G v an Bord Uchtála

• Jurisdiction: Ireland
• Judgment Date: 01 January 1980
• Date: 01 January 1980
• Docket Number: [1978 No. 290 Sp.]
• Court: Supreme Court

G. v. An Bord Uchtála

G.

Plaintiff

and

An Bord Uchtála and Others Defendants

[1978 No. 290 Sp.]

High Court

Supreme Court

Adoption - Consent - Withdrawal - Illegitimate child - Applicants seeking adoption order - Child in care of applicants - Applicants applying for order authorising Adoption Board to dispense with mother's consent to adoption - Principles applicable - Adoption Act, 1952 (No. 25), ss. 14, 15 - Guardianship of Infants Act, 1964 (No. 7), ss. 2, 3, 6, 10. 14-16 - Adoption Act, 1974 (No. 24), ss. 2, 3 - Constitution of Ireland, 1937, Articles 40-42.

Section 14 of the Act of 1952 states that an adoption order shall not be made without the consent of the mother of the child, and that the consent may be withdrawn at any time before the adoption order is made. Section 6 of the Act of 1964 states that the mother of an illegitimate infant shall be the guardian of the infant; and s. 10 of that Act states that, unless otherwise provided, every guardian under the Act shall be a guardian of the person and, as such, shall be entitled to the custody of the infant and shall be entitled to take proceedings for the restoration of his custody of the infant. Where a necessary consent has been refused or withdrawn, an applicant for an adoption order is enabled by s. 3 of the Act of 1974 to apply to the High Court for an order under that section. If it is satisfied that "it is in the best interests of the child so to do," the High Court is thereby empowered to make an order giving custody of the child to the applicant for such period as the court may determine, and may authorise the first defendant to dispense with the missing consent during that period.

The plaintiff, an unmarried woman aged 21 years, gave birth to a daughter on the 14th November, 1977. The plaintiff did not inform her parents of the birth of her child as she was afraid of her parents' reaction to that information. The plaintiff did not inform the father of her child and she had decided not to marry him. While she was in hospital the plaintiff was advised to place her child for adoption. As the plaintiff lived in a flat with three other girls and earned a modest salary, she was unable to care for her child unaided. On the 6th January, 1978, the plaintiff placed her child with an adoption society and signed a consent to the child being adopted. Towards the end of January the plaintiff informed her parents that she had given birth to a child and that she had placed it for adoption, and her parents agreed immediately to help the plaintiff to rear her child. On the 11th February the plaintiff wrote to the adoption society stating that she wished to keep her child and that she withdrew her consent, and on the 21st February the married couple who had applied for an adoption order in respect of the child were so informed. Those applicants had received temporary custody of the plaintiff's child from the adoption society on the 22nd January, pending the decision of the first defendant on their application.

On the 11th May, 1978, the plaintiff issued a summons in the High Court in which she claimed the restoration to her of the custody of her child. The applicants for an adoption order became notice parties in the plaintiff's action and claimed therein an order under s. 3 of the Act of 1974 authorising the first defendant to dispense with the consent of the plaintiff to the making of an adoption order by the first defendant in favour of the notice parties.

Held by Finlay P., in giving judgment for the plaintiff and dismissing the application of the notice parties, 1, that the plaintiff, as the mother of the child, had a right to the custody of her child, which right was both a statutory right and a personal right within the meaning of Article 40, s. 3, of the Constitution; but that her said right was not an absolute one.

The State (Nicolaou) v. An Bord Uchtála [1966] I.R. 567 considered.

2. That the plaintiff's child had a right to have her welfare preserved, which right was also a personal right within the meaning of Article 40, s. 3, of the Constitution.

3. That the relevant statutory provisions should be interpreted so as to make them amenable, if possible, to the provisions of the Constitution and the rights recognised therein.

East Donegal Co-Operative v. The Attorney General [1970] I.R. 317 considered.

4. That the plaintiff had not abandoned or deserted her child, and had not been shown otherwise to be unfit to have custody of her child.

5. That the welfare of the plaintiff's child would be served marginally better if the notice parties retained custody of the child.

6. That, in the absence of desertion, abandonment or unfitness on the part of the respondent, the test in determining an application under s. 3 of the Act of 1974 is whether the court should intervene on the ground that the respondent has refused or withdrawn his consent capriciously or irresponsibly, or on the ground that the welfare of the infant overwhelmingly demands that an order should be made under the section.

7. That the welfare of the plaintiff's child did not require overwhelmingly that she should remain in the custody of the notice parties, and that the plaintiff's consent to the adoption of her child had not been refused or withdrawn capriciously or irresponsibly.

On appeal by the notice parties it was

Held by the Supreme Court (Walsh, Henchy and Kenny JJ., O'Higgins C.J. and Parke J. dissenting) that the trial judge had determined the issues raised by the application of the notice parties, and that the appeal should be disallowed because —

• (a) per Walsh J.

  • (i) The plaintiff mother had a natural right to the custody of her child, which right was a personal right within the meaning of Article 40, s. 3, of the Constitution but it was not an absolute right.

  • (ii) The plaintiff's child had a natural right to have her welfare safeguarded, which right was a personal right within the meaning of Article 40, s. 3, of the Constitution.

  • (iii) The plaintiff's right to custody had not been abandoned, waived or otherwise diminished.

  • (iv) The facts established that the child's constitutional rights would not be infringed by a refusal to make an order pursuant to s. 3 of the Act of 1974.

• (b) per Henchy J.

  • (i) The plaintiff's child had a natural right to have her welfare safeguarded, which right was a personal right within the meaning of Article 40, s. 3, of the Constitution.

  • (ii) The plaintiff had a statutory right to the custody of her child under ss. 6 and 10 of the Guardianship of Infants Act, 1964, but the plaintiff's right must yield, if necessary, to her child's constitutional right.

  • (iii) The facts established that the child's constitutional rights would not be infringed by a refusal to make an order pursuant to s. 3 of the Act of 1974.

• (c) per Kenny J.

  • (i) The plaintiff had a statutory right to the custody of her child under ss. 6 and 10 of the Guardianship of Infants Act, 1964, and that right had not been abandoned, waived or otherwise diminished.

  • (ii) The facts established that the child's rights would not be infringed by a refusal to make an order pursuant to s. 3 of the Act of 1974.

• (d) per Walsh, Henchy and Kenny JJ.

• The trial judge had acted correctly in choosing to apply the test of "the best interests of the child" in accordance with the requirement of s. 3 of the Act of 1974.

Cases mentioned in this report:—

¹ The State (Nicolaou) v. An Bord Uchtála [1966] I.R. 567.

² East Donegal Co-Operative v. The Attorney General [1970] I.R. 317.

³ Murphy v. Stewart [1973] I.R. 97.

⁴ M. v. An Bord Uchtála [1977] I.R. 287.

⁵ K. v. K. (Supreme Court—31st July, 1974).

⁶ F., In re [1969] 2 Ch. 238.

⁷ O'S. v. O'S. (1974) 110 I.L.T.R. 57.

⁸ Quinn's Supermarket v. The Attorney General [1972] I.R. 1.

⁹ J. v. C. [1970] A.C. 668.

¹⁰ M., In re [1946] I.R. 334.

¹¹ Ryan v. The Attorney General [1965] I.R. 294.

¹² McGee v. The Attorney General [1974] I.R. 284.

¹³ McDonald v. Bord na gCon [1965] I.R. 217.

¹⁴ B. v. B. [1975] I.R. 54.

¹⁵ Frost, In re [1947] I.R. 3.

¹⁶ The State (Kavanagh) v. O'Sullivan [1933] I.R. 618.

¹⁷ Kindersley, In re [1944] I.R. 111.

¹⁸ O'Hara, In re [1900] 2 I.R. 232.

¹⁹ R. v. Gyngall [1893] 2 Q.B. 232.

²⁰ R. v. Hopkins (1806) 7 East 579.

²¹ Barnardo v. McHugh [1891] A.C. 388.

²² Elliott, In re (1893) 32 L.R.Ir. 504.

²³ R. v. Nash (1883) 10 Q.B.D. 454.

Special Summons.

The Adoption Act, 1974, made two major changes affecting the rights of a mother in relation to the adoption of her child. First, by s. 8 it substituted a new version of s. 15 of the Adoption Act, 1952, whereby the period during which her consent to an adoption order could not be given validly was reduced from six months to six weeks from the birth of her child. Secondly, her power to prevent an adoption order being made by the Adoption Board (by withholding or withdrawing her consent) was removed by s. 3 of the Act of 1974 which enables the High Court in certain circumstances to make an order permitting the Adoption Board to dispense with the consent of the mother.

As a result of the substitution effected by s. 8 of the Adoption Act, 1974, the provisions of s. 15 of the Adoption Act, 1952, now state:—

"(1) A consent shall not be valid unless it is given after the child has attained the age of six weeks and not earlier than three months before the application for adoption.

(2) The Board shall satisfy itself that every person whose consent is necessary and has not been dispensed with has given consent and understands the nature and effect of the consent and of the adoption order."

Article 40, s. 3, of the Constitution of Ireland, 1937, provides:—

"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...