The Gazette 1976

GAZETTE

JUNE/JULY 1976

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

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

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

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.