M (J) v an Bord Uchtála

JurisdictionIreland
JudgeMcCARTHY J.,Henchy J. [Griffin Hederman Conc]
Judgment Date31 July 1987
Neutral Citation1987 WJSC-SC 1876
Docket Number(178/86)
CourtSupreme Court
Date31 July 1987

1987 WJSC-SC 1876

THE SUPREME COURT

Henchy J.

Griffin J.

Hederman J.

McCarthy J.

Gannon J.

(178/86)
M (J) v. AN BORD UCHTALA
J.M. and G.M.
v.
AN BORD UCHTALA

Citations:

NORTHERN BANK FINANCE V CHARLTON 1979 IR 149

WHITEHOUSE V JORDAN 1981 1 AER 267

S V EASTERN HEALTH BOARD UNREP FINLAY 28.02.79 1979/7/1216

M (J) & M (G) V BORD UCHTALA 1987 IR 510, 1988 ILRM 203

M (P) , STATE V M (G) UNREP 27.11.84

MCC V BORD UCHTALA 1982 ILRM 159

B & B V BORD UCHTALA UNREP SUPREME 28.05.84 1987/7/1838

MCF V H (S) 1983 ILRM 228

H (J), IN RE 1985 IR 375

G V BORD UCHTALA 1980 IR 32, 113 ILTR 25

CONSTITUTION ART 41

CONSTITUTION ART 42

BENMAX V AUSTIN MOTOR CO LTD 1955 AC 370

APPEALS ON QUESTIONS OF FACT 71 LQR 402

ADOPTION ACTS 1952–1976

ADOPTION ACT 1974 S3

Synopsis:

ADOPTION

Consent

Validity - Essentials - Placement for adoption - Awareness of consequences - The mother of a child refused to consent to its adoption - The applicants, wishing to adopt the child, applied to the High Court in 1985, pursuant to s.3 of the Act of 1974, for an order dispensing with the necessity for the consent of the mother to the proposed adoption - The application was contested by the mother - At the hearing of the application, oral evidence was given by the relevant witnesses - The evidence so given established that the child was born on 21/3/80 and that on 24/3/80 the mother signed a written consent to the placement of her child for adoption - Before so signing, the mother was informed that she could change her mind, that it was possible that persons seeking to adopt her child might persuade the court to dispense with her consent to the adoption, and that her child would not be transferred to prospective adopters without her approval - The evidence also established that the child was transferred to the applicants on 27/6/80 without the mother's knowledge - The High Court (Barron J. - 15/4/86) held, in dismissing the application, that the mother, when signing the consent to placement for adoption, was not aware that she was taking a first step in a process which could lead to a loss of all her rights in respect of her child and that, therefore, her consent to the placement had not been freely given with full knowledge of the consequences - The applicants appealed to the Supreme Court - Held, in reversing the High Court, that the issue was whether or not the mother, in signing the consent to placement for adoption, had given that consent freely and with full knowledge - Held that the issue required the determination of the mother's state of mind at the relevant time, and that the determination must be based on an inference drawn from an evaluation of the primary facts found by the trial judge, as distinct from a re-assessment of the evidence adduced in the High Court to establish those primary facts - Held that, as the issue would be determined on a consideration of the inference to be drawn from such primary facts, the court was free to draw its own inference if it considered the one drawn by the trial judge to be incorrect: ~Northern Bank Finance v. Charlton~ [1979] IR 149 applied - Held that the court's inference would be drawn in the light of the circumstances existing at the time of the mother's signature and the proximate relevant circumstances before and after that event, excluding the mother's subsequent repudiation of her consent to the placement - Held that, as late as 1/8/80, the mother had affirmed her determination to proceed with the adoption of her child - Held that the inference drawn by the court was that the written consent of the mother on 24/3/80 had been a free and informed consent to the placement of her child for adoption - Held that the respondent Board should be authorised to dispense with the mother's consent to the adoption of her child - Adoption Act, 1974, s.3 - (178/86 - Supreme Court - 31/7/87) - [1988] ILRM 203 [1987] IR 522

|M v. An Bord Uchtala|

SUPREME COURT

Appeal

Jurisdiction - Exercise - Facts - Inferences - Reversal of trial court - Evaluation of primary facts found by trial judge distinguished from re-assessment of evidence establishing those primary facts - Court drew different inferences from facts proved or admitted in the High Court - ~See~ Adoption, consent - (178/86 - Supreme Court - 31/7/87) - [1988] ILRM 203 [1987] IR 522

|M. v. An Bord Uchtala|

WORDS AND PHRASES

"Consent"

Validity - Test applicable - Freedom - Knowledge - Child - Placement for adoption - Consent to placement - Decision that mother of child gave her consent freely and with full knowledge of the consequences - ~See~ Adoption, consent - (178/86 - Supreme Court - 31/7/87) - [1988] ILRM 203 [1987] IR 522

|M. v. An Bord Uchtala|

1

Judgment of Henchy J. [Griffin Hederman Conc]delivered the 31 July 1987

2

The question in this case is whether, when the mother signed the form expressing her consent to the placement by the adoption society of her illegitimate child for adoption, her consent was free and fully informed. It is entirely a question of fact. It was answered in the High Court in favour of the repudiating mother by the trial judge. Now we are asked on appeal to substitute a contrary conclusion for that of the trial judge.

3

For the purpose of an appeal from a judge of the High Court to this Court, facts may be divided into two categories.

4

Firstly, there are primary or basic facts. These aredeterminations of fact depending on the assessment by the judge of the credibility and quality of the witnesses. It is for the determination of those facts that a viva voce hearing takes place. Because those facts depend on the oral evidence given and accepted in the High Court, this Court on appeal will not normally reverse such findings. Even if it deems different findings to be more appropriate, or even if the findings made seem to it to be incorrect, this Court will not normally interfere with them. That is because it has not had the advantage of seeing and hearing the witnesses as they gave their evidence. It is only when the findings of primary fact cannot in all reason be held to be supported by the evidence that this Court will reject them: see Northern Bank Finance v. Charlton 1979 I.R. 149.

5

Secondly, there are secondary or inferred facts. These are facts which do not follow directly from an assessment or evaluation of the credibility of the witnesses or the weight to be attached to their evidence, but derive from inferences drawn from the primary facts. Oncetheprimary facts have been established viva voce, their consequences or implications for the purpose of the matters in issue must be found by a process of deduction from the facts found or admitted, rather than by an assessment of the witnesses or of the weight or the correctness of their evidence. In regard to such secondary facts, the advantage of the High Court judge who saw and heard the witnesses is of such minor importance that this Court will feel free to draw its own inferences if it considers that the inferences drawn by the judge in the High Court were not correct. Such secondary facts include all matters which are evaluative of the primary facts. The law to this effect follows from a series of decisions, two of the most recent of which are that of this Court in Northern Bank Finance v. Charlton 1979 I.R. 149 and that of the House of Lords in Whitehouse v. Jordan 1981 1 All E.R. 267. The jurisdiction of this Court in a case such as this is akin to that which it exercises in a case stated where all the primary facts have been found by the referring judge and this Court is asked to evaluate those facts by way ofanswers to specific questions, which are stated as questions of law but often are essentially questions of fact.

6

In this appeal there is no dispute as to the primary facts. What is in issue is whether those facts justified the judge's inference from them that when the mother signed the necessary form she did not then fully and freely consent to the placement of her illegitimate child for adoption. That question required a conclusion as to her state of mind at the relevant time, so it was necessarily a matter of inference or opinion rather than a matter of primary fact. This case comes within the general rule that the state of a person's mind at a particular time is to be inferred from what was said or done, or left unsaid or undone, at or about the time in question. It is for this Court, on a consideration of the same primary facts as were accepted by the trial judge, to decide if the inference drawn is the correct one.

7

The decided cases show that the test to be applied in determining whether a consent to placement signed by themother should be held to be binding on her is whether she then freely and fully gave her consent, in the knowledge of what she was doing and of its consequences. It would also seem to follow from the decided cases that this test must be applied in the light not only of what happened on the occasion of the signing but also in the context of the proximate relevant circumstances before and after the event. The fact that the mother later repudiated the consent is in itself of no probativevalue.

8

In applying that test in this case the relevant primary facts seem, in brief, to be as follows.

9

1. On the 23 January 1980 the adoption society's social worker met the mother, who said that she was expecting a child and wanted to have it placed for adoption. The social worker counselled her to postpone that decision until after the child was born.

10

2. On the 8 February 1980 the mother again met the social worker and discussed the proposed adoption. The mother affirmed her intention to have the child adopted within the State.

11

3. On the 21 March 1980 the child was born.

12

4. On the 24 March 1980 the social worker met the mother in the hospital and explained to her that her options about the child were still open. However, the mother said she had...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT