Re, J.(an Infant)

• Jurisdiction: Ireland
• Judgment Date: 05 May 1966
• Date: 05 May 1966
• Court: High Court

In re J., an Infant.

In the Matter of J., an Infant, and In the Matter of the Courts of Justice Acts, 1924—1961, and In the Matter of The Constitution, and In the Matter of the Habeas Corpus Act, 1782, and In the Matter of the Courts (Supplemental Provisions) Acts, 1961 and 1962 (1)

High Court.

Infant - Custody - Unmarried mother consenting to her child being adopted - Consent invalid - Child delivered to applicants for adoption order - Adoption order - Marriage of mother to father of child - Adoption order quashed - Legitimation of child - Whether parents of child or such applicants to have custody of child - Habeas corpus - Constitution of Ireland Articles41 and 42 - Legitimacy Act, 1931 (No. 13 of 1931), s. 1 - Adoption Act,1952 (No. 25 of 1952), s. 15 - Guardianship of Infants Act, 1964 (No. 7of 1964), s. 3; s. 6, sub-s. 1; s. 10, sub-s. 2 (a).

An unmarried mother gave birth in Ireland to a daughter and, a month later, the mother signed a consent to the infant being adopted and the infant was then delivered to applicants for an adoption order. The mother's consent was invalid, being given in breach of a statutory provision that such consent may be given only after the infant had attained the age of six months. The said applicants obtained an adoption order in respect of the infant, and shortly afterwards the mother married the father of the infant. The mother and father sought to obtain custody of the infant from the applicants, but they refused to part with the infant. The adoption order was quashed in proceedings instituted by the Attorney General. The father and mother then obtained, as prosecutors, a conditional order of habeas corpus requiring the applicants for the adoption order to produce the body of the infant before the Court and to abide its directions unless cause was shown to the contrary. The conditional order was directed to, and served on, the applicants, who showed cause as respondents. The prosecutors brought a motion to have the conditional order made absolute, notwithstanding the cause shown. The prosecutors, at the hearing of the motion, submitted that the infant had been legitimated and that they were entitled to have custody of the infant as its parents because they, with the infant, constituted a family within the meaning of that word in Articles 41 and 42 of the Constitution; the respondents submitted that they could provide for the infant a more substantial and secure financial background than could be provided by the prosecutors, that the infant would be harmed by a change in custody, and that the Court should regard the welfare of the infant as the first and paramount consideration in accordance with the provisions of s. 3 of the Guardianship of Infants Act, 1964.

The High Court (Murnaghan, Teevan and Henchy JJ.) disallowed the cause shown and directed that the conditional order of habeas corpus be made absolute.

Held by Murnaghan J. that, considering all the circumstances and applying the provisions of s. 3 of the Guardianship of Infants Act, 1964, custody of the infant should be awarded to the prosecutors.

Held by Teevan and Henchy JJ. that the prosecutors, as parents, had an absolute right to the custody of the infant, and that the enforcement of that right did not involve a conflict with the provisions of s. 3 of the Act of 1964.

Habeas Corpus.

The prosecutors were husband and wife, aged respectively 24 and 23 years, and were the father and mother of a baby girl. On the 20th November, 1964, the mother, who was

then unmarried, gave birth to the baby in a nursing home which was managed by nuns who were a registered adoption society. The mother had concealed her pregnancy from her parents and, at the time of her confinement, she did not intend to marry her husband. She agreed that the adoption society should find suitable adopters for the infant and on the 18th December, 1964, she signed a written consent to the infant being given in adoption and she left the nursing home on the following day.

Sect. 9 of the Adoption Act, 1952, provides, inter alia,that An Bord Uchtála (the Board) may make an order for the adoption of a child and s. 14 of that Act provides, inter alia, that an adoption order shall not be made without the consent of the child's mother given in writing in the prescribed form; it is provided by s. 15 of that Act, inter alia,that a consent shall not be valid unless it is given after the child has attained the age of six months.

The infant was delivered to the respondents, a childless married couple aged 48 and 38 years, on the 23rd December, 1964, with a view to its adoption by them. During the month of February, 1965, the mother met the infant's father again and they discussed marriage. On the 24th May the respondents applied to the Board for an adoption order in respect of the infant. On the 5th July the mother agreed to marry the infant's father and on the 8th July she consulted a solicitor about regaining custody of the infant. On the 23rd July the mother informed her parish priest of her intention to marry and to regain the custody of the infant, and on the same day the Board made an order for the adoption of the infant by the respondents. On the 24th July the mother wrote to the adoption society requesting the return of the infant and a similar letter was written to the society by her solicitor on the 26th July. The mother married her husband in London on the 2nd August and she informed the adoption society of her marriage on the following day. Her husband, the infant's father, was domiciled in Ireland at the date of his marriage and he could have married the mother lawfully at the date of the infant's birth. On the 5th August the Board was informed by the adoption society that the mother's consent had been given on the previous 18th December.

On the 12th November, 1965, the Attorney General sought and obtained a conditional order of certiorari on the ground that the adoption order had been made without and in excess of jurisdiction in that it was made without the valid consent of the mother. That conditional order was directed to, and served on, the Board, the adoption society, the mother, and the respondents who alone showed cause. On the 11th February, 1966, the President of the High Court (Davitt P.) disallowed the cause shown by the respondents and directed that the conditional order of certiorari be made absolute and that the adoption order be quashed.

On the 25th February, 1966, the prosecutors sought and obtained a conditional order of habeas corpus ad subjiciendumrequiring the respondents to produce the body of the infant before the Court to abide the directions of the Court unless cause was shown to the contrary, and the conditional order of habeas corpus was directed to, and served on, the respondents, who showed cause jointly by filing affidavits. The prosecutors then applied by motion on notice to the respondents to have the conditional order of habeas corpus made absolute, notwithstanding the cause shown by the respondents, and that motion was heard on the 20th and 21st April, 1966 (when the infant was 17 months old). The judgments, post,were delivered on the 5th May, but the order made on foot of the judgments, disallowing the cause shown and directing the conditional order of habeas corpus to be made absolute, was not perfected until the 13th May so as to allow a period of time for arrangements to be made for delivering the infant into the custody of the prosecutors. The infant was delivered to the prosecutors on the 26th May, 1966.

Sect. 1, sub-ss. 1 and 2, of the Legitimacy Act, 1931, provide:—"(1) Subject to the provisions of this section where the parents of an illegitimate person marry . . . one another . . . after the commencement of this Act, the marriage shall, if the father of the illegitimate person . . . is at...