Re D.G. an Infant

• Jurisdiction: Ireland
• Judgment Date: 26 February 1991
• Date: 26 February 1991
• Docket Number: [1989 No. 634 SP]
• Court: Supreme Court

In re D.G. an Infant

In the matter of the Guardianship of Infants Act, 1964 and In the matter of D.G., an Infant:

O.G.

Plaintiff

and

An Bord Uchtála, The Protestant Adoption Society, J.P. and S.P. Defendants

In the matter of the Adoption Acts, 1952 to 1976, and In the matter of D.G., an Infant:

J.P. and S.P.

Plaintiffs

and

An Bord Uchtála

Defendant

[1989 No. 634 SP]

High Court

Supreme Court

Family law - Adoption - Placement - Free and full knowledge - Obligation on adoption society to ensure natural mother understands effect of adoption order and statutory provisions relating to consent - Whether adoption society could delegate this obligation to social workers not in its employment - Whether social workers had a conflict of interest - Whether compliance with obligation by adoption society a precondition to court's dispensing with natural mother's consent to final adoption - Adoption Act, 1952 (No. 25), s. 39 - Adoption Act, 1974 (No. 24), s. 3.

Practice and procedure - Findings of fact - Oral evidence - Whether appellate court can interfere with decision of trial judge based on evidence at trial.

Section 39 of the Adoption Act, 1952, provides that an adoption society must furnish the natural mother of a child being placed for adoption with a written statement explaining the effect of an adoption order and the statutory provisions relating to her consent to such an order and that the society must ensure that the natural mother understands the statement and signs a document to that effect.

Section 3 of the Adoption Act, 1974, allows prospective adoptive parents to apply to the High Court for an order dispensing with the natural mother's consent to the making of an adoption order in circumstances where the natural mother fails or refuses to give her consent or withdraws a consent already given.

O.G., a fifteen year old unmarried schoolgirl, gave birth to a son, D., in January, 1987. The pregnancy and birth gave rise to much difficulty and ill-feeling within O.G.'s family. Before and at the time of the birth O.G. expressed a wish to have the child adopted but instead D. was placed in foster care. Six weeks after the birth O.G. removed D. from foster care and went to live in a hostel for unmarried mothers. In early 1988 O.G. underwent surgery and during this time her mother became involved in looking after D. After the operation O.G. moved back to her family home with D. During 1988, O.G. again expressed a wish to have D. adopted and began ongoing communication with a social worker, M.M., who through an adoption society located prospective adoptive parents, J.P. and S.P., who were suited to adopting an older infant such as D.O.G. signed a form consenting to the placement of D. for adoption by the society and J.P. and S.P. were given custody of D. in December, 1988. O.G.'s parents were unhappy with her decision to place D. for adoption and as a result, O.G. left the family home. In May, 1989, District Court proceedings seeking access to D. by D.'s natural father were successfully defended by O.G. on the grounds of the proposed adoption and O.G. indicated to her social worker that she was willing to sign the final adoption papers.

In June, 1989, O.G. wrote to the society and to An Bord Uchtála informing them that she was withdrawing her consent to the adoption. J.P. and S.P. refused to give up custody of D. O.G. instituted proceedings seeking sole custody of D.J.P. and S.P. instituted cross-proceedings seeking an order under s. 3 of the Adoption Act, 1974, dispensing with O.G.'s consent to the adoption.

Held by Lavan J., in granting custody of D. to O.G., 1, that the agreement of O.G. to place her child for adoption was an abandonment of her constitutional right to custody of her child and that this abandonment was in favour of the adoption society.

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

2. That O.G.'s decision to place her child for adoption must have been made freely and with full knowledge of the consequences of so doing.

• S. v. Eastern Health Board (Unreported, High Court, Finlay P., 28th February, 1979) and G. v. An Bord Uchtála[1980] I.R. 32 considered.

3. That, as the social workers advising O.G. were employed by a third party, there was no evidence of any relationship between the social workers and the society sufficient to enable the court to treat the advice given by the social workers to O.G. as discharging the obligations of the society under s. 39 of the Act of 1952.

4. That the form signed by O.G. purportedly placing D. for adoption was signed by a social worker and was not signed by or on behalf of the society.

5. That in advising O.G. to place D. for adoption the social workers had a conflict of interest between their obligations to O.G. and to the society and, consequentially O.G. was not properly advised.

6. That it was a prerequisite of a valid decision to place a child for adoption that the natural mother be fully and correctly informed of the effects of that decision and, as O.G. had not been properly advised, she had not made a valid decision to place D. for adoption.

• V.C. v. J.M. and G.M. [1987] I.R. 510 considered.

7. That proof that the society had complied with the provisions of s. 39 of the Act of 1952 was essential to the operation of s. 3 of the Adoption Act, 1974, enabling the court lo dispense with the natural mother's consent to the final adoption and, as s. 39 of the Act of 1952 had not been complied with by the society, the court would not make an order under s. 3 of the Act of 1974.

8. That in the best interests of the welfare of D. custody should be awarded to O.G.

On appeal by the adoptive parents it was

Held by the Supreme Court (Finlay C.J., McCarthy and O'Flaherty JJ.), in allowing the appeal and ordering a re-trial, 1, that s. 39 of the Act of 1952 did not require that an adoption society carry out the necessary tasks through its own servants or agents provided that the written statement was furnished to the natural mother and that the society was satisfied that she understood it and signed a document to that effect.

2. That a professional social worker in constant communication with the natural mother was an appropriate person to carry out the tasks under s. 39 of the Act of 1952 on behalf of the society.

3. That non-compliance with the provisions of s. 39 of the Act of 1952 would not invalidate an otherwise valid consent by the natural mother to place the child for adoption.

4. That, in order to make an order dispensing with the natural mother's consent to adoption under s. 3 of the Act of 1974, the court had to be satisfied that the mother had given her fully informed and free consent to the placing of the child for adoption and was aware that her right to withdraw her consent to the adoption was subject to the possibility of a court deciding that it would be in the best interests of the child to dispense with her consent to the adoption.

5. That an appellate court would not normally interfere with a decision which was open to a trial Judge to reach on the evidence before him. However, as the trial judge's findings were influenced by his attitude towards the social workers and inferences drawn from their conduct which were without foundation, the judgment would be set aside and the matter remitted for a re-trial.

Per McCarthy J.: That it is a requirement of fair procedures in the conduct of a trial that an individual witness be given the opportunity to answer any personal or professional imputations on his character. If counsel for the opposing side did not put such imputations in cross-examination so that they may be replied to, it is not appropriate for the trial judge to raise such imputations in his Judgment.

Cases mentioned in this report:—

N.B. and T.B. v. An Bord Uchtála (Unreported, High Court, Barron J., 18th February, 1983).

Benmax v. Austin Motor Co. [1955] A.C. 370; [1955] 2 W.L.R. 418; [1955] 1 All E.R. 326.

M.C. and M.C. v. K.C. and A.C. [1986] I.L.R.M. 65.

R.C. and P.C. v. An Bord Uchtála (Unreported, High Court, O'Hanlon J., 8th February, 1985).

V.C. v. J.M. and G.M. [1985] I.R. 510; [1988] I.L.R.M. 203.

G. v. An Bord Uchtála [1980] I.R. 32.

P.M. and G.M. v. An Bord Uchtála (Unreported, High Court, Finlay P., 27th November, 1984).

S.M. and M.M. v. An Bord Uchtála (Unreported, High Court, Lynch J., 11th May, 1984).

McC. v. An Bord Uchtála [1982] I.L.R.M. 159.

McF. v. G. and G. [1983] I.L.R.M. 228.

Northern Bank Finance v. Charlton [1979] I.R. 149.

Re T., a Minor [1986] 2 W.L.R. 538; [1986] 1 All E.R. 817.

S. v. Eastern Health Board (Unreported, High Court, Finlay P., 28th February, 1979).

Smelter Corporation of Ireland v. O'Driscoll [1977] I.R. 305.

P.W. v. A.W. (Unreported, High Court, Ellis J., 21st April, 1980).

Whitehouse v. Jordan [1981] 1 W.L.R. 246.

Special Summons.

The facts have been summarised in the headnote and are set out in the judgments of Lavan J. and Finlay C.J., post.

By special summons dated the 13th October, 1989, the plaintiff, O.G., sought an order for sole custody of the infant D. together with an injunction restraining the defendants from interfering with the care and custody of D. By a special summons dated the 22nd November, 1989, the third and fourth defendants in the plaintiff O.G.'s proceedings instituted cross proceedings seeking an order under s. 3 of the Adoption Act, 1974, dispensing with O.G.'s consent to the adoption of D. and an order granting them sole custody of D.

Both cases were heard together by the High Court (Lavan J.) on the 17th, 18th, 19th, 23rd, 24th and 25th October, 1990.

Section 3 of the Adoption Act, 1974, provides:—

"(1) In any case where a person has applied for an adoption order relating to a child and any person whose consent to the making of an adoption order relating to the child is necessary and who has agreed to the placing of the child for adoption either—

• (a) fails, neglects or refuses to give his consent, or

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