C v C
| Jurisdiction | Ireland |
| Judge | Finlay C.J.,McCarthy J. |
| Judgment Date | 27 March 1985 |
| Neutral Citation | 1985 WJSC-SC 24 |
| Court | Supreme Court |
| Date | 27 March 1985 |
1985 WJSC-SC 24
THE SUPREME COURT
Finlay C.J.
Griffin J.
Hederman J.
McCarthy J.
O'Hanlon J.
BETWEEN
and
Citations:
ADOPTION ACT 1974 S21
ADOPTION ACT 1974 S3
CONSTITUTION ART 41
EAST DONEGAL CO-OP V AG 1970 IR 317
G V BORD UCHTALA 1980 IR 32, 113 ILTR 25
GUARDIANSHIP OF INFANTS ACT 1964 S14
GUARDIANSHIP OF INFANTS ACT 1964 S16
GUARDIANSHIP OF INFANTS ACT 1964 S2
GUARDIANSHIP OF INFANTS ACT 1964 S3
J V C 1970 AC 668
J V D & ORS UNREP SUPREME 22.06.77 1977/5/870
J, IN RE 1966 IR 295
LEGITIMACY ACT 1931
MCDONALD V BORD NA gCON 1965 IR 217, 100 ILTR 89
MCL V BORD UCHTALA 1977 IR 287
O'HARA, IN RE 1900 2 IR 232
W(P) & W(A) V M(L) & AG UNREP ELLIS J 21.04.80 1980/10/1862
WILLIAMS V MARKEY, STATE 1940 IR 421
CONSTITUTION ART 42
CONSTITUTION ART 43
Synopsis:
CONSTITUTION
Family
Child - Custody - Welfare - Mother's consent to placement for adoption - Subsequent marriage of mother and father - Legitimation of infant - Consent withdrawn - Infant in care of applicants for adoption - Infant two years old - Welfare of infant - Whether sole matter to be considered to exclusion of provisions of the Constitution - Welfare of infant to be assessed in the context of constitutional rights of parents - Decision of High Court (15/10/84) set aside - Issue remitted to High Court - (294, 304, 315/84 - Supreme Court - 27/3/85).
C. v. C.
INFANTS
Custody
Parents - Adoption applicants - Mother's consent to placement for adoption - Subsequent marriage of mother and father - Legitimation of infant - Consent withdrawn - Infant in care of applicants for adoption - Infant two years old - Welfare of infant - Whether sole matter to be considered to exclusion of provisions of the Constitution - Welfare of infant to be assessed in the context of constitutional rights of parents - Decision of High Court (15/10/84) set aside - Issue remitted to High Court - (294, 304, 315/84 - Supreme Court - 27/3/85).
C. v. C.
JUDGMENT delivered on the 27th day of March 1985by Finlay C.J. [Griffin Hederman O'Hanlon Concurring]
The infant in the title named, who is a girl, was born on the 25th September 1982 to M. C. (hereinafter called the mother) who was then unmarried. The father of the infant was M. C., also in the title named, whom I will hereinafter refer to as the father.
At the time of the birth of the infant the mother and father were not married though both were free to marry.
The infant was cared for by her mother for a week after her birth in the hospital in which she was born. The mother then arranged for her to be placed in foster care. She visited her whilst in such care from time totime.
On the 18th November 1982 the mother signed a consent for the placement of the infant for adoption.
On the 22nd December 1982 the infant was placed with K. C. and A. C. (hereinafter called the adopting parents) with a view to being adopted by them. The infant has remained in the custody and care of K. C. and A. C. since that time.
In the beginning of the month of December 1983 the mother withdrew her consent to the adoption of the infant by communicating in writing to An Bord Uchtála.
On the 26th March 1984 the mother and father of the infant were married. The adopting parents issued proceedings in the High Court by Special Summons on the 7th February 1984 seeking inter alia an Order pursuant to Section 3 of the Adoption Act 1974authorising An Bord Uchtála to dispense with the consent of the natural mother to the making of the Adoption Order and seeking a further Order granting custody of the infant to them pursuant to the provisions of that Act.
After compliance with the usual procedures of givingnotice to the mother of the infant these proceedings came on for hearing before Lynch J. and were at hearing on the 6th and 7th June 1984 and on the 12th July 1984. Judgment was reserved and was given by Lynch J. on the 10th August 1984. On the 7th June 1984 in the course of the hearing the learned trial Judge firstly made an Order adding the father as a party to the proceedings and, secondly, made an Order adding AntÁrd Cláraitheóir as a party and restraining him, pending the determination of those proceedings, from re-registering the birth of the infant under the provisions of the Legitimacy Act 1931.
On the 10th August 1984 Lynch J. made an Order refusing the claim of the adopting parents for relief pursuant to the provisions of the Adoption Act 1974and also continuing the Order restraining An tÁrdCláraitheóir from re-registering the birth of the infant until after the expiration of a period of twenty-one days from the date of the perfection of that Order. From the judgment delivered by him at that time it is clear that the grounds for this refusal, and the only grounds, were afinding that the father of the infant had not agreed to the placing of the child for adoption and that having regard to the provisions of Section 21 of the Adoption Act 1964and Section 3 of the Adoption Act 1974the Court had no jurisdiction to make an Order under Section 3 of the Act of 1974.
On the 22nd May 1984 the parents had issued a summons under the Guardianship of Infants Act 1964claiming custody of the infant and naming the adopting parents as the Defendants. The adopting parents issued a summons on the 21st June 1984 under the Guardianship of Infants Act 1964claiming custody of the infant.
These last two proceedings were heard in the High Court on the 20th, 21st and 24th days of September 1984 and judgment was reserved.
On the 15th October 1984 judgment was delivered by Lynch J. and custody of the infant was awarded to the adopting parents with rights of access to the parents.
By a further Order, dated the 17th October 1984, Lynch J. continued the Order restraining An tÁrd Cláraitheóirfrom re-registering the birth of the infant pending the appeal against the decision of the High Court in the summons under the AdoptionActs.
From these decisions of the High Court the adopting parents appealed against the decision refusing their application for an Order under Section 3 of the Adoption Act 1974and the parents appealed against the Order granting custody under the Act of 1964 to the adopting parents, and also against the Order restraining An tÁrd Cláraitheóir from re-registering the birth of the child.
Upon the hearing of these appeals the adopting parents did not pursue their appeal against the refusal of their application under Section 3 of the Adoption Act 1974, whilst conceding that the consequential confirmation of the Order made by Lynch J. on the 10th August 1984 should lead to the discharge of his Order dated 17th October 1984 continuing the restriction on the re-registration of the birth of the infant, Counsel on behalf of the adopting parents wished not to consent to the removal of thatrestriction on the grounds that it was possible in the event of the adopting parents being successful in upholding the decision of Lynch J. with regard to the custody of the child made on the 15th October 1974 that they could persuade the parents to abstain from re-registering the child and to give consent to its adoption.
In short, the issue which arose on the appeal by the parents against the Order granting custody of the infant to the adopting parents was as to whether the learned trial Judge had applied the right test having regard to the fact that they are now married; that the infant is now their legitimate daughter and has that status even before re-registration of its birth.
In the course of his judgment, on the 15th October 1984, Lynch J. held that the issue before him must be determined in accordance with Section 3 of the Guardianship of Infants Act 1964regarding the welfare of the infant as the first and paramount consideration and that on the evidence the way in which he could give effect to that Section was by asking and answering the question:...
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