WESTERN HEALTH BOARD v Bord Uchtála

• Jurisdiction: Ireland
• Judge: Hamilton C.J.
• Judgment Date: 01 January 1996
• Neutral Citation: 1995 WJSC-SC 5647
• Court: Supreme Court
• Date: 01 January 1996
• Docket Number: [S.C. No. 304 of 1993]

1995 WJSC-SC 5647

THE SUPREME COURT

HAMILTON C.J.

O'FLAHERTY J.

EGAN J.

BLAYNEY J.

DENHAM J.

304/93

WESTERN HEALTH BOARD v. BORD UCHTALA

BETWEEN:

WESTERN HEALTH BOARD H.B. and M.B.

Applicants/Appellants

and

AN BORD UCHTALA

Respondents

T.R. and G.R.

Notice Parties

Citations:

ADOPTION ACT 1988 S3(1)

ADOPTION ACT 1988 S2(1)

ADOPTION ACT 1988 S15(2)

ADOPTION ACT 1988 S3

ADOPTION ACT 1988 S3(I)(A)

ADOPTION ACT 1988 S3(I)(B)

ADOPTION ACT 1988 S3(I)(C)

ADOPTION ACT 1988 S3(I)(D)

ART 26 OF THE CONSTITUTION & ADOPTION (NO 2) BILL 1987, IN RE 1989 IR 656

HAY V O'GRADY 1992 1 IR 210

ABERDEEN GLENLINE STEAMSHIP CO V MACKEN 1899 2 IR 1

DPP, PEOPLE V MADDEN 1977 IR 336

Synopsis:

ADOPTION

Marriage

Issue - Child - Parents - Abandonment - Issue - Decision of High Court found no abandonment by father - Finding upheld by appellate court - Function of appellate court in determining appeal against findings of trial judge - Adoption Act, 1988, s. 3 - (304/93 - Supreme Court - 10/11/95) - [1995] 3 IR 178

|Western Health Board v. An Bord Uchtala|

SUPREME COURT

Appeal

Facts - Findings - Court - Function - Trial judge - Finding that father had not abandoned his rights in relation to child - Muxed question of fact and law - Facts supported by evidence - Reason able inferences drawn from facts - (304/93 - Supreme Court - 10/11/95) - [1995] 3 IR 178

|Western Health Board v. An Bord Uchtala|

WORDS AND PHRASES

"Abandonment"

Parents - Duties - Discharge - Failure - Whether failure of parents" duties to child amounted to abandonment of all parental rights - (304/93 - Supreme Court - 10/11/95) - [1995] 3 IR 178

|Western Health Board v. An Bord Uchtala|

1 Judgment delivered on the 10th day of November 1995 by Hamilton C.J. [NEM DISS]

2 This is an appeal brought by the Applicants/Appellants, the Western Health Board and H.B. and M.B. from the judgment of Lardner J. and Order made pursuant thereof on the 27th day of July 1993, whereby he refused the orders sought by the said Applicants/Appellants.

3 In proceedings instituted by them on the 6th day of July 1992 the Applicants/Appellants had sought

4 (a) An order pursuant to the provisions of Section 3(1) of the Adoption Act, 1988authorising the Respondent, An Bord Uchtala, to make an Adoption Order in relation to the infant, M., named in the title of the proceedings;

5 (b) an Order granting the second and third named Applicants, H.B. and M.B. custody of the said infant, M., pending the making of such Adoption Order by the Respondent.

6 By Order made on the 12th day of February, 1993 the High Court ordered that T.R. and G.R., being the natural parents of the said infant M., be joined as Notice Parties to the said proceedings.

7 The Notice Parties T.R. and G.R. were married in 1983. Prior to the birth of M. on the 7th day of November, 1988 three other children had been born to T.R. and G.R., on the 19th day of December 1983, on the 1st day of April 1985 and the 22nd day of January 1987 respectively.

8 Marital difficulties arose between T.R. and G.R. and the parties separated, T.R. leaving the marital home and going to England.

9 It is accepted that in or about this time G.R., the mother of M. was engaged in a relationship with another man.

10 However, it appears that in February, 1988 T.R. came to her house and spent the night there, forcing himself on her and having sexual intercourse with her without her consent. G.R. became pregnant and as stated, gave birth to M. on the 7th November 1988.

11 When M. was born, G.R. believed that the man with whom she had the extra-marital relationship and who was living with her was the father of the child, however, when she was in hospital for the birth she gave the name of T.R. as her husband and his name appears on M.'s birth certificate as her father.

12 G.R. believing that T.R. was not the father of the child M., placed M. with foster parents within a few days of her birth and within six months placed her for adoption with St. Catherine's Adoption Society.

13 M. immediately after her birth had been placed with foster parents in Co. Clare and on the 29th May 1989, was placed for adoption with H.B. and M.B., the second and third named applicants.

14 As appears from the judgment of the learned trial judge the proposed adoptive parents are a married couple with one boy and have been, since May 1989, in a position to give M. a stable and comfortable home and great love and affection.

15 In his opinion, they are entirely suitable as adoptive parents and in the time during which she has been with them M. has been "totally healthy, happy and secure".

16 As M. was placed for adoption as an extra-marital child, supporting affidavits to verify this were required in order to enable M. to be adopted pursuant to the provisions of the Adoption Acts 1952– 1976.

17 The supporting affidavits required were one from the husband stating that he was not the father, a similar one from the mother and an affidavit from a family member verifying the fact the husband and wife had not spent time together for a period of eleven months prior to the birth.

18 T.R. refused to make the required affidavit on the basis that he alleged that he could possibly be the father.

19 A dispute arose between T.R. and G.R. with regard to the parentage of M. but this was eventually resolved when blood and tissue tests clearly established that T.R. was the father of M.

20 When this was established, an Bord Uchtala did on the 19th day of March 1992 hold a hearing in accordance with the provisions of Section 2(1) of the Adoption Act, 1988and having heard all the relevant parties, was satisfied that, if an order under Section 3(1) in relation to M. were made in favour of the applicants, it would be proper, having regard to the Acts to make the adoption order. An Bord Uchtala then adjourned the application and declared that if the order were made under Section 3(1) it would, subject to 15 ss. 2 make the adoption order.

21 Section 3(1) of the Adoption Act, 1988, provides that:-

22 Where persons in whose favour the Board has made a declaration under Section 2(1) (referred to subsequently in this Section as "the applicants") request the Health Board in whose functional area they ordinarily reside to apply to the Court for an order under this Section -

23 (a) if the Health Board considers it proper to do so and an application therefor in accordance with paragraph (b) of this sub-section has not been made by the applicants, the Health Board may apply to the Court for the order, and

24 (b) if, within the period of 3 months from the day on which the request was given to the Health Board, the Health Board either

25 (a) by notice in writing given to the applicants, declines to accede to the request, or

26 (b) if within the period of three months from the date on which the request was given to the Health Board, the Health Board either -

27 (i) by notice in writing given to the applicants, declines to accede to the request, or

28 (ii) does not give the applicants a notice under-sub-paragraph (i) of this paragraph in relation to the request but does not make an application for the order under paragraph (a),

29 the applicants may apply to the Court for the order."

30 In this case, the Health Board and the Applicants have jointly applied for the Order.

31 Upon such an application being made to it, the Court is empowered, if it so thinks fit and is satisfied, having had due regard for the rights, whether under the Constitution or otherwise, of the persons concerned (including the natural and imprescriptible rights of the child) that it would be in the best interests of the child to do so, to make an order authorising the Board to make an adoption order in relation to the child in favour of the applicants.

32 Before doing so however, it must, as required by Section 3 of the 1988 Act, be shown to the satisfaction of the Court that -

"I(A) for a continuous period of not less than 12 months immediately preceding the time of the making of the application, the parents of the child to whom the declaration under Section 2(1) relates, for physical or moral reasons, have failed in their duty towards the child,"

33 a (B) it is likely that such failure will continue without interruption until the child attains the age of 18 years,

34 b (C) such failure constitutes an abandonment on the part of the parents of all parental rights, whether under the Constitution or otherwise, with respect to the child, and

35 c (D) by reason of such failure, the State, as guardian of the common good, should supply the place of the parents,

36 i II. that the child

37 a (A) at the time of the making of the application, is in the custody of and has a home with the applicants,

38 b (B) for a continuous period of not less than 12 months immediately preceding that time has been in the custody of and has had a home with the applicants, and

39 ii III. that the adoption of the child by the Applicants is an appropriate means by which to supply the place of the parents."

40 At the time of the making of the application M. was in the custody of and had a home with the Applicants, H.B. and M.B., and had been in such custody and had such a home for a continuous period of twelve months immediately preceding such application.

41 Being so satisfied the learned trial judge stated that the issues which he had to consider arose under Section 3(I) A, B, C and D of the Adoption Act, 1988and were in his words:-

"Whether for a continuous period of not less than twelve months immediately preceding the time of making the application, the parents of the child to whom the declaration under Section 2(1) relates for physical or moral reasons, have failed in their duty towards the child and (b) whether it is likely such failure will continue without...