M v an Bord Uchtála

Judgment Date01 January 1977
Neutral Citation1976 WJSC-SC 1033
CourtSupreme Court
Docket Number(164-1974),[1974 No. 1689 P.]
Date01 January 1977

1976 WJSC-SC 1033


O'Higgins C.J.

Henchy J.

Griffin J.

Kenny J.

Parke J.




JUDGMENT delivered on the 2nd day of June 1976by O'HIGGINS C.J. GRIFFIN J. AGREEING.


The Plaintiffs and Appellants are husband and wife, and were married on the 6th day of June 1972. The first-named Defendant is a board established by the Adoption Act 1952to fulfill and discharge the functions assigned to it by that Act. It will hereinafter be referred to as "the Board". On the 15th May 1970 a child (hereinafter referred to as "the child") was born to the second-named Plaintiff who was then unmarried. The first-named Plaintiff is the father of the child. He will hereinafter be referred to as "the father", while his wife will be referred to as "the mother".


The child was born in a provincial town, the mother who ordinarily resided in the Dublin area having gone thereprior to and for the purposes of the birth. Subsequent to the birth, the child was placed with foster parents and on the 12th June 1970 the mother signified her desire to place the child for adoption through an adoption society. She did so by signing an acknowledgment of the receipt of an explanatory memorandum from the society dealing with the effect of an adoption order and the statutory provisions as to consent. This memorandum and the attached acknowledgment are known together as Form 10, and the issue and signing thereof constitute the first practical step in an adoption through an adoption society. The memorandum and acknowledgment were in the prescribed form as provided for in section 39 of the Adoption Act 1952.


The decision by the mother to take the initial steps towards the adoption of her child was arrived at after much heart-searching and anguish and after a period in which various options were considered and discussed by the mother with people who came to her assistance. The sympathy and understanding which she received from these recognised no limits. In particular this decision was arrived at in direct opposition to the wishes of the father who throughout this period wanted to marry the mother andcare for the child as his own. Indeed it appears that the decision to place the child with foster parents and then for adoption was finally taken by the mother only because the father, believing that she had already taken steps towards adoption, had broken off all relations with her and had left the country to take up employment in West Africa. This left her as she said in evidence with "no alternative" except adoption.


On the 7th August 1970 the adoption society placed the child with adopting parents for a probationary period. This probationary or trial adoption was supervised by the officers of the society and the Board and was intended, as part of the normal procedure, to ensure that the final decision would be taken in the true interests of the child.


On the 7th December 1970 the adopting parents made a formal application to the Board for an adoption order in respect of the child.


The mother of course knew that this preliminary decision with regard to placing the child for adoption was not a final one and that she could still change her mind. Subsequent to the 12th June 1970 she continued to seek out a possible means of providing for the child's future insome manner other than by adoption albeit without any real substance being attached to the alternatives considered. The father was still out of the country, not in communication with the mother, and the breach between them appeared to be final.


Had the adoption procedure progressed in the normal manner the mother would have been expected to have given her final consent to the adoption of the child by about February of 1971. This would have been some six months after the commencement of the probationary period, and the adoption order might then have been expected to be made. This consent is dealt with in section 14 sub-section (5) of the Act which provides that it shall be in writing in the prescribed form. The form prescribed is known as Form 4A and is in fact an affidavit.


The mother received from the adoption society a letter dated the 18th December 1970 enclosing Form 4A for completion. She did not, however, comply with the request therein contained to complete the form. Another letter dated the 15th January 1971 was also ignored by her. On the 17th February 1971 the adoption society wrote to the mother's mother asking for her co-operationin getting the form signed. Again this letter had no effect. On the 16th March 1971 the social worker who had helped the mother wrote pressing for a final decision and referring to the position of the adopting parents. This letter also produced no result. On July 5th the mother was visited by a priest who was a close friend of the adopting parents, and a nun who had been one of those who had helped and advised her. The purpose of their visit was to assist and counsel the mother in coming to a decision. The visit apparently had the desired effect because the mother set out the following day, with her mother, for the offices of the Catholic Protection and Rescue Society of Ireland in order to sign and complete Form 4A. However, when she arrived there she became very distressed and left without doing what she had intended to do. On July 9th, three days later, the mother came back to the offices of the Society and, having been brought to a solicitor's office nearby, signed and completed the consent form. Earlier on that day two events occurred, each of which must have had some bearing on her action. In the first place she received a letter from the adoption society informing her thatasshe had not signed the consent the child would be taken from the adopters and brought to her home on the following morning, Saturday 10th July. In addition she also received a telephone call at her place of employment from the father who had returned the previous day from West Africa, and who arranged to meet her for lunch. She met him as arranged, did not disclose to him that the child had not been finally adopted nor what her intentions were. At this stage the father was still under the impression that the child had already been adopted and he was renewing his relationship with the mother on this basis. She did nothing to change this impression, and went from her meeting with him to sign and complete the consent form.


The father and mother continued to meet over the next few days, and there is evidence that by the 13th July they had reached a tentative arrangement that they would get married. On July 20th the application for the adoption of the child having been listed for hearing before the Board, was dealt with and an adoption order was made. The only persons notified of the hearing were the applicants who were the adoptingparents.


On the 13th May 1974 the father and mother as Plaintiffs commenced this action in which they sought against the Board and the Attorney General the following declarations.


a "(a) A declaration that the infant is the legitimate child of the Plaintiffs.


(b) A declaration that the provisions of section 9 of the Adoption Act 1952contravene the provisions of the Constitution and are null and void and have no effect.


(c) A declaration that the provisions of sections 14 and 15 of the Adoption Act 1952were not complied with in relation to the making of the adoptionorder.


(d) A declaration that the adoption order is null and void and has no effect.


(e) An order directing the first-named Defendant to disclose the names of the purported adopters of the said infant and their presentaddress.


(f) An order directing that the custody of the infant should be given to the Plaintiffs."


The Plaintiffs, having failed to obtain the declarations sought at the trial of their action before Mr. Justice Butler, have appealed to thisCourt.


In seeking the declarations sought, the Plaintiffs challenge the adoption order made by the Board on two distinct grounds. In the first place it is submittedthat the relevant provisions of the Adoption Act, which is a statute of the Oireachtas, are invalid having regard to the provisions of the Constitution. In the second place it is submitted that the requirements laid down by the Act were not complied with and that the order is on that account null and void. This second submission assumes the validity of the relevant provisions of the Act.


Where the relief which a plaintiff seeks rests on two such distinct grounds, the court, as a general rule, should first consider whether the relief sought can be granted on the ground which does not raise a question of constitutional validity. If it can, then the court ought not to rule on the larger question of the constitutional validity of the law in question. Such a law as a statute of the Oireachtas will normally enjoy a presumption of constitutionality which ought not unnecessarily be put to the test. There may be, however, circumstances of an exceptional nature where the requirement of justice and the protection of constitutional rights make the larger enquiry necessary. Such, in my view, do not exist in this case.


I propose therefore, in the first instance, toconsider whether the Plaintiffs were correct in their submission that in the adoption of the child the relevant provisions of the Act were not observed, and if so, whether this affects the order made.


Part II of the Adoption Act 1952establishes the Board, and by section 9 the Board is given power, on the application of a person desiring to adopt a child, to make an adoption order. Section 10 defines who may be adopted, and section 11, who may adopt. Both these sections have been amended in respects not relevant to the issues in this case. Section 13 lays down...

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