The Gazette 1979

GAZETTE

SEPTEMBER 1979

An Bord Uchtála—

the best interests of the child and

constitutional rights in adoption

Gabriel J. McGann, B.A. (Mod) (Dublin), LL.M. (Yale), Barrister-at-Law, Legal Assistant to the

President of the Law Reform Commission. This article is written in a personal capacity.

THE FACTS

The plaintiff gave birth to a baby girl on 14 November

1977. She was unmarried and the child was illegimate.

Upon giving birth to the child, the plaintiff informed only

one person, a married sister, of the fact.

The plaintiff decided to place her daughter for adoption

on 6 January 1978 and for this purpose she signed a form

of consent to the placing of her child for adoption. The

plaintiff did not inform her parents until a time in late

January 1978. They told her, among other things, that if

she wished to keep the child they would help and support

her. As a result, the plaintiff wrote to the adoption society

expressing a wish to keep her child. The adoption society

informed the applicants for adoption of the plaintiffs

change of mind but they refused to give back the child.

The plaintiff brought an action by special summons

claiming from the defendants, An Bord Uchtála, the

return of her child.

ANONYMITY OF THE PARTIES

It appeared to the President of the High Court, Finlay

P., that it was "vital for the welfare of the infant con-

cerned" that the parties to the proceedings should not be

aware of each other's identity. Accordingly, the Presi-

dent directed the plaintiff and the Board to adopt the pro-

cedure which he had already laid down for the bringing of

applications under s. 3 of the

Adoption Act 1974.

The procedure was as follows:

1. The Board filed an affidavit exhibiting in a sealed

envelope the names and addresses of the persons

applying for adoption;

2. The relevant adoption society was added as a

defendant;

3. The appropriate officer of the adoption society

enquired from the persons seeking adoption (who

had actual custody of the infant) whether they

wished to appear and be represented at the

hearing.

4. The persons in whose custody the infant was,

wished to appear and were to be represented by

solicitor and counsel and accordingly, were

added as notice parties.

5. The learned President gave the following

directions

(a) he fixed a date for the hearing of the plaintiff

and her witnesses in the absence of the

notice parties but in the presence of their

solicitor and counsel;

(b) he fixed a separate date for the hearing of the

notice parties and their witnesses in the

absence of the plaintiff but in the presence of

her solicitor and counsel.

6. Reserved judgment was delivered in the absence

of the plaintiff and the notice parties

and copies

of the written judgment were made available to

them immediately.

The President of the High Court heard the case during

the long vacation and, in a judgment delivered on 19

September 1978, ordered the return of the custody of the

infant to her mother.

JUDGEMENT OF THE PRESIDENT

Statutory Rights

The learned President set out the statutory rights given

to the natural mother and her illegitimate child under the

Guardianship of Infants Act 1964

and the

Adoption Acts

1952-1976

and gave special attention to section 3 of the

Adoption Act 1974

which was, in his view, "vital to the

proceedings before [him]".

Section 3 provides as follows:

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,

(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.

Contributors to this Issue:

Gabriel J. McGann, B.A. Mod. (Dublin), L.L.M.

(Yale), Barrister-at-law, Legal Assistant to the

President of the Law Reform Commission.

Joseph B. Mannix, former Editor of Gazette.

B. S. Russell, M.A. Barrister (courtesy of Editor of

English Law Society's Gazette).

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