The Gazette 1976

JUNE/JULY 1976

GAZETTE

deals with consent, and provides that an adoption order shall not be made without the consent of every person being the child's mother or guardian, or having charge of or control over the child, unless the Board dispenses with such consent; mainly in the event of mental in- capacity or if the person cannot be found. S. 15(3) of the Act pro- vides that the Board will satisfy itself that every person, whose con- sent is necessary and has not been dispensed with, has in fact given consent and understands the nature and effect of the consent and of the adoption order. A failure to observe these statutory require- ments must be regarded as being destructive of the power sought to be exercised. It cannot be disputed that adop- tion was the last situation which the mother wished for her child. The father was clearly against such a course. The mother wavered only because of an apparent breach with the father. Despite the fact that it negligently failed to obtain all in- formation available, the Board made the adoption order on July 20th, 1971. They also failed lament- ably in their duty to explain to the mother the nature of the consent given, and that it could be with- drawn at any time before the Adop- tion Order. Under S. 15 (3) of the Act, it was the statutory duty of the Board to explain the nature and effect of the consent which they ignored, and it was quite wrong to leave the mother under the impres- sion that the consent was final and irrevocable. The mother had stated that if she had known she could get the child back before the mak- ing of the adoption order, she would have done so. Consequently, the Board had no power to make the Adoption Order as it was made without jurisdiction, and was con- sequently null and void. After their marriage in June, 1972, both father and mother went to re- side in West Africa. Having re- solved to do everything possible to try to recover their child, on their first return to Ireland in 1973, they consulted their solicitors, and after many inquiries, the proceedings were started without undue delay in May, 1974. However there are special facts in this case which are unlikely to recur. This was the view of the Chief Justice and Griffin J. and Parke J. concurred with him. Kenny J. adopted the same view, and quoted Sections 14 and 39 of the Adoption Act 1952, the Form scheduled in the Adoption Rules 1965 (S.I. No. 19 of 1965) which

stated that all the rights and duties of the parents in regard to the child would be permanently transferred to the adopters, and that the par- ents would have no right at any time to get it back late on. He also quoted the full text of the consent form signed by the mother. If the Board had considered the docu- ments signed by the mother, they could not have satisfied themselves that she understood the nature of the consent. The Adoption Order was consequently given without jur- isdiction as the matters to be con- sidered under the nature of the con- sent which were: (1) that it is free, (2) that it is revocable until the Adoption Order is made, and (3) that it becomes irrevocable after that, had not been considered. Further- more there has been no unreason- able delay in bringing the proceed- ings. Henchy J. dissenting, would have dismissed the appeal, on the grounds: (1) That the declaration sought by the parents was essentially a discretionary one for the Courts, which ought only to be exercised if the facts war- ranted it. (2) That the boy concerned, now 6 years old, had been grow- ing up with the adopted par- ents in an Irish provincial town, and had never known his parents. His father had never seen him, and his mother had last seen him when he was 5 weeks old. It would not benefit the child to be sundered from the ad- optive parents and sent to West Africa. (3) That there had been undue

to adoptive parents in Ireland. Adoption Board censored for not explaining form of consent to mother. The plaintiffs, now husband and wife, were eventually married on 6th June, 1972. On 15th May, 1970, a son was born in the provinces to the mother who was then unmar- ried; the father admitted paternity of the child. On 12th June, the mother signified her desire to place the child for adoption through an Adoption Society, by signing an ack- nowledgment of the receipt of an explanatory memorandum from the Society dealing with the effect of an adoption order and the statutory provisions as to consent. This de- cision was arrived at by the mother after much anguish, and despite the fact that at all relevant times the father wished to marry the mother. The father finally broke off re- lations with the mother, and took up employment in West Africa. On 7th August, 1970, the adoption society placed the child with adopt- ing parents for a probationary per- iod. On 7th December, 1970, the adopting parents made a formal ap- plication to the Board for an adop- tion order. In the first months of 1971, the mother was pressed by the Board at various times to sign the form of adoption. On 5th July, 1971, the mother was duly visited by a priest and nun and on 9th July, the mother after much persuasion eventually signed and completed the adoption. On 9th July, prior to the signing the mother met the father who was on vacation from Africa, but did not inform him about the adoption. On 13th July, they reached a tentative agreement to get married. On 20th July, an Adoption Order was duly made by the Board, and only the adopting parents were notified. On 13th May. 1974, the plaintiffs instituted against the Board declarations that the child was their legitimate child, that Section 9 of the Adoption Act 1952 was unconstitutional, that Sections 14 and 15 of the said Adoptions Act had not been complied with, that the adoption order was null and void, and that the custody of the infant be returned to the plain- tiffs. Butler J., refused these declar- ations on 25th October, 1974 (See Gazette, November, 1974, pages 247 - 249). As Statutes of the Oireachtas nor- mally enjoy a presumption of con- stitutionality their constitutional validity will only arise if the other grounds fail. Section 14 of the Adoption Act 1952, accordingly

delay on the part of the par- ents in starting these proceed- ings. It was to be noted that no action had been taken by them, either when they be- came engaged in August, 1971 or when they married in June 1972, or when they visited Ireland in 1973.

The majority of the Supreme Court allowed the appeal, and reversed the order of Butler J. Order made that the child be returned to its parents. McL. v. Adoption Board and the Attorney General — Full Supreme Court — unreported — 2nd June, 1976.

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