Eastern Health Board v an Bord Uchtála

• Jurisdiction: Ireland
• Judge: O'FLAHERTY J.,FINLAY C.J.
• Judgment Date: 01 January 1994
• Neutral Citation: 1993 WJSC-SC 398
• Date: 01 January 1994
• Court: Supreme Court
• Docket Number: [1990 No. 452 Sp; S.C. No. 101 of 1992]

EASTERN HEALTH BOARD v. BORD UCHTALA

IN THE MATTER OF THE ADOPTION ACTS 1952– 1988

AND IN THE MATTER OF A.N.M., AN INFANT

BETWEEN

EASTERN HEALTH BOARD AND T.M. AND A.M.

Plaintiffs

and

AN BORD UCHTALA

Defendant

1993 WJSC-SC 398

101/92

THE SUPREME COURT

Synopsis:

ADOPTION

Child

Foreigner - Naturalisation - Alien parents - High Court - Jurisdiction - Adoption board - Adoption approved subject to authorisation by High Court - Health board's application for authorisation - Prospective adopters certified to be suitable - Child born in India and brought to Ireland - Adoption Act, 1988, ss. 2, 3, 6 - (101/92 - Supreme Court - 8/3/93) - [1994] 3 IR 217

- [1993] ILRM 577

|Eastern Health Board v. An Bord Uchtala|

HIGH COURT

Jurisdiction

Adoption - Authorisation - Infant - Foreigner - Naturalisation - Alien parents - Adoption board - Adoption approved subject to authorisation by High Court - Health board's application for authorisation - Prospective adopters certified to be suitable - Child born in India and brought to Ireland - (101/92 - Supreme Court - 8/3/93) - [1994] 3 IR 217 - [1993] ILRM 577

|Eastern Health Board v. An Bord Uchtala|

INFANTS

Adoption

Foreigner - Naturalisation - Alien parents - High Court - Jurisdiction - Adoption board - Adoption approved subject to authorisation by High Court - Health board's application for authorisation - Prospective adopters certified to be suitable - Child born F in India and brought to Ireland - (101/92 - Supreme Court - 8/3/93) - [1994] 3 IR 217 - [1993] ILRM 577

|Eastern Health Board v. An Bord Uchtala|

Citations:

ADOPTION ACT 1988 S2(1)(c)

ADOPTION ACT 1988 S3(1)

ADOPTION ACT 1988 S2(2)

ADOPTION ACT 1988 S3(1)

ADOPTION ACT 1988 S1(1)

ADOPTION ACT 1988 S6

ADOPTION ACT 1952 S3

ADOPTION ACT 1952 S9

ADOPTION ACT 1952 S10

ADOPTION ACT 1952 S2(1)

ADOPTION ACT 1952 S4(4)

ADOPTION ACT 1988 S9

REVIEW COMMITTEE ON ADOPTION SERVICES REPORT MAY 1984 2467

STATUS OF CHILDREN ACT 1987

ADOPTION (NO 2) BILL 1987 1989 IR 656

CONSITUTION ART 40.3

ADOPTION ACT 1952 S25

EASTERN HEALTH BOARD V BORD UCHTALA 1992 ILRM 569

ADOPTION ACTS 1952 – 1976

ADOPTION ACT 1988 S4(4)(a)

CONSTITUTION ART 42.5

UNIVERSAL DECLARATION OF HUMAN RIGHTS 1948 ART 25

1 JUDGMENT delivered on the 8th day of March 1993by FINLAY C.J. [HEDERMAN CONC] [EGAN, BLAYNEY CONC]

2 This is an appeal by the Plaintiffs against an order made in the High Court by Carroll J. on the 10th March 1992 dismissing the claim made by the Plaintiffs in this summary summons for an order pursuant to section3(1) of the Adoption Act 1988, authorising the Defendant to make an adoption order in relation to the infant A.N.M.

The facts

3 The Plaintifffs T.M. and A.M. are both Irish citizens domiciled in Ireland and were married on the 13th April 1977. In November 1979 they applied to the Delhi Council for Child Welfare in India, proposing that they might be in a position to adopt an Indian child. They registered with the Council in March of 1980, and in August of 1980 were informed that there was a baby girl born on the 5th July 1980 whom they might be interested in adopting. A petition was then presented by Mrs. Chandra Lekha Soin as attorney for Mr. and Mrs. M., and on behalf of herself to appoint Mr. and Mrs. M. and Mrs. Soin herself as joint guardians of the infant. This was granted by the Delhi District Judge after a full hearing, specifically for the purpose of enabling Mr. and Mrs. M. to bring the child back to Ireland in order, if possible, to have it adopted by them according to the laws ofIreland. An Indian passport was issued to the child on the 26th September 1980, in which Mr. M. was named as the father of the child. Mr. and Mrs. M. travelled to India in October 1980 and took the child back with them to Ireland, with the consent of the Irish Department of Justice. She has since that time resided with them in company with another adopted daughter whom they have adopted in this country and has been reared and brought up by them. A Certificate of Naturalisation under the Act of 1956 was granted by the Minister for Justice to the child, on the application by Mr. M. as a parent, on the 21st June 1985, and the child is now the holder of an Irish passport.

4 The evidence which was before the court in Delhi prior to the making of the order in September 1980, was to the effect that the child had been left by a person or persons unknown at the orphanage conducted by the Child Welfare Service in Delhi, that the authorities there were unaware of the identity of the parents of thechild or as to whether they were married or unmarried. Subsequently, upon communication with the authorities in Delhi, after the commencement of these proceedings, it was apparent that they had since been unable to obtain any further information concerning the identity of the parents of the child, and that no person on behalf of the child, or seeking to be or to act for the parents, had made any claim in respect of the child or made any communication to the orphanage.

5 Mr. and Mrs. M. applied to the Defendants for permission to adopt the child in May 1982, but in the absence of proof that the child was either a child born out of wedlock or an orphan it was not possible for the Defendants to entertain an application for adoption at that time.

6 Upon the passing of the Adoption Act 1988, which became law on the 26th July 1988, Mr. and Mrs. M. renewed, or revived, their application to adopt the child, that Act, of course, having made possible for thefirst time in our law the adoption of children whether born in or out ofwedlock.

7 On the 13th March 1990 the Defendants, having examined the position of the Applicants and, of course, also made a careful examination concerning the welfare of the child, made a declaration pursuant to section 2 of the Adoption Act 1988.That declaration was to the effect that the Board having complied with the provisions of section 2(1)(c) of the Act of 1988 adjourned the application and declared that if an order was made by the court under section 3(1) of that Act it would, subject to subsection (2) of section 2 make the adoption order.

Proceedings in the High Court

8 On the 17th July 1990 these proceedings were instituted by a special summons in which the Eastern Health Board, the health board concerned, and Mr. and Mrs. M. were Plaintiffs and An Bord Uchtala was Defendant. The summons was supported by an affidavitfiled on behalf of the Eastern Health Board by Eileen Conway, a social worker, and an affidavit filed by T.M. on behalf of both the Plaintiffs. In these affidavits and in the exhibits referred to in them, the entire history of the matter was set out in considerable detail and, in particular, the affidavit of Eileen Conway indicated a most careful and comprehensive investigation of the situation, interests, and welfare of the infant and of the position and capacity of Mr. and Mrs. M. to look after her. In that affidavit and in an affidavit of T.M. the history of the proceedings in the Indian courts, a full copy of the order made in Delhi in September 1980, and the circumstances under which the child came into the orphanage in Delhi are all fully set out.

9 By notice of motion which came for hearing on the 14th December 1990 and was supported by a further affidavit of Eileen Conway, directions were sought as to the trial of the proceedings seeking an order fromthe Court pursuant to section 3(1) of the Act of 1988. In that further affidavit and the exhibits set out in it, confirmation was obtained that the Delhi Council for Child Welfare, which had originally been responsible for the child when it had been abandoned by unknown persons at the orphanage in Delhi, did not wish to be represented or to make any representations in the application before the Court. An order was accordingly made by Mr. Justice Murphy on the 14th December 1990, the material portion of which is in the following terms:

"And upon reading the said notice, the affidavit of Eileen Conway filed on the 11th December 1990 and the exhibits therein referred to from which it appears that the natural parents of the infant referred to as A.N.M. in these proceedings are unknown and that the Delhi Council for Child Welfare, the honorary secretary of which having been appointed joint guardian with the second and third named plaintiffs to the said infant, has indicated by letter dated the 14th September 1990 that it does not wish to be heard or representedat the hearing of these proceedings and upon hearing said counsel It is Ordered that the special summons herein which is listed for hearing on Wednesday the 16th January 1991 be heard on oral evidence."

10 The matter then came on for hearing before Carroll J. on the 16th January 1991 and on the 10th day of December 1991, and on the latter date the learned trial judge reserved her judgment, which was delivered by her on the 10th day of March 1992.

11 It appears that, though there were no formal pleadings nor any affidavit filed on behalf of the Defendant the Defendant felt obliged to raise before the learned trial judge a question as to whether the Act of 1988 applied to the child in the title named in these proceedings. The learned trial judge decided to try that as a preliminary issue and apparently came to the conclusion that the Act of 1988 did not apply to the child of "alien parents". It is against that decision that this appeal has been brought.

Relevant statutory provisions

12 Section 9 of the Adoption Act 1988provides as follows:

13 2 "9 (1) This Act may be cited as the Adoption Act, 1988.

14 (2) The Acts and this Act may be cited together as the Adoption Acts, 1952to 1988.

15 (3) The Acts and this Acts shall be construed together asone."

16 By virtue of section 1(1) of the Act of 1988

17 (a) "the Acts" means the Adoption Acts 1952to 1976,

18 (b) "parents" includes a surviving parent, and in the case of a child in respect of whom an adoption...