V C. v J. M. and G. M

• Jurisdiction: Ireland
• Judgment Date: 01 January 1988
• Date: 01 January 1988
• Docket Number: [1985 No. 618 Sp. and 1985 No. 996 Sp.] [176/86]
• Court: Supreme Court

High Court

Supreme Court

[1985 No. 618 Sp. and 1985 No. 996 Sp.] [176/86]

v. C. v. J.M. and G.M.

In the matter of M., an infant, J.M. and G.M. Plaintiffs

and

An Bord Uchtála

Defendant

V.C. Plaintiff

and

J.M. and G.M. Defendants

Cases mentioned in this report:—

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

J.M. and M.M. v. An Bord Uchtála (Unreported, High Court, Finlay P., 27th November, 1984).

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

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

S. v. S. [1983] I.R. 68; [1984] I.L.R.M. 66.

In re J.H. (Infant) [1985] I.R. 375.

N.B. and T.B. v. An Bord Uchtála (Unreported, High Court, Barron J., 18th February, 1983; Supreme Court, 28th May, 1985).

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

Northern Bank Finance v. Charlton [1979] I.R. 149.

Whitehouse v. Jordan [1981] 1 W.L.R. 246; [1981] 1 All E.R. 267.

Benmax v. Austin Motor Co. Ltd. [1955] A.C. 370; [1955] 2 W.L.R. 418; [1955] 1 All E.R. 326.

Adoption - Placement - Consent - Full and free knowledge - Evidence - Appeal - Findings of fact - Oral hearing - Transcript of evidence - Primary and secondary facts - Whether appellate court entitled to substitute own inference of fact - Adoption Act, 1974 (No. 24), s. 3.

Special Summons.

The facts are as set out in the judgment of Barron J., post. By special summons dated the 15th August, 1985, the plaintiffs sought orders for adoption and interim custody and dispensing with the consent of the mother to adoption. By motion on notice dated the 30th September, 1985, the defendant sought directions as to the representation of the mother and the High Court (Barr J.) on the 11th October, 1985, ordered that Gerard I. Lambe, solicitor, represent her. She issued a special summons on the 16th December, 1985, seeking orders for custody of the child, and by consent the two actions were joined and came on for full plenary hearing on oral evidence on 17th, 18th and 19th December, 1985 and 22nd, 23rd and 24th January, 1986.

Section 3 of the Adoption Act, 1974, provides:—

"(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.

  • (3). The consent of a ward of court shall not be dispensed with by virtue of a High Court order under this section except with the sanction of the Court."

The plaintiffs appealed by notice of appeal dated the 3rd June, 1986, from the order of Barron J. The defendant cross-appealed the order as to costs. Notice of change of solicitor dated the 16th February, 1987, was served by the plaintiffs. At the hearing before the Supreme Court on the 18th and 19th May, 1987, the issue of costs was postponed until after the determination of the appeal on the merits.

M. was born in March, 1980. M.'s mother was married but separated and her husband was not M.'s father. Upon advice and counsel from an adoption society the mother shortly after the birth signed a form consenting to M.'s placement for adoption. Upon her discovery in July. 1980, that M. had been placed with the plaintiffs, the mother took measures and made representations to the adoption society, the plaintiffs and the defendant for the return of the child. In April, 1982, she attended upon the defendant and gave evidence as to the circumstances of M.'s birth and informed the defendant that she had no intention of consenting to adoption. In January, 1985, the defendant deemed M. eligible for adoption. Upon request made to her through the adoption society in May, 1985, the mother refused to consent to the legalisation of the adoption order. The plaintiffs by special summons sought orders under s. 3 of the Adoption Act, 1974, granting them an adoption order and dispensing with the mother's consent for such order. Upon full plenary hearing on oral evidence in the High Court it was

Held by Barron J., in refusing the orders sought, that on the evidence the mother's agreement to place for adoption, while freely made, was without full knowledge of its consequences and this deprived her of the capacity to make a fully informed, free decision.

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

On appeal by the plaintiffs it was

Held by the Supreme Court (Henchy, Griffin and Hederman JJ.; McCarthy and Gannon JJ. dissenting), in allowing the appeal and granting the orders sought, 1, that on appeal while it would not normally disturb the findings of primary or basic facts, which depended on the assessment made by the trial judge of the credibility and quality of witnesses and the weight to be attached to their evidence in the oral hearing, the Court might substitute its own findings of secondary facts, being findings made by evaluations of and inferences from the primary facts, if it considered the inferences made by the trial judge to be incorrect.

Principles in Northern Bank Finance v. Charlton[1979] I.R. 149 and Benmax v. Austin Motor Co. Ltd.[1955] A.C. 370 followed.

2. That the mother's state of mind at the relevant time was to be inferred from what was said or done or left unsaid or undone having regard to the proximate relevant circumstances before and after the signing of the form for placement.

3. That the proper conclusion from the undisputed primary facts was that the mother at the time of the placement had given her full and free consent to adoption.

Per McCarthy J. (dissenting): That the state of a person's mind is itself a primary fact and the Court on appeal should not interfere with the trial judge's finding.

Per Gannon J. (dissenting): That the issues of free and full knowledge essential to consent were so personal to the mother and witnesses to those facts that the judicial findings upon them were particularly dependent upon the voir dire. The transcript of the evidence could reasonably support the findings of the trial judge.

Cur. adv. vult.

Barron J.

The plaintiffs seek relief under the provisions of s. 3 of the Adoption Act, 1974.

The mother of the infant is now in her middle thirties. She is the youngest of a family of four. She left school at the age of seventeen having obtained her Intermediate Certificate and then obtained employment as a telephonist/receptionist with a commercial firm where she remained for approximately 8 years until she married in December, 1975. The child of this marriage was born in January, 1977. The marriage was not very successful and the parties separated in August of that year. The mother returned with her baby son to reside with her parents. Her mother was then and still is virtually an invalid and was looked after by her father who was then retired. Early in 1979 the mother formed an association with a married man. She left her parents' home and went to live with her son with a female friend in the latter's flat. In the course of this association she found that she was pregnant. When she discovered this she moved to a flat on her own with her child. Sometime in January, 1980, she was advised by a member of the staff at the Rotunda Hospital to seek aid from the Rotunda Girls Aid Society.

She made her first visit to the adoption society on 23rd January, 1980, where she met the administrator, Mrs. R., who assigned her to one of the social workers employed by the society, Mrs. C. At this meeting the mother explained to Mrs. C. the full circumstances of her pregnancy and that although she was a married woman, her husband was not the father of the child she was carrying. She explained that she did not want to see the child after it was born and that she wanted to have it adopted. She explained that her parents were unaware of her pregnancy; that she could not let them know that she was pregnant and that as she lived at home she would have to give up her child. Mrs. C. explained to her that no decision as to adoption could be made until after the child was born. She explained what was involved in adoption, the meaning of placement for adoption and that it was open to the mother at any time to change her mind. On the 8th February, 1980, the mother had a further interview with Mrs. C. On this occasion Mrs. C. tried to impress upon the mother the need for her to see the child after its birth. She says that she suggested to the mother the possibility of an adoption in Northern Ireland since in that jurisdiction her married state would have been no obstacle to such a course. She says that the mother rejected this suggestion. The mother for her part says that adoption in Northern Ireland was suggested by Mrs. C. on one occasion but that was in the course of the final telephone conversation between them in mid-August, 1980.

On matters of actual fact I prefer the evidence of Mrs. C. to that of the mother so far as that evidence relates to interviews or meetings between the two of them. Mrs. C. gave evidence from notes attached to the mother's file with the adoption society which she herself had prepared contemporaneously. The mother on the other hand had little recollection of her meetings and appointments with Mrs. C. This was the last meeting between the parties before the birth of the child...