G. v an Bord Uchtála
| Jurisdiction | Ireland |
| Judge | KENNY J.:,Henchy J.,O'HIGGINS C.J. |
| Judgment Date | 19 December 1978 |
| Neutral Citation | 1978 WJSC-SC 1296 |
| Docket Number | (124-1978) |
| Court | Supreme Court |
| Date | 19 December 1978 |
1978 WJSC-SC 1296
THE SUPREME COURT
AFFIRMING HIGH COURT 19.9.78
JUDGMENT delivered the 19th day of December 1978by O'HIGGINS C.J.
On the 14th November 1977 the Plaintiff gave birth to a baby girl. The Plaintiff is unmarried and the child was illegitimate. The Plaintiff was and still is a civil servant. She is the second of a family of four girls, and both her parents are alive. The Plaintiff had been friendly with the father of the child for some time but, although he is unmarried, marriage between them was neither contemplated before the birth nor considered practicable since. The decision in this respect was that of the Plaintiff. When the Plaintiff became aware of her pregnancy she kept the fact to herself and informed neither the father not her sisters nor her parents. The birth was a normal one. It took place in hospital. The child was and is normal and healthy. The Plaintiff spent less than a week in hospital and after the birth of herchildshe informed only one married sister of the fact but did not inform her parents nor either of her other two sisters. Upon leaving hospital she placed the child in a nursery. Having done so the Plaintiff considered what decision she should come to as to the child's future. In hospital she had been urged by a member of the nursing staff to have the child adopted. On leaving hospital, through the agency of the hospital's social worker, she sought the advice of the director of an adoption society. The Plaintiff at that time hoped to keep the whole affair from her parents because she feared the effect on them. Living as she did, sharing a flat with three other girls, she could not look after the child herself. For this reason adoption had to be and was considered. The Plaintiff had four interviews with the director of the adoption society and finally decided to place her daughter for adoption. Having so decided the Plaintiff had on the 6th January 1978 an interview with a medical social worker attached to the adoption society and on that date signed a form of consent to the placing of her child for adoption. Thelegalimplications and consequences of what she was doing were explained to her and she received in addition a printed memorandum dealing fully with these matters. Amongst the matters so explained to her and detailed also in the memorandum was the nature and effect of Section 3 of the Adoption Act 1974 to which I will refer in more detail later in this Judgment. Towards the end of January 1978 the Plaintiff decided to inform her parents of the birth of her daughter. Their reaction was that she should have told them earlier and that if she had done so they would have helped her. They also said that if she now wished to keep the child they would help and support her. As a result the Plaintiff wrote on the 11th February 1978 to the adoption society expressing a wish to keep her child. She later had an interview with the director of the adoption society in which she made it clear that she had changed her mind about adoption and wished to have her child back.
Following the placing by the Plaintiff of her child for adoption with the society on the 6th January 1978 the society had on the 22nd January given the child into thecare of the notice parties for the purpose of adoption. The notice parties were married in October 1968 and, the wife having learned that she could not bear children, had adopted a daughter through the same adoption society in January 1975. In the Autumn of 1975 they had applied again to the society to adopt another daughter. It was in these circumstances that the Plaintiff's child was placed with them. Having been informed through the adoption society of the Plaintiff's change of mind and of her determination to take back her child the notice parties instead of availing of their rights under Section 3 of the Adoption Act 1974 decided to hold on to the child.
On the 11th May 1978 the Plaintiff commenced these proceedings in the High Court against An Bord Uchtála, claiming the return of her child. The President of the High Court having regard to the reality of the issue which had arisen concerning the future of the child and to the absolute necessity that the identities of those concerned should not be disclosed, put into operation the procedures set out at the commencement of his Judgment. Theseprocedures as one would expect from him, were devised with great care and concern both for the preservation of this essential secrecy and in the interests of justice. The result is that the adoption society has been added as a Defendant, the persons now having custody have been added as notice parties and a Notice of Motion on their behalf seeking an Order under Section 3 of the Adoption Act 1974 has become the true nature of these proceedings. Evidence was taken from both the Plaintiff and the notice parties with due regard to each other's rights but without any disclosure of their identities one to the other. The learned President having considered this evidence and having reserved Judgment decided against the notice parties" claim for an Order under Section 3 of the Act and directed that the child be returned to the custody of her mother. Against this decision this appeal has been brought by the notice parties.
Section 3 of the Adoption Act 1974 provided as follows:
2 "(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 adoptionorder 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 thisSection
(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 periodaforesaid.
(3) The consent of a Ward of Court shall not be dispensed with by virtue of a High Court order under this Section except with the sanction of the Court.
The learned President in considering the application of this Section to this case came to the conclusion that the constitutional rights of the mother to the custody of her child continued and prevailed, and concluded that she was entitled as of right in the circumstances to thereturnof her child. In so concluding, the learned President while recognising the co-existence of clear constitutional rights on the part of the child, was of the opinion on the facts, that these were neither interfered with nor endangered. It seems appropriate, therefore, that I should at this stage have regard to the constitutional rights of the persons primarily involved in this sad story, namely, the mother and herchild.
In the first place it should be noted that the mother is not the mother of a family in the sense in which the term is used in the Constitution. Article 41 of the Constitution which recognises the family as the natural, primary and fundamental unit group of society and as a moral institution possessing inalienable and imprescriptiable rights antecendent and superior to all positive law, refers exclusively to the family founded and based on the institution of marriage. It is this family which under Article 41.2 the State guarantees to protect in its Constitution and authority as the necessary basis of social order and as indispensable to the welfare of the Nationand the State. But the Plaintiff is a mother and as such she has rights which derive from the fact of motherhood and from nature itself. These rights are among her personal rights as a human being which the State is bound under Article 40.3.1. of the Constitution to respect and to defend and vindicate. As a mother she has the right to protect and care for and to have the custody of her infant child. The existence of this right was recognised in the Judgment of this Court in The State (Nicolaou) v. An Bord Uchtála 1966 I.R. 567. This right is clearly based on the natural relationship which exists between a mother and child. It arises in my view from the infant's total dependency and helplessness and from the mother's natural determination to protect and sustain her child. How far and to what extent it survives as the child grows up is not a matter of concern in the present case. Suffice to say that this Plaintiff had, as a mother, a natural right to the custody of her child who was an infant and that this natural right of hers is recognised and protected by Article 40.3.1 of the Constitution. Section 6(4) and Section 10(2)(a) of the Guardianship of Infants Act 1964constitute a compliance bythe State of its obligation in relation to the mother of an illegitimate child to defend and vindicate in its laws this right to custody. These statutory provisions make the mother guardian of an illegitimate child and give her statutory rights to sue for custody. These rights of the mother in relation to her child are, however, neither inalienable nor imprescriptible, in the same way as are the rights of the family under Article 41. They can be alienated or transferred in whole or in part and either subject to conditions or absolutely, or they can be lost by the mother if her conduct towards the child amounts to an abandonment or an abdication of her rights and duties.
The child also has natural rights. Normally these will be safe under the care and protection of the mother. Having been born the child has...
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