T O'G v Attorney General

• Jurisdiction: Ireland
• Judge: Mr. Justice McMahon
• Judgment Date: 01 January 1985
• Neutral Citation: 1984 WJSC-HC 1561
• Docket Number: No. 6551P./1983
• Court: High Court
• Date: 01 January 1985

1984 WJSC-HC 1561

THE HIGH COURT

No. 6551P./1983

O'G (T) v ATTORNEY GENERAL

BETWEEN:

(T) O'G

Plaintiff

and

THE ATTORNEY GENERAL, AND Y.H. APPEARING BY HER MOTHER AND NEXT FRIEND M.H.

Defendants

Synopsis:

ADOPTION

Child

Applicants-Husband and wife-Death of wife before application determined -Widower seeking adoption order-Statute enabling widower to obtain adoption order provided another child already in his custody and provided mother's consent renewed - Proviso invalid-Severance of enactment-equality before the law - Adoption Act, 1974, s. 5-Article 40 ? (1983 No. 6551 P -McMahon J. (1/3/84).

O'G v. The Attorney General

1 Judgment of Mr. Justice McMahon delivered the 1st day of March 1984

2 On the 2nd day of March, 1983 a male infant was placed for adoption pursuant to the Adoption Acts 1952to 1976with the plaintiff and his wife. The infant had been born to the defendant Y.H. on the 11th day of December, 1982 and the natural mother signed a consent to placement for adoption on the 10th day of February, 1983 and a final consent to adoption on the 29th day of June, 1983.

3 There is normally some delay between the signing of the final consent and the making of an Adoption Order and in this case the Adoption Order would have been made in December 1983 but the plaintiff's wife was killed in a motoring accident on the 15th September, 1983. If it had been the plaintiff who died his widow could have obtained an Adoption Order on making a fresh application to the Board and subject to satisfying the Board that she was a suitable adoptor in accordance with Section 13 (1) of the Adoption Act 1952which provides:-

"13 (1) the Board shall not make an Adoption Order unless satisfied that the applicant is of good moral character, has sufficient means to support the child and is a suitable person to have parental rights and duties in respect of the child."

4 The wife would have required a new consent from the natural mother but if refused the wife could seek an order of the Court under Section 3 of the Adoption Act 1974 dispensing with the mother's consent.

5 The plaintiff found that because he was a widower and did not have another child in his custody he was not qualified to obtain an Adoption Order in respect of the child who had been in the custody of himself and his wife for six months. This situation was the result of Section 5 sub-section 1 of the Adoption Act 1974 which provides

"S.5 (1) notwithstanding anything contained in Section 11 of the principal Act (as amended by Section 5 of the Act of 1964) in any case where"

(a) a child is in the care of a married couple who have made an application for an Adoption Order in relation to that child, and

(b) the wife dies before the making of the Adoption Order,

6 The Board may make an Adoption Order relating to that child on the application of the widower, provided that:-

7 (i) The widower was at the date of his application another child in his custody, and

8 (ii) every person whose consent to the making of the Adoption Order is required by Section 14 of the principal Act or by Section 2 of the Act of 1964, knows, when he gives his consent, that the applicant is a widower".

9 The plaintiff has retained custody of the child since his wife's death and brings this action for a declaration that the proviso to Section 5 which precludes him from obtaining an Adoption Order is repugnant to the guarantee of human equality in Article 40 (1) of the Constitution. The plaintiff claims that in denying him a right to be considered on his merits by the Adoption Board for an Adoption Order because he is a widower Section 5 discriminates against him as a human person and such discrimination is not based on any difference of capacity physical or moral or of social function and is unjust, unreasonable and arbitrary and cannot be justified under any provision of the Constitution and accordingly is void ( in re Walker, O'Brien .v. M.S. and the Attorney General (Supreme Court unreported 29th January, 1984).

10 The natural mother applied for an Order of Habeas Corpus to recover custody of the child and her application was adjourned for hearing with this action. In the course of the hearing having been told of the evidence which is referred to hereinafter of the happy and healthy life of her child with the plaintiff and the emotional and psychological damage which he might suffer by being removed from the custody of the plaintiff the natural mother withdrew her opposition to the plaintiff's claim in this action and is willing to consent to an Order under Section 3 (2) of the Adoption Act 1974 giving custody of the child to the plaintiff. She reserves for the present her decision on consenting to the adoption of the child by the plaintiff but the parties have agreed on access satisfactory to them. It is right that the Court should acknowledge the generous and self-sacrificing spirit shown by the mother in her concern for her child's welfare.

11 Doctor Una O'Donnell a Child Phychiatrist attached to the Eastern Health Board has interviewed the plaintiff with the child and observed their inter-action and has seen the child in the home environment. The plaintiff has a farm of thirty acres on which he grazes dry stock and he has a full-time employment for five days a...