Adoption Overview
Cases
The State (MG) v AH and MH
AH & MH v An Bord Uchtala & The Western Health Board
1983 No. 24 SS and 1983 No. 65 Sp
High Court
25 April 1983
[1984] I.L.R.M. 237
(Hamilton J)
HAMILTON J
delivered his judgment on 25 April 1983 saying: These two cases arise out of the desire of MG, the mother, to have her illegitimate child adopted. The first is an application by her for an order of habeas corpus directed to AH and MH, the foster parents, to hand over the child to undergo and receive all and singular matters and things as the court shall consider concerning her. The second is an application by the foster parents for an order pursuant to the provisions of s. 3 of the Adoption Act 1974, granting them custody of the child and an order authorising An Bord Uchtala to dispense with the consent of the mother required by the Adoption Acts 1952 to 1976, to the making of an adoption order in favour of the foster parents.
At the time of her pregnancy the mother was employed part-time in some form of local industry run by an order of nuns. She became pregnant at the beginning of 1981 but managed to conceal this fact from her parents and employers until very shortly before the birth of the child when she went to one of the sisters for assistance. This sister arrranged for her admission to hospital and the child was born a couple of days later, on 29 September 1981. At no stage did the mother wish to keep her child as she felt that her circumstances at home did not permit of this. She was then, and still is, looking after her partially invalid mother and keeping house for the family which includes two brothers as well as her parents. A social worker visited the mother in hospital the day after the child was born and found her very upset but clear that there was no way in which she could keep the child herself. The following day this social worker again visited the mother and explained what was involved in adoption, that the mother was free to change her mind and that it was the practice to place a child away from the mother’s neighbourhood. I am satisfied that, from the time of the birth of the child, the mother expected that the child would be placed for adoption outside the county in which she was living. The social worker also, very properly, insisted that the mother should take her time to make up her mind and suggested that the child should be put into foster care until she had done so.
Fosterage was arranged by the Health Board with the foster parents and it is from this circumstance that the very real distress to the parties has arisen, because the foster parents live at a comparatively short distance from the mother and, in addition, the foster mother is distantly related to the mother although they do not appear previously to have met each other.
The foster parents have some close friends who fostered children and then adopted them and I am satisfied that the foster parents expected that, if the fosterage was successful, they would be able to adopt the child although both were aware that the form they signed on taking the child provided that the child should be returned to the Health Board if the Health Board decided to remove it from their custody. It is probable that they assumed that this provision was only intended to be applied if the fosterage was unsatisfactory. However this may be, I am satisfied that the foster parents entered upon the fosterage with adoption in mind. They already had two children, boys, and had applied for long-term fosterage, with adoption in mind, in July 1981.
The child was left with them on 6 October 1981, and has remained with them since that date. It seems that, before this placement was made, the foster parents had learned who was the mother through a friend. On the same day the mother had signed an authority on a Health Board form stating that she wished to have the child boarded out or admitted to a suitable institution. Also on the same day an indenture was executed between the Health Board and the foster parents setting out the terms and conditions on which the foster parents were given charge of the child. Amongst these, No. 5 provided as follows:
The child shall be restored to the custody of the Health Board at any time where the Health Board with the consent of the Minister for Health decides to remove the child from the custody of the foster parent or where the Minister for Health requires the Health Board so to remove the child.
This is a statutory provision contained in s. 56 of the Health Act 1953.
For some reason the surname of the child’s mother was stated in this indenture. Although an affidavit was filed on behalf of the Health Board, no explanation was given for this departure from the general practice of refusing to give any information about a mother to the persons with whom a child is placed under such circumstances.
It appears from paragraph 3 of an affidavit sworn by the mother that she was told at this time that the foster parents lived in the same area in which she lived although she stated in evidence that she did not know where the child was being fostered until the question of adoption by the foster parents arose.
On 25 November 1981, the mother signed Form 10 consenting to the placement of her child for adoption. She stated in evidence that she has at all times wished to have the child adopted but that she made it clear that she did not and does not want it adopted in the county in which she resides. I accept that this was so.
On 10 December 1981, the foster parents wrote to the principal social worker stating that they were anxious to adopt the child and asked for information as to how they should go about this. A reply came from the senior social worker stating that the letter was receiving attention and that he would be in touch. Apparently another social worker supplied the necessary information and the foster parents sent in an adoption application for a girl aged 14 weeks. Although this application was undated, the reference to the age of fourteen weeks indicated that it was sent in during the first week in January 1982. An adoption check list produced by the Health Board shows that this form was received on 15 January 1982, and that ten other documents in connection with the application were received during that month or early in February.
In or about this time, the Health Board, or at least the department dealing with fosterage and adoption, appears to have become disorganised, and nothing further was done about the application for adoption which, apparently, should have been forwarded to the Adoption Board. The Registrar of the Adoption Board gave evidence before me and stated that he had been unable to find any evidence of any application prior to 1 March 1983, when the foster parents, on the advice of their solicitor, made a further application for adoption.
A social worker who had been visiting the foster parents and the child on a very regular basis until February 1982, ceased to visit them because she had retired from the service in January. A letter from the senior social worker confirmed this and he appears to have taken over the duty of visiting the foster parents, although on a much more restricted basis.
In April 1982, the mother learned that the adoption of the child by the foster parents was being considered and she states that she objected because they lived so close to her own home. She stated in evidence that she felt that pressure was being put on her at that time by the social workers to agree to the adoption of the child by the foster parents as the child had settled down so well with them, but this is denied by the social workers who gave evidence.
About the middle of May 1982, a social worker called with the foster parents to inform them that they had an appointment with Dr Solan of the Health Board and that they were to call with a psychiatrist when they went to see Dr Solan. The foster parents stated then and still maintain that they had had no notification of this appointment and I can only conclude that the Health Board was aware of this or they would not have required a social worker to go to the house to require them to attend. This lack of communication was probably a result of the disorganisation of the administration of this department of the Health Board at this time. However this may be, the Foster parents were very much upset by the procedures adopted and, in particular, could not understand why they should be required to visit a psychiatrist. Nor can I understand this unless it was for the purpose of considering their suitability for adopting the child and I conclude that this was then still under consideration, although it is also suggested on behalf of the Health Board that the purpose was to assess the suitability of moving the child.
It is difficult to be clear from the evidence what was the exact sequence of events, but it would appear that, shortly after this, the foster parents were made aware that the adoption of the child by them was not going through. At the end of May 1982, Dr Solan went to the home of the foster parents accompanied by a social worker to remove the child but the foster parents refused to part with her. It appears from one of the few averments made from facts within his own knowledge in the affidavit of the programme manager, community care, filed on behalf of the Health Board, that he decided on 20 May, the day after the visit to the doctors, that the child should be removed from the care of the foster parents because of the mother’s refusal to consent to an adoption placement in the county in which she lived. It is not stated in this affidavit that any formal notification had been given to the foster parents of the decision to remove the child from their care although it is suggested that the doctor had indicated this to them at the examinations.
As a result of this visit the foster parents, somewhat unfortunately, decided to see the mother and called to her home late one evening, choosing this time to avoid being seen and causing comment. They first met the grandfather of the child and then met the mother with him. There was a discussion about the situation which had arisen and the foster parents made it clear that they wished to adopt the child and they feel that the mother agreed to this, but I am satisfied that she was very worried about the foster parents being so close to her home although she had considerable sympathy for them. It is agreed that she indicated that she must see a social worker. It appears to have been agreed on this evening that the parties would meet again at the offices of the foster parents’ solicitors.
The mother did see a social worker who advised her not to sign anything, but she went on 4 June to the offices of the solicitors. The solicitor who saw them decided that the mother was too disturbed to make any decision and sent all the parties away, suggesting that the mother could obtain the advice of a solicitor. A day or so later the foster parents received a letter dated 3 June 1982, from the Health Board stating that the mother wanted the child placed outside the county and that the Board had no option but to seek the return of the child. Having got in touch with the mother and showed her this letter, a further meeting was arranged at the solicitors’ office. This meeting took place five days after the first meeting and the solicitor, being satisfied that the mother knew what she was doing, drew up two short documents, the first of which stated that the mother agreed to the adoption of the child by the foster parents and the other revoking the authority given to the Health Board to make arrangements for fostering. Both were signed by the mother and witnessed by the solicitor. I assume that these documents were sent to the Health Board but this is not stated in the affidavit filed on its behalf.
In or about this time, one of the social workers made a report about the case to the Health Board recommending that the case be taken up by an adoption society in another district. In July 1982, the mother was given the name of a Sister Aine of an adoption society in another county but the mother did not get in touch with this sister until October although she states that she was upset by being told in August by a friend of hers that many people knew that she had had an illegitimate child and that it was with the foster parents. She explains the delay by the fact that there had been an accident at home and that she was concerned about her family.
On 1 November 1982, the foster parents wrote to the medical officer for health asking him to deal with the adoption matter for which the papers had been lodged in January, but the only assistance they got was a letter dated 12 November 1982, containing the statement that the child ‘was withdrawn from the care of the health Board by her mother and the question of adoption is not, therefore, a matter for my Board.’
To return to the affidavit filed on behalf of the Board of Health. This is a most unsatisfactory document. The greater part of it does not comply with the provisions of Order 40, Rule 4, of the Rules of the Superior Courts, in that very few of the facts deposed to by the deponent were within his own knowledge. Although I have been informed that this is the practice in these cases it very considerably reduces the probative value of the averments particularly where there is a conflict as to the facts. The solicitors and counsel must accept responsibility for deciding when, as here, the more correct practice should be adopted. Nor does the deponent state that the consent of the Minister was obtained to the removal of the child from the care of the foster parents although this is a statutory requirement. Presumably the consent of the Minister, if given, was given in writing. If it was so given, this should have been exhibited. The Board has, apparently, refused to accept any responsibility for the welfare of an infant within its district and a strenuous application was made by counsel on behalf of the Board that the Board should be dismissed from the case as no relief was sought against it. I refused to accede to this application but, with my consent, counsel for the Health Board retired from the case and the Board was represented by its solicitor for the remainder of the hearing. In my opinion it was the duty of the Board to render all assistance possible to resolve the difficult problems which confronted the parties to these proceedings. This was not done. In particular its attitude towards the welfare of the infant is a sad feature of the case.
On 3 December 1982, the solicitor for the mother wrote to the foster parents calling them to have the child removed from their care. It is not at all clear what it was intended that the foster parents should do with the child as it was stated in the letter that the mother at all times intended to have the child adopted and she at all times refused to visit or take custody of the child and the Health Board had, by its letter of 12 November 1982, disassociated itself from all further involvement with the case. In the event, the foster parents retained custody of the child and submitted a fresh application for adoption in March 1983, after the mother had obtained a conditional order of habeas corpus and they themselves had issued proceedings under the Adoption Acts and the Guardianship of Infants Act.
The facts of this case are different from the facts of most of the similar type of case which have come before the courts. The foster parents knew the identity of the mother from the start. The mother at all times wished to have the child adopted and still so wishes and has at all times refused to see the child. The foster parents live at a distance of only five miles from the mother. The area is a rural area and it has become generally known in the locality that the child with the foster parents is the illegitimate child of the mother. The mother learned of the identity of the foster parents and is distantly related to them. There is no antagonism in the ordinary sense between the mother and the foster parents but the mother has refused to allow the child to be adopted anywhere near the area in which she lives and is reluctant to have it adopted anywhere in the same county. It is acknowledged by everyone concerned that the foster parents have proved excellent parents to the child and it is not disputed that the child has become integrated into their family.
Under these circumstances, the mother has brought proceedings by way of habeas corpus for the production of the child before the court and seeks in her affidavit, to have the child delivered to Sister Aine of a social services centre in another district for the purpose of enabling Sister Aine to find a suitable couple to adopt the child. I do not know what it is proposed to do with the child in the interval before such an adoption has been arranged. The foster parents have brought proceedings under s. 3 of the Adoption Act 1974, asking for an order that custody of the child may be given to them and authorising the Adoption Board to dispense with the consent of the mother to the making of an adoption order during such period as the court may give custody to the foster parents.
S. 3 of the Act of 1974 provides as follows:
(1) In any case where a person has applied for an adoption order relating to a child and any person whose consent to the making of an adoption order relating to the child is necessary and who has agreed to the placing of the child for adoption either:
(a) fails, neglects or refuses to give his consent, or
(b) withdraws a consent already given,
the applicant for the adoption order may apply to the High Court for an order under this section.
(2) The High Court, if it is satisfied that it is in the best interests of the child so to do, may make an order under this section:
(a) giving custody of the child to the applicant for such period as the court may determine, and
(b) authorising the Board to dispense with the consent of the other person referred to in subsection (1) of this section to the making of an adoption order in favour of the applicant during the period aforesaid.
On behalf of the mother I have been referred to s. 4 (2) of Article 40 of the Constitution. This provides that
Upon complaint being made by or on behalf of any person to the High Court or any judge thereof alleging that such person is being unlawfully detained, the High Court and any and every judge thereof to whom such complaint is made shall forthwith enquire into the said complaint and may order the person in whose custody such person is detained to produce the body of such person before the High Court on a named day and to certify in writing the grounds of his detention, and the High Court shall, upon the body of such person being produced before that court and after giving the person in whose custody he is detained an opportunity of justifying the detention, order the release of such person from such detention unless satisfied that he is being detained in accordance with the law.
It is submitted that the child is not detained in accordance with law as the consent under which she was placed in fosterage has been withdrawn and, therefore, there is no answer to the application for an order of habeas corpus.
The unusual situation is that the revocation of the Board’s authority on 8 June 1982, if of any validity at all was done for the purpose of enabling the child to be adopted by the foster parents. At the time these documents were signed, the Board had already proposed to take the child back from the foster parents. Although the Health Board became aware that the mother had changed her mind about the foster parents adopting the child nothing was done to deal with the situation which had now arisen and it appears to have been accepted by the Board that the revocation of its authority was final and conclusive and that it had no further responsibility for the child. The mother did not and does not want to have custody herself, the child was in the care of foster parents selected by the Board, the Board had decided that these foster parents were unacceptable but decided to take no further official action and left it to the mother to try to solve the problem herself. In the result the child was left with the foster parents for a further considerable time becoming increasingly assimilated with the family of the foster parents.
In considering the application for an order of habeas corpus it is essential to consider on whose behalf it is made. It is clearly made on behalf of the child and the rights of the mother to have the care of the child and of the child to be with its mother which were emphasised in the case of G v An Bord Uchtala [1980] IR 32 do not appear to me to arise as she has rejected her right to personal custody and has at all times refused and still refuses to be with the child. Therefore, in my opinion, she must be held to have abdicated her rights and duties with regard to the child and, on this aspect of the case, I am only concerned to ascertain what is best for the welfare of the child as provided by s. 3 of the Guardianship of Infants Act 1964.
With regard to the application by the foster parents for orders pursuant to s. 3 of the Act of 1974, it is argued that the foster parents have no standing under this Act because, at the time of the issue of both sets of proceedings there was no application for adoption before the Adoption Board, and that the only application which can be considered is that of 1 March 1983. I do not accept this argument. The words of the section are ‘In any case where a person has applied for an adoption order …’ It appears from s. 34 (6) of the Act of 1952 (as substituted by s. 6 of the Act of 1974), that only a health board or an adoption society can make arrangements for the adoption of a child or, for that purpose, to have a child retained in the custody of any other person. It follows that, by completing all the requisite forms for the Health Board, as appears to have been done by them, the foster parents could not have proceeded any further with the application on their own and I am not prepared to hold that they are to be prejudiced in this respect by the failure of the Health Board to take whatever are the necessary steps at the appropriate time, although, if it had taken the appropriate steps then it might properly have declined to proceed with the application.
It is also argued that there was no sufficient agreement by the mother to the placing of the child for adoption within the meaning of s. 3 of the 1974 Act because, at all times, her agreement was conditional on the child being placed outside the county in which she resided, and it is submitted that she was either able to make a conditional consent or, if not, she did not give a full and free consent at all. All this is very persuasive, and I cannot understand how the Health Board came to deal with the matter in the way in which it did, but the basic fact is that the mother at all times did and still does want to place the child for adoption and I am of opinion that I should consider what is best for the child in the circumstances.
The only medical evidence which was given was that of a well-known psychiatrist who deals with children and assessed the whole family of the foster parents. She expressed the opinion that moving the child now out of the family with which it has become so well assimilated would have disastrous effects on her and enumerated a number of short-term and long-term adverse developments some of which she considered probable and others possible. I did not have the advantage of hearing the assessments made by the medical officers of the Board of Health. This psychiatrist was asked about the disadvantages to the child from being brought up in an area where the neighbours know about the circumstances of the illegitimate birth and she was very clear that these circumstances would not have anything like such an adverse effect on the child as being moved, possibly twice, to a new environment and family now. She particularly emphasised that there is no such thing as re-bonding in a new family when bonding has already taken place to the extent in which it has done here.
It seems to me that the mother’s case, although absolutely genuine, is based on the distress and embarrassment caused to her by having the child living so close. I wonder is this not over-emphasised by her, even in a rural area, and is it not likely that the situation will gradually be accepted. It occurs to me also that she might be subjected to equally embarrassing criticism in the neighbourhood if she was known to have caused the child to be taken away from such a good home.
Although this case has given me great difficulty, I am of opinion that I should refuse the application for an order of habeas corpus and make an order of the nature sought by the foster parents.
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 the Adoption (No. 2) Bill 1987
[1989] ILRM 266
Finlay CJ
The President pursuant to Article 26 of the Constitution referred the Adoption (No. 2) Bill 1987 to this Court for a decision on the question as to whether that Bill is repugnant to the Constitution or to any provision thereof. The purpose of the Bill appears from the long title which is in the following terms:
An Act to provide, in exceptional cases, where the parents for physical or moral reasons have failed in their duty towards their children, for the supplying, by the adoption of the children, of the place of the parents and for that purpose and other purposes to amend and extend the Adoption Act 1952 to 1976.
The Bill provides for the adoption under certain circumstances of any child, whether born in wedlock or not, and whether one or both parents survive or not. It also provides for adoption of children without the consent of their parents or guardian.
The procedure contained in the Bill is for the Adoption Board to make an adoption order in respect of any child in a case where upon application to the High Court the Board is authorised so to do.
*269
S. 3 of the Bill provides for the application to the High Court and for the matters which must be established to its satisfaction before an authorising order can be made. It is this section which is particularly relevant to the determination of the question before the court and it is in the following terms:
3
(1) Where persons in whose favour the Board has made a declaration under section 2(1) (referred to subsequently in this subsection as ‘the applicants’) request the health board in whose functional area they ordinarily reside to apply to the court for an order under this section—
(a) if the health board considers it proper to do so and an application therefor in accordance with paragraph (b) of this subsection has not been made by the applicants, the health board may apply to the court for the order, and
(b) if, within the period of 3 months from the day on which the request was given to the health board, the health board either—
(i) by notice in writing given to the applicants, declines to accede to the request, or
(ii) does not give the applicants a notice under sub-paragraph (i) of this paragraph in relation to the request but does not make an application for the order under paragraph (a), the applicants may apply to the court for the order,
and if an application under paragraph (a) or (b) of this subsection is made and it is shown to the satisfaction of the court—
(I) that—
(A) for a continuous period of not less than 12 months immediately preceding the time of the making of the application, the parents of the child to whom the declaration under section 2(1) relates, for physical or moral reasons, have failed in their duty towards the child,
(B) it is likely that such failure will continue without interruption until the child attains the age of 18 years,
(C) such failure constitutes an abandonment on the part of the parents of all parental rights, whether under the Constitution or otherwise, with respect to the child, and
(D) by reason of such failure, the State, as guardian of the common good, should supply the place of the parents,
(II) that the child—
(A) at the time of the making of the application, is in the custody of and has a home with the applicants, and
(B) for a continuous period of not less than 12 months immediately preceding that time, has been in the custody of and has had a home with the applicants,
and
(III) that the adoption of the child by the applicants is an appropriate means by which to supply the place of the parents,
the court may, if it so thinks fit and is satisfied, having had due regard for the rights, whether under the Constitution or otherwise, of the persons concerned (including the natural and imprescriptible rights of the child), that it would be in the best interests of the child to do so, make an order authorising the board to make an adoption order in relation to the child in favour of the applicants.
(2) Before making an order under subsection (1), the court shall, in so far as is practicable, give due consideration, having regard to his age and understanding, to the wishes of the child concerned.
(3) The court may, of its own motion or on application to it in that behalf, make an order adding such other persons as it thinks fit as parties to proceedings under subsection (1), and may, in the case of a person added as a party to any such proceedings under this section, make such order as it considers just in respect of—
(a) the payment of any costs in relation to the proceedings that are incurred by the person and are not paid by another party to the proceedings if legal aid in respect of them under any scheme operated by or on behalf of the State for the provision of legal aid has been refused, or
(b) the payment by the person of any costs in relation to the proceedings that are incurred by any other party to the proceedings.
(4) The health board concerned shall be joined as a party to proceedings under subsection (1) (b).
(5) Proceedings under this section shall be heard otherwise than in public.
(6) The functions conferred on a health board by section (2)(1) and subsection (1) of this section shall be functions of the chief executive officer and any deputy chief executive officer of the board.
(7) A request to a health board under subsection (1) may be given to the board by handing it, or sending it by prepaid post, to an officer of the board at premises of the board and the request shall be deemed, for the purposes of paragraph (b) of that subsection, to be given to the board on the day on which it is so handed or posted.
The court in considering this Bill applies the presumption of constitutionality laid down by it in its decision in In re Criminal Law (Jurisdiction) Bill 1975 [1977] IR 129.
It is also satisfied that it must apply to the consideration of the Bill the principles laid down by it in East Donegal Co-Operative Livestock Mart Ltd & Ors v Attorney General [1970] IR 317:
(1) that it must be presumed that all proceedings, procedures, discretions and adjudications permitted or prescribed by the Bill are intended to be conducted in accordance with the principles of constitutional justice and
(2) that as between two or more reasonable constructions of the terms of the Bill the construction that was in accordance with the provisions of the Constitution would prevail over any construction that was not in accordance with such provisions.
Counsel assigned by the court to present an argument have submitted that the major purpose of the Bill, namely, the enabling of the legal adoption of children born in wedlock, one or both of whose parents survive, is repugnant to the Constitution. They did not submit that any particular provision of the Bill was repugnant since they contend that there could be no constitutional method of achieving its objective.
In the written submissions supplied to the court prior to the hearing, they set out the grounds upon which they allege the Bill was repugnant to the Constitution in the following form:
(a) The adoption order contemplated by the Bill represents an attack upon the constitution and authority of the family to which the child belonged. The adoption order alters the constitution of that family for all time. It also represents a fundamental attack upon the authority of that family unit eliminating as it must the authority of the family and its members over the child. Additionally, the family as a group are denied their right to progress and exist as a family unit and are denied the right to the intimacy and privacy of their life as a family group. These rights of the family which are infringed by the legislative proposals are rights which are both inalienable and imprescriptible; they cannot be transferred or surrendered.
(b) The contemplated adoption will have the effect of extinguishing the child’s right, as a member of the family unit, to belong to that particular family unit; such a right it is submitted is also inalienable and imprescriptible.
(c) The contemplated order further extinguishes other rights and the child possesses qua member of the family namely, the right to the society of the other members of the family unit and the right to be educated by the family group to which he belongs. These rights it is submitted are both inalienable and imprescriptible.
(d) Finally, the proposed legislation if enacted would extinguish the parents’ inalienable right to educate and have custody of their children.
In the course of the oral submissions counsel added, in a sense, to these specific grounds a submission that members of an individual family, other than the parents or the child to be adopted, had rights which were interferred with by the adoption.
The provisions of the Constitution particularly relevant to the issues before the court are as follows:
Article 41.1.1° The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.
Article 41.1.2° The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.
Article 42.1 The State acknowledges that the primary and natural educator of the child is the Family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children.
Article 42.3.2° The State shall, however, as guardian of the common good, require in view of actual conditions that the children receive a certain minimum education, moral, intellectual and social.
Article 42.5 In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.
Article 40.3 1° The State guarantees in its laws to respect and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.
2° The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.
The rights of a child who is a member of a family are not confined to those identified in Articles 41 and 42 but are also rights referred to in Articles 40, 43 and 44.
The terms of Article 42.5 are reflected both in the long title to the Bill and in many of the provisions of s. 3. Counsel for the Attorney General placed considerable but not exclusive reliance on that section as justifying the proposals in the Bill. In addition they submit that the State had the duty and right to protect and to vindicate the rights of a child who by reason of its parents’ failure has lost, and is likely permanently to lose, not only its rights as identified in Articles 41 and 42 of the Constitution, but also other personal rights which though unenumerated derive from the Constitution. It has been submitted that in some circumstances adoption would be the method necessary to afford that protection and vindication.
Article 42.5 of the Constitution should not, in the view of the court, be construed as being confined, in its reference to the duty of parents towards their children, to the duty of providing education for them. In the exceptional cases envisaged by that section where a failure in duty has occurred, the State by appropriate means shall endeavour to supply the place of the parents. This must necessarily involve supplying not only the parental duty to educate but also the parental duty to cater for the other personal rights of the child.
Article 42.5, does not in any way mean that the children whose parents have failed in their duty to them become the children of the State or that they are to be disposed of as such.
The State would, in any event, by virtue of Article 40.3 of the Constitution be obliged as far as practicable to vindicate the personal rights of the child whose parents have failed in their duty to it.
The court rejects the submission that the nature of the family as a unit group possessing inalienable and imprescriptible rights, makes it constitutionally impermissible for a statute to restore to any member of an individual family constitutional rights of which he has been deprived by a method which disturbs or alters the constitution of that family if that method is necessary to achieve that purpose. The guarantees afforded to the institution of the family by the Constitution, with their consequent benefit to the children of a family, should not be construed so that upon the failure of that benefit it cannot be replaced where the circumstances demand it, by incorporation of the child into an alternative family.
The court accepts the submission made on behalf of the Attorney General that the right and duty of the State to intervene upon the failure of parents to discharge their duty to a child can be considered under both Article 42.5 and Article 40.3. By the express provisions of Article 42.5, the State in endeavouring to supply the place of the parents is obliged to have due regard for the natural and imprescriptible rights of the child. Any action by the State pursuant to Article 40.3 endeavouring to vindicate the personal rights of the child, would, the court is satisfied, be subject to a similar limitation. It is, therefore, necessary, in the light of the conclusions already set out, to examine the Bill and, in particular, s. 3 thereof in accordance with the principles of construction set out at the commencement of this judgment so as to ascertain whether these provisions display a due regard for the natural and imprescriptible rights of the child.
It is necessary to consider whether having regard to the matters which must under s. 3 be established to the satisfaction of the High Court before it can even consider the making of an order authorising adoption, the Bill could be construed as a constitutionally prohibited attack on the institution of the family.
In s. 3 the provisions of sub-clause I(A) to II(B) inclusive provide a series of matters which seriatim must be established to the satisfaction of the court. They are not merely matters to be taken into consideration by the court in exercising a general discretion but are framed in the much more stringent form of being absolutely essential proofs requiring separately to be established. Failure in any one of these proofs absolutely prohibits the making of an authorising order, no matter how strong might be the evidence available of its desirability from the point of view of the interests of the child.
Sub-clause (I)(A)
The first essential here provided is that for not less than twelve months the sole parent or each of the parents for physical or moral reasons have failed in their duty towards the child. The most important element in this provision is the concept of failure which must be construed as being total in character. No mere inadequacy of standard in the discharge of the parental duty would, in the opinion of the court, suffice to establish this proof. Furthermore, the failure must arise for physical or moral reasons. This does not mean that the failure must necessarily in every case be blameworthy, but it does not mean that a failure due to externally originating circumstances such as poverty would not constitute a failure within the meaning of the sub-clause.
Sub-clause (I)(B)
It is possible that the issue as to whether this proof has been established will in many cases be a particularly difficult issue to resolve. The courts are, however, accustomed to the task of making, on the basis of probabilities, predictions, on evidence adduced, as to the course of future events.
The importance of the sub-clause, however, is that it indicates a particular regard to the position of the child in the family into which it was born. Unless there is excluded the likelihood that before the child reaches the age of 18 years the parent or parents or either of them will resume the discharge of their duty towards it, the order sought cannot be made.
Sub-clause (I)(C)
The concept of abandonment of parental rights falls to be considered after it has been established that a failure of parental duty for physical or moral reasons has continued for more than twelve months and is likely to continue until the child attains 18 years of age. The sub-clause clearly envisages that there might be cases where such a failure was established but an abandonment of rights was not proved. An abandonment could be established by evidence of the conduct of the parent or parents concerned which would in certain cases include statements made by them and/or the nature and type of the failure in duty which had been established. A mere statement by a parent or parents that they wished to abandon a child would not necessarily constitute proof in any particular case of the fact of abandonment but may do so. Failure of parental duty established under sub-clause (I) (A) and (B) is not of itself evidence of abandonment. The necessity for the proof of abandonment indicates a special regard for the constitutionally protected parental rights.
Sub-clause (I)(D)
This provision raises for determination by the court two separate issues. The first is as to whether the place of the parents requires to be supplied. An example of a case where such might not appear to be so would be of a 16 year old child who was found to have sufficient maturity not to require the replacement of its parents’ duty to it. Secondly, even if it appeared to the court that the place of the parents required to be supplied, an issue might then arise as whether it would be appropriate for the State to supply their place. For example, again, a case might occur in which there was evidence of persons suitable and available to act in loco parentis to a child which would make the intervention of the State unnecessary and, therefore, inappropriate.
Sub-clause (II)(A) and (B)
These sub-clauses would appear to be designed to give the court an opportunity to ascertain from evidence how successful the custody and care involved in a possible adoption might be. In particular, it would appear to afford to the health authority who are necessary parties to an application under this section an opportunity to ascertain the true position and thus assist the court. It is of some importance that the combination of the provisions of these sub-clauses with the provisions of sub-clause (I) (A) make it necessary for persons to be qualified to apply to the High Court for an order under s. 3 that they will have de facto supplied the place of the parents, at least for the period of twelve months in which the parents have failed to discharge their duty.
Sub-clause (III)
It is of importance to emphasise that not until each of the matters above outlined has been successfully established to the court does the court come to consider whether adoption is an appropriate means to supply the place of the parents. Even if it does, the remaining provisions of this sub-clause oblige the court specifically to have due regard to the rights, whether under the Constitution or otherwise, of the persons concerned, including the natural and imprescriptible rights of the child.
The ‘persons concerned’ in this context must be construed as meaning all persons who in the opinion of the High Court judge have an interest in or are likely to be affected by the application. The obligation to have due regard to the rights of the ‘persons concerned’ is, however, firmly enjoined in the context of ascertaining the best interests of the child. The ascertainment of the best interests of the child would as a consequence of the terms of this sub-clause and indeed from the necessity for the courts to act in accordance with and in support of the Constitution, necessarily be adjudged against the background of its constitutional rights. The phrase ‘best interests of the child’ could not, therefore, be construed so as to be ascertained on some simple material test, but would necessarily involve proper consideration of all the consequences, from the point of view of the child, of bringing it by adoption out of the family into which it was born and into an alternative family.
The importance of this provision concerning the best interests of the child is that it indicates that although all the matters provided earlier by the section as necessarily to be established and considered by the judge before he could contemplate authorising adoption have been established and considered, there is vested in him residual and final discretion to refuse to make the order if he is not satisfied that it would be in the best interests of the child to do so.
Section 3(2)
The final obligation of the court provided by this sub-section before it makes an authorising order is to give due consideration, having regard to its age and understanding, to the wishes of the child as far as that is practicable.
Section 4 of the Bill
This section lays down in a fixed and concrete manner procedures to ensure that the court will, when it is at all possible, have heard the parents in relation to an application before it for the authorising of the adoption of a child.
Section 5 of the Bill
This section provides for the costs of parties to the application in a manner which guarantees not only a free but a meaningful right of access by them to the courts.
The Bill contains nine sections, and the effect of the sections other than those already dealt with in this judgment may thus be summarised.
Section 1
S. 1 contains definitions for the purpose of the Bill.
Section 2
S. 2 provides for the procedures of the Adoption Board leading to an application pursuant to s. 3 being made by applicants to the High Court and dealing with a case in which the High Court has made an authorising order.
Section 6
S. 6 provides an amendment of the existing adoption law so as to make the definition of a child, for the purpose of adoption, a person who is under the age of 18 years and contains a special provision in respect of persons under the age of 21 years as respects whom an application for an adoption order was made and not yet determined at the time of the commencement of the Act.
Section 7
S. 7 contains certain consequential adaptations of the Adoption Act 1952.
Section 8
S. 8 contains an amendment to the First Schedule of the Adoption Act 1952 which is not concerned with the other purposes of this Bill, and
Section 9
S. 9 is the short title, citation and construction section.
No submission was made to the court during the course of the argument that any of the provisions of any of these sections is repugnant to the Constitution or contributed to what was alleged to be the repugnancy of the Bill in general to the Constitution. The court notwithstanding the absence of any challenge to these sections has considered them and is not satisfied that any of them is repugnant to the Constitution or to any provision thereof.
Conclusion
The decision of the court, therefore, is that the Adoption (No. 2) Bill 1987 is not repugnant to the Constitution or to any provision thereof.
I certify this to be the judgment and decision of the court.
M. O’C. v Sacred Heart Adoption Society and An Bord Uchtála
[1996] 1 ILRM 297 Hamilton CJ
I have read the judgment about to be delivered by O’Flaherty J and I agree with it.
There is just one observation I wish to make. Proceedings of the nature of the proceedings herein are traumatic and distressful for the parties involved, particularly the natural mother, and impose a considerable strain on them.
They usually arise because the decision by the natural mother to place her child for adoption is made at a time when the natural mother is vulnerable and concerned for the future of her child and subsequently changes her mind as happened in this case.
The decision of the natural mother to place her child for adoption in this case was not an abandonment of her child but rather a decision made by her in what she conceived, in her circumstances at the time, to be in the best interests of her child.
As will appear from the judgment about to be delivered, she showed her concern for the child by stipulating the type of home she required for the child, the nature of the family into which she wished her child to be integrated and met and approved of the proposed adopters.
These were the actions of a loving, caring and concerned mother motivated by her concern to ensure the best interests of her child.
The decision of this Court is based on such interests of the child and not in any way on the lack of fitness of the natural mother.
O’FLAHERTY J
(Hamilton CJ, Egan, Blayney and Denham JJ concurring): In this appeal we are concerned with two sets of proceedings. In the first M. O’C. sought the return of her child and in the second the proposed adopters sought an order dispensing with M. O’C.’s consent to the making of an adoption order by the Adoption Board (An Bord Uchtála) and an order granting them custody of the child in the interim.
I shall refer to M. O’C. as the plaintiff throughout this judgment and the proposed adopters as such.
The plaintiff appeals from the judgment and order of the High Court (Morris J) of 21 September 1994 dispensing with her consent to the making of an adoption order in respect of the child and whereby custody of the child was given to the adopters until an adoption order is made (see [1995] 1 ILRM 229).
The background facts to the case are as follows. The child, a daughter, was born on 9 December 1992. After the plaintiff became pregnant she had not any contact with the reputed father of the child. He will not oppose the making of an adoption order should the board decide to make such an order.
The plaintiff, then aged 21 years, is the second youngest of a family of ten; since she did not want to involve her elderly parents, she kept the fact of her pregnancy secret from them. About three weeks before the birth of her baby, she was admitted to a hostel which was under the control of an order of nuns. During her time in the hostel she said that she wished the baby to be adopted.
After the birth of the child, the trial judge found that the plaintiff wavered in her determination to place the child for adoption. However, he was satisfied that, notwithstanding these second thoughts, she eventually came down firmly on the side of the placing of the child for adoption. The child was placed for adoption and the prescribed form, Form 10, was signed on 12 February 1993. As recounted by the trial judge, before this date three meetings took place between Sister S., who is a social worker and is the principal sister in the hostel, and the plaintiff. Form 10 (a blank version of this form is reproduced as an appendix to this judgment) was signed on 12 February 1993. The judge was satisfied that the plaintiff was urged to read it and take it away with her. He was satisfied that she had read and understood this document at least two weeks before it was eventually signed by her.
He stated (at pp. 233–234) that:
… from my assessment of [the plaintiff] I am left in no doubt whatever but that she fully understood the full implications of the adoption two stage procedure. I accept the evidence that [the plaintiff] suggested on 12 February 1993 that she could at that stage sign the second form which would constitute the final adoption procedure. She did this [i.e., she made the offer to sign the final papers but, of course, this was not permissible] so as to avoid having to re-attend the hostel for that purpose. I accept the evidence that prior to meeting the prospective adopters she informed Sister S. of the type of home she required for the baby. She specified that the house should be in a rural area, that the baby should not be an only child or the first child and that the family must be one similar to her own. She considered two couples other than the prospective adopters and rejected them. She considered the circumstances of the prospective adopters and expressed complete satisfaction with them subject to meeting them. She met them in the hostel by appointment on 4 February 1993 and, because she found it difficult and inhibiting to assess them there, a further meeting was arranged away from the hostel in a hotel on 8 February at which stage she assessed the family and passed them as suitable and so informed Sister S.
He went on to say (at p. 234):
I am satisfied from the evidence that the entire of this document was gone through by Sister S. in detail and at length and she explained it fully and completely to the plaintiff and that [the plaintiff] understood it fully. Having done so, she signed the appropriate parts of the document and that afternoon [the child] was handed over to the prospective adopters … and she has lived with them ever since as part of their family.
The learned trial judge dealt with a submission in regard to the consent to placement for adoption that was made on behalf of the plaintiff which, as he understood it, was that the right which the plaintiff had to her child was a constitutional right and that this right could only be waived if there was a full, free and, above all, an informed consent. Since the plaintiff was not expressly told that the right that she possessed to the custody of her child was a constitutional right, then any waiver of her rights was not an informed waiver and so there was no informed consent to do so.
The judge concluded that what was required for a fully informed consent was that the mother should be aware that the right that she has, and the right that she is choosing to surrender, is an absolute right to the child which cannot be taken away from her against her will. She must be aware that the right is one fully protected by law. He did not accept that the use of any such phrase as ‘a constitutional right’ is necessary for the consent to be a fully informed consent. He did not believe that the use of such words would be of advantage in bringing home to a mother the strength of her rights. Providing that the person about to surrender his or her rights is fully aware that the right she possesses is an absolute right and one that will be protected and enforced to the full by the law, the surrender of that right is given by someone who is fully informed. He said that an empty formula of words does not and never could replace the full knowledge and realisation of the fact that rights of the nature described above exist.
The essential case made before us on behalf of the plaintiff is to say that the consent given to the placement by the plaintiff was not a valid consent. To find out whether there is substance in this submission it will be necessary to examine the adoption legislation in some detail but, before that, it is important to point out that the plaintiff now accepts that it is better that the child should stay with the proposed adopters. However it is submitted that an adoption order should not be made and that the plaintiff should have rights of visitation in regard to the plaintiff. Mr Durcan SC, on behalf of the plaintiff, submits in the first instance that the plaintiff has a constitutional right to protect and care for and have custody of her child, but which rights are capable of being renounced at the placement for adoption stage. He advances this argument by reference to the judgments of O’Higgins CJ, Walsh and Parke JJ in the case of G. v. An Bord Uchtála [1980] IR 32. Whether it is appropriate for the establishment of any legal proposition to rely on dicta in two minority judgments together with dicta in a judgment constituting the majority in a split decision of this Court is problematic but since, in due course, I shall suggest a different approach on this aspect of the case, I think it is not necessary to dwell further on this conundrum.
Mr Durcan submits, further, that there has been no express surrender amounting to abandonment of constitutional rights. Therefore, he says, it is necessary to establish whether the act which is relied upon as constituting such surrender or abandonment, that is the placement for adoption, satisfies the necessary elements of the test as set out in the judgment of Walsh J in the G. case (at p. 80) and quoted in the trial judge’s judgment. He submits that, while the trial judge accepted the test set out by Walsh J, he failed to apply that test in the correct and proper manner. To satisfy the requirement of being an informed agreement to the placement for adoption it would have been necessary for the plaintiff to be aware of the nature of the right which she was surrendering or abandoning, at least to the extent that she was aware that this was a right which could not be taken away from her but rather had to be voluntarily given up by her. Mr Durcan further states that it was not his submission in the High Court that some particular form of words must be used, but rather that the information given must be such as to fully and properly explain to the person surrendering or abandoning the rights the exact nature of what is being done.
He submits that while the plaintiff was told that the effect of the adoption order would be that she would lose her rights in law something entirely different was occurring. By placing her child for adoption she was surrendering or abandoning her rights both constitutional and legal. Not only was the plaintiff not informed of what was occurring but she was misinformed. On the findings of the trial judge, so it is submitted, she was told that the effect of the adoption order would be that she would lose her rights but this is entirely inconsistent with the concept that she was already surrendering or abandoning those rights by the placement of the child for adoption. It necessarily followed from telling her that the effect of the adoption order would be that she would lose those rights, that she was left with the impression that she would continue to enjoy those rights until an adoption order was made and, therefore, would continue to enjoy those rights if she decided to refuse to consent to the making of the adoption order and if the prospective adopters, as a result of such refusal, applied to the High Court to dispense with her consent.
I believe that these submissions are fundamentally misconceived and based on giving characteristics to the decision to place for adoption that I do not believe are justified in law, though I accept support for the contentions made can be gleaned from the three judgments on which Mr Durcan places reliance on this aspect of the case.
I adopt Henchy J’s description of the scheme envisaged by the adoption code in the G. case (at p. 86):
Under the adoption code two separate and distinct consents are involved. The first consent arises when the mother enters into a written consent to placement for adoption. There is nothing final about this consent for the mother, for the adoption society, or for the prospective adopters. It covers only an interim period during which the prospective adopters are, with the consent of the mother, to have custody of the child in the expectation that an adoption order will be made later. This consent acts to produce a temporary derogation or suspension of the mother’s right to custody. It does not amount to a waiver or abandonment so as to destroy the mother’s rights; only the adoption order can have that effect. Until the passing of the Act of 1974, the mother’s consent to the making of an adoption order (which is the second consent) could not be dispensed with. Now, under s. 3 of that Act, it may be dispensed with provided the High Court so permits on being satisfied that it would be in the best interests of the child.
The consent to placement for adoption can never amount, in itself, to an extinguishment of the mother’s rights. They are, as Henchy J put it, ‘in temporary abeyance’. Whether they are categorised as constitutional or legal rights led to split opinions in the G. case. I agree with Walsh J that they are constitutional in nature and support for this view is forthcoming, I believe, in the judgment of the court in the Article 26 reference: Adoption (No. 2) Bill 1987 [1989] IR 656; [1989] ILRM 266. However, I do not think it is an important distinction in the working of the adoption code for reasons that I will set out. I re-emphasise, however, that it is only upon the making of an adoption order by the Adoption Board under s. 24 that the mother’s rights are finally extinguished. S. 24 of the Adoption Act 1952 provides:
Upon an adoption order being made:
(a) the child shall be considered with regard to the rights and duties of parents and children in relation to each other as the child of the adopter or adopters born to him, her or them in lawful wedlock;
(b) the mother or guardian shall lose all parental rights and be freed from all parental duties with respect to the child.
Now, there is no doubt that the placement for an adoption is a giant step and may lead to the High Court later dispensing with the consent of the mother to the adoption — which is this case. Therefore, the consequences of placement for adoption must be explained very clearly to the mother. It was put thus in O.G. v. An Bord Uchtála [1991] ILRM 514 by Finlay CJ (speaking for the court at pp. 539–540):
… 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 interest 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 correct approach is to regard the mother’s constitutional rights as subsisting right up to the time that an adoption order is made by the Adoption Board. It is clear, of course, that those constitutional rights will have undergone a modification by virtue of the fact that she has placed the child for adoption and, as Finlay CJ points out, the possible consequences that may flow from that decision must be made very clear to her. But the fact that she has placed the child for adoption is by no means the end of the process. The High Court judge in deciding whether an order should be made dispensing with the consent must, of course, bring all his or her experience and powers of intellect, as well as of heart, to bear on what will often be an excruciatingly difficult decision. In doing that the judge must always put at the forefront of all considerations what the best interests of the child require having regard to the terms of s. 3 of the 1974 Act. The best interests of the child will be served, not by placing to one side in any respect the mother’s situation but, on the contrary, having full regard to her and whatever may be advanced on her behalf in the matter. That was essentially the situation in the G. case, though I appreciate that Walsh J attached critical importance to the decision made at the placement for adoption stage.
Of course, the judge’s function is not anything as crude as to resolve a contest between parties: rather the judge must engage in an inquiry to decide what is in the best interests of the child. The judge will have regard, too, to the situation of the adopters always keeping in a central position what the best interests of the child require.
I am satisfied that the learned trial judge complied with the purpose and policy of the adoption code as thus set forth.
He said (at pp. 237–238):
It is perfectly true that Sister S. did say that she ‘did not go outside Form 10 during the discussion’. Whatever may have been her reason for giving this answer or whatever she may have meant by it, the fact of the matter is that during the course of her evidence, which I accept, she gave a comprehensive description of the way in which she instructed and informed [the plaintiff] about the adoption procedure. I am satisfied that [the plaintiff] as a result of that instruction, knew what she was doing by placing [the child] for adoption and that this was the first stage of the procedure and that if she had a change of mind between that and the making of the final adoption order she might well be confronted with the prospect of going to court and that the court would decide on what to do. She knew that the outcome of such litigation might be that the court would decide that [the plaintiff’s] consent would be dispensed with and authorising the Adoption Board to make an order for adoption without it. There can, in my view, be no other possible circumstance for [the plaintiff] volunteering to sign the final consent there and then at that stage (which naturally Sister S. would not allow).
Even if the trial judge had the belief, based on a reading of the three judgments that I have already referred to in the G. case, that the plaintiff had abandoned all constitutional rights by the very act of placement, nonetheless, he applied the correct test as enunciated by Finlay CJ in the O.G. case in the passage already quoted. That is what is really important rather than to engage in a categorisation of rights. ‘Parental rights’ (the words used in the legislation) are sufficiently wide to cover all categories of rights and, as I have said, can only be extinguished when the adoption order is made.
Mr Durcan points out that the judge appeared to have considered the child’s situation under s. 2 rather than s. 3(2) of the 1974 Act which he submits is the section under which he should have operated. S. 2 refers to ‘any matter, application or proceedings before the board or any court relating to the arrangements for or the making of an adoption order’ in which case the board or the court in deciding that question shall regard the welfare of the child as ‘the first and paramount consideration’. Under s. 3 the court has to have regard to the ‘best interests’ of the child. These present proceedings are a prerequisite to any ‘arrangements’ put in train for the making of an adoption order and, therefore, s. 2 does not apply to the circumstances of this case. S. 3 is the applicable section. There is a difference in wording between the two terms ‘first and paramount consideration’ and ‘best interests’ — and while the legislature when it uses different words must be taken to intend a different shade of meaning at least — nonetheless, the trial judge duly embarked on the form of inquiry and arrived at a decision that clearly satisfied the ‘best interests’ requirements of s. 3. Indeed, as suggested in the course of the hearing before us, the reference to s. 2 may have been a clerical error when s. 3(2) was intended. In any event, no complaint has been made to us about the trial judge’s actual adjudication in dealing with the child’s interests or the consideration — which was most careful — that he accorded to the evidence both of the plaintiff and of the proposed adopters. In this regard, I join wholeheartedly with the Chief Justice in the tribute that he has paid both to the mother and the adopters in their concern for the welfare of the child.
One final point needs to be noted: once an order is made under s. 3 of the 1974 Act giving the High Court power to authorise the Adoption Board to dispense with the consent of the mother, it is clear that the High Court may give custody of the child to the prospective adopters for such period as the court may determine. It is clear, however, that the board cannot make a final order while there are custody proceedings pending (see s. 16 (4) of the Adoption Act 1952).
I would dismiss the appeal.
APPENDIX
Form 10
ADOPTION ACTS 1952 TO 1988
Memorandum to be furnished by a registered adoption society to a mother, father or guardian who proposes to place a child with a registered adoption society for adoption.
Name of Registered Adoption Society …
Address …
Telephone No. …
Consent to the placing for adoption of … (here
set out name of child) born on the … day of 19 …
Effect of an adoption order
1. If an adoption order is made for the child, you will lose all your parental rights and will be freed from all parental duties. These rights and duties will be transferred permanently to the adopters. The child will thereafter be regarded as their child as if the child were born to them in marriage.
Payments by natural father
2. If the child was born outside marriage and the natural father is under a legal obligation to make payments for the benefit of the child, he will not be legally bound to continue these payments after the adoption order is made.
Consent to the making of an adoption order
3. An Bord Uchtála (The Adoption Board) will not make an adoption order without the consent of
(a) the mother of the child,
(b) any person appointed by court order or otherwise to be the child’s guardian,
(c) in certain circumstances, the natural father unless any such consent is dispensed with by the board in accordance with the law.
4. The consent of the natural father to the making of an adoption order for a child born outside marriage is required in the following circumstances—
(a) where he marries the mother after the birth of the child, or
(b) where he has been appointed a guardian of the child or has been granted custody of the child pursuant to a court order (or otherwise has custody).
5. Where the prospective adopters, the child and the natural parents, or if the child was born outside marriage, his mother, are not all of the same religion, every person whose consent to the making of an adoption order is required must know, when giving such consent, the religion (if any) of each of the prospective adopters.
6. A consent may be withdrawn at any time before the making of an adoption order.
Dispensing with consent
7. The law permits An Bord Uchtála (The Adoption Board) to dispense with the consent of any person to the making of an adoption order if it is satisfied that that person (a) is incapable by reason of mental infirmity of giving consent, or (b) cannot be found.
8. Where a person who has consented to the placing of a child for adoption fails, neglects or refuses to give consent to the making of an adoption order, or withdraws a consent already given, it is open to the prospective adopters, if they have applied for an adoption order for the child, to apply to the High Court for an order under s. 3 of the Adoption Act 1974. The High Court, if it is satisfied that it is in the best interests of the child so to do, may make an order under that section (a) giving custody of the child to the prospective adopters, and (b) authorising An Bord Uchtála (The Adoption Board) to dispense with such consent to the making of an adoption order in their favour.
Reclaim of child
9. If, after the child has been placed with prospective adopters and before the making of the adoption order, you change your mind and want to reclaim your child, you should contact the adoption society without delay. If the prospective adopters decline to give up the child, it is open to you to institute proceedings to have custody of the child restored to you. Should this situation arise you would need to consult a solicitor as a court case may be involved.
RECEIPT FOR FORM 10
(Detach here)
To the registered adoption society called …
I hereby consent to the placing for adoption of the child …
(here set out the name of the child) born on the … day of 19 …
I say that I am/I am not the sole guardian of the said child. The father has/has not been appointed a guardian of the said child pursuant to a court order or otherwise. (a)
To the best of my knowledge and belief, the father has not instituted proceedings in relation to guardianship or custody of the said child. (b)
Here you may state your wishes as to the religion, if any, of the person(s) with whom the said child is to be placed for adoption
…
I have received from you a statement in Form 10. That statement was attached to this receipt and I have myself torn it off. I understand that statement. I also understand that my signature on this receipt is evidence that I have consented to the placing of the said child for adoption.
Name (in block letters) …
Signature …
Address …
Signature of Witness …
Address …
Occupation or Description …
Date …
I certify that on behalf of …
I have handed the statement attached to this receipt to … and explained its contents to her/him.
I am satisfied that she/he understands it.
Signature …
Date …
(a) and (b) Delete words which do not apply.