State (Nicolaou) v an Bord Uchtála

JurisdictionIreland
CourtSupreme Court
Judgment Date01 Jan 1968

High Court.

Supreme Court.

High Court.

Supreme Court.

The State (Nicolaou) v. An Bord Uchtála
THE STATE (at the Prosecution of LEONTIS NICOLAOU)
and
AN BORD UCHTÁLA uchtála, In the Matter of the Constitution, And in the Matter of the Courts (Supplemental Provisions) Act,1961, And in the Matter of the Adoption Act,1952, And in the Matter of an Adoption Order dated the 13th day of September, 1961, made by An Bord Uchtála in Respect of Mary Carmel Donnelly an infant

Constitution - Adoption - Illegitimate child - Natural father opposed to adoption - Mother arranging adoption - Adoption order made without natural father being heard - Validity of order - Certiorari - Whether Adoption Act, 1952,repugnant to provisions of the Constitution - Constitution of Ireland, Articles 40, 41 and 42 - Adoption Act, 1952 (No. 25 of 1952), ss. 14, 15 and 16.

Certiorari.

The applicant, Leontis Nicolaou, was the natural father of the child born in London to a woman of Irish parents who was a citizen of Ireland. The applicant wished to marry the mother of the child but for various reasons out of his control and not of his desire he was unable to do so. Most of these reasons flowed from the mother's unwillingness to marry the applicant for various reasons. The mother, with the applicant's consent, took the child to her parents' home in Ireland and then commenced making arrangements to have the child adopted. The applicant was at first unaware of this but when he became aware of it he indicated very strongly that he was not agreeable to having the child adopted and that he wished to provide for the child himself. He wished to have the child with him and was ready and willing to give the mother a home with himself or else to marry her, whichever she wished. Notwithstanding the applicant's views on the matter the mother arranged for the child to be adopted and an adoption order was made, unknown to the applicant, who, after some considerable difficulty, obtained information as to the adoption order. He thereupon applied to the High Court for a conditional order of certiorari to have the order brought up and quashed, and his application was heard by Murnaghan J. on the 15th July, 1964.

The provisions of the Adoption Act, 1952, providing for the making of an adoption order by the Adoption Board in relation to an illegitimate child without the natural father being heard are not contrary or repugnant to the Constitution.

So held by the Supreme Court ( Ó Dálaigh ó dálaigh C.J., Davitt P., Lavery, Haugh and Walsh JJ.).

Held further by the Supreme Court that the natural father of an illegitimate child is not, as such, entitled to be heard prior to the making of an adoption order by the Adoption Board under the provisions of the Adoption Act, 1952, and a provision to that effect is not repugnant to the Constitution.

Cur. adv. vult.

Murnaghan J.:—

This is an application by Leontis Nicolaou for a conditional order of certiorari to have an alleged order of An Bord Uchtála brought up for the purpose of being quashed.

One, Kathleen Sheila Donnelly, gave birth to a female infant on the 23rd February, 1960, at the North Middlesex Hospital, Edmonton, England. The applicant deposed that he is the natural father of that infant. The birth of the said infant was duly registered on the 4th March, 1960, under the names, Mary Carmel. After the confinement the mother and child went to the home of the applicant at 19 Durham Road, Finsbury Park, and later at 97 Rodding Road, Clapton, where they were cared for and maintained by the applicant until the 16th June, 1960, on which date the mother and child came to Ireland. There was apparently talk of marriage between the applicant and the mother, but the latter, who is a Catholic, was not prepared to marry the applicant unless and until he became a practising member of the Catholic Church. No marriage has as yet taken place. There was also apparently, prior to June, 1960, a suggestion that the baby might be adopted, and the question of adoption would appear to have been discussed between the applicant and the mother. In his affidavit the applicant deposed, inter alia, as follows:—"Before she left for Ireland I told her that I considered the child mine and that I proposed to rear it and that if any suggestion or proposal was made for its adoption it should be referred immediately to me."

The circumstances leading up to the mother's departure for Ireland are referred to by her in an affidavit, the material parts of which are as follows:—"I was worried and upset about the child being illegitimate and I was not satisfied to continue the position as it was then. I told Mr. Nicolaou that I wished to go to a Catholic Home and live there and work for my maintenance and that I wished to take the baby with me. I told him I was going to such a home in Dublin."

Dealing with this aspect of the matter, the applicant in his affidavit deposed that "Some months after the birth of the child, Miss Donnelly proposed that she would go away for a while . . . I thought at the time that she intended to reside with the infant in an institution in Ireland."

I find it somewhat difficult to assess this evidence, but I think it is clear that the mother was not prepared to continue living with the child in the applicant's house unless as his wife. I think it is equally clear that her decision to remove herself and the baby therefrom was for an indefinite period.

Having arrived in Ireland the mother went straight to the office of the Catholic Protection and Rescue Society of Ireland, at 30 South Anne Street, Dublin, and was admitted with the baby to St. Patrick's Home, owned by the said Society. When residing in the said home the mother requested the secretary of the Society to try and find a home for the baby, and on the 23rd September, 1960, she brought the baby to the Society's offices where she handed her into the custody of the officers of the Society. The mother then left St. Patrick's and went to her parents' home in Galway. The applicant deposed that towards the end of September, 1960, he visited the home of the mother's parents in Ireland. He does not say that he saw the mother but he deposed that "as a result of that visit I became apprehensive that arrangements were being made to have my child adopted." This is in the circumstances a somewhat laconic statement and might well have been extended. As a result of his apprehensions the applicant consulted a solicitor who wrote on his behalf, on the 7th October, 1960, to the Catholic Protection and Rescue Society of Ireland and to the secretary of the Adoption Board, giving notice of intention to take proceedings to prevent the adoption of the baby taking place. No such proceedings were taken, and the applicant somewhat ingenuously deposed in his affidavit that "I heard no more about the proposed adoption and assumed it had not taken place."

The mother deposed that "some time early in the year, 1961, I got a communication from the Society with the necessary adoption papers. The communication offered to get me a solicitor, but my mother sent me to her solicitor. I subsequently attended on this solicitor for the purpose of completing the adoption papers and formalities in relation to the child and I did so. This was some time in the year 1961."

The mother returned to London in August, 1963, and took up employment with the applicant in October, 1963. The applicant deposed that "she then told me and I learned for the first time that she had signed adoption papers in respect of our child. I took immediate steps to consult my solicitor . . . and in November, 1963, I came to Dublin for consultation with counsel."

The applicant later applied for a conditional order of habeas corpus which was refused by Mr. Justice Henchy.

Assuming, but not deciding, that this Court can quash an order of An Bord Uchtála on certiorari, it is clear that the present application poses a number of questions of far-reaching importance.

The procedure of adoption under the Adoption Act, 1952, is based on secrecy. It is obvious that once an adoption order is made, the terms of the order should not be communicated to any person other than the adopting parent, or parents, except in the most exceptional circumstances, and then only for grave reason. An Bord Uchtála has declined to give the applicant any information or to disclose whether an adoption order has been made in relation to the child. Before I could grant the conditional order of certiorari sought by the applicant I would have to be satisfied that an adoption order was in fact made by An Bord Uchtála in respect of the child, Mary Carmel. The applicant, in addition to the facts to which I have already alluded, relies on the fact that in Iris Oifigiuil for the year 1961, notice is given of the making of adoption orders in respect of three persons, each bearing the names, Mary Carmel, but only one of whom was stated to have been born on the 23rd February, 1960, in England, and in respect of whom the adoption order was made on the 13th September, 1961. The applicant has apparently assumed that the child is now known as Mary Carmel Murphy as he has entitled these proceedings in that name. There is not sufficient evidence at the moment before me to allow me to come to the same conclusion. I will, however, in the circumstances permit these proceedings to be deemed to have been made in the name, Mary Carmel Donnelly, if the applicant so applies. On the evidence before me it is a reasonable inference that an adoption order was made in relation to the child in question, probably in the year 1961, and for the moment I proceed on that basis.

On the assumption that such an order was made, the next question I have to consider is whether the applicant is entitled to the order he seeks. This depends on 1, whether the applicant is the natural father of the child. On the evidence before me, for the moment and for present purposes, I am...

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