N v Health Service Executive

• Jurisdiction: Ireland
• Judge: Murray C.J.,Mrs. Justice McGuinness,Mr. Justice Hardiman,Mr. Justice Geoghegan,MR JUSTICE FENNELLY
• Judgment Date: 13 November 2006
• Neutral Citation: [2006] IESC 60
• Date: 13 November 2006
• Court: Supreme Court
• Docket Number: [S.C. Nos.

N v HEALTH SERVICE EXECUTIVE (HSE) & ORS

IN THE MATTER OF THE CONSTITUTION

AND

IN THE MATTER OF N.

AN INFANT

BETWEEN:

N and N

APPLICANTS

and

HEALTH SERVICE EXECUTIVE G and G

RESPONDENTS

and

AN BORD UCHTÁLA

NOTICE PARTY

[2006] IESC 60

Murray C.J.

McGuinness J.

Hardiman J.

Geoghegan J.

Fennelly J.

273/06

283/06

THE SUPREME COURT

CONSTITUTIONAL LAW:

Family

Rights of child - Child placed for adoption - Withdrawal of consent - Presumption that welfare of child to be met within family - Test for rebutting presumption - Compelling reasons - Failure in duty by parents -Abandonment - In re J, an infant [1966] IR 295; G v An Bord Uchtála [1980] IR 32; In re JH (inf) [1985] IR 375; The Adoption (No 2) Bill, 1987 [1989] IR 656; DG v Eastern Health Board [1997] 3 IR 511 and MO'C v Sacred Heart Adoption Society [1996] 1 ILRM 297 followed - In re G (Children)[2006] UKHL 42, [2006] 1 WLR 2305 considered - Guardianship of Infants Act 1964 (No 7), ss 3, 10(2)(a), 14 and 16 - Adoption Act 1974 (No 24), s 3 - Adoption Act 1988 (No 30) - Constitution of Ireland 1937, Articles 41.1, 42.1 and 42.5 - Applicants' appeal allowed (273 & 283/2006 - SC - 13/11/2006) [2006] IESC 60, [2006] 4 IR 470 N(E) v Health Service Executive (Baby Ann)

the plaintiffs' daughter was born in July 2004. In September 2004 they signed a consent form to her being adopted by the second defendants, which adoption was arranged by the first defendant. They revoked their consent to the adoption and sought her return some eighteen months after the adoption. They instituted High Court proceedings seeking her production to them on the basis, inter alia, that the constitutional presumption that the appropriate place for the upbringing and education of a child is within the family unit mandated her return to them. The High Court granted a conditional order for the production of the child. The defendants successfully resisted the application for the making absolute of the order on the basis, inter alia, that the child had developed emotional attachment to the adoptive parents and that removing her from them would breach the child's personal constitutional right to the preservation of her welfare. The plaintiffs appealed to the Supreme Court.

Held by the Supreme Court in allowing the appeal and directing the release of the infant from the custody of the second and third respondents and returned to the applicants and that the question as to the appropriate manner and arrangements by which the transfer of the custody of the infant from that of the respondents to the applicants be further determined that Article 42. 5 of the Constitution and the statutes deriving from it were designed to deal with extreme situations of parental unfitness and the test set out therein of compelling reasons why a child's welfare could not be achieved within the constitutional, natural family and required its removal therefrom was so exacting that it could not be met other than in the most extreme circumstances.

Reporter: P.C.

CONSTITUTION ART 40.4

CONSTITUTION ART 40

CONSTITUTION ART40.4.2

ADOPTION (NO 2) BILL 1987, IN RE 1989 IR 656

CONSTITUTION ART 41

CONSTITUTION ART 42

UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD 1990

EEC REG 2201/2003

GUARDIANSHIP OF INFANTS ACT 1964 S14

GUARDIANSHIP OF INFANTS ACT 1964 S16

ADOPTION ACT 1974 S3

G v BORD UCHTALA 1980 IR 32

HAY v O'GRADY 1992 1 IR 21

BOWLBY ATTACHMENT & LOSS 1ED 1969

FAHLBERG CHILD'S JOURNEY THROUGH PLACEMENT 1ED 1996

CONSTITUTION ART 42.5

H (J), RE 1983 IR 375

NORTHERN AREA HEALTH BOARD v BOARD UCHTALA 2002 4 IR 252 2003 1 ILRM 481 2002/21/5323

C (R) v S (I) 2003 4 IR 431

ARTICLE 26 OF THE CONSTITUTION AND THE ADOPTION (NO 2) BILL 1987, IN RE 1989 IR 656

ADOPTION ACT 1988

HOLY BIBLE I KINGS 3:16-28

RE G (CHILDREN) 2006 4 AER 241

NORTH WESTERN HEALTH BOARD v W (H) & W (C) 2001 3 IR 622

AG v X 1992 1 IR 1

GUARDIANSHIP OF INFANTS ACT 1964 S3

J (MM) In re 1966 IR 295

O'C v SACRED HEART ADOPTION SOCIETY 1996 1 ILRM 297

ADOPTION ACT 1988 S3(1)(i)(a)

O (G) v BORD UCHTALA 1991 ILRM 514

ADOPTION (NO 2) BILL 1987 S3 (I)(A)

ADOPTION ACT 1988 S3(1)

O'HARA, IN RE 1900 2 IR 232

G (D) v EASTERN HEALTH BOARD 1997 3 IR 511 1998 1 ILRM 241 1998 7 1838

1 Judgment of Murray C.J. delivered the 13th day of November, 2006

2 Having also come to the conclusion that the interests and welfare of the infant in this case require that she be returned to the custody of her parents, I agree with the conclusions reached in the judgments of my colleagues, Hardiman J., Geoghegan J. and Fennelly J. for the reasons set out in their judgments which relate to the issues necessary to be decided in this case. Since the claim in this case has been made by way of proceedings pursuant to Article 40.4. of the Constitution and since the immediate care and welfare of the infant is a matter to which the Court must have regard, it is necessary to address the form of order which the Court should make.

3 A successful application pursuant to Article 40.4. concerning an unlawful detention would normally lead to an order for the release of the person concerned from the unlawful detention with no further order being necessary. In this case there are special circumstances, namely the welfare of an infant of tender years, to be taken into account when determining the manner in which effect may be given to the order of this Court pursuant to A. 40.

4 The claim of the third and fourth named respondents in this case, which was also based essentially on the welfare of the infant, was that they have been and are entitled, as of right, to retain her in their custody. It is this custody which the applicants claimed amounted to unlawful detention within the meaning of Article 40 of the Constitution. On the basis that the respondents" claim is not well-founded it remains for the Court to make such order as it considers appropriate in a case of this nature pursuant to Article 40.4.2 of the Constitution. At the time of the infant's placement with the respondents and at least up until the time when her parents, the applicants, withdrew their consent to the adoption and sought the return of the infant, the respondents" custody of the infant was lawful. That custody was permitted to continue while these proceedings were pending, although at one point during the proceedings the infant was made a Ward of Court and provision made for the applicants to meet with her. That custody or detention is now at an end. In short, the respondents are no longer entitled as of right or as a matter of law to the custody of the infant. Accordingly the infant must be released from that custody with a view to returning her to that of her parents.

5 Nonetheless it remains for the Court, having regard to the constitutional rights and welfare of the infant, to decide on the future but immediate care and custody of the infant with a view to giving effect to the consequence of the Court's decision namely her return to the custody of her parents. In this regard I would recall that in Re. The Adoption (No. 2) Bill, 1987 Finlay C.J., in pronouncing the judgment of the Court, noted (at 663) that in addition to its rights identified in Articles 41 and 42 of the Constitution an infant also had "other personal rights which, though unenumerated, derived from the Constitution". He went on to say, that in any event, "... by virtue of Article 40, s. 3 of the Constitution [the State] is obliged, as far as practicable to vindicate the personal rights of the child ...". The Courts established by the Constitution, as the judicial organ of State, are enjoined to observe that obligation. Where an infant is being transferred from the custody of a couple with whom it has formed an attachment to the custody of natural parents it is clearly in the interests of her welfare as guaranteed by the Constitution that such a transfer should take place in a manner and circumstances which, as far as practicable, protects that welfare so that any adverse effects on the child are obviated or minimised. In my opinion it is the duty of the Court to protect those rights.

6 In my view the Court has jurisdiction, in the circumstances of a case such as this, involving as it does a minor of very tender age, to make ancillary or interim orders concerning the immediate custody of such infant which are necessary in order to protect her rights and welfare pending effect being given to the substantive order of the Court.

7 I am reinforced in that view by the decision of this Court in D.G. —v- Eastern Health Board [1997] 3 I.R. 511 where a conflict had arisen between a minor's constitutional right to liberty and an order directing his detention in St. Patrick's Institution for three weeks solely because that was essential in order to provide for his welfare having regard to a severe personality disorder. He was 17 years old at the time of this Court's decision. The High Court had ordered the minor's detention in St. Patrick's Institution in the absence of any other suitable facility within the State and it being therefore the place most suitable to ensure his welfare having regard to his needs.

8 In that case Hamilton C.J., delivering the majority judgment, found:

9 2 "(1) The learned trial judge had jurisdiction to make the order which is the subject matter of the appeal herein;

10 (2) Having that jurisdiction, he exercised the same in a lawful manner, consistent with the requirements of the welfare of the applicant;

11 (3) He exercised such jurisdiction for a short period namely three weeks and that he was correct in so doing.

12 The jurisdiction which I have held is vested in the High Court is a jurisdiction which should be exercised only in extreme and rare...