P.B. v A.L.

• Jurisdiction: Ireland
• Judge: Mr. Justice Costello
• Judgment Date: 01 January 1996
• Neutral Citation: 1995 WJSC-HC 1800
• Court: High Court
• Date: 01 January 1996

1995 WJSC-HC 1800

THE HIGH COURT

No. 226 SS/1995

B v. L

IN THE MATTER OF SECTION 2 OF THE SUMMARY

JURISDICTION ACT, 1857 AS EXTENDED BY SECTION 51 OF

THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961

AND IN THE MATTER OF THE GUARDIANSHIP OF INFANTS

ACT, 1964 SECTIONS 6a & 11

BETWEEN

P. B.

Applicant

AND

A. L.

Respondent

AND

IN THE APPLICATION OF COLM KEENAN

Appellant

1 Mr. Justice Costello Delivered the 24th day of May, 1995.

2 This is an appeal (by way of Case Stated) from an order made in the District Court in proceedings under the Guardianship of Infants Act 1964(as amended) in which the father (who I shall call "B") of an 8 year old boy born out of wedlock claims an order appointing him one of his guardians. The boy's mother (whom I will call "L") is resisting the claim and has served a subpoena duces tecum on the secretary of the Adoption Board. The Board moved to strike out the summons on the grounds that its records are privileged. The application was refused and this is an appeal by the Board (which is opposed by L) against that order.

THE FACTS

3 The following are the facts relevant to this appeal.

4 (1) The boy, the subject matter of the proceedings, was born on the 11th of October, 1986. Since his birth he has resided with and has been reared by his mother, L. His father, B., does not currently have any contact with his son.

5 (2) L. married on the 7th of August, 1992. Since then her son has resided with her and her husband.

6 (3) On the 28th of September 1993 L. and her husband applied to the Adoption Board for an adoption order in respect of her son. The Board notified B. of the application and correspondence took place between the Board and B. and B. attended an oral hearing in respect of the application.

7 (4) By virtue of section 14 of the Adoption Act, 1952the mother of an illegitimate child is its guardian. By virtue of 6(A) of the Act (inserted by section 12 of the Status of Children Act, 1987) where the father and mother of an infant have not married each other the Court may on the application of the father by order appoint him to be guardian of the infant. Pursuant to this section B. applied on the 14th of October, 1994 seeking an order appointing him guardian of the boy and seeking the direction of the District Court in relation to access.

8 (5) Section 14 of the Adoption Act, 1952provides that an adoption order shall not be made without the consent "of every person being the child's mother or guardian ..." unless the Board dispenses with the consent in accordance with the section. It is accepted by the parties that if B. is appointed guardian the Board has no power to dispense with his consent to the proposed adoption order. This means that the pending adoption proceedings are relevant to the guardianship application. Section 3 of the Guardianship of Infants Act, 1964 provides that in any proceedings relating to guardianship the Court must have regard to the welfare of the infant as the first and paramount consideration. The Court will, therefore, have to consider whether the welfare of the boy is likely to be best served by the proposed adoption order. If it so decided it might well then conclude that the guardianship order sought by B. should be refused because the child could not be adopted without his consent, a consent which obviously will not be forthcoming.

9 (6) On the 30th of November, 1994 L. served a subpoena duces tecum on the Registrar of the Adoption Board requiring him to produce "any reports, assessments or notes prepared by or made by you regarding the suitability of??? and??? to adopt the child,??? , and relating to the submission, if any, made by the natural father to the Adoption Board together with any correspondence forwarded to the natural father by or on behalf of the adoption board and any such received from him in response or relating to the adoption of the child,??? ,"

10 (7) The Board applied to the District Court to set aside the subpoena on the grounds that the documents sought to be produced were privileged by reason of public policy in that the Board had a public interest in maintaining the confidential nature of adoption proceedings and the proceedings before the Board would be compromised if the content of the proceedings were used as evidence. L. objected to the order sought submitting that the claim for privilege did not exist and was not supported by precedent. The application by the Board was dismissed, the Judge stating that he was not satisfied (a) that the privilege claimed existed or (b) that if the privilege claimed did exist that it rested with...