Re S.W.(an Infant); J.K. v V.W.

Judgment Date09 February 1990
Date09 February 1990
Docket Number[S.C. No. 324 of 1989]
CourtSupreme Court

Supreme Court

High Court

[S.C. No. 324 of 1989]
[H.Ct. No. 108 of 1990]
J.K. v. v. W.
In the matter of S.W., an infant, J.K
V.W. and The Protestant Adoption Society, Respondents, and An Bord Uchtála and O.R and C.R., Notice Parties

Cases mentioned in this report:—

K.C. v. An Bord UchtálaDLRM [1985] I.L.R.M. 302.

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

In re K.D., A MinorELRWLRUNK [1988] A.C. 806; [1988] 2 W.L.R. 398; [1988] 1 All E.R. 577.

In re Frost InfantsIRDLTR [1947] I.R. 3; (1945) 82 I.L.T.R. 24.

G. v. An Bord UchtálaIRDLTR [1980] I.R. 32; [1978] I.L.T.R. 25.

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

Johnson v. IrelandHRC [1987] 9 E.H.R.R. 203.

E.K v. M.K. (Unreported, Supreme Court, 31st July, 1974).

In re M.IRDLTR [1946] I.R. 334; (1946) 80 I.L.T.R. 130.

MacD. v. MacD.DLTR (1979) 114 I.L.T.R. 60.

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

T.O'G v. A.G.DLRM [1985] I.L.R.M. 61.

The State (D.P.P.) v. WalshIR [1981] I.R. 412.

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

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

Infant - Guardianship - Custody - Natural parents unmarried - Child placed for adoption by mother - Applicant father obtained order for guardianship and custody in Circuit Court - Adoptive parents in better socio-economic position than applicant's family - Child would be reared in applicant's parents' home if he got custody - Evidence of bonds of attachment between child and adoptive parents - Possibility of mother applying for custody if applicant succeeded - Right of natural father to apply for guardianship - Whether application in reality a joint application for guardianship and custody - Test to be applied - Whether natural father who was a fit person had a right to guardianship defeasible by reasons involving welfare of child, such reasons alone not to deny his rights - Whether section gave natural father a mere right to apply for guardianship with welfare of infant being first consideration and wishes of natural father to be disregarded unless differences in quality of welfare between two competing homes unimportant - Whether section equated natural father's position at law with that of father married to mother - Whether blood link, guardianship and society of natural father are factors relevant to welfare of child - Whether rights which accrue from relationship of natural father to child vary with circumstances - Psychological theory of attachment - Whether legal test would be applied in light of psychological evidence - Whether differences in upbringing between competing homes springing from socio-economic causes a factor - Adoption Act, 1952 (No. 25), s. 14 - Guardianship of Infants Act, 1964 (No. 7), ss. 2, 3, 6, 6A, sub-s. 4 and 10, sub-ss. 1 and 2 - Status of Children Act, 1987 (No. 26), ss. 9, 11 and 12.

Practice - Case stated - Test to be applied in guardianship application by natural father - High Court the final court of appeal in guardianship cases - Case stated to Supreme Court on test to be applied - Time lapse of 6 months before resumption of case in High Court - Function of Supreme Court in case stated on question of law - Whether Supreme Court must accept facts and inferences as found in High Court - Whether High Court test correct - Other principles to be applied - Whether additional evidence could be called when matter returned to High Court - Whether evidence could be adduced on matters affected by lapse of time - Whether High Court could make determination of fact rendered necessary by further evidence - Courts of Justice Act, 1936 (No. 48), s. 38, sub-s. 3.

Constitution - Constitutional rights - Natural rights identified by Constitution - Whether natural father has such rights to the guardianship of child - Whether taking differences between competing homes springing from socio-economic factors into consideration in breach of Constitution - Guardianship of Infants Act, 1964 (No. 7), s. 6A - Constitution of Ireland, 1937, Article 40, s. 1.

Statute - Interpretation - Words and phrases - Provision that welfare of child to be the "first and paramount consideration" - Test to be applied - Guardianship of Infants Act, 1964 (No. 7), ss. 2, 3, 6, and 6A, sub-s. 4 - Status of Children Act, 1987 (No. 26), ss. 9, 11 and 12.

Case stated.

By application to the Circuit Court dated the 16th December, 1988, the applicant sought to be appointed a guardian of the child, S.W., pursuant to s. 6A of the Guardianship of Infants Act, 1964, as inserted by s. 12 of the Status of Children Act, 1987, and custody pursuant to s. 11 of the Act of 1964. On the 29th May, 1989, the Circuit Court (His Honour Judge Spain) made an order appointing the applicant guardian of the infant and granting him sole care and custody. A stay was granted pending appeal and the applicant's application for interim access to the infant in the event of an appeal was refused.

The first respondent and the second and third notice parties appealed to the High Court by notices dated the 30th May, 1989, and the 2nd June, 1989. The matter was heard by the High Court (Barron J.) on the 18th, 19th, 20th, 25th, 26th, 27th, 28th and 31st July, 1989. At the conclusion of the hearing an application was made by the first respondent and the second and third notice parties for the court to state a case for the opinion of the Supreme Court pursuant to s. 38, sub-s. 3 of the Courts of Justice Act, 1936. The High Court (Barron J.) stated a case on the 7th September, 1989, as to the proper test to be applied in deciding whether to grant guardianship of an infant to a natural father under s. 6A of the Guardianship of Infants Act, 1964, as inserted by the Status of Children Act, 1987.

The facts and relevant statutory provisions have been summarised in the headnote and are set out in the judgments, infra. The case stated is set out fully in the judgment of Barron J. infra.

The case was heard by the Supreme Court on the 4th and 5th October, 1989.

The case was re-listed in the High Court (Barron J.) for submissions on the 7th December, 1989, which were heard on the 7th and 8th December, 1989. The court read the order of the Supreme Court dated the 1st December, 1989. An application by the second and third notice parties to call additional evidence was refused insofar as it might have led to the re-hearing of the appeal. This decision was later affirmed on appeal by the second and third notice parties to the Supreme Court. The High Court gave the parties liberty to recall any witness to deal with any matter which might have arisen since the 31st July, 1989. The case was mentioned on the 15th December, 1989, and on the 11th January, 1990, and there was a further hearing of the case on the 23rd and 24th January, 1990.

Section 6A of the Guardianship of Infants Act, 1964, (inserted by s. 12 of the Status of Children Act, 1987) provides: "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 a guardian of the infant".

Section 3 of the Act of 1964 provides: "Where in any proceedings before any court the custody, guardianship or upbringing of an infant . . . is in question the court, in deciding the question, shall regard the welfare of the infant as the first and paramount consideration".

Section 2 of the Act of 1964 (as amended by s. 9 of the Act of 1987) provides inter alia that"'welfare' in relation to an infant, comprises the religious and moral, intellectual, physical and social welfare of the infant".

By virtue of s. 10, sub-s. 2 of the Act of 1964, subject to the terms of that order a person appointed a guardian of the person of an infant shall as against every person not being jointly with him a guardian of the person be entitled to the custody of the infant.

Section 11 of the Status of Children Act, 1987, substitutes the following sub-section for s. 6 sub-s. 4 of the Act of 1964:—

"Where the mother of an infant has not married the infant's father, she, while living, shall alone be the guardian of the infant unless there is in force an order under section 6A (inserted by the Act of 1987) of this Act or a guardian is otherwise appointed in accordance with this Act".

By virtue of s. 14 of the Adoption Act, 1952, an adoption order shall not be made without the consent of every person being the child's mother or guardian or having charge of or control over the child, unless the Board dispenses with such consent.

The applicant was the natural father of the child and lived with his parents, his sister and her child.

The first respondent, who was the natural mother of the child, had met the applicant in 1986. She lived with the applicant's family for a time in 1987 and they lived together as man and wife in other accomodation until they split up in February, 1988.

They decided to have a baby about Christmas, 1987, and the first respondent became pregnant. They got engaged in the middle of February, 1988, but the first respondent broke the engagement at the end of February and returned to her parents. The applicant's efforts to contact her were blocked by her parents. The baby was born in September, 1988. The child was handed over for adoption by the first respondent and was placed for adoption on the 17th November, 1988. When the applicant was informed of this he instituted proceedings in the Circuit Court seeking guardianship and custody of the child.

The child had been placed for adoption with a married couple (the second and third notice parties) whose social and financial circumstances and religion were similar to those of the first respondent and her family, who were members of the Church of Ireland. The applicant and his family were Roman Catholics.

The applicant was supported by his entire family in his wish for custody and proposed to...

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