court, Finlay P., 27th November, 1984) gave a sufficient indication as to what guidance he took on legal principles. In the course of argument on this appeal this court was referred to the decision of Barron J. in N.B. and T.B. v. An Bord Uchtala (Unreported, High Court, 18th February, 1983). Also cited were the judgments of McWilliam J. in McC. v.An Bord Uchtala [1982] I.L.R.M. 159 and McF. v. G. and G. [1983] I.L.R.M. 228 and the judgment of this Court in G. v. An Bord Uchtala [1980] I.R. 32, and the two judgments of Finlay P., as he then was, which are mentioned in the judgment. It is clear from the judgments in N.B. and T.B. v. An Bord Uchtala (Unreported, High Court, Barron J., 18th February, 1983; Supreme Court, 28th May, 1985) and in the matter now before this Court that the learned trial judge has a full, clear and correct understanding of the legal principles and their application. In the transcript before us of the evidence in the trial before him the record of his intervention shows he gave a patient, alert and sympathetic hearing to the evidence with a constant perception of the central issue, and a humane and considerate appreciation of the witnesses.
In his judgment the learned trial judge precedes his reference to legal authorities by stating:”
“The basic question to be determined is whether the mother agreed to her child being placed for adoption. The test to be applied to ascertain whether or not such consent was given is set out in the judgment of Finlay P. (as he then was) in S. v. Eastern Health Board (Unreported, High Court, 28th February, 1979) and repeated by him in J.M. and M.M. v. An Bord Uchtala (Unreported, High Court, 27th November, 1984).”
It should be noted that the question posed is question of fact ascertainable only from seeing and hearing the evidence of the mother and other witnesses as to what she said and did and when and under what surrounding circumstances. To the extent that it involves a determination of the state of mind of the mother it would be impossible to substitute any judgment for that of the trial judge who saw and heard the witnesses as to what his determination should be. Before stating his conclusions the learned trial judge continued by citing the following passage from the judgment of Finlay P. in S. v. Eastern Health Board (Unreported, High Court, 28th February, 1979):”
“Having regard to these decisions I am satisfied that the test which I must apply to each of the separate alleged agreements to place for adoption is that they must have been made freely with full knowledge of their consequences and under circumstances where neither the advice of persons engaged in the transaction nor the surrounding circumstances deprived the mother of the capacity to make a fully informed free decision. I am not, however, satisfied that evidence that in any particular case a mother either sooner or later after the making of such a decision changed her mind is of itself evidence of the invalidity of the agreement to place.”
Because of the complexities of the motivations and emotions and varied levels of rational capacity of different persons the assessment of the actual state of mind of any person at any particular time is extremely difficult. Had I been in the position of the learned trial judge I would have had to have been satisfied that the decision of the mother was her own, and made upon her consideration of the nature and effect of her decision, and not induced by nor adopted from some other person. I would exclude a decision made impetuously, thoughtlessly, grasped out of panic or unreasonable anxiety, or made when the ability to make a rational decision might be so emotionally disturbed as to render unreliable the consideration of the information upon which it purports to be based. On the other hand I would not reject a decision merely because when viewed in retrospect it may seem to have been disadvantageous or unwise or even foolish, capricious or irresponsible. These I see as some of the factors encompassed so concisely in the judgment of Finlay P. in the extract quoted from his judgment in S. v. Eastern Health Board (Unreported, High Court, 28th February, 1979). I would consider that a decision found to be valid by the test adumbrated could not be condemned as invalid if it had been made with the intention or in the expectation that it would achieve a purpose and failed to achieve the desired result. As is evident from the judgment of Finlay P. and from the decision of Barron J. in N.B. and T.B. v. An Bord Uchtala (Unreported, High Court, 18th February, 1983) an essential prerequisite to a valid decision, whatever the capacity of the person who makes it, is that the person making it should be fully and correctly informed. The person making the decision may not have sufficient regard to, or correctly assess, the information given but that would not invalidate the decision. However, if the person making the decision is dependent upon information supplied by others and clearly is reliant upon the source of information then the decision could not be relied upon if it be apparent to those supplying the information that it is not correctly understood or not correctly received.
To apply correctly the test the learned trial judge had to make his own determination with the guidance of evidence of what the mother said and did, not only before and at, but also after the time of her alleged decision. While the learned trial judge is not bound to accept the interpretation put by other persons on the words and actions of the mother as heard and observed by them, and he could not disregard such evidence, his judgment would require his personal assessment of the cogency of such evidence. What had to be decided in this case was whether the decision to allow placement for adoption of the mother’s daughter, her second child, was taken under circumstances fulfilling the test laid down by the former President and which the learned trial judge sought to apply. The test prescribes the nature and range of questions of fact to be enquired into and resolved.
It is evident from the transcript and the judgment that all aspects of enquiry as indicated by Finlay P. in the cited extract from his judgment in S.v. Eastern Health Board (Unreported, High Court, 28th February, 1979) were examined. Upon this appeal much emphasis was laid on the matter of the mother’s entitlement to change her mind and on the occasions when it appears she did so. It was urged that a change of mind presupposes a valid decision capable of being revoked or reversed. It was also argued that she could not purport to make a declared decision subject to undisclosed mental reservations to be used later to negative the decision. Her vacillation could have been due to changeable emotional reactions, or to apprehensions or misapprehensions derived from the difficulties of her circumstances in relation to accommodation and family ties. Whether these personal circumstances led to confusion of mind and lack of understanding or of ability to comprehend the information given to her upon which her decision had to be made are matters of inference to be drawn by the trial judge. They are so personal to the mother and the witnesses to the facts that a judgment upon them is particularly dependent upon the voir dire.
The function of ascertaining the facts and inferences of fact is entrusted to the court of first instance. An essential part of the function of enquiring into the facts is the evidence of witnesses seen and heard in court and their testimony tested in normal court procedure. The application of the law to the facts by the court of trial is subject to review upon appeal. The appellate court having no more than a written record of the oral evidence is at too great a disadvantage to enable it fairly to resolve disputes on matters of fact or to assess the credibility of evidence as given by witnesses. If the record should show that a determination has been made on a matter of fact on which the record shows there was no evidence to support it, or that the evidence recorded could not reasonably support it, the appellate court could reject the determination.
In my opinion the record in the transcript of the evidence given in the trial in the High Court in this appeal could reasonably support the determination reached by the learned trial judge. I do not find it in any material matter inconsistent with the oral evidence as recorded.
For these reasons I would refuse the appeal.
[On the 5th October, 1987 upon hearing argument on costs the Supreme Court by order recommended that payment of the plaintiffs’ and notice party’s costs be made in accordance with the Attorney General’s scheme].

 

S.M. and M.M. v G.M. and Others

1983 no. 5624 P

High Court

7 March 1984

[1985] I.L.R.M. 186
(Finlay P)

FINLAY P

delivered his judgment on 7 March 1984 saying: This is an issue arising in a Family Law case concerning a claim of privilege made by An Bord Uchtala and also a claim made by an Adoption Society both of whom are defendants.

The issues which arise depend upon the construction and application of s. 8 of The Adoption Act 1976, which prohibits an order for the discovery, inspection, production or copying of any book, document or record of the Bord unless a court is satisfied that it is in the best interests of any child concerned to do so.

The proceedings are to an extent multiple and contain various reliefs but the interest of the child concerned may at this stage be summarised as being the determination by the court of an application by the plaintiffs who are the prospective adoptive parents for an order under s. 3 of the Adoption Act of 1974 dispensing with the consent of the mother and giving them interim custody and in the event of such order not being made, a claim by the mother for an order for custody under proceedings which she has instituted under The Guardianship of Infants Act 1964.

I have no doubt that the best interests of the child in regard to the determination of those proceedings when considered in the context of discovery, depends upon discovery of such documents being made as would enable all the parties to those proceedings to present their case to the full.

In detail this means that the plaintiffs as prospective adoptive parents should be in a position to adduce the maximum amount of evidence establishing their suitability as custodians of the child and to defend themselves against any challenges or criticisms of that suitability and that the mother should have a like advantage and opportunity.

The provisions of s. 8 of the 1976 Act, clearly indicate an intention on the part of the legislature that the necessary confidentiality of documents and other papers, the property of the Adoption Board, should be maintained unless the best interests of a child concerned in a particular case is established to my satisfaction as a matter of probability to require their recovery or production. Once, however, that has been established there cannot arise, in my view, any question of balancing the interests of an individual child concerned in a particular case against the general proceedings and efficiency of the activities of the Adoption Board.

These findings as to what constitute the best interests of the child concerned in this case and with regard to the interpretation of the section have led me to the conclusion that only such documents, books or records should be discovered as would enable either of the parties concerned to be aware of evidence relevant to the issues which could be adduced or which would enable either of the parties concerned adequately to cross-examine witnesses who might be tendered against them.

In the affidavit of discovery filed on behalf of the Adoption Board a total of 22 documents were the subject matter of a claim of privilege under the section. Of these privilege was challenged on behalf of the plaintiffs in relation to a total of 16.

I came to the conclusion that it was unnecessary for me to examine documents which could not conceivably fall within the categories which I have outlined. These included such things as extracts from the minutes of the meetings of the Adoption Board, minutes of confidential or anonymous phone calls; references written by persons submitted as referees by the plaintiffs and interviews with such persons. All these documents appeared to me to constitute a form of hearsay and not to be capable of being used for the purpose of securing witnesses who could give admissible evidence or of being used in cross-examination of possible witnesses. I examined, however, documents consisting of a medical report on the mother and of a number of welfare officers’ reports including a report of an interview by an officer of the board with the mother in relation to the s. 3 application. Having considered these documents I am satisfied that the following documents numbered in the third part of the schedule to the affidavit of discovery should be discovered, though since they are to be now discovered both to the plaintiffs as prospective adoptive parents and to the natural mother as well, there must be excluded from each document before discovery, any name or address which could reveal the identity of either the prospective adoptive parents or of the mother.

They are as follows:

Number 3,

Number 10,

Number 5,

Number 12,

Number 9,

Number 13, and

 

Number 21.

With regard to the Adoption Society, a claim was made on their behalf that, though not expressly referred to in s. 8 of the Act of 1976, they were covered by its provisions. I am satisfied that this claim is not sustainable and that s. 8 can only apply to books, documents or records of the Board. Only one of the documents in respect of which privilege was claimed by the Adoption Society issued or emanated from the Board, though some of them may have been prepared for the purposed of submission to the Board, this latter fact not, in my view, bringing them within the section. In the alternative, it was submitted, that they were subject to a privilege arising from their confidentiality and in particular, reliance was placed on the decision ER v JR [1981] ILRM 125 whereby the reports of marriage guidance counsellors could under the circumstances be privileged.

If such a privilege did exist in the present case and it is not necessary for me to decide that it does, it would be a privilege in the plaintiffs and in no one else and they, by seeking discovery of these documents, have waived it. Counsel on behalf of the mother has indicated that she did not seek, on behalf of her client, discovery by the Adoption Society on the understanding that any witnesses from that body who might be material to the issues involved would be available to the court.

In these circumstances I am satisfied that the following documents referred to in part 3 of the affidavit of discovery of the Adoption Society should be discovered to the plaintiffs, number 13 and in the supplemental affidavit of discovery, numbers 18, 19 and 20.

Number 9, a photocopy of the medical report on the natural mother has already been discovered by the Adoption Board and number 17, the notes of a conversation between the deponent in the affidavit of discovery and a senior social worker of the Adoption Board concerning the application, in my view, constitutes a record of the Board and comes within the general hearsay provision which makes it not necessary that it should be discovered.

 

T. O’G v The Attorney General and Y. H. appearing by her Mother and Next Friend, M. H.

1983 No. 6551 P

High Court

1 March 1984

[1985] I.L.R.M. 61
(McMahon J)

On 2 March 1983 a male infant was placed for adoption pursuant to the Adoption Acts 1952 to 1976 with the plaintiff and his wife. Th infant had been born to the defendant Y. H. on 11 December 1982 and the natural mother signed a consent *62 to placement for adoption on 10 February 1983 and a final consent to adoption on 29 June 1983.

There is normally some delay between the signing of the final consent and the making of an adoption order and in this case the adoption order would have been made in December 1983 but the plaintiff’s wife was killed in a motoring accident on 15 September 1983. If it had been the plaintiff who died his widow could have obtained an adoption order on making a fresh application to the Board and subject to satisfying the Board that she was a suitable adoptor in accordance with s. 13 (1) of the Adoption Act 1952 which provides:

(1) the Board shall not make an adoption order unless satisfied that the applicant is of good moral character, has sufficient means to support the child and is a suitable person to have parental rights and duties in respect of the child.

The wife would have required a new consent from the natural mother but if refused the wife could seek an order of the court under s. 3 of the Adoption Act 1974 dispensing with the mother’s consent.

The plaintiff found that because he was a widower and did not have another child in his custody he was not qualified to obtain an adoption order in respect of the child who had been in the custody of himself and his wife for six months. This situation was the result of s. 5 (1) of the Adoption Act 1974 which provides:

S. 5(1) notwithstanding anything contained in s. 11 of the principal Act (as amended by s. 5 of the Act of 1964) in any case where

(a) a child is in the care of a married couple who have made an application for an adoption order in relation to that child, and

(b) the wife dies before the making of the adoption order, the Board may make an adoption order relating to that child on the application of the widower provided that:

(i) The widower had at the date of his application another child in his custody, and

(ii) every person whose consent to the making of the adoption order is required by s. 14 of the principal Act or by s. 2 of the Act of 1964, knows, when he gives his consent, that the applicant is a widower.

The plaintiff has retained custody of the child since his wife’s death and brings this action for a declaration that the proviso to s. 5 which precludes him from obtaining an adoption order is repugnant to the guarantee of human equality in Article 40 (1) of the Constitution. The plaintiff claims that in denying him a right to be considered on his merits by the Adoption Board for an adoption order because he is a widower s. 5 discriminates against him as a human person and such discrimination is not based on any difference of capacity physical or moral or of social function and is unjust, unreasonable and arbitrary and cannot be justified under any provision of the Constitution and accordingly is void (in re Walker, O’Brien v M. S. and the Attorney General, [1985] ILRM 90).

The natural mother applied for an order of habeas corpus to recover custody of the child and her application was adjourned for hearing with this action. In the course of the hearing having been told of the evidence which is referred to hereinafter of the happy and healthy life of her child with the plaintiff and the motional and psychological damage which he might suffer by being removed from the custody of the plaintiff the natural mother withdrew her opposition to the plaintiff’s claim in this action and is willing to consent to an order under s. 3 (2) of the Adoption Act 1974 giving custody of the child to the plaintiff. She reserves for the present her decision on consenting to the adoption of the child by the plaintiff but the parties have agreed on access satisfactory to them. It is right that the court should acknowledge the generous an self-sacrificing spirit shown by the mother in her concern for her child’s welfare.

Doctor Una O’Donnell a child psychiatrist attached to the Eastern Health Board has interviewed the plaintiff with the child and observed their interaction and has seen the child in the home environment. The plaintiff has a farm of thirty acres on which he grazes dry stock and he has full-time employment for five days a week with a semi-state body. He has a very comfortable home of six rooms. The child is looked after on weekdays by a neighbour who is a young married woman without children of her own and is paid £40 per week by the plaintiff for her services. The services of a number of relatives and friends living in the area are available at any time to look after the child. It is not necessary to go further into details of the child’s material well-being because it was not questioned in the action and Doctor Una O’Donnell said that the child was happy, healthy and well adjusted surrounded by an expanded family of relatives and friends with whom the child was developing bonds of affection. From her observation of the inter-action of the plaintiff and the child it was clear that a strong bond of affection had developed between them. In Doctor O’Donnell’s view the child was very fortunate in its surroundings. Doctor O’Donnell found the plaintiff was knowledgeable about child care and nourishment and had an extensive knowledge of the different baby foods and she was satisfied that the plaintiff would have no difficulty in raising the child in a happy home.

The qualities required to make a person eligible to be accepted by the Board as an adopter are stated in s. 13 (1) of the Act of 1952 already quoted. Counsel for the plaintiff argued that the effect of the proviso to s. 5 of the Act of 1974 is to classify widowers as unsuitable or less suitable than widows to have parental rights and duties and there was no basis in fact for that assumption. Doctor Una O’Donnell said that the notion of maternal instinct as a quality necessary to the proper rearing of a child was a myth. Studies of fathers as single parents showed there was nothing a father could not do for a child. A man was just as capable as a woman of the most important function of parenthood which is to provide the child with a person with whom the child can form an emotional relationship. The process is referred to as bonding and gives the child a sense of security and of being loved. In about one third of two parent families this bond is formed with the father rather than the mother. The process of bonding takes place between th ages of six months and three years and it cannot be repeated. If the bond with the psychological parent is broken the child may be emotionally scarred for life. He will grow up emotionally superficial and promiscous and in some cases a delinquent or a psychopath. Doctor O’Donnell was satisfied that the child had formed a strong bond with the plaintiff and secondary bonds with the plaintiff’s father who lived in the family home and with a neighbour who is a nurse and a frequent visitor with her children to the home. Doctor O’Donnell said that in her opinion it would be disastrous for the child to remove him from his present surroundings. Mr. de Courcy a psychologist attached to the Eastern Health Board was called as a witness for the natural mother and he did not dispute the ability of the plaintiff to act as a parent or the importance of the emotional bond but he qualified the evidence of Doctor O’Donnell by saying that the consequences of breaking the bond are not invariably disastrous or serious and the result depends on other factors. I accept that in some cases it may be possible to minimise the injurious result of disruption of the parent/child relationship but not in the present case because the mother is clearly not in a position to take on custody of the child and if it is removed from its present home it would have to be put in an institution for some time. There will be many similar cases where this would also be the result of refusing to allow adoption by the widower in cases coming within s. 5. I am satisfied that to remove the child from his present surroundings would expose him to danger of serious emotional damage and could not be justified by any considerations of his welfare.

Why then is the plaintiff excluded from consideration on his merits as an adopter of this child? Widowers as a class are not less competent than widows to provide for the material needs of children and their exclusion as a class must be based on a belief that a woman by virtue of her sex has an innate capacity for parenthood which is denied to a man and the lack of which renders a man unsuitable as an adopter. This view is not supported by any medical evidence adduced before me and the fact that s. 5 permits a widower who has already custody of a child to adopt another appears to be an admission that a man may acquire skills or capacities necessary to be an adopter. In England under s. 15 of the Adoption Act 1976 a single unmarried person may obtain an Adoption Order (see Halsbury Fourth Edition Volume 24, paragraph 657). Counsel for the Attorney General did not claim that there was anything in the Constitution to justify this discrimination apart from the proviso to Article 40. He submitted that to be of either sex without more is not in itself to have a social function but the law may have regard to the fact that certain functions are more usually performed by one person and the functions of widow or widower are motherhood or fatherhood and adoption legislation recognises this difference. The culture of our society has assigned distinct roles to father and mother in two parent families in the past just as families on the land recognised a distinction between men’s work and women’s work but this is a feature of our culture which appears to be changing as the younger generation of married people tend to exchange roles freely. No medical or psychological evidence has been adduced to explain the difference between these roles and its significance for the welfare of the child or to establish that the roles are mutually exclusive or that both are essential for the proper upbringing of children or to establish that there is any difference in capacity for parenthood between a widow and a widower.

Counsel for the Attorney General referred to Article 41.2.1 in which the State recognises that by her life in the home woman gives to the State a support *65 without which the common good cannot be achieved as conferring on a widow an advantage over a widower as an adopter. The article recognises the social value of a mother’s services in the home but that does not involve a denial of the capacity of widowers as a class to be considered on their merits as suitable adopters.

I am satisfied that in the circumstances envisaged by s. 5 of the Act of 1974 that is where a married couple have received an infant for adoption and the wife dies before the final adoption order is made it is unreasonable and unjust to exclude the widower from being considered as a suitable person to adopt the child. It is unreasonable because the widower’s relationship with the child and his suitability as an adopter from the point of view of the emotional needs of the child is something which a qualified psychologist can readily assess by observing the inter-action between the widower and the child. Dispution of the bond between the child and the widower will in many cases subject the child to emotional trauma. It is therefore unjust to the child as well as unreasonable. I am satisfied that the proviso to s. 5 is founded on an idea of difference in capacity between men and women which has no foundation in fact and the proviso is therefore an unwarranted denial of human equality and repugnant to Article 40 (1) of the Constitution. Sub-paragraph (ii) is repugnant to the Constitution since it requires as a condition for the validity of the consent to adoption by a widower something which is not required where the adopter is a woman.

There remains the question whether the proviso can be severed from s. 5 or whether the unconstitutionality of the proviso involves the necessity of striking down the entire section. In King v Director of Public Prosecutions and Attorney General [1981] IR 244 Henchy J said:

The power of severance is but an aspect of the power of judicial interpretation in the light of the Constitution and does not amount to a legislative power which would in effect allow the courts to enact what the Legislature did not enact. It is one thing to strike down on constitutional grounds a particular statutory provision. It is quite a different thing, and one for which there is no constitutional warrant, for the court to attempt to breathe statutory and constitutional life into a set of words which acquire a new and separate existence after the severance but which were never enacted as law.

Henchy J went on to quote the advice of Viscount Simon to the Privy Council in Attorney General for Alberta v Attorney General for Canada [1974] AC 503 at p. 518:

The real question is whether what remains is so inextricably bound up with the part declared invalid that what remains cannot independently survive or as it has sometimes been put whether on a fair review of the whole matter it can be assumed that the Legislature would have enacted what survives without enacting that part that is ultra vires at all.

I have come to the conclusion that the proviso to s. 5 is severable from the remainder of the section and the section would have been enacted without the proviso if it were realised that the proviso was repugnant to the Constitution. The purpose of the section is to avoid disrupting the child/parent relationship on the death of the wife. If the Legislature had appreciated that the guarantee of human equality in the Constitution required that the widower should be *66 entitled to obtain an adoption order where he did not have another child in his custody the section would have been enacted without the proviso.

In the matter of the Guardianship of Infants Act, 1964 and

In the matter of D.G., an Infant:

O.G. v. An Bord Uchtala, The Protestant Adoption Society, J.P. and S.P.

[1991] IR 494

Lavan J.
9th November 1990

The plaintiff was a 15-year-old schoolgirl when she became pregnant by a 23-year-old male in March, 1986. She lived with her father, mother and two brothers in the family home in Dublin. Up to the date of informing her parents of her pregnancy in July, 1986, the family lived an uneventful life. The father is in permanent pensionable employment. The family are perfectly respectable in all respects.
The plaintiff’s pregnancy threw the family into turmoil and caused the greatest possible shock, upset and hurt to all. The father took great exception to the event. The mother, as is often the case, sought to cope with the conflicting emotions and interactions and attempted to do her best from a mother’s practical point of view.

The plaintiff, in August, 1986, was placed in a home and school for pregnant girls in rural parts. She thus lost the care and consideration of her family at a time of great stress while she was so immature and at a time when she was in need of loving care sufficient to enable her take rational decisions concerning the rearing of her child.
In January, 1987, she was taken to a Dublin hospital and gave birth to a healthy boy on the 12th January, 1987. Due to staff shortages in the hospital the plaintiff was referred to a social worker employed by Barnardos. From January, 1987 up to June, 1989, she was counselled by at least three social workers from that organisation. This was in substitution, one for the other, caused by maternity leave and other staff considerations.
While in the hospital the plaintiff appears to have decided to have her baby adopted. When she left hospital the baby was sent to short-term foster parents for six weeks. The plaintiff returned to her parents’ home.
At the expiration of six weeks, in March, 1987, the plaintiff retrieved her baby, left her family home and moved to a home for unmarried mothers, to which social workers from Barnardos had special access. She lived there in a disciplined atmosphere with nursing and welfare support for six months. She obtained the unmarried mother’s allowance. On the 12th of May, 1987, the child was baptised a Catholic.
In August, 1987, under the auspices of her social worker, the plaintiff was transferred to another home in Northbrook Road, Dublin, to which they had access and she lived there for six months. During the year from March, 1987, until early 1988 the plaintiff lived away from her family. She attended school. She had little or no secure family assistance. About this time she resumed a friendship with an unidentified foreign man.
The plaintiff was physically unwell in November and December, 1987. Her mother caused her to be seen by two doctors. In February, 1988, she became seriously ill. She was admitted to hospital as an emergency patient and underwent surgery for an ectopic pregnancy. Neither her mother nor any member of her family was aware of this fact until the case opened before me on the 17th October, 1990. On her leaving hospital she convalesced in the aforesaid home for a period of six weeks during which time the infant was cared for by her parents using the creche facilities in that home on a daily basis.
The plaintiff had no contact with the natural father during her pregnancy, nor indeed during the entire of 1987. In early 1988, he commenced proceedings before the Dublin District Court seeking access. Due to the plaintiff’s hospitalisation this was adjourned and finally dealt with in May, 1988. The plaintiff was represented by a solicitor from the Legal Aid Board. The District Court refused access to the natural father on the grounds that the plaintiff intended to have the infant adopted.
During this time serious disputes arose in the family home between the plaintiff’s father and the natural father. The Gardai­ were called to deal with these disputes. Serious consideration was given to preferring charges for rape against the natural father and, while the plaintiff’s father made a complaint to the Garda Siochana, it was not proceeded with in the light of its consequences for the plaintiff. At this time the plaintiff was under the care of a general practitioner for panic attacks, palpitations and depression. The application to the District Court caused her great upset and concern.
From May, 1988, up until the 17th December, 1988, the plaintiff and infant resided in the family home. She related to her mother and her brothers. She was seen or telephoned by her social worker on a regular basis. During this time the plaintiff resumed consideration of having the infant adopted. This was unknown to her family until late November, 1988. She had attained the age of 18 on the 4th April, 1988. In addition to the stressful situations already encountered that year she also had experienced an unsuccessful conclusion to her attempts to resume her studies.
An important consideration now arose in the context of adoption, namely that the infant was older and placement involved serious considerations of a different nature to when he was born.
As a result of meetings with the plaintiff, her then social worker, M.M., made enquiries in late October or early November, 1988, as to the availability of suitable adoptive parents. The prospective adoptive parents were identified by the protestant adoption society (the society) in November, 1988. I believe them to be suitable in all respects for this role.
The plaintiff’s subterfuge came to the notice of her family in late November, 1988, and it certainly exacerbated her relations with the members of her family, especially her father.
The society never entered into any preliminary arrangement with the plaintiff. It relied on the plaintiff’s social worker employed by Barnardos. It did not comply with the provisions of s. 39 of the Adoption Act, 1952. The plaintiff’s social worker furnished, without consent, confidential information unknown to and concerning the plaintiff and her family to the society. On the 7th December, 1988, the plaintiff signed a consent with M.M. in terms of what is known as form 10. This had been explained to her on that and on a number of previous occasions. The prospective adoptive parents had seen the infant in his creche in the first week of December, 1988. On the 12th December, 1988, and the days following they met with the plaintiff and infant at various locations in the city to enable the parties become acquainted. Following these meetings M.M. arranged that on the 17th December, 1988, the infant would be given to the prospective adoptive parents to stay overnight.
The plaintiff was absent from home on the night of the 16th December, 1988. Her mother, on the 17th December, 1988, met with the prospective parents and informed them that she would not hand over the infant without her daughter’s consent. Phone calls took place between the prospective adoptive parents, the administrator of the society and M.M. which resulted in M.M. making a new arrangement with the plaintiff for the handing over of the infant which took place on the afternoon of the 17th December, 1988.
The circumstances of the plaintiff’s departure from her family home were traumatic in the extreme. Her father made clear that she was not to return there without the infant. Since that day she has never resided in her home and has from that time lived in various types of accommodation throughout the city.
The infant was left with the prospective adoptive parents for the following days, in the course of which arrangements were made to return the infant to the plaintiff, on the 22nd December, 1988, to enable her to see him, end the relationship and deliver his effects to the prospective adoptive parents. This unusual procedure was precipitated by the plaintiff’s father ejecting her from the family home. It had never been part of the conditional arrangements. The plaintiff returned to her home, in the absence of her parents, on the 22nd December, 1988, obtained the infant’s effects and thereafter delivered him and them to the prospective adoptive parents.
In January, 1989, the natural father issued a second set of proceedings in the Dublin District Court claiming guardianship and custody rights. The plaintiff, in these proceedings, was assisted by M.M. and the administrator of the society, and was represented by a solicitor from the Legal Aid Board. The proceedings were successfully defended on the grounds that the infant was being adopted by the prospective adoptive parents.
In the course of the District Court proceedings a number of meetings took place between the plaintiff, M.M. and the plaintiff’s solicitor in February and March, 1989.
Notwithstanding the plaintiff’s willingness to sign final adoption papers, she was advised by her solicitor that this action might well constitute an interference with the District Justice’s determination of the case. She abided by such advice. At the conclusion of the District Court proceedings, on the 3rd May, 1989, the plaintiff indicated to M.M. her willingness to sign the final adoption papers. M.M. telephoned her on the 5th May, 1989, concerning this matter.
On the 8th May, 1989, the plaintiff informed M.M. that she wanted to see the infant for the purposes of ascertaining if he might recognise her. A meeting was arranged for the 22nd May, 1989, and this took place. On the 24th May, 1989, the plaintiff informed M.M. that she wanted a second meeting. This was arranged for and took place on the 12th June, 1989. At this stage the infant had been in the care of the prospective adoptive parents for almost six months. The meeting ended with the plaintiff becoming agitated. Following that meeting the plaintiff informed M.M. that she had intended to write to the society withdrawing her consent in or about that time and did not know why she had not done so. She did not wish to discuss the matter further with M.M. On the 13th June, 1989, another conversation took place between the plaintiff and M.M. effectively terminating the relationship between those two people. On the 17th June, 1989, the plaintiff informed the society and the adoption board that she was withdrawing her consent to the adoption of her child. On the 5th July, 1989, the society replied to the applicant in the following terms:
“Dear O.,
Further to your letter of the 18th June, 1989, I wish to let you know that I have now spoken to J. and S. by telephone. I understand that they do not feel that it would be in D.’s best interests for him to be returned to your care but would be prepared for you to keep in touch with him. When I have received written confirmation of this, I will be in contact with you again.
Yours sincerely,
H.D.,
Senior Social Worker.”
The adoption board, by letter of the same date, wrote:
“Dear Miss G.,
The adoption board has asked me to refer to your letter of the 17th June indicating that you no longer want your child, D.A., adopted and that you wish to have him returned to your care.
PACT, the adoption agency which placed D.A. for adoption, has informed the prospective adopters of your change of mind. The adoption board has no power to order the removal of the child from their care. If they refuse to give up the child then it is open to you to institute legal proceedings to have custody of the child restored to you. You would need to consult a solicitor in the matter.
If you require legal aid, you should contact the nearest Legal Aid Board law centre. I enclose for your information a booklet on the scheme of legal aid administered by the Legal Aid Board.
Yours sincerely,
Bernard Carey,
Registrar”.
On the 26th July, 1989, the plaintiff and her father visited a solicitor specialising in family law. He advised an immediate application for legal aid to be made by the plaintiff to the Legal Aid Board. Secondly, he advised, in the event that the plaintiff should be unable to make such an application within two weeks from that date, that he would be willing to make an immediate application thereafter to the High Court for an order of habeas corpus in respect of the infant.
On the 18th August, 1989, the plaintiff consulted with a solicitor of the Legal Aid Board (who had represented her in the District Court proceedings). He was doubtful of her prospects of success. No application was made by him on the plaintiff’s behalf for legal aid, notwithstanding her request for such legal aid for the making of an application for habeas corpus.
As a result the plaintiff had no option but to instruct a solicitor in private practice, and on the 31st August, 1989, she duly instructed Mary Cullen, solicitor, Dublin, who caused a special summons to issue on the 13th October, 1989, seeking custody of the infant pursuant to s. 11 of the Guardianship of Infants Act, 1964.
On the 29th November, 1989, the prospective adoptive parents issued a special summons against the plaintiff seeking to dispense with her consent to the making of an adoption order, together with custody of the infant and ancillary relief.
By order of the High Court made on the 27th April, 1990, Mary Cullen, solicitor, was declared to have ceased to act for the plaintiff. From the evidence, this appears to have been due to the abject refusal of the plaintiff’s father and brothers to submit themselves for assessment by Dr. McQuade, on behalf of the prospective adoptive parents, and/or a child psychiatrist to be retained on the plaintiff’s behalf. This, notwithstanding that the plaintiff’s father and mother had attended with the plaintiff for consultation with Dr. McQuade, for the purpose of assessment on the 30th January, 1990.
It seems probable that the delay from February, 1990, until the hearing of this case was due to non-co-operation by the plaintiff’s family and the absence of legal representation since April, 1990. I doubt if the plaintiff was personally responsible for the delay.
There was a procedural dispute at the commencement of the case as to which side should go first. The implications of opening a case, in most matters, carries with it the burden of proof. Having regard to the proofs necessary to invoke s. 3 of the Adoption Act, 1974, I am satisfied that it is for the prospective adoptive parents to carry this burden. In my view, if the prospective adoptive parents satisfy the court on the balance of probabilities of these proofs then it follows that the court must take the view that the natural mother had dispensed with her constitutional rights to insist on the custody of the child and thereby agreed to the child’s custody being decided in accordance with the statutory provisions of the Adoption Acts of which the Acts require her to be fully aware.
The second aspect of such an application is, of course, the question of the welfare of the infant of what is in the best interests of the infant.
The legal test which governs this case is set out by Finlay P. (as he then was) in S. v. Eastern Health Board (Unreported, High Court, 28th February, 1979) as affirmed by the Supreme Court in J.M. v. G.M. [1987] I.R. 510, and I quote:
“Having regard to these decisions I am satisfied that the test which I must apply to each of the separate alleged agreements to place for adoption is that they must have been made freely with full knowledge of their consequences and under circumstances where neither the advice of persons engaged in the transaction nor the surrounding circumstances deprived the mother of the capacity to make a fully informed free decision. I am not, however, satisfied that evidence that in any particular case a mother either sooner or later after the making of such decision changed her mind is of itself evidence of the invalidity of the agreement to place”.
On foot of the s. 3 application, the prospective adoptive parents adduced evidence from the following witnesses: Mr. Bernard Carey, chief executive of An Bord Uchtala, gave evidence of the notification of the proposed adoption of the infant by the prospective adoptive parents with the consent of the plaintiff.
A.Y. a social worker employed by Barnardos from 1982 until the 19th October, 1990, gave evidence that she had prepared a report, whilst acting on behalf of the plaintiff, to the society’s case committee recommending the prospective adoptive parents as possible adopters.
She had first met the plaintiff in December, 1986, whilst she was in the special school and home as aforesaid. She next met the plaintiff in January, 1987, whilst she was in hospital. Immediately thereafter she left on two weeks leave. She returned for some weeks until March, 1987, when she left on leave of absence. At that stage she arranged for M.M. to take over her duties in supervising the plaintiff.
M.M. gave evidence that she was a social worker. From 1984 until December, 1989, she was employed by Barnardos in that capacity. She first met the plaintiff on the 13th January, 1987. She then took over A.Y.’s duties in March, 1987, and from that time until December, 1987, she was the supervising social worker for the plaintiff. From December, 1987, until June, 1988, she was absent from her employment with Barnardos on maternity leave. She resumed her duties in July, 1988, and from that time until the 13th June, 1989, she was the supervising social worker for the plaintiff.
A.M.J. was a social worker employed by Barnardos from January, 1988, until June, 1988, as locum to cover M.M.’s cases while that social worker was on maternity leave.
H.D. gave evidence that she is a senior social worker employed by the society. She also acts as its administrator. She met the plaintiff for the first time on 12th December, 1988. That is following the signing of the form 10 consent by the plaintiff on the 7th December, 1988. No person employed by the society had complied with the provisions of s. 39 of the Adoption Act insofar as the plaintiff was concerned.
As will be clear from H.D.’s evidence, she was primarily concerned with prospective adoptive parents. I am satisfied that in the months of May and June of 1989 her advice to the prospective adoptive parents was directory rather than advisory in nature and substance in relation to the plaintiff’s request to have her child returned. I accept that the infant was adjusting to his new home during the seven months from January to August, 1989, when she paid her seven visits to the prospective adoptive parents.
H.D. had caused the infant to be medically assessed by Dr. Brian Denham in early December, 1988. Evidence of this assessment was not produced to the court. Had it been available it might well have dispelled the innuendo which caused much anguish to the plaintiff and her family, to the effect that the infant was in some way not properly cared by the plaintiff and her family up to the 17th December, 1988. This is an allegation which I find to be without foundation. Its genesis is in Dr. McQuade’s report and is in a large part due to the history given by the prospective adoptive parents when he met them on the 17th December, 1989.
Dr. McQuade gave evidence that he saw the prospective adoptive parents and infant on the 17th December, 1989, for the purposes of preparing an assessment for this case. I accept Dr. McQuade’s evidence, noting that he saw the infant on only one occasion. I have given careful consideration to the hazards which he considered had to be considered in respect of this infant. I accept his opinion that the plaintiff did not make a decision to place the infant, that at the time she was very conflicted and was taking medication called “Xanax”, which is, I understand, a mild tranquilliser.
S.P., the prospective adoptive mother, gave evidence, and there is no question in this case other than that S.P. and her husband are most suitable persons for the purpose of being adoptive parents.

The evidence of the social workers has caused me concern. The plaintiff was referred to A.Y. by the administration in the Dublin hospital in December, 1986, to care for her and her child. One of the first matters of evidence I have from that witness is the preparation by her of a report for the society on the suitability of the prospective adoptive parents. I note that that report was not produced in evidence.
Neither A.Y. nor her two colleagues from Barnardos gave evidence of what was their advice to the plaintiff in respect of crucial times and issues in this case between December, 1986, and January, 1987, and October, November and December, 1988. They gave evidence of meetings, they gave evidence of the plaintiff’s attitude and of her state of health. They failed to impress me in any detail as to what was their respective positions and advice on the different important dates and in respect of different important issues with which this case is concerned.
I consider that none of the three social workers, and M.M. in particular, gave thought to the major and difficult considerations which they ought to have taken account of in relation to the adoption of a child of 22 months, as distinct from a child of tender age between birth and six months. I am satisfied from the evidence given by H.D. that such a placement was and would be considered difficult and therefore required serious advice and consideration.
It is evident that serious considerations apply to a 22 month old child who is to be the subject matter of adoption. The most obvious is the mother’s standing in relation to changing her mind. Whilst she may in theory do so, what is the reality, having regard to the child developing at that particular age a proper and caring relationship with the prospective adoptive parents? Is there, in fact, any reality in suggesting that, notwithstanding her right in law to seek to recover her child, such right will be superseded by the infant’s overriding interest requiring his remaining in the care of the prospective adoptive parents? I have no evidence that I believe I can rely upon from these three important witnesses in relation to this fundamental issue.
I am satisfied that the plaintiff, then 16 years of age, did not consider the religion of the infant to be important, immediately before or after its birth on the 12th January, 1987. Some four months later she had the child baptised a Catholic. I have again no evidence from any of the three social workers that they discussed this important changed circumstance of religion with the plaintiff, nor whether they advised her in her own interest as to the significance of this matter in October, November, or December, 1988.
A.Y., employed by Barnardos, was assessing the prospective adoptive parents for the society while purporting to act in the best interests of the plaintiff.
M.M. divulged important confidential information by way of a report concerning the plaintiff and her family to the society and to the prospective adoptive parents and their legal advisors at a time when she purported to act for the plaintiff in relation to her caring for the infant, and in relation to the plaintiff’s own interest.
Both M.M. and A.M.J. were, in evidence, critical of the plaintiff. The former referred to the referral of the plaintiff to Jervis Street hospital in respect of a suggested alcohol problem. She also made a reference to discussing a possible lesbian tendency on the part of the plaintiff. A.M.J. complained that the plaintiff had left the infant without caring on one or two nights while in Northbrook Road. M.M.’s evidence I find unsatisfactory on this point. Likewise A.M.J.’s evidence is unsatisfactory as it appears to me that the plaintiff had arranged for another person in the building to care for the child while she was absent.
I find this evidence unsatisfactory. These two social workers were in charge of counselling the plaintiff from December, 1986, up to March, 1989. They never took any steps to challenge the plaintiff’s ability to care for the infant. I am satisfied that there never were grounds for such a challenge but, obviously, the credibility of their evidence is very much raised in my mind by the allegations being made before me by persons holding a position of trust on behalf of the plaintiff.
I am satisfied that all three social workers had a close working relationship with H.D. In my view, the result is that their evidence can only be construed by me as a deliberate attempt to blacken the plaintiff’s character before this court as an aid to satisfying this court that it should dispense with the plaintiff’s consent to the making of an adoption order. No evidence was tendered before me other than to establish that all three were at all material times employees of Barnardos. No satisfactory explanation has been given to the court as to how these persons consider themselves to have a form of relationship with the society so as to satisfy the requirements of s. 39 of the Adoption Act, 1952.
I have to reluctantly conclude that at no stage did any of these three witnesses put the plaintiff’s and the infant’s welfare paramount in their consideration. I doubt on the evidence that I could conclude that the plaintiff, then, on the 7th December, 1988, aged eighteen and a half years of age and of doubtful well-being, was, in fact, assisted by all or any of these three or by M.M. in late 1988, so as to enable the plaintiff to understand and appreciate the nature of the act of adoption and all of the implications arising therefrom, which she was considering at different times up to and including the 7th December, 1988, and between that date and the 22nd January, 1989.
As to the condition of the plaintiff on and immediately before those dates, I accept Dr. McQuade’s evidence that at his meeting with the plaintiff she expressed the view that “at the time she was on her own, that if she had been properly counselled at that time, she would not have gone through with the matter and that she was of the view that the matter was processed too quickly”. M.M. gave evidence of meeting the plaintiff the day after her giving birth. At that time the plaintiff was not forthcoming of her feelings. She was not then 17 years of age and it was obvious that there were serious family problems.
In July, 1988, M.M. had returned to her post with Barnardos following her own maternity leave. In October, 1988, the plaintiff phoned her a number of times as a result of her wish to place the infant for adoption. The plaintiff was, according to M.M., and I quote: “now in a more stable frame of mind and more able to take that situation”. The plaintiff could not bring herself to discuss the situation with her parents at that time.

I accept that M.M. had the telephone conversations and the meetings with the plaintiff as she has stated in evidence. I am of the view that she did not define her professional relationship with the plaintiff otherwise she would not have divulged confidential information to others. What I find most striking from a consideration of her evidence is that she never stated what was her advice in these crucial meetings in relation to these crucial matters. She gave no evidence sufficient to satisfy me that she confronted the plaintiff with the difficulties of placing and of regaining an infant who was then 22 months old. I have the clear impression that M.M. was as concerned, if not more so, with placement on behalf of the society as with counselling an eighteen and a half year old who had gone through difficulties in the previous two and a half years and who was taking decisions without the care and aid of her family.
The evidence adduced on behalf of the plaintiff was that of herself, her mother, her father and one of her brothers. No medical evidence was adduced and the plaintiff appears not to have seen the infant since the 12th June, 1989. The plaintiff’s proposal for the welfare of the child is that she would return to the family home and that her parents would assist in rearing and providing for the child in all respects.
This, as will be clear, is a case where the normal joy of childbirth and child-rearing have been distorted and disrupted by human frailty; by persons reacting and interacting to their own needs and prejudices to such an extent as to entail this application to the court with all the renewing and restating of the emotional upset, loss and concern which it entails. The plaintiff is a most tense, emotionally strained witness. She has undergone by today’s date four and a half years of anguish and emotional turmoil.
Notwithstanding her pregnancy and continuing emotional conflicts, some natural in the circumstances of the case and some introduced, particularly by her father and M.M., I am left with a strong impression that the plaintiff has always sought to do the best by the infant. That she has not been given the domestic or emotional support by her father in this regard, and that she has been subjected to intense and unfair pressure to do as he rather than she thought and thinks better, ought not, in my view, to be held against her in this regard. She gave the infant into temporary fosterage shortly after birth, in January, 1987, and from that time onwards she developed a definite dislike for the natural father and a positive determination that he would not be good for the infant.
I do not accept that the plaintiff tells untruths to get her own way. I do not accept that she is a person of ill-repute as is alleged. I view her as an emotionally immature person up to and including the 22nd December, 1988, and indeed up to today. She has reacted against her parents’ views. When her mother tacitly encouraged the adoption of the infant in January, 1987, she rejected that option. By November, 1988, when her family had developed ties with the infant, she sought to rebel against that situation.
I am satisfied that by November, 1988, she was a very mixed-up young person who required very careful counselling before I could consider her capable of making an informed, mature and properly considered decision, or to put it another way, to make an agreement for adoption, freely, with full knowledge of its consequences. I consider that the inadequacies of the advice of the social workers and the other surrounding circumstances must have deprived her of a capacity to make a fully informed free decision.
The plaintiff’s father gave evidence. Since hearing of his daughter’s pregnancy in July, 1986, I do not think that he, his wife and the plaintiff have ever been in a situation to sit down and calmly assess the best interests of the child and the plaintiff. I think it probable that the tension between these three persons is due primarily to the pregnancy and has not abated since June, 1986. I found the father a domineering, self-opinionated individual. I am satisfied that if, as I believe to be the case, the father dealt with the plaintiff prior to and especially on the 17th December, 1988, when he threw his daughter out of the family home, he thereby removed from her a fragile but necessary environment, which likewise precluded her from assessing the arrangements for an overnight visit with the prospective adoptive parents, which forced her into a situation where she left the child with the prospective adoptive parents, which she had never intended to, on the evidence.
The plaintiff’s mother gave evidence. She is the mother of three children; the plaintiff, aged 20, and two sons, aged 21 and 19, respectively. I believe her evidence. She is a person caught between the conflicting emotional needs of her husband and daughter. One brother of the plaintiff gave evidence and I believe his evidence.
These are the facts as I see them.
Section 39 of the Adoption Act, 1952, states:
“(1) Where the mother or guardian of a child proposes to place the child at the disposal of a registered adoption society for adoption under this Act the society shall, before accepting the child
(a) furnish that person with a statement in writing in the prescribed form explaining clearly
(i) the effect of an adoption order upon the rights of a mother or guardian, and
(ii) the provisions of this Act relating to consent to the making of an adoption order; and
(b) ensure that the person understands the statement and that he signs a document to that effect.
(2) In the case of failure to comply with any of the requirements of subsection (1), the society, every person who takes part in its management or control and every person concerned in the acceptance of the child on behalf of the society shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding one hundred pounds.”
In relation to the society’s obligation to satisfy this court that it had complied with the provisions of s. 39 of the Adoption Act, 1942, I have first to refer to the views expressed by Finlay P. in G. v. An Bord Uchtala [1980] I.R. 32 at p. 42. He says, in dealing with the Adoption Acts in general:

“Section 39 of the Act of 1952 provides that the mother or guardian of a child who proposes to place the child at the disposal of a registered adoption society for adoption must be furnished with a statement in writing in the prescribed form explaining clearly the effect of an adoption order upon the rights of the mother or guardian, and the provisions of the Act relating to the consent to the making of an adoption order, and states that the society must insure that the person understands the statement and that he signs a document to that effect”.
At p. 57 of the same report, O’Higgins C.J. said:
“The Act of 1952 provided for a register of recognised adoption societies, and they were given the sole right to make arrangements for adoptions. The Act of 1952 enabled such societies to make the necessary preliminary arrangements with the mother or guardian. While the term ‘placing for adoption’ (as used in the Act of 1974) is not defined, it seems clear that the phrase contemplates the originating arrangement for adoption made by a mother or guardian with an adoption society. The mother or guardian so entering into such arrangement, or placing, for adoption must be fully informed of her rights, including to give or withhold consent at any time before the making of the adoption order”.
He goes on to say at p. 57:
“It was to deal with anxieties and difficulties caused by this situation that s. 3 of the Act of 1974 was passed. Two conditions must be satisfied for the section to operate on the application of a person entitled to apply. First, a person whose consent is necessary to the making of an adoption order must have ‘agreed to the placing of the child for adoption’. Secondly, that person must have either failed, neglected or refused to consent to the final order or have withdrawn a consent already given. The constitutionality of this section is to be assumed and, therefore, it must be interpreted insofar as is possible to accord with this assumption. Applying this principle, it seems to me that the section cannot be regarded as an attempt to diminish or restrict constitutional rights if another interpretation is open. Accordingly, in relation to a mother and her child, the words ‘who has agreed to the placing of a child for adoption’ must contemplate a mother who has so agreed and acted in such a manner as to abrogate her constitutionally-recognised rights to the custody of her child. This requires a free consent on the part of the mother given in the full knowledge of the consequences which follow upon her placing her child for adoption”.
I can only interpret those views as meaning that he was referring to the agreement being made with an adoption society and not with anybody else.
He goes on to say:
“If the mother’s agreement to the placing for adoption is not such as to extinguish or drastically modify her constitutional rights to custody, the section could not be operated against her”.
And at pp. 59 and 60 he goes on to state:
“In my view, the section could not apply if the constitutional rights of the mother continue to exist, since legislation could not affect or prevail over these rights. Accordingly, the section could only be operative in circumstances in which the agreed ‘placing of the child for adoption’ constituted a consensual abandonment of constitutional rights and an acceptance by the mother of the provisions of the Adoption Acts in so far as her rights were concerned”
And that “abandonment of constitutional rights” I can only interpret as meaning the view of O’Higgins C.J. as an abandonment to an adoption society.
At p. 74 of the judgment, Walsh J. has this to say concerning the issue:
“I am satisfied that, having regard to the natural rights of the mother, the proper construction of the provision in s. 3 of the Act of 1974 is that the consent, if given, must be such as to amount to a fully informed, free and willing surrender or an abandonment of these rights. However, I am also of the opinion that such a surrender or abandonment may be established by her conduct when it is such as to warrant the clear and unambiguous inference that such was her fully-informed, free and willing intention. In my view, a consent motivated by fear, stress or anxiety, or a consent or conduct which is dictated by poverty or other deprivations does not constitute a valid consent”.
At p. 93, Henchy J. was of the view that,
“The two-stage nature of the adoption procedure, and particularly the requirement that the mother must be told at the time of placement that she may change her mind, means that there must be something more than a change of mind, something exceptional which is deleterious to the best interests of the infant, before an order should be made against the mother under s. 3 of the Act of 1974”.
In relation to all of the authorities which have been cited to me by counsel, I should say that I view this as an exceptional case on its own facts and it is in my view clearly distinguishable on these facts from those authorities relied upon for permitting An Bord Uchtala to dispense with the consent of the natural mother. I therefore conclude that proof of the matters required by s. 39 of the Act of 1942 is essential to operate s. 3 in favour of dispensing with the mother’s consent. I hold that the adoption society have failed in all respects to comply with their obligations under that section.
The form purporting to be a form 10 consent tendered in evidence, signed by the applicant and her social worker, and not by the adoption society does not, in my view, constitute such compliance.
Alternatively, I hold that upon their own evidence, each of the said social workers purporting to act as counsellors for the plaintiff had a clear but undefined interest in the society. I am coerced to the view that there is here a serious conflict of interests in their obligation to the plaintiff and to the society. I regretfully conclude that their advice, and especially the advice of M.M. in October, November and December, 1988, was not motivated solely by what was in the best interests of the infant and of the plaintiff. There is a third matter to be considered, and before doing so I would like to refer to the judgment of Gannon J. in V.C. v. J.M. and G.M. [1987] I.R. 510 at p. 531 in discussing the consent that a mother has to enter into, and I quote:
“Because of the complexities of the motivations and emotions and varied levels of rational capacity of different persons the assessment of the actual state of mind of any person at any particular time is extremely difficult. Had I been in the position of the learned trial judge I would have had to be satisfied that the decision of the mother was her own, and made upon her consideration of the nature and effect of her decision, and not induced by nor adopted impetuously, thoughtlessly, grasped out of panic or unreasonable anxiety, or made when the ability to make a rational decision might be so emotionally disturbed as to render unreliable the consideration of the information upon which it purports to be based. On the other hand I would not reject a decision merely because when viewed in retrospect it may seem to have been disadvantageous or unwise or even foolish, capricious or irresponsible. These I see as some of the factors encompassed so concisely in the judgment of Finlay P. in the extract quoted from his judgment in S. v. Eastern Health Board (Unreported, High Court, 28th February, 1989). I would consider that a decision found to be valid by the test adumbrated could not be condemned as invalid if it had been made with the intention or in the expectation that it would achieve a purpose and failed to achieve the desired result. As is evident from the judgment of Finlay P. and from the decision of Barron J. in N.B. and T.B. v. An Bord Uchtala (Unreported, High Court, 18th February, 1983) an essential prerequisite to a valid decision, whatever the capacity of the person who makes it, is that the person making it should be fully and correctly informed. The person making the decision may not have sufficient regard to, or correctly assess, the information given but that would not invalidate the decision. However, if the person making the decision is dependent upon information supplied by others and clearly is reliant upon the source of information then the decision could not be relied upon if it be apparent to those supplying the information that it is not correctly understood or not correctly received”.
I am satisfied on the evidence that the plaintiff did not, in the months of October, November and December, 1988, receive sound advice from her own social worker on the nature of the particular difficulties surrounding the adoption of her infant of 22 months, so as to enable me to decide that she was fully informed of her rights, including the right to give or withhold consent at any time.
In the circumstances, I am of the view that I ought not make an order permitting the adoption board to dispense with the consent of the plaintiff to the making of an adoption order in favour of the prospective adoptive parents.
I now turn to the issue of custody of the infant pursuant to the Guardianship of Infants Act, 1964. The infant is the most important person whose welfare, within the meaning of the Guardianship of Infants Act, must be considered and protected by the court.

The plaintiff has been subject to attack on the basis of the evidence of three social workers who purported to give their evidence as persons who were acting in her best interest. I reject that evidence and I consider their attack on the plaintiff, on her father and/or her family to be obnoxious, coming from persons holding themselves out to be professional persons in status. Her attitude in seeking to defeat the natural father’s efforts to obtain access and custody of the infant was much relied upon to discredit her and I would like to refer to the view of Walsh J., in G. v. An Bord Uchtala [1980] I.R. 32 at p. 65 in dealing with a similar situation, and I quote:
“The plaintiff’s attitude towards the father of the child showed a certain sense of responsibility. She obviously wanted to prevent a relationship developing between the man, who she did not consider suitable to be her husband, and the child. It would be difficult to imagine anything more injurious to the child than the possibility of a bad marriage between the parents of the child, particularly if brought about by the pressure of the events which had happened”.
In this case I take a similar view to Walsh J. I have heard and seen the plaintiff and her father and her mother for six days in this court. I am satisfied that nothing which has been said can detract from her and their suitability to provide a proper and caring environment for the infant. I am equally satisfied that the prospective adoptive parents are persons who can be totally relied upon likewise to provide a proper caring environment for the infant.
I have hard evidence from Dr. McQuade, a respected child psychiatrist. I have given much consideration to the hazards which he thinks might arise in this case. He saw the child on one occasion. I am satisfied that I ought to discount these concerns as the plaintiff and her father and her mother are, in my view, responsible and suitable and caring people for the purposes of rearing an infant. The fact that the infant has been in the care of the prospective adoptive parents since the 17th December, 1989, is an important but is not an overriding consideration in this case. Having regard to all of the considerations which I am obliged to have regard to, which I have already set out, and having regard to the constitutional rights involved, I am satisfied on the evidence that the welfare of the infant does not require that he should remain in the custody of the prospective adoptive parents.
I conclude that I must, therefore, make an order for the return of the infant to the plaintiff. I know that this will cause great distress to the prospective adoptive parents, who gave the infant love and care while he has been with them. I accept that the immediate removal of the child, on the evidence before me, from its present home, is the best course, even though I accept that such removal must involve difficult problems of adjustment for the infant.

Appeal to Supreme Court

Finlay C.J.
26th February 1991

These two consolidated actions which were heard together in the High Court and on appeal consist of a claim by O.G. (the mother) for the custody of her child D.G., brought pursuant to the Guardianship of Infants Act, 1964, and a claim by J.P. and S.P. (the prospective adopters) for an order pursuant to s. 3 of the Adoption Act, 1974, dispensing with the consent of O.G. to the adoption of the child D.G. The other parties to the proceedings are the Protestant Adoption Society (the society) and An Bord Uchtala (the board).
In the High Court after a lengthy trial on oral evidence, Lavan J. came to the following conclusions of law and on the facts:
1. That the society in arranging for the placement of the child D.G. for adoption failed to comply with the provisions of s. 39 of the Adoption Act, 1952, and that, accordingly, any agreement to place for adoption which
might otherwise have occurred was invalid. As a consequence he held that s. 3 of the Act of 1974 did not come into operation and that in those circumstances the court must order the return of the child to the mother.
2. In addition to his finding of invalidity arising from non-compliance with s. 39 of the Act of 1952 the learned trial judge concluded on the evidence that the mother did not give a fully free and fully informed consent to the placement of the child for adoption, and that on that basis the provisions of s. 3 of the Act of 1974 did not come into operation and, accordingly, directed the return of the child to the mother.
3. The learned trial judge put a stay upon the order directing the return for a short period to enable an appeal to be filed and, if appropriate, an application to be made to this Court, and this Court on the making of such application on behalf of the prospective adopters, granted a further stay pending the determination of this appeal and expedited the hearing.
The submissions in this Court
The prospective adopters appealed against the order of the High Court and sought in this Court an order
(a) Setting aside the decision that there was a non-compliance with s. 39 of the Act of 1952 and/or that such non-compliance invalidated the placing for adoption;
(b) Setting aside the decision that the plaintiff did not give her fully informed and free consent to the placing of the child for adoption, and substituting therefor a finding by this Court on the evidence that she did give such a fully informed and free agreement to the placing for adoption; and
(c) An order directing that the proceedings be sent back to the High Court for determination, in the light of the finding of a valid agreement to place the child for adoption, of the claim for the consent of the mother to be dispensed with and the consequential orders for continued custody of the child pending the determination by the board of whether or not to make an adoption order.
The society, upon the hearing of the appeal, supported the contention of the prospective adopters that the learned trial judge’s ruling with regard to s. 39 of the Act of 1952 was incorrect, and supported also their submission that the finding of an invalid placement for adoption arising from the want of a fully informed and free agreement should be reversed.
The board took no part in the dispute or issues between the parties as to the result of the action, but made certain submissions of assistance to the Court concerning the interpretation of s. 39 of the Act of 1952.
The mother resisted the appeal of the prospective adopters and sought the confirmation of the order made in the High Court, though, in relation to the grounds on which the order was made, counsel on her behalf expressly declined to stand over the decision of the learned trial judge that the provisions of s. 39 had not been complied with or that the consequence of that was to invalidate the agreement to place for adoption.
The facts
The basic facts giving rise to these proceedings which are not contested or disputed may thus be summarised.
The mother in 1986 resided, and was a school girl attending a secondary school, in Dublin. She was, of course, unmarried. She became pregnant in March, 1986, and informed her parents of this fact in July, 1986, to their considerable distress and upset.
In August, 1986, she went to reside in a convent hostel, outside Dublin, and remained there until the birth of her child, a son, who was born perfectly healthy in January, 1987. This birth took place in a Dublin hospital which the mother had attended prior to the birth of the child. She had been afforded the services of a social worker who, due to staff shortage, was not on the staff of the hospital but was employed by a charitable organisation in the city of Dublin.
Prior to the birth of the child the mother had expressed the intention of having the child adopted when it was born. This she had discussed with the social worker attached to her. After the birth of the child she repeated that intention and in fact was anxious to sign form 10, which is the agreement to place for adoption which is provided under the regulations made pursuant to the Adoption Acts. This form was explained to her by the social worker concerned, and she went through it with her, but the social worker concluded that having regard to her age and having regard to the short time after the birth at which she was anxious to take this step she should be dissuaded from doing so, since the social worker was not entirely satisfied that she had her mind fully made up or that she fully understood the consequences of taking the step. The child was, in fact, put into short-term fosterage, appropriate only for a child whom it was intended to place for adoption, but in the month of February, 1987, the mother changed her mind and resumed custody of the child herself.
She did not return home with the child then, but went instead to a hostel which was arranged for her by the social worker attached to her, in which unmarried mothers of young children were given short-term accommodation, under supervision, and with training in the rearing and caring of the child. After approximately three months she moved to another institution, in this case a house consisting of individual flats or rooms provided for unmarried mothers and their children, with a creche attached, and assistance and supervision attached also. She remained there until early 1988 when she was admitted to hospital and underwent surgery for an ectopic pregnancy. On her admission to hospital her child was taken by his grandmother and looked after in the family home; being left in the creche attached to the hostel where the mother had been during each day when his grandmother was working.
The mother did not reveal to her family the nature of her condition or the reason for the surgery which she underwent, and deceived them into the belief that it arose from a different condition. After her discharge from hospital she remained living on her own in the flat in the hostel which she had previously occupied with her child, looking after the child when it was brought to the creche during the course of the day.
In May, 1988, she moved from this hostel and went to reside with her parents in the family home and then took more or less wholetime care of her child who was also residing there.
The mother stated in evidence that by May, 1988, she had become in her own mind convinced that she should place the child for adoption again, but she did not inform anyone of that for some considerable time. She was in communication during all this period with the social worker who had originally been attached to her, interrupted only for short periods when she was on leave. In October, 1988, the mother informed the social worker that she had made up her mind for some time past to place the child for adoption. The social worker discussed this decision with her in some detail, according to the evidence, and the mother stipulated that, if at all possible, she would be anxious that the child would not be brought into a family which had a natural child in it, since she believed that it might be treated less favourably than the natural child of the parents concerned. The social worker gave evidence that the child, who was then approaching two years of age, would require a special type of prospective adoptive parents, able to deal with special problems that could arise from adoption at such an age, as distinct from the adoption of a newly born child. She made enquiries, as was apparently the custom in the charitable organisation to which she belonged, of two adoption agencies with which she had contact, to see if any such parents were on their list of persons seeking to adopt children. She was informed by the society, who are parties in this case, of the existence and availability of the prospective adopters who had already adopted one child at a more than infancy age and who had no natural children of their own. It would appear that these matters were also discussed between the social worker and the mother. Eventually, having been given the form and having had it explained to her on a previous occasion, and having retained it, the mother signed a form 10 to provide for the placement of the child for adoption by the society involved in this case, on the 7th December, 1988. Arrangements were then made for the prospective adopters to meet with the child, with an overnight stay on the 17th December, and eventually, on the 22nd December, 1988, the mother herself placed the child and the child’s clothes and other possessions into the custody of the prospective adopters. This decision was extremely unpopular with the mother’s father, and was also unpopular with her mother, and seems to have caused a distress in the family, generally, who had got attached to the child.

The mother saw the child on two occasions after having placed it into the custody of the prospective adopters.
In March, 1989, the father of the child sought in the District Court an order appointing him as a guardian. This was resisted by the mother, and in the course of her evidence she stated an intention to have the child adopted, and relied upon it as a ground for resisting the claim of the father to be appointed a guardian under the Status of Children Act, 1987.
By letters dated the 17th June, 1989, the mother wrote to both the board and the society, withdrawing her agreement or consent and seeking the return of the child. The prospective adopters decided not to give custody of the child back to the mother; the mother was informed of these matters and these proceedings then ensued.
Decision with regard to section 39 of the Adoption Act, 1952
The provisions of s. 39 of the Act of 1952 are as follows:
“(1) Where the mother or guardian of a child proposes to place the child at the disposal of a registered adoption society for adoption under this Act the society shall, before accepting the child
(a) furnish that person with a statement in writing in the prescribed form explaining clearly
(i) the effect of an adoption order upon the rights of a mother or guardian, and
(ii) the provisions of this Act relating to consent to the making of the Adoption Order; and
(b) ensure that the person understands the statement and that he signs a document to that effect.
(2) In the case of failure to comply with any of the requirements of subsection (1), the society, every person who takes part in its management or control and every person concerned in the acceptance of the child on behalf of the society shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding one hundred pounds.”
This section is one of six sections of the Act of 1952 contained in Part IV under the general heading “Registration of Adoption Societies”.
The other matters dealt with in that part of the Act of 1952 as originally enacted are restrictions on the making of arrangements for adoption to registered societies or public assistance authorities, the keeping of a register of adoption societies, the registration and cancellation of registration of adoption societies, and the furnishing of information and inspection of books of adoption societies. In effect, the decision of the learned trial judge on this issue was, firstly, that an adoption society could not comply with the requirements laid down by s. 39 of the Act of 1952 unless it, through its servants or duly appointed agents, actually furnished to the mother the statement in writing in the prescribed form required by sub-s. 1 (a) and, in addition, through its servants or duly appointed agents, ensured that the mother understood the statement and ensured that she signed a document to that effect. The evidence in this case in the High Court was to the effect that the form 10 which contains, attached to its front, the statement in writing in the prescribed form which complies with the subsection, was furnished to the mother by the social worker employed by the charitable organisation. That witness had been in protracted communication with the society in this case, having identified through the society the possible existence of prospective adopting parents who would fit the requirements of the mother and the social worker’s own view as to the appropriate requirements. The explaining of that statement in writing and going through it and the form of consent to the placing for adoption was carried out in November/December, 1988, by the social worker who had been advising and counselling the mother from before the birth of the child. On the evidence the society was clearly quite satisfied to rely upon that social worker’s assurance as to the compliance with the requirements of s. 39, sub-s. 1 of the Act of 1952. On those facts the learned trial judge held that s. 39 had not been complied with. In my view that, as a conclusion of law, was quite incorrect. There is nothing contained in the provisions of s. 39 which, in my view, could be construed as imposing upon an adoption society the obligation to carry out the tasks contained in sub-s. 1 (a) and (b) through its own servants or agents, provided that in any case a statement in writing in the prescribed form has been furnished and the society is satisfied it has been furnished to the mother or guardian concerned and provided that the society is satisfied that an appropriate person has clearly and responsibly ascertained that the mother understands the statement and has signed a document to the effect that she does understand it.
There could be, in my view, no more appropriate person to carry out those two tasks on behalf of an adoption society than a professional social worker who has been in constant communication with the mother for a protracted period prior to the time at which the statement is furnished and the form signed. I am satisfied, therefore, that the conclusion reached by the learned trial judge that s. 39 was not complied with by the society arose from an error in the construction of that section, and that his finding of invalidity in the agreement to place for adoption arising from that non-conformity must be set aside.
Section 39 is quite clearly designed to prevent abuses by an adoption society. It is not, in my view, specifically directed towards ensuring any particular form of consent by the mother of a child to placement of it for adoption. That is something which the substantive provisions with regard to adoption, contained in the adoption code, as construed by the courts, make necessary. I am not satisfied that a non-compliance with s. 39 could, under any circumstances, vitiate an otherwise valid, fully informed and free consent to a placement for adoption, unless it went so far as to be construed as vitiating the entire adoption procedure in any individual case. However, since this issue could not arise in this case, where I am satisfied there was no question of a lack of conformity with s. 39, I prefer to leave a definitive decision upon it to a case, if it ever arose, in which it would necessarily determine the result.
Validity of the mother’s agreement to place the child for adoption
The learned trial judge in the course of his judgment correctly identified the principles applicable to ascertaining the general validity of an agreement to place for adoption which satisfy the requirements of the Adoption Act, 1952, and which bring into operation the possible provisions of s. 3 of the Adoption Act, 1974, as having been stated by this Court in the case of G. v. An Bord Úcháala [1980] I.R. 32. In particular, he has quoted that portion of the judgment of O’Higgins C.J. in that case, reported at p. 57, which reads as follows:
“Accordingly, in relation to a mother and her child, the words ‘who has agreed to the placing of the child for adoption’ must contemplate a mother who has so agreed and acted in such a manner as to abrogate her constitutionally-recognised rights to the custody of her child. This requires a free consent on the part of the mother given in the full knowledge of the consequences which follow upon her placing her child for adoption.”
This necessity for a free and fully informed consent is endorsed in the judgment of Walsh J. where, at p. 74, he states:
“I am satisfied that, having regard to the natural rights of the mother, the proper construction of the provision in s. 3 of the Act of 1974 is that the consent, if given, must be such as to amount to a fully-informed, free and willing surrender or an abandonment of these rights.”
The concept of the necessity for the purpose of bringing into operation s. 3 of the Act of 1974 of a fully informed and free agreement on the part of the mother to the placement of the child for adoption is again accepted and acted upon in the judgments of this Court in V.C. v. J.M. and G.M. [1987] I.R. 510.
Of the consent in this case it is of obvious importance to state that a mother agreeing to place her child for adoption could not be said to reach a fully informed decision so to agree, unless at the time she made the agreement she was aware that the right which she undoubtedly has to withdraw that consent or to refuse further to consent to adoption, is subject to the possibility that, upon application by the prospective adopting parents, the court could conclude that it was in the best interests of the child to dispense with the mother’s consent, and if following upon such a decision the board decided that it was appropriate to order the adoption of the child, she (the mother) could lose, forever, the custody of the child.
The learned trial judge in the course of his judgment associated, to a very large extent, the question as to whether the mother had made a fully informed and free decision to place her child for adoption with what he had concluded was the failure of the society and, to an extent, of the social workers working with the mother, to comply with the provisions of s. 39 of the Act of 1952. To a much greater extent he reached his conclusion that the consent of the mother was not free or fully informed as a result of a view which he expressed on more than one occasion in the course of his judgment, and in different ways, to the effect that the social workers who were counselling the mother in respect of her decisions with regard to the child, gave her unsound advice; acted with a lack of propriety; were biased towards adoption, as distinct from any other course of conduct for the mother, and had a divided loyalty in which conflicting interests they had in the attempts of the society to provide for an adoption of the child were dominant in their minds, rather than the interests of the child and of the mother.
The manner in which these conclusions were reached by the learned trial judge is exemplified by a series of references contained in the course of his judgment. The first such reference is contained at p. 502 of this report where, referring to the social workers who were concerned, he stated as follows:
“No satisfactory explanation has been given to the court as to how these persons consider themselves to have a form of relationship with the society so as to satisfy the requirements of s. 39 of the Adoption Act of 1952.
I have to reluctantly conclude that at no stage did any of these three witnesses put the plaintiff’s and the infant’s welfare paramount in their consideration. I doubt on the evidence that I could conclude that the plaintiff then, on the 7th December, 1988, aged eighteen and a half years and of doubtful wellbeing, was, in fact assisted by all or any of these three or by M.M. in late 1988 so as to enable the plaintiff to understand and appreciate the nature of the act of adoption and all of the implications arising therefrom, which she was considering at different times up to and including the 7th December, 1988, and between that date and the 22nd January, 1989.”
Further on in the judgment, at p. 503 referring to the evidence of the social worker involved, the learned trial judge stated as follows:
“I am of the view that she did not define her professional relationship with the plaintiff otherwise she would not have divulged confidential information to others. What I find most striking from a consideration of her evidence is that she never stated what was her advice in these crucial meetings in relation to these crucial matters. She gave no evidence sufficient to satisfy me that she confronted the plaintiff with the difficulties of placing and of regaining an infant who was then 22 months old.”
At p. 503 he stated as follows:
“I do not accept that the plaintiff tells untruths to get her own way. I do not accept that she is a person of ill-repute as is alleged. I view her as an emotionally immature person up to and including the 22nd December, 1988, and indeed up to to-day. She has reacted against her parents’ views. When her mother tacitly encouraged the adoption of the infant in January, 1987, she rejected that option. By November, 1988, when her family had developed ties with the infant, she sought to rebel against that situation.
I am satisfied that by November, 1988, she was a very mixed-up young person who required very careful counselling before I could consider her capable of making an informed, mature and properly considered decision, or, to put it another way, to make an agreement for adoption, freely, with full knowledge of its consequences. I consider that the inadequacies of the advice of the social workers [emphasis added] and the other surrounding circumstances must have deprived her of a capacity to make a fully informed, free decision.”
Later on, the learned trial judge, at p. 506 stated as follows:

“Alternatively, I hold that upon their own evidence each of the said social workers purporting to act as counsellors for the applicant had a clear but undefined interest in the society. I am coerced to the view that there is here a serious conflict of interests in their obligation to the plaintiff and to the society. I regretfully conclude that their advice, and especially the advice of M.M. in October, November and December of 1988 was not motivated solely by what was in the best interests of the infant and of the plaintiff.”
Finally, at p. 507 of the judgment, he states as follows:
“I am satisfied on the evidence that the applicant did not in the months of October, November and December, 1988, receive sound advice from her own social worker on the nature of the particular difficulties surrounding the adoption of her infant of 22 months, so as to enable me to decide that she was fully informed of her rights, including the right to give or withhold consent at any time.”
By reason of the conclusion which I have reached in this case, it is not, in my view, desirable that I should seek to review the evidence in a way which would indicate any view as to the weight which should be attached to conflicting testimony concerning the issues which are involved.
It is sufficient for me to say that having very carefully considered all the evidence, I am satisfied that it would have been open to a judge hearing all this evidence in the High Court and reaching the same conclusions as did this trial judge as to primary facts, either to reach the conclusion that the mother had freely and in a fully informed fashion agreed to the placing of her child for adoption in December, 1988, or to have reached the conclusion that she had not. The mother gave evidence, portion at least of which can clearly be construed as an assertion that notwithstanding having considered the form and the explanation that went with it, and having had it explained to her, as she agreed she had, by her social worker on more than one occasion, she still believed in November/December, 1988, that, provided she withdrew her consent within a period of six months from the date she gave it, that she had an unequivocal or unqualified right to the return of her child. Her social worker, on the other hand, gave evidence which, if it was believed, would lead to the conclusion that the mother was fully and unequivocally informed, not only by the document which was furnished to her, but by the conversation and explanation she gave her (because she, the social worker, was expressly aware of possible difficulties of construction in one particular clause of that document) of the fact that if she once agreed to place the child for adoption that it could be, if the prospective adoptive parents on her subsequent withdrawal of her consent, refused to hand over the child, that a court could make an order under s. 3, and that in the end of the day the Board could provide for an adoption, as a result of which she would lose the child.
In the ordinary way, the existence of evidence which could be taken to raise either inference might well mean that the judgment in the High Court should not be interfered with by this Court.
I am satisfied from the entire judgment of the learned trial judge, which is exemplified in the extracts from it which I have quoted, that his conclusion with regard to the quality of the consent given by the mother to the placement of her child for adoption was very largely influenced indeed by a view which he had reached concerning the conduct and obligations and the discharge of obligations by the social workers counselling and advising the mother, and, in particular, by M.M. I have come to the conclusion that for the inferences which he drew with regard to the conduct of these people, there is not any foundation in the evidence before him. On the mother’s own evidence as to the extent of her communication with the social workers concerned, and her apparent acceptance of such incidents as the incident early in 1987 when she was seeking to make a rapid consent to the placement of the child and was dissuaded from doing so by the advice of M.M., it is clear that the conclusions reached by the learned trial judge cannot stand as they were unsupported by any view of the evidence before him.h Having reached the conclusion which I have, concerning the necessity to set aside the decision of the learned trial judge, that a non-compliance with s. 39 has invalidated this consent, I must conclude that in a matter which is absolutely vital to the entire future of this child, which is of vital importance to the interests and concerns of the mother of the child, and which has a very great importance in regard to the prospective adopters of the child, that there has not been a conclusion on the facts, and the proper inferences to be drawn from them, reached in the High Court upon which reliance can safely be placed. The view, to some extent contributed to by a misinterpretation of the legal effect of s. 39, reached by the learned trial judge concerning the inadequacies and, what he described as improprieties, of the social workers’ advice to the mother, in my view, vitiates the broad conclusion which he reached with regard to the extent of her knowledge and consent to the placement of the child. In those circumstances, notwithstanding the problems and difficulties which I appreciate in this distressing case the parties concerned will undergo from a re-trial, I am satisfied that the matter should be remitted to the High Court to be decided in accordance with the principles of law laid down in this judgment, the remaining issues being:
(1) as to whether the consent given by the mother in November and December, 1988, to the placement of her child for adoption, and witnessed by her execution of the form 10 under the Adoption Acts was a freely given and fully informed consent, and,
(2) if it was, whether it is, in accordance with the principles laid down in the decisions of this Court, in the best interests of this child that the consent of the mother should now be dispensed with, pursuant to s. 3 of the Act of 1974.

McCarthy J.
Were it not that we are differing from the learned trial judge both in his construction of s. 39 of the Act of 1952 and in his conclusions upon and inferences drawn from the evidence, I would be content to express my agreement with the judgment of the Chief Justice in its entirety.

(1) Section 39
In the argument in the High Court, counsel for the mother made express submissions in respect of what he termed non-compliance with section 39. “But, if there is a non-compliance, if such non-compliance to such a degree is established – and this is not a criminal court and I appreciate that a s. 39 charge would be proved beyond a reasonable doubt but, if it is established, I say that the court cannot ignore that point and then the very clear and adamant statutory protection that is established by s. 39, if that is not adhered to, then it goes to show that the so-called agreement to place was not adhered to by the party most likely to know the adoption society. The further consequence of that is that D. was never validly placed with a society, and that is a serious effect of that.” As stated by the Chief Justice in his judgment, counsel on behalf of the mother on the hearing of this appeal expressly declined to stand over the decision of the learned trial judge that the provisions of s. 39 had not been complied with or that the consequence of that was to invalidate the agreement to place for adoption. It is unfortunate that a similar concession was not made in the High Court.
(2) The social workers
As detailed by the Chief Justice, Lavan J. criticised the social workers both personally and professionally. He went so far as to say “in my view, the result is that their evidence can only be construed by me as a deliberate attempt to blacken the plaintiff’s character before this court as an aid to satisfying this court that it should dispense with the applicant’s consent to the making of an adoption order.”Counsel for the mother had expressly declined to make any such allegation against M.M. or M.D. and did not make any such to A.M.J., all of which witnesses he cross-examined in a proper and detailed fashion in the course of a lengthy trial.
This is not an appeal by the social workers although, no doubt, they have a keen interest in the result of these proceedings. No less than the parties, however, are they entitled to feel that they have been treated fairly. A fundamental feature of fairness is that an individual be given the opportunity of answering any imputations either personal or professional; no such opportunity was given here, since the imputations were not made to these individuals, when giving evidence. If counsel for the mother did not make such imputations, it was no part of the judge’s role to do so. In my view, the criticisms made were without foundation and should not have formed any part of the reasoning underlying the decision.
I would allow the appeal and direct a new trial.