Re J.H.(an Infant); K.C. v an Bord Uchtála

• Jurisdiction: Ireland
• Judgment Date: 01 January 1986
• Date: 01 January 1986
• Docket Number: [1984 Nos. 86,
• Court: Supreme Court

High Court

Supreme Court

High Court

[1984 Nos. 86, 322 and 399 Sp.]

In re J.H. (inf.)

In the matter of J.H. (otherwise R.), an Infant

Cases mentioned in this report:—

In re O'Brien, an Infant [1954] I.R. 1; (1953) 87 I.L.T.R. 156.

Ryan v. The Attorney General [1965] I.R. 294.

In re J., an Infant [1966] I.R. 295.

The State (Nicolaou) v. An Bord Uchtála [1966] I.R. 567; (1966) 102 I.L.T.R. 1.

M. v. An Bord Uchtála [1977] I.R. 287.

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

G. v. An Bord Uchtála [1980] I.R. 32; (1978) 113 I.L.T.R. 25.

Mulhall v. Haren [1981] I.R. 364.

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

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

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

In re Frost, Infants [1947] I.R. 3; 82 I.L.T.R. 24.

J. v. C. [1970] A.C. 668; [1969] 2 W.L.R. 540; [1969] 1 All E.R. 788.

J. v. D. (unreported, Supreme Court, 22nd June, 1977).

MacD. v. MacD. (1979) 114 I.L.T.R. 66.

In re F.M., an Infant; M. v. M. (Unreported, High Court, Murphy J., 2nd December 1982).

Murphy v. The Attorney General [1982] I.R. 241.

O'N. v. O'B. (Unreported, High Court, Finlay P., 28th February 1979).

The State (Kavanagh) v. O'Sullivan [1933] I.R. 618; (1931) 68 I.L.T.R. 110.

The State (Williams) v. Markey [1940] I.R. 421; (1939) 74 I.L.T.R. 237.

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

Application of Dunne [1968] I.R. 105.

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

In re O'Hara [1900] 2 I.R. 232; (1899) 34 I.L.T.R. 17.

In re C.M., an Infant (Unreported, High Court, Finlay P., 27th November, 1984).

East Donegal Co-Operative v. The Attorney General [1970] I.R. 317; (1970) 104 I.L.T.R. 81.

In re Haughey [1971] I.R. 217.

McDonald v. Bord na gCon (No. 2) [1965] I.R. 217, (1965) 100 I.L.T.R. 89.

In re C. (M.A.) (an infant) [1966] 1 W.L.R. 646; [1966] 1 All E.R. 838.

Infant - Adoption - Custody - Guardianship - Infant placed for adoption - Marriage of parents subsequent to placement for adoption - Consequent legitimisation of infant - Parents seeking re-registration of child - Consent of mother to adoption - Whether consent to be dispensed with - Constitution - Family and education - Presumption of constitutionality - Statute - Interpretation - Welfare of infant - Whether infant's welfare presumptively to be found within the family - Legitimacy Act, 1931 (No 13), Schedule - Adoption Act, 1964, (No 2), s. 2 - Adoption Act, 1974 (No. 24), s. 3 - Guardianship of Infants Act, 1964 (No. 7), ss. 2, 3 - Constitution of Ireland, 1937, Articles 41, 42, s. 5.

Special Summons.

These proceedings concerned the adoption and custody of an infant girl, J.H., otherwise known as R. The facts are summarised in the headnote and appear more fully in the judgments, infra. In the first set of proceedings (1984 No. 86 Sp.), the adopting parents sought an order pursuant to s. 3 of the Adoption Act, 1974, seeking to dispense with the consent of the mother of the infant to the making of an adoption order. The respondents to this summons were An Bord Uchtála (in this report referred to as the Board), and in addition the natural parents of the infant together with the Registrar General of Births and Deaths in Ireland (in this report referred to as An tArd-Chlárathóir) were added as notice parties to the proceedings. In the second set of proceedings (1984 No. 322 Sp.) the natural parents sought custody of the infant pursuant to the provisions of the Guardianship of Infants Act, 1964. The respondents to this summons were the adopting parents. In the third set of proceedings (1984 No. 399 Sp.) the adopting parents sought custody of the infant pursuant to the provisions of the Guardianship of Infants Act, 1964. The respondents to this summons were the natural parents.

Section 3 of the Guardianship of Infants Act, 1964 provides as follows:—

"Where in any proceedings before any court the cutody, guardianship or upbringing of an infant, or the administration of any property belonging to or held on trust for an infant, or the application of the income thereof, is in question, the court, in deciding that question, shall regard the welfare of the infant as the first and paramount consideration."

Section 2 of the same Act provides, inter alia:—

"In this Act, except where the context otherwise requires - . . . 'welfare', in relation to an infant, comprises the religious and moral, intellectual, physical and social welfare of the infant."

Section 2, sub-s. 1 (a) of the Adoption Act, 1964 provides as follows:—

"Notwithstanding anything contained in section 10 of the Principal Act, an adoption order may be made in the case of a child—

• (i) who has been legitimised or whose legitimisation has been recognised in pursuance of the provisions of the Legitimacy Act, 1931, and

• (ii) whose birth has not been re-registered in pursuance of the provisions of the Schedule to that Act or in pursuance of the law of a country other than the State, provided that the

father of the child gives his consent to the making of an adoption order or such consent is dispensed with in accordance with section 14 of the Principal Act."

Section 3, sub-ss. 1 and 2 of the Adoption Act, 1974 provide as follows:—

"(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

• (b) withdraws a consent already given,the applicant for the adoption order may apply to the High Court for an order under this section.

  • (2). The High Court, if it is satisfied that it is in the best interests of the child so to do, may make an order under this section —

    • (a) giving custody of the child to the applicant for such period as the Court may determine, and

    • (b) authorising the Board to dispense with the consent of the other person referred to in subsection (1) of this section to the making of an adoption order in favour of the applicant during the period aforesaid."

Article 42, s. 1 of the Constitution provides:—

"The State acknowledges that the primary and natural educator of the child is the Family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children."

Article 42, s. 5 of the Constitution provides:—

"In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardians of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child."

The second set of proceedings, involving claims and cross-claims pursuant to the provisions of the Guardianship of Infants Act, 1964, were heard by the High Court, in circumstances which are set out sufficiently in the judgment, infra, on the 20th, 21st and 24th September, 1984.

From the orders made by the High Court pursuant to these judgments, the adopting parents appealed against the refusal to make an order pursuant to s. 3 of the Adoption Act, 1974, and the natural parents appealed against the order granting custody of the infant pursuant to s. 3 of the Guardianship of Infants Act, 1964, and also against the order restraining An tArd-Chláraitheoir from re-registering the birth of the child pursuant to the provisions of the Legitimacy Act, 1931. The appeals were heard by the Supreme Court on the 26th and 27th February, 1985. At the opening of the appeals, it was agreed that counsel for the natural parents should address the Court first.

The proceedings relating to the custody of the infant were re-entered before the High Court, and were heard on the 3rd, 5th and 10th May, 1985.

The infant girl who was the subject of these proceedings was placed in foster care by her natural mother one week after her birth on the 25th September, 1982. The mother took this course because at the time she was worried about the effect on the child of being brought up by an unmarried mother. Although the mother knew the infant's father, a widower with grown-up children, she did not wish to marry him solely because of her pregnancy. The infant was placed for adoption within three months of birth. The adopting parents, both in their twenties, already had one adopted child. The natural mother later married the father of the infant, and they then applied pursuant to the provisions of the Legitimacy Act, 1931, for the infant's birth to be re-registered. The natural mother, in correspondence with the adoption society, refused to give her consent to an order for the infant's adoption. The adopting parents issued proceedings claiming that the natural mother's consent to adoption should be dispensed with pursuant to the provisions of the Adoption Act, 1974. The natural parents issued further proceedings pursuant to the provisions of the Guardianship of Infants Act, 1964, in which they sought custody of the infant; the adopting parents issued cross-claims seeking similar relief. The High Court (Lynch J.) granted an order, pending determination of the proceedings, restraining re-registration of the infant's birth. The natural parents did not challenge the suitability of the adopting parents to provide a secure and stable home for the infant, and it was established in evidence that the infant and the adopting parent's other child had formed a close relationship. The adopting parents presented medical evidence relating to the natural parents, indicating that the father suffered from blood pressure and a partially detached retina, while the mother suffered from overstrain which was occasioned by her care for her...