The Gazette 1974

have accepted that and tried to assist her in some other

choice.

Mr. Justice Butler said that similarly he did not

regard the letter of July 8th as an ultimatum calculated

to drive the mother to act against her will. She knew

from the previous Monday that the adopters intended

to give the child back at the end of the week. After

receiving the letter and while the consent was still

unsigned she met the father. If she were in fact un-

willing to have the child adopted surely she would

have confided in him instead of leaving him under his

mistaken belief that the dye was long since cast and

was irrevocable.

The Judge said he accepted that the mother

was reluctant to execute the conscnt but he rejected

that she was influenced thereto in the manner suggested

or that any undue influence was used. Her action was

dictated by her refusal to entertain any alternative and

by the imperative necessity to act.

Law of Contract cannot be imported

Counsel for the plaintiffs (Mr. H. Barron, S.C.) also

threw out but did not develop the submission that as

the mother was herself an infant any consent of hers to

be valid must be shown to be for her benefit. Mr.

Justice Butler said he was not satisfied that the prin-

ciple of the law of contracts could be imported into the

circumstances of this type of case.

Even if it did apply he was not furnished with any

evidence or submissions to suggest that at the time and

in the circumstances when it was given the consent was

unbeneficial.

The plaintiffs' second and third grounds could be

taken together and the submission as he understood it

was as follows : Section 9 of the Adoption Act empow-

ered the Adoption Board to make an order; Section 31

provided that the Board should not make an adoption

order unless satisfied that the applicant was of good

moral character, had sufficient means to support the

child and was a suitable person to have parental rights

and duties in respect of the child; Section 15 (3) pro-

vided that the Board should satisfy itself that every per-

son whose consent was necessary and had not been dis-

pensed with had given consent and understands the

nature and effect of the consent and the adoption order.

It was submitted, he said, that in the procedure

before the Board the care that the Board took with

regard to being satisfied as to the matters required by

Section 13, examining the application form in detail,

considering the report of its investigating officers and

social workers, and interviewing the applicants, was to

be contrasted with the mere formal requirements that

Forms 10 and 4A were on the file, which could in no

way satisfy the Board because they did not examine

them of the matters required by Scction 15.

Alleged contrasting approach unfair to mother

This contrasting approach as between the applicants

who acquired rights under the Adoption Order and the

mother who lost them, it was submitted, was unfair to

the mother, contrary to natural justice and contrary to

constitutional justice in that she was not treated equally

with the applicants and was deprived of her rights

without compliance with the statutory provisions.

Mr. Justice Butler said that in his view this argument

failed. The matters on which the Board must be satis-

fied in relation to the adopters were different in quality,

nature and degree from those in relation to the mother.

In the latter case all they must be satisfied of were two

matters of fact, that she had given her consent and that

she understood the nature and effect of the consent and

of the adoption order. The first was evidenced by her

affidavit. If it was correctly dated and sworn and was

good on its face it spoke for itself.

The evidence for the second was the acknowledge-

ment by the mother in Form 10 that she had received

and retained a statement in the form prescribed by the

Board setting out fully and correctly the nature and

effect of the adoption order and setting out the neces-

sity for consent. True, the nature and effect of the con-

sent were not completely set out and . there might be

cases where this would be of such moment as to require

further consideration. The registrar of the Board was an

experienced officer. The practice of the Board was

that no application should be placed before it unless the

consent and acknowledgement were in order and on the

file and, while one might wish for a somewhat tighter

practice, it could not be said that this procedure was a

non-compliance or insufficient compliance with Section

15.

Consent could be revoked until order made

On the other hand, the nature of the requirements of

Section 13 necessitated an examination of the apph"

cants and their background such as undertaken in this

case. The omission of the required information that the

mother was shown to have had and understood on the

face of Form 10 and Form 4A was that the consent

could be revoked at any time up to the making of the

adoption order (Section 15 (5)). He was not sure that

this provision was necessary for an appreciation of the

nature and effect of a consent. He reserved the point.

He was, however, quite satisfied that had the mother

known that she could withdraw her consent she would

not have done so before the adoption order was made-

She gave her consent after meeting the father at mid-

day on Friday, July 9th. She was still unwilling

marry him and she did not inform him, not only that

the adoption was not irrevocable, but that the arrange-

ment was over and that they could have the child

back

on the following day.

"I am convinced that her attitude had not changed

until well after the order was made," said Mr. Justice

Butler.

For these reasons these submissions were not made out

and he held that there was sufficient compliance with

Section 15, that there was no unfairness in the treat-

ment of the mother as compared with the adopters

and that there was no failure to apply the principles of

natural justice or constitutional justice.

The next submission was that at the date of the

enactment of the Constitution there existed a statutory

right in the child conferred in the Legitimacy Act, 1931»

to be legitimated by the subsequent marriage of his

parents; this was one of the personal rights recognise®

and protected by the Constitution and was incapable

being taken away by statute. Consequently, the m

a f

riage of the parents on 6 June 1972,

ipso facto

rendered

the child their legitimate child and rendered the adop'

tion order null and void.

No statutory right conferred by Legitimacy Act, 1931

He rejected this submission. He had indicated in th

argument that if the proposition were well founded

adoption order such as this could ever be final until th

death of one of the parents of an illegitimate child-

248