O'C v Sacred Heart Adoption Society

• Jurisdiction: Ireland
• Judge: O'Flaherty J.,Hamilton C.J
• Judgment Date: 01 January 1996
• Neutral Citation: 1995 WJSC-SC 5164
• Court: Supreme Court
• Date: 01 January 1996

1995 WJSC-SC 5164

THE SUPREME COURT

Hamilton C.J.

O'Flaherty J.

Egan J.

Blayney J.

Denham J.

(325/94)

O'C v. SACRED HEART ADOPTION SOCIETY

IN THE MATTER OF THE GUARDIANSHIP OF THE INFANTS ACT, 1964SECTION 11,

AND IN THE MATTER OF THE ADOPTION ACTS, 1952– 1974

BETWEEN/

M. O'C

Plaintiff/Appellant

AND

THE SACRED HEART ADOPTION SOCIETY AND AN BORDUCHTALA

Defendants/Respondents

AND IN THE MATTER OF THE ADOPTION ACTS 1952– 1988AND IN THE MATTER OF

AN APPLICATION UNDER THE ADOPTION ACT, 1974AND IN THE MATTER OF C.

O'C. (A MINOR)

A.D. AND M.J. D

Plaintiffs/Respondents

AND AN BORD UCHTALA

Defendant/Respondent

AND

M. O'C.

Notice Party/Appellant

Citations:

G V BORD UCHTALA 1980 IR 32

ADOPTION ACT 1974 S3

ADOPTION (NO 2) BILL 1987, IN RE 1989 IR 656

ADOPTION ACT 1952 S24

G (O) V BORD UCHTALA 1991 ILRM 514

ADOPTION ACT 1974 S3(2)

ADOPTION ACT 1974 S2

ADOPTION ACT 1952 S16(4)

Synopsis:

ADOPTION

Consent

Absence - Infant - Placement - Mother - Agreement - Change of mind - Constitutional right to refuse consent to placement for adoption - Infant in care of prospective adopters - Whether agreement to placement based on full information - Constitutional rights unaffected by agreement - Authority of adoption board to dispense with mother's consent - High Court order granted authority - Unmarried mother - Best interests of child - Adoption Act, 1974, s. 3 - (325/94 - Supreme Court - 10/11/95)

|O'C. v. An Bord Uchtala|

CONSTITUTION

Personal rights

Mother - Infant - Custody - Entitlement - Suspension - Placement of infant for adoption - Mother's consent to placement - Effect of consent on mother's rights - (325//94 - Supreme Court - 10/11/95)

|O'C. v. An Bord Uchtala|

1 JUDGMENT of O'Flaherty J.delivered on the 10th day of November, 1995 [NEMDISS]

2 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 adopterssought an order dispensing with M. O'C's consent to the making of an adoption order by the Adoption Board (An Bord Uchtala) and an order granting them custody of the child in the interim.

3 I shall refer to M. O'C as the plaintiff throughout this judgment and the proposed adopters as such.

4 The plaintiff appeals from the judgment and order of the High Court (Morris J.) of the 21st 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.

5 The background facts to the case are as follows. The child, a daughter, was born on the 9th 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.

6 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 herbaby, 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.

7 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 the 12th 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 the 12th 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

8 He stated 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 the 12th 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 permissable] 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. Shemetthem in the hostel by appointment on the 4th 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 the 8th February at which stage she assessed the family and passed them as suitable and so informed Sister S."

9 He went on to say:-

"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."

10 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 aconstitutional 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.

11 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 fullyinformed. 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.

12 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 S.C., 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 C.J., Walsh J. and Parke J. in the case of G. .v. An BordUchtala [1980] I.R. 32. Whether it isappropriate 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.

13 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...