O'T (I) v B
| Jurisdiction | Ireland |
| Judge | BARRON J.,Keane J.,Hamilton C.J. |
| Judgment Date | 03 April 1998 |
| Neutral Citation | 1998 WJSC-SC 11911 |
| Court | Supreme Court |
| Date | 03 April 1998 |
1998 WJSC-SC 11911
THE SUPREME COURT
Hamilton C.J.
Denham J.
Barrington J.
Keane J.
Barron J.
Citations:
COURTS OF JUSTICE ACT 1947 S16
STATUS OF CHILDREN ACT 1987 S35
STATUS OF CHILDREN ACT 1987 S35(5)
CONSTITUTION ART 34.2
CONSTITUTION ART 34.3.1
CONSTITUTION ART 34.3.2
CONSTITUTION ART 34.3.4
CONSTITUTION ART 36
CONSTITUTION ART 36(iii)
CONSTITUTION ART 34.2.1
COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S22
COURTS (ESTABLISHMENT & CONSTITUTION) ACT 1961 S2(1)
COURTS (ESTABLISHMENT & CONSTITUTION) ACT 1961 S4(1)
COURTS (ESTABLISHMENT & CONSTITUTION) ACT 1961 S5(1)
COURTS (ESTABLISHMENT & CONSTITUTION) ACT 1961 S7(1)
COURTS (ESTABLISHMENT & CONSTITUTION) ACT 1961 S8(1)
CLUNE V DPP 1981 ILRM 17
COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S22(1)(a)
COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S22(6)
COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S33
COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S34
COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S35
COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S34(1)
DPP, PEOPLE V LYNCH 1982 IR 64
CONSTITUTION ART 40.3
DPP, PEOPLE V SHAW 1982 IR 1
RYAN V AG 1965 IR 294
COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S52
G V BORD UCHTALA 1980 IR 32
A (A MINOR), IN RE UNREP BUDD 21.12.1993
STATUS OF CHILDREN ACT 1987 S35(1)(a)
STATUS OF CHILDREN ACT 1987 S35(1)(b)
CONSTITUTION ART 40.3.1
NICOLAU, STATE V BORD UCHTALA 1966 IR 567
KENNEDY V IRELAND 1987 IR 587
ADOPTION ACT 1952 S22
F (M) V SUPERINTENDENT BALLYMUN GARDA STATION 1991 1 IR 189
TORMEY V IRELAND 1985 IR 289
NORWICH PHARMACAL CO V COMMISSIONERS OF CUSTOMS & EXCISE 1973 2 AER 943
MEGALEASING UK LTD V BARRETT 1993 ILRM 497
STATUS OF CHILDREN ACT 1987 S36(5)
STATUS OF CHILDREN ACT 1987 S35(1)
STATUS OF CHILDREN ACT 1987 S34(3)
LEGITIMACY DECLARATION (IRL) ACT 1868
LEGITIMACY ACT 1931
ADOPTION ACT 1964 S3
COURTS OF JUSTICE ACT 1947 S16
QUINN, STATE V RYAN 1965 IR 70
STATUS OF CHILDREN ACT 1987 S25
STATUS OF CHILDREN ACT 1987 S3(2)(b)
STATUS OF CHILDREN ACT 1987 S32(b)
STATUS OF CHILDREN ACT 1987 S3
COUGHLAN V PATWELL 1982 IR 64
CONSTITUTION ART 34.4.2
SHEERIN, STATE V KENNEDY 1966 IR 379
KELLY ON THE CONSTITUTION 3ED 425
SUCCESSION ACT 1965 S67
STATUS OF CHILDREN ACT 1987 S4(a)
O'B V S 1984 IR 316
BULA LTD V TARA MINES LTD (NO 1) 1987 IR 85
C, STATE V FRAWLEY 1976 IR 365
MURRAY V IRELAND 1985 IR 532
CONSTITUTIONAL ADJUDICATION IN EUROPEAN COMMUNITY & NATIONAL LAW (1992) 179–181
HOGAN "UNENUMERATED PERSONAL RIGHTS: RYANS CASE RE-EVALUATED" 1990–1992
IJ (NS) 95
CONSTITUTION ART 40.6.1(i)
MCGEE V AG 1974 IR 284
ART 26 OF THE CONSTITUTION & THE REGULATION OF INFORMATION (SERVICES OUTSIDE THE STATE FOR THE TERMINATION OF PREGNANCIES) BILL 1995, IN RE 1995 1 IR 1
NORRIS V AG 1982 IR 241
BLAKE V AG 1982 IR 117 1981 ILRM 34
BIRTHS & DEATHS REGISTRATION ACT (IRL) 1880 S1
BIRTHS & DEATHS REGISTRATION ACT (IRL) 1880 S7
REGISTRATION OF BIRTHS & DEATHS (IRL) ACT 1863
BIRTHS & DEATHS REGISTRATION ACT (IRL) 1880 S25
BIRTHS & DEATHS REGISTRATION ACT (IRL) 1880 S30
BIRTHS & DEATHS REGISTRATION ACT (IRL) 1880 S27
STATUS OF CHILDREN ACT 1987 S36(5)
REGISTRATION OF BIRTHS ACT 1996
ADOPTION ACT 1952 S22(5)
ADOPTION (AMDT) ACT 1976 S8
R (C) V BORD UCHTALA 1994 1 ILRM 217
SHATTER FAMILY LAW 4ED 526–528
ADOPTION ACT 1952 S19
Synopsis
Constitutional Law
Unenumerated personal rights; conflicting rights; claim by informal adoptees to discover identity of natural parents; declaration of parentage under s.35, Status of Children Act, 1987 applied to applicants but only regarding named parents; whether Circuit Court had jurisdiction in this case; whether succession rights relevant; whether right exists to know identity of natural parents; whether this is a legal right implicit in s.35 or otherwise; whether it is an unenumerated right guaranteed by the Constitution; whether such right outweighed by parents" right to privacy; whether criteria exist for reconciling these rights Held: Constitutional right to know identity of parents exists, but is not absolute; neither is parents" right to privacy; for resolution parents may be heard with their identity protected I O'T v. B - Supreme Court: Hamilton C.J., Denham J., Barrington J., Keane J.*, Barron J. (*dissenting) - 03/04/1998 - [1998] 2 IR 321
JUDGMENT delivered on the 3rd day of April 1998by BARRON J.
This case stated raises issues in relation to de facto adoptions which occurred in 1941 and 1951 respectively. Both were arranged by the Adoption Society named in the proceedings. The case stated arises out of two separate sets of proceedings, both seeking the same thing, a declaration of parentage but with the ultimate intention of ameetingbetween the applicants and their respective mothers. The first set of proceedings is an application pursuant to the provisions of s.35 of the Status of Children Act, 1987.The second is an Equity Civil Bill seeking orders directing the Adoption Society to furnish the information in its possession to enable the plaintiff to apply under s. 35. In both cases, an order for discovery has been sought to obtain the relevant information.
Since this litigation has been prompted by the 1987 Act, it is necessary to consider the purpose of that Act. It gave for the first time children born out of wedlock the same property rights as those to which children born to married couples were entitled. S. 35 is the procedural section whereby proceedings may be instituted to declare the natural parents of such children.
As children who were legally adopted obtain such rights against their adopters, the Act necessarily excluded children who werelegallyadopted from its provisions. Although, it has been submitted on behalf of the Attorney General to the contrary, if that submission were correct it would mean that persons de facto adopted would have neither the rights flowing from a legal adoption nor from the Act. That clearly was neither the intention of the legislature nor is it the correct construction of the provisions of the Act.
The reality is that the applicants have at all times remained in law the children of their natural parents and are entitled to the legal benefits granted to them by the Act.
This gives rise to the question, do they have locus standi to bring proceedings under s. 35 notwithstanding that they do not seek thereby to obtain any benefit granted to them under the Act? If they do, must it follow that the name and address of their respective mothers must be disclosed to them in the course of such proceedings?
To answer these questions, comparisons with legal adoptions must considered. The basic question is one of secrecy. This has always bee??? paramount consideration in adoption law. There has not been any occasion before the courts that that secrecy has been breached. The whole basis of the procedure governing cases where a natural mother ??? to withdraw her consent to a proposed adoption is based upon the maintenance of this secrecy. In CR v. ABU 1994 1 ILRM 217, Morris, as he then was, refused to allow the Adoption Board to have an absolute rule that information held by it might never be released. That case and the attitude of the Adoption Society in the present proceedings indicates that the public attitude to absolute secrecy has been weakened. But the do not appear to have been any cases where communication has taken place against the wishes of the mother.
That is the reality of the present cases. I agree with the judgment of the Chief Justice that the right of the child to know its parents is a constitutional one albeit limited. This is recognised by the legislature and s. 22(5) of the Adoption Act, 1952is the objective indication of that recognition.
The need to keep the door open is based upon genetics. Help from a member of the cognate family might be essential in certain diseases. In de facto adoption, this is equally important. The issue of secrecy is also the same. The difference lies in relation to property rights. Ultimately, what this Court is being asked is, when should the veil of secrecy be raised in the case of adoption and, should this test be any different in the case of de facto adoption? In answering this question, should any regard be had to the provisions of s.19 of the Adoption Act, 1952which, if they had been applied, would have changed the legal position on the applicants. Clearlythis must be a matter to be taken into account as must be the length of ??? forty-five and fifty-five years respectively since the de facto adoptions ??? place.
It is clearly the policy of the legislature that access to pre-adoption information should be available only in exceptional circumstances. The case for the Adoption Society in the present proceedings has been based entirely upon the promise of secrecy given to the natural mothers. But that is the same as in the case of a legal adoption. I would formulate the central issue as being, should the courts cease to keep faith with such mothers in favour of a property right which has not even been claimed. The difference between de facto and legal adoptions lies in the different legal family. Having regard to the strong emotional strains of these case they should be treated as legal adoptions until and only until their legal rights as members of their natural families are underthreat.
I agree with the answers proposed by the Chief Justice to the questions raised by the case stated with some qualification in relation to the answer to question number 11. In my view more emphasis should be placed upon the undertaking as to secrecy given to the natural mothers at the time of the placement of their daughters than on the property rights belonging to such daughters. In relation to the latter there appears at the moment to be no evidence that such rights are of any practicalvalue.
In any event the property rights of the children would in most cases certainly be met by the actions of an...
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