I. O'T. v B

• Jurisdiction: Ireland
• Judgment Date: 03 April 1998
• Date: 03 April 1998
• Docket Number: [S.C. No.
• Court: Supreme Court

I. O'T. v. B.

I.O'T.

Applicant

and

B., Respondent, and The Rotunda Girls Aid Society and Father Gerard Doyle, Notice Parties and M.H., Plaintiff v. Father Gerard Doyle and The Rotunda Girls Aid Society

Defendants

[S.C. No. 260 of 1995]

Supreme Court

Circuit Court - Jurisdiction - Ascertaining and declaring personal rights of citizen - Whether obligation of Circuit Court to uphold Constitution and laws and defend and vindicate rights of individuals - Courts (Establishment and Constitution) Act, 1961 (No. 38) - Courts (Supplemental Provisions) Act, 1961 (No. 39), ss. 7(1), 8(1) and s. 22 - Constitution of Ireland, 1937, Article 34.

Constitution - Unenumerated rights - Right of child to know identity of natural parent - Special relationship between mother and child - Whether exercise of right by child restricted by constitutional right to confidentiality of natural mother - Conflict of constitutional rights - Harmonising of rights - Constitution of Ireland, 1937, Article 40.3.1.

Discovery - Precondition - Whether plaintiff entitled to order requiring disclosure of natural mother's identity - Whether natural mother should be given opportunity of asserting claim of privilege or privacy without having identity disclosed.

Adoption - Informal adoption - Effect of informal adoption - Declaration of parentage - Right of adopter to know identity of natural mother - Right to privacy of natural mother - Status of Children Act, 1987 (No. 26), s. 35 - Constitution of Ireland, 1937, Article 40.3.1.

Section 35 of the Status of Children Act, 1987, provides, inter alia:-

"(1)(a) A person (other than an adopted person) born in the State, or (b) any other person (other than an adopted person), may apply to the court in such manner as may be prescribed for a declaration under this section that a person named in the application is his father or mother, as the case may be, or that both the persons so named are his parents."

The first notice party/second defendant, the society, had arranged the informal adoptions of both the applicant and plaintiff in 19 41 and 1951, respectively, prior to the enactment of the Adoption Act, 1952.

The applicant in the first proceedings applied to the Circuit Court for an order pursuant to s. 35 of the Act of 1987 declaring that the respondent was her natural mother. The applicant, who was not aware of the identity of her natural mother, contended that the notice parties were aware of her identity, and she brought a motion to require them to discover "all documents in their power, procurement or possession relating to the birth of the applicant, the identity of her natural mother and her placing."

The notice parties claimed, inter alia, that all information sought by the applicant was privileged, that they could not waive such privilege and could not in law furnish or disclose the information sought by the applicant.

The plaintiff in the second proceedings commenced by way of civil bill, sought, inter alia, an order directing the defendants to disclose the name and address of her mother and an order to discover all documents relating to her informal adoption.

The defendants in their defence stated, inter alia, that if there was any communication between the mother of the plaintiff and an agent of the second defendant, which was not admitted, the communication was protected by sacerdotal confidentiality and privilege, and was privileged and confidential in law.

The Circuit Court Judge stated a case for the opinion of the Supreme Court.

Held by the Supreme Court (Hamilton C.J., Denham, Barrington, Barron and Keane JJ.), in answering the questions posed and remitting the matter to the Circuit Court, 1, that the jurisdiction of the Circuit Court was based on and defined by legislation. The jurisdiction of the High Court and Supreme Court derived directly from the Constitution which invested in these Courts full jurisdiction in the power to determine all matters.

2. (Per Hamilton C.J., Denham, Barrington and Barron JJ.): That the duty of ascertaining and declaring what were the personal rights of the citizen, other than those specified in Article 40 of the Constitution rested on the High Court and the Supreme Court. It was the intention of the framers of the Constitution that all matters pertaining to the interpretation of the provisions of the Constitution should be decided by the courts whose jurisdiction derived from the Constitution itself and not by courts of limited and local jurisdiction whose jurisdiction was derived from Acts of the Oireachtas.

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

(Per Keane J.): The "unenumerated rights" doctrine did not emerge until nearly 30 years after the enactment of the Constitution. It may not have been within the contemplation of its framers that such a doctrine would emerge. Whether or not such a development was envisaged, they could not have contemplated that courts of local and limited jurisdiction should have such a role.

3. (Per Hamilton C.J., Denham, Barrington and Barron JJ.): That the finding that the High Court and Supreme Court were the only courts which had jurisdiction to ascertain and declare the existence of previously unascertained and undeclared constitutional rights did not restrict the obligations imposed on the Circuit Court and District Court to uphold the Constitution and the laws and to defend and vindicate the rights of individuals in either of those courts.

4. That neither the applicant nor the plaintiff was "an adopted person" within the meaning of s. 35 of the Status of Children Act, 1987 which was limited in its scope. The provisions of s. 35 of the Act of 1987 therefore applied to them. They were not in the same position as children who had been adopted in accordance with the provisions of the Adoption Act, 1952. They remained the children of their natural mothers and were entitled to the benefit of such rights as arose from such relationship.

5. That the right conferred on the applicant and plaintiff by s. 35 of the Act of 1987 was a limited one to be exercised against a named person. The section could not be interpreted to include a right to a declaration against an unnamed person, or to a right to be informed as to the identity of his or her natural parents.

(Per Keane J., Hamilton C.J., Denham, Barrington and Barron JJ. concurring): The Oireachtas had erected a barrier to the obtaining of a declaration under s. 35 of the Act of 1987 where the applicant could not identify the putative parent or parents in respect of whom the declaration was sought.

6. (Per Hamilton C.J., Denham, Barrington and Barron JJ.): That in view of the caution to be exercised with regard to the duty of ascertaining and declaring what were the personal rights of the citizen, other than those specified in the Constitution, it was encumbent on a court declaring such a right to do so in clear and explicit terms. It was only a right that had been so declared that could be regarded as a right guaranteed by the Constitution. It was not permissible for any court to imply from the existence of a right guaranteed by the Constitution, whether from the specified terms thereof or as a result of a declaration by the superior courts, the existence of any other right in the absence of a declaration by the superior courts of the existence of that other right.

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

7. (Per Hamilton C.J., Denham, Barrington and Barron JJ., Keane J. dissenting): That the right of a natural child to know the identity of his or her natural parent was an unenumerated right guaranteed by the Constitution. The right existed by virtue of Article 40.3.1 of the Constitution.

• G. v. An Bord Uchtála [1980] I.R. 32 and The State (Nicolaou) v. An Bord Uchtála[1966] I.R. 567considered.

8. (Per Hamilton C.J., Denham, Barrington, and Barron JJ.): That the right to know the identity of one's natural mother was a basic right flowing from the natural and special relationship between a mother and her child.

G. v. An Bord Uchtála [1980] I.R. 32considered.

9. That while the applicant and plaintiff enjoyed the constitutional right to know the identity of their respective natural mothers, the exercise of such right might be restricted by the constitutional right and confidentiality of the natural mothers.

Kennedy v. Ireland [1987] I.R. 587followed.

10. That it was not a precondition to the granting of an order for discovery that the persons against whom it was sought should themselves have been guilty of any wrongdoing.

Megaleasing U.K. Ltd. v. Barrett (No. 2) [1993] I.L.R.M. 497 and Norwich Pharmacal v. Customs & Excise[1974] A.C. 133 followed.

11. That the plaintiff was entitled to be granted a declaration under s. 35 of the Act of 1987 in order to have her constitutional rights protected and vindicated. The court must be in a position to grant her any relief which was a necessary precondition to the institution of those proceedings. Accordingly, if that right was found to outweigh the constitutional rights of the natural mother, the plaintiff would be entitled to an order requiring disclosure of the latter's identity.

12. That as the matter before the court involved the resolution of a conflict between the rights of the child and the rights of the mother, any form of pre-trial discovery which would disclose the identity of the mother, who wished to retain her anonymity, would be inappropriate before the court had resolved the rights of the parties.

13. That the natural mothers should be given an opportunity of asserting a claim of privilege and any other claim to privacy which the Constitution or the law would leave open to them, without having the identities disclosed to the applicant or plaintiff.

14. (Per Hamilton C.J., Denham, Barrington and Barron JJ., Keane J. dissenting): That the natural mothers did not have an absolute constitutional or legal right to have the anonymity guaranteed them at the time...