W. O'R v E.H. (Guardianship)

• Jurisdiction: Ireland
• Judgment Date: 23 July 1996
• Date: 23 July 1996
• Docket Number: [S.C. No. 71 of 1995]
• Court: Supreme Court

Supreme Court

[S.C. No. 71 of 1995]

W. O'R. v. E.H. (Guardianship)

W. O'R.

Applicant

and

E.H.

Respondent

The Adoption Board, Notice Party

Cases mentioned in this report:—

East Donegal Co-Operative v. Attorney General [1970] I.R. 317; (1970) 104 I.L.T.R. 81.

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

Hope v. Hope (1854) 4 De G.M. & G. 328.

In re Fynn (1848) 2 De G. & Sm. 457.

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

In re O'Hara [1900] 2 I.R. 232; (1900) 34 I.L.T.R. 17.

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

Keegan v. Ireland (1994) 18 E.H.R.R. 342.

J.K. v. V.W. [1990] 2 I.R. 437; [1990] I.L.R.M. 121.

McGee v. Attorney General [1974] I.R. 284; (1973) 109 I.L.T.R. 29.

Ryan v. Attorney General [1965] I.R. 294.

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

Children - Guardianship - Adoption - Access - Natural parents unmarried - Application to adopt children by natural mother and her husband - Application for guardianship by natural father - Right of natural father to apply for guardianship - Whether court entitled to take pending adoption into account in determining - Rights of natural father to child - Constitution of Ireland, 1937, Article 40, s. 1, Articles 41, 42 - Adoption Act, 1952 (No. 25) s. 14, sub-s. 1, s. 16, sub-s. 4 - Guardianship of Infants Act, 1964 (No. 7), s. 3, s. 6, sub-s. 4, s. 6A, sub-s. 1, s. 11, sub-s. 4 - Status of Children Act, 1987 (No. 26), ss. 1, 12, 13.

Constitution - Infant - Natural parents unmarried - Whether natural father enjoys rights under Constitution with respect to child - Whether natural father enjoys right under Constitution to guardianship of child - Natural parents unmarried - Whether concept of de facto family lies afforded recognition under the Constitution - Constitution of Ireland, 1937, Article 40, s. 1, Articles 41, 42.

Case stated.

The facts and the case stated have been summarised in the headnote and are set out in the judgment of Hamilton C.J., infra.

On the 3rd November, 1993, the applicant applied to the District Court to be appointed guardian of his children V.H. and W.H., pursuant to s. 6A of the Guardianship of Infants Act, 1964, as inserted by s. 12 of the Status of Children Act, 1987, which application was refused.

The applicant appealed to the Circuit Court and, pursuant to the provisions of s. 16 of the Courts of Justice Act, 1947, His Honour Judge Patrick Moran submitted a consultative case stated to the Supreme Court.

The case was heard by the Supreme Court (Hamilton C.J., O'Flaherty, Denham, Barrington and Murphy JJ.) on the 15th and 16th May, 1996.

Section 3 of the Guardianship of Infants Act, 1964, provides, inter alia, that "[w]here in any proceedings . . . the custody, guardianship or upbringing of an infant . . . is in question, the court, in deciding that question, shall regard the welfare of the infant as the first and paramount consideration".

By s. 6, sub-s. 4, as inserted by s. 11 of the Status of Children Act, 1987:—

"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 has otherwise been appointed in accordance with this Act."

By s. 6A, sub-s. 1, as inserted by s. 12 of the Status of Children Act, 1987:—

"Where the father and mother of an infant have not married each other, the court may, on the application of the father appoint him to be a guardian of the infant."

By s. 11, sub-s. 4, as inserted by s. 13 of the Act of 1987, states that "[i]n the case of an infant whose father and mother have not married each other, the right to make an application under this section . . . [for directions concerning the welfare of an infant including custody and the right of access to the infant of his father or mother] . . . shall extend to the father who is not a guardian of the infant . . ."

By s. 14, sub-s. 1 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 . . ."

By s. 16, sub-s. 4 of the Act of 1952, where the Adoption Board has notice of proceedings "in regard to the custody of a child in respect of whom an application is before the Board, the Board shall make no order in the matter until the proceedings have been disposed of."

By s. 24 Act, upon the making of an adoption order, the child "shall be considered . . . as the child of the . . . adopters born to . . . them in lawful wedlock" and "the mother or guardian shall lose all parental rights and be freed from all parental duties with regard to the child".

The applicant father and the respondent mother were in a relationship from 1981 until 1992 during which two children were born to them. Their first child was unplanned but the second was planned and the parties, who lived together for the final six years of their relationship had considered marriage. In June, 1993, the mother married J.H. and applied with him to the notice party to adopt the children. In November, 1993, the father applied to the District Court, pursuant to s. 6A of the Guardianship of Infants Act, 1964, to be appointed guardian of the children. This application was refused, but he was granted liberal access to the children. It was the father's intention, if appointed guardian of the children, to oppose the application to adopt made by the mother and her husband, though he was not opposed to the children remaining in their custody. The notice party indicated that it would not make an adoption order until the District Court access order in favour of the father was vacated, although the mother and her husband wished the father to have continued access to the children.

The father appealed the refusal of guardianship to the Circuit Court which submitted a consultative case stated for the determination of the Supreme Court. The questions of law were:—

• (1) On hearing an application by a natural father to be appointed guardian under s. 6A of the Guardianship of Infants Act, 1964, is it proper for the court to take into account a specific pending application for adoption of the children of the natural parents by the natural mother's husband when deciding whether or not to appoint the natural father as a guardian to his children, in particular in circumstances where the natural father is not seeking to change the custodial status of the children?

• (2) If the answer to No. 1 is in the affirmative, is it proper for the court to take into account the natural father's intention to oppose the adoption application?

• (3) If the answer to No. 1 is in the affirmative, is it proper for the court to have regard to this specific adoption application pending?

• (4) What are the character and extent of the rights of interest or concern of the natural father (referred to by the Supreme Court in the decision of J.K. v. V.W.[1990] 2 I.R. 437) and when do same arise in the context of a guardianship application and are such matters within the sole discretion of the trial judge?

• (5) Is the concept of de facto family ties referred to in the European Court of Human Rights decision of Keegan v. Ireland (1994) 18 E.H.R.R. 342 afforded recognition under the Constitution and what rights, if any, accrue to the father in the instant case arising from same?

• (6) Is a natural father's right to apply for guardianship and/or access or an order for access already made extinguished on the making of an adoption order?

• (7) If the answer to No. 6 is in the negative, does the Adoption Board have the right to direct that an access order already made be vacated before making an adoption order?

The father contended that a natural father had constitutional rights with respect to his child in circumstances where he was not married to the mother of the child.

Held by the Supreme Court (Hamilton C.J., O'Flaherty, Denham, Barrington and Murphy JJ.) in answering the case stated, 1, that s. 6A of the Act of 1964 gives to a natural father the right to apply to be appointed guardian of an infant; it does not give him a right to guardianship, nor does it equate the position of a natural father with that of a father who is married to the mother of a child.

J.K. v. V.W. [1990] 2 I.R. 437 followed.

2. That in deciding an application made pursuant to s. 6A of the Act of 1964, a court must regard the welfare of the infant as the first and paramount consideration; it is not the only consideration to be taken into account.

J.K. v. V.W. [1990] 2 I.R. 437 and G. v. An Bord Uchtála[1980] I.R. 32 followed.

3. That on hearing an application by a natural father to be appointed guardian under s. 6A of the Act of 1964, it is proper for the court to take into account a specific pending application for adoption of the children, in deciding whether or not to appoint the natural father as guardian of the children; further it is proper for the court to take into account the natural father's intention to oppose the adoption application.

4. Per Hamilton C.J., O'Flaherty, Denham and Murphy JJ.; Barrington J. dissenting) That the extent and character of the rights of the father of a child not married to the mother accrue not from any constitutional right vested in the natural father to be appointed guardian but from the relationship of a father to a child.

• J.K. v. V.W. [1990] 2 I.R. 437 followed. The State (Nicolaou) v. An Bord Uchtála[1966] I.R. 567 discussed.

5. That with regard to the rights of interest or concern of a natural father in the context of an application by him to be appointed guardian, the basic issue on such an application is the welfare of the children. The blood link, of itself, is of small weight and would not be a determining factor. But where a child is born as a result of a stable and established relationship and is nurtured at the...