Judgment
Title: | N & anor -v- Health Service Executive & ors |
Neutral Citation: | [2006] IESC 60 |
Supreme Court Record Number: | 273 & 283/06 |
High Court Record Number: | 2006 181 SS |
Date of Delivery: | 11/13/2006 |
Court: | Supreme Court |
Composition of Court: | Murray C.J., McGuinness J., Hardiman J., Geoghegan J., Fennelly J. |
Judgment by: | McGuinness J. |
Status: | Approved |
Result: | Allow And Set Aside |
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| Judgments by | Link to Judgment | Murray C.J. | | McGuinness J. | | Hardiman J. | | Geoghegan J. | | Fennelly J. | | |
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THE SUPREME COURT
Appeal No. 273 & 283/06
Murray C.J.
McGuinness J.
Hardiman J.
Geoghegan J.
Fennelly J.IN THE MATTER OF THE CONSTITUTION AND IN THE MATTER OF N. AN INFANT
BETWEEN: N and N
APPLICANTS
And
HEALTH SERVICE EXECUTIVE
G and G
RESPONDENTS
and
AN BORD UCHTÁLA
NOTICE PARTY
Judgment of Mrs. Justice McGuinness delivered the 13th day of November 2006
1. This case concerns the future of a child.
2. The child is two years of age having been born on 7th July 2004. She will be referred to as Ann in this judgment in accordance with the invented names adopted by the learned trial judge for the parties in the case in order to conceal their identities. Ann was placed in the custody of the second and third named respondents Mr and Mrs Doyle with a view to adoption. The applicants Mr and Mrs Byrne who are the birth parents of Ann now seek to claim custody of her pursuant to article 40.4.2 of the Constitution. The case was heard in the High Court over a period of some nineteen days. The court heard considerable expert evidence, evidence of social workers involved in the adoption process and the evidence of the two couples involved. Both the applicants and the respondents were fully represented by solicitor and senior and junior counsel. So also was the first named respondent, the Health Service Executive, which occupied a somewhat anomalous role to which I will refer briefly later. All these parties, the applicants, the second and third named respondent, and indeed the Health Service Executive, claimed to be motivated by desire to promote the best interests of the child. No doubt they were genuine in their views. Unfortunately, as regards the future custody and care of the child, they sought diametrically opposed outcomes. As has been pointed out by Fennelly J. in his judgment, the two couples are divided rather than united in their devotion to the welfare of the child.
3. It is perhaps striking that the one person whose particular rights and interests, constitutional and otherwise, were not separately represented, whether by solicitor and counsel or through a guardian ad litem, was the child herself. No doubt this was, in part at least, due to the form of the proceedings, where the issue to be decided by the court was whether Mr and Mrs Doyle’s present custody of the child was lawful. In my personal view, however, and bearing in mind the terms of such international instruments as the United Nations Convention on the Rights of the Child, or EU Regulation 2201/Nov. 2003 (Brussels 2 bis), this situation should at the very least give pause for thought.
4. The learned trial judge in a lengthy, detailed and sympathetic judgment held that Ann was in the lawful custody of Mr and Mrs Doyle and that, accordingly, a conditional order for the inquiry under article 40 had to be discharged. By the same order the court directed that the child Ann be taken into the wardship of the court but that the respondents should have day-to-day custody, care and control of her. The decision of the High Court judge was based on his conclusion that the Byrnes had failed in their duty towards their daughter and abandoned her, and that there were compelling reasons why Ann should not be returned to their custody. Certain findings were also made concerning the effect of sections 14 and 16 of the Guardianship of Infants Act 1964 but these did not play a major part in this appeal. The applicants have appealed to this court against the decision of the High Court.
THE FACTS
5. The factual background to the case has been set out in detail and at length by the learned trial judge in his judgment and a brief summary will suffice here.
6. Ann, as already stated, was born on the 7th July 2004. At the time her parents Brian and Catherine were unmarried. Brian was born on 26th May 1982 and thus was twenty two years of age when Ann was born. He was a final year student in the local university. Catherine was born on 17th July 1981 and so was within a few days of her twenty third birthday when Ann was born. She already had an honours science degree from the same university and was proceeding to a Masters degree. The couple had met as students in 2002 and had started to live together in 2003. Catherine found that she pregnant at the end of October 2003.
7. The position of Brian and Catherine was somewhat different from that of the unmarried mothers in former years who sought the return of children who had been placed for adoption, and who were parties in several cases pursuant to section 3 of the Adoption Act 1974 (see G v An Bord Uchtála [1980] I.R. 32 onwards). In the earlier cases the natural mothers were in general persons who had given birth in homes for unmarried mothers and suffered from poverty, the stigma then applying to illegitimacy, and lack of any alternative to adoption. Brian and Catherine were relatively mature, or at least older than the average unmarried mother, were well educated, were living together and supportive of each other, and had available full advice in regard to the adoption process. The decision of Brian and Catherine to place Ann for adoption was made at a time when it was comparatively rare for unmarried mothers in this country to take that course. In his judgment the learned trial judge said of the applicants:
“In their evidence they demonstrated that they were intelligent and had a clear understanding of many of the legal, psychological and social work aspects of the case.”
8. In their own evidence Catherine explained that she sought to place Ann for adoption because she felt that it was in the best interests of her child to have two parents. She was not at that time confident that her relationship with Brian would be lasting. In addition she knew that her own parents, who had a strict moral code, would be shocked and hurt by her pregnancy. In fact she did not inform them of it until some time after Ann was born. To date her younger siblings have not been informed of Ann’s existence.
9. The learned trial judge, in describing the situation of Catherine and Brian at the time of Ann’s birth, had this to say: (at page 9)
“I would not wish that any of the descriptions of events, that must be made, should detract from the fact that these two young people were trying in a deeply confusing situation to do their utmost to make truly difficult decisions at a stressful time for them. The brave and generous decision that they ultimately took to place Ann for adoption was a heart breaking one, so too is their situation now. I consider that throughout they have acted with great dignity and composure. At all stages they have acted in accordance with how they perceive Ann’s best interests. It was not their fault that they were placed in a situation which in many ways was invidious and in many ways isolated.”
9. There was ample evidence before the trial judge on which he could base such a finding.
10. During the pregnancy, in or about April 2004, Brian and Catherine attended M. T., a medical social worker. It appears to have been during this period that the applicants decided to have Ann adopted. On 8th April 2004 M.T. referred the applicants to the Health Service Executive for the purposes of adoption and they were allocated to Mr R. a senior social worker with a great experience of adoption work. A meeting took place on 24th June 2004 with Brian and Catherine, M.T. and Mr R. At that meeting the question of adoption was discussed and planned.
11. On 7th July 2004 Ann was born in hospital. The following day the parents agreed to pre-adoptive foster care and were introduced to L.D. the foster carer. On 11th July Ann was admitted to foster care with L.D. and Catherine signed a document entitled “Voluntary Care Agreement Admission to Care”. The trial judge was satisfied that during the duration of this placement in foster care Catherine was informed that she could change her mind and resume caring for Ann herself. He considered that the evidence also established that she was in fact encouraged that she could do so by Mr R. during the course of counselling from July to September 2004. After Ann had been placed in foster care Mr R. met Catherine and Brian, for counselling and to progress the adoption procedure, on 21st and 29th July 2004, 5th August 2004, 6th August, 1st September and 10th and 14th September, 2004.
12. At the trial there were a number of clashes between the evidence of the applicant and that of Mr R., the social worker. Having heard the witnesses in person the learned trial judge preferred in all cases the evidence of Mr R., which was confirmed by his contemporaneous notes. The judge, however, felt that the Byrnes were doing their best to tell the truth and to describe what occurred to the best of their recollection. During the course of the trial it became clear that certain of the averments in Brian’s original affidavit grounding his proceedings were patently inaccurate and indeed false. His explanation of this was somewhat vague and not particularly credible but he was permitted by the court to swear an additional affidavit correcting some of the errors. On consideration it would seem to me that some of this evidence which was not accepted by the trial judge was a form of “wishful thinking” by Brian rather than deliberate untruth.
13. While Ann was in foster care Brian and Catherine visited her and on one occasion took her home for an overnight visit. On 14th September 2004 Brian signed an acknowledgement reciting that he was aware that the adoption process had started and that prior to the making of a final adoption order he did not wish to be heard by An Bord Uchtála. During this period Brian told his parents of Ann’s birth. Shortly thereafter Catherine told her parents and they visited Ann. Also during this period adoption profiles were prepared by Mr R. with the assistance of Catherine and Brian. These adoption profiles were documents setting out the type of adopters that Catherine and Brian wished to become the adopters of Ann.
14. On the 14th September 2004 Catherine signed a form consenting to place Ann for adoption. This is a statutory form provided by An Bord Uchtála and is known as “Form 10”.
15. Form 10 consists of two parts. The first is a Memorandum setting out details of the child whose placement is in question. The Memorandum goes on to set out the legal effects of an Adoption Order, and details of the consent required for the actual making of an Adoption Order (as opposed to the preliminary consent to place the child for adoption) (my emphasis). The memorandum explains the circumstances in which the consent of the natural father is needed as follows:
16. The Memorandum goes on to deal with Dispensing with Consent as follows:-
17. Under the heading “Reclaim of Child”, at paragraph 9, the Memorandum states:
“If, after the child has been placed with prospective adopters and before the making of the Adoption Order, you change your mind and want to reclaim your child, you should contact the Adoption Society without delay. If the prospective adopters decline to give up the child, it is open to you to institute proceedings to have custody of the child restored to you. Should this situation arise you would need to consult a solicitor as a court case may be involved.”
18. The second part of Form 10 is headed “Receipt for Form 10”. This Receipt is signed by the mother and witnessed. The signature indicates acceptance of the following statement:-
“I have received from you a statement in Form 10. That statement was attached to this receipt and I have myself torn it off. I understand that statement. I also understand that my signature on this Receipt is evidence that I have consented to the placing of the said child for adoption.”
19. At the bottom of the form the person administering the form signs and certifies as follows:-
“I certify that on behalf of (Adoption Society) I have handed the statement attached to this Receipt to the (natural mother/natural father) and explained its contents to her/him. I am satisfied that she/he understands it.”
20. The receipt for Form 10 is then torn away from the Memorandum. The receipt is to be forwarded to An Bord Uchtála and the Memorandum is to be kept by the child’s mother and, if relevant, father. This is done so that the information contained in the Memorandum is available to be consulted in the future at any time by the natural mother and father.
21. In the present case the learned trial judge accepted that Form 10 was properly explained and administered on 14th September 2005 and that Catherine understood it when she signed it. The wording of the Form is reasonably clear. Both applicants had a high level of education and, as found by the learned trial judge, were of good understanding of the issues involved in adoption. Like the learned trial judge, I find it difficult to accept the evidence of the applicants that they retained the belief that if Catherine changed her mind Ann would more or less automatically be returned to their custody, even after a considerable period of time had elapsed.
22. On 30th September 2004 a body entitled the Regional Adoption Panel considered the case and identified the second and third named respondents, David and Eileen Doyle, as suitable adopters for Ann. On 28th October the Byrnes and the Doyles met, introduced by their respective social workers. The meeting went well. It is described by McMenamin J. as follows:
23. “Brian and Catherine agreed that the Doyles were appropriate adopters. They corresponded with, and fulfilled each of the requirements that they had as to their interests in education, sport and outdoor activities, Roman Catholic religious beliefs, the location of their house and their preparedness to engage in an ‘open adoption’, that is one which the birth parents could have occasional access to the child to be so placed.”
24. On 1st November 2004 the Doyles first met Ann at L.D.’s house where she was in foster care. The introductory programme went successfully and on 5th November Ann moved to the Doyles house on prospective adoptive placement. The Byrnes had no further contact with Ann until Christmas, when they sent her a Christmas card and accompanying letter. Both card and letter expressed happiness with the adoption and strongly implied that Ann would remain with the Doyles.
25. From time to time both Brian and Catherine, separately and together, expressed doubts about Ann’s adoption, but were reassured, and accepted, that this was a normal reaction. Due to an administrative error whereby the correct original Form 10 had not been forwarded to the Adoption Board it became necessary for Catherine to sign a second Form 10. Both she and Brian gave evidence that by then they had real doubts regarding the adoption, but they did not overtly express them. Catherine signed the new Form 10 on 22nd April 2005.
26. Despite further doubts Catherine also signed Form 4A, colloquially known as the “final consent” to adoption, on 11th July 2005. This form does not, in reality, bring finality to the process. Until an Adoption Order is actually made by An Bord Uchtála it is open to the natural mother to withdraw her consent and seek the return of her child. Such a request may, of course, be met by an application by the prospective adopters pursuant to section 3 of the Adoption Act 1974. It is important to note that at all times the Doyles accepted that this was to be an “open adoption” and this was so stated at the of the signing of Form 4A. At all times the Doyles accepted that the Byrnes could visit Ann at least once a year. At a later stage the Byrnes requested a twice yearly visit. The Doyles were willing to agree to this but the adoption social worker with whom they were dealing felt that it was too early in the adoption to permit a twice yearly visit.
27. Both Catherine and Brian strongly assert that the only reason that Catherine signed the “final consent” form was that they were told that otherwise they would have no access to Ann under the “open adoption” arrangement. This is strongly denied by the social workers involved and there is no independent evidence that any such pressure was put on either parent. Indeed, on 18th July 2005 Brian telephoned Mr R. and expressed satisfaction that the consent had been signed.
28. On 8th August 2005 Catherine and Brian had an access meeting with Ann and the Doyles. This was supervised by social workers, a circumstance at which Brian protested, but otherwise the visit went well. However Catherine and Brian were by this time experiencing a high level of doubt about the placement. Apparently in August they entered into a commitment with one another and decided to reclaim Ann. They did not openly express this decision until 26th September 2005, when Catherine wrote directly to An Bord Uchtála withdrawing her consent to the adoption and seeking the return of Ann. David and Eileen Doyle refused to return the child on grounds of the child’s best interests. Catherine, who was angered by the delay in the return of Ann, wrote again demanding that the child be returned by early December. At this stage the Doyles had taken legal advice and put in train the initiation of proceedings pursuant to section 3 of the 1974 Act.
29. Various meetings between the Byrnes and H.S.E. personnel took place between October and December 2005, to no particular avail. There was also some correspondence. At this stage no question had been raised regarding the applicants intention to marry.
30. Towards the end of 2005 the applicants received legal advice that their legal position would be enhanced if they were married. On the 2nd December 2005 Catherine signed the requisite document whereby Brian became a guardian of Ann. On 8th December Brian made a telephone call to the District Registrar’s office for births, deaths, marriages and civil partnerships for Derry City Council. He later submitted two completed marriage notice application forms by fax. While Catherine said that a reason for having the marriage in Derry was that it was near to her family home, it seems undoubted that the basic reason was that the notice period for marriage in Northern Ireland was fourteen days rather than the three months required in this jurisdiction. Arrangements for the marriage were made for 22nd December but were cancelled at very short notice. A further arrangement was made for 3rd January and again cancelled at very short notice. The marriage actually took place in the Civil Registry in Derry on the 9th January 2006. The parties arrived alone and it was necessary for the couple to ask two total strangers to witness the ceremony. This was despite the fact that evidence was given that both Catherine’s parents and a personal friend of hers were in Derry at the time.
31. A mediation process between the Byrnes and the Doyles took place in February but was unsuccessful. The present Article 40 proceedings were initiated by Brian Byrne on the 17th February 2006. Catherine was named in those proceedings as a notice party and she subsequently became a full party. On the 1st March 2006 David and Eileen Doyle certified grounds for the detention of Ann.
THE EVIDENCE IN THE HIGH COURT
32. At the hearing before the High Court evidence was given by or on behalf of all three parties – the applicants, the first named respondent (the Health Service Executive), and the second and third named respondents. For various reasons, largely connected to the availability of expert witnesses, the normal order of witnesses had to be rearranged from time to time.
33. Leaving aside for the moment the expert witnesses, David and Eileen Doyle gave evidence, in particular regarding their relationship with Ann. David’s mother, the child’s grandmother, and Eileen’s sister also gave evidence of the close-knit and happy extended family circle. Both David and Eileen gave evidence of their acute suffering on account of Catherine’s and Brian’s wish to obtain custody of Ann and both said that they would find it unimaginable and impossible to take part in a phased transfer of Ann to the Byrnes. Brian and Catherine Byrne gave evidence of the history of their relationship, the placement of Ann for adoption, their growing doubts and their eventual decision to seek the return of Ann to their custody as a married couple. They were cross-examined at length, particularly in regard to the advice given to them by Mr R., the social worker, and other employees of the Health Service Executive.
34. The main witness of fact called by the Health Service Executive was Mr R. who gave evidence of the entire course of his relationship with the applicants and of the history of the placement. He too was cross-examined at length. In quite a number of instances his evidence clashed with that of the applicants. Where it did so the learned trial judge preferred the evidence of Mr R. which was supported by contemporaneous notes. In his judgment the learned trial judge carefully analysed his reasons for preferring the evidence of Mr R. I see no reason to doubt his decision to that effect (see Hay v O’Grady [1992] 1 I.R. 210). In his judgment McMenamin J. also notes that neither Brian’s parents nor Catherine’s parents gave evidence.
35. At the hearing of the appeal before this court, however, reliance was in the main placed on the expert evidence led by all parties on the issue of bonding and attachment and the danger to the child inherent in separating her from those whom she naturally regarded as her mother and father and with whom she had bonded. Expert evidence was given on behalf of the applicants by Dr. Nollaig Byrne, consultant child and adolescent psychiatrist in the Mater Hospital and Clinical Director of the Child Adolescent Mental Health Service in that hospital. Evidence on behalf of the second and third named respondents was given by Professor Iwaniec, a medical professor at Queens University Belfast who had also been director of a child care institute. Expert evidence on behalf of the Health Service Executive was given by Dr. Jerry McDonald, a clinical psychologist employed by the Newry and Mourne Health and Social Services Trust, who is also an area professional adviser to one of the Northern Ireland health boards. Dr. McDonald was called by the Health Service Executive precisely because he was an expert in the area of attachment. The intention was that he would interview and assess Brian and Catherine Byrne. Unfortunately in the event the Byrnes declined to be assessed by him.
36. Evidence on behalf of the Health Service Executive was also given by Ms S. C., social worker, who had carried out an assessment of all parties at the behest of the Health Service Executive. Ms C’s evidence was strengthened by the fact that she was the only one of the five witnesses who had met and assessed both the Byrnes and the Doyles. She also had had experience of children being transferred from one carer to another during the course of her employment with the Health Service Executive. These, however, had been in the main children from disturbed or otherwise deprived backgrounds. The weakness of her evidence was that, as she frankly admitted, she had had no experience of adoption work and her expertise in the field of attachment was quite limited. In her written report, however, she made reference to established authorities on bonding and attachment such as Bowlby and the more recent expert Fahlberg.
37. The evidence of the four expert witnesses has been analysed in some detail by Geoghegan J. in his judgment and I see no need to repeat that analysis. In brief, all four experts agreed that what was described as a “summary” move of Ann from the care of the Doyles, whom Ann knew and loved as her family, to the care of the Byrnes, who from the point of view of Ann were virtual strangers, would cause serious both immediate and lasting damage. Dr. Nollaig Byrne, in reply to cross-examination, went so far as to say that if the Doyles found it “too painful and difficult” to co-operate in a gradual transfer then “(the Byrnes) should reconsider their understanding of the best welfare of (Ann).” (Day 2 page 70)
38. The experts also agreed, with varying degrees of emphasis, that a phased and gradual transfer of care, with the co-operation of the Doyles and expert support and assistance for the Byrnes, could be achieved. Such a phased and gradual transfer could take a period of up to a year. It was likely to cause some immediate suffering to Ann but the chances of long term harm would be greatly reduced, though not entirely eliminated. All four experts also relied on Bowlby as an established authority on bonding attachment and on Fahlberg (2004) as a more modern authority. All experts stressed the importance of the gradual nature of the transfer and the need for co-operation between the present carers and the new carers. They also stressed the fact that both pre and post-placement visits and contacts could be used to minimise the trauma of separation and loss to the child.
39. I am in agreement with Geoghegan J. in noting that all this expert evidence is predictive in nature (unavoidably so). Neither the expert witnesses nor the court can be certain as to the outcome of the transfer of Ann to the custody of her birth parents. In addition in the present case the unpredictability of Ann’s future is exacerbated by the evidence given repeatedly by the Doyles that they would simply be unable to cope with the pain and grief of facilitating a phased transfer of Ann to the Byrnes. As a result of this evidence, and of what he described as a “lack of trust” between the parties, the learned trial judge seems to have accepted that a correctly phased transfer of custody could not be envisaged.
40. Leaving aside the clear point that the court cannot be bound by a refusal, however understandable, by the present carers to co-operate in a transfer, the difficulty remains that neither the expert witnesses nor the court can predict with any degree of certainty the future behaviour of the two couples concerned or its effect on the child.
THE DECISION OF THE HIGH COURT
41. It is clear from his detailed and careful judgment that the learned trial judge gave considerable thought to his conclusions both on the evidence and on the law in the present case. It is also clear that he felt great sympathy for both the couples involved and above all a deep concern for the future welfare of the child Ann.
42. As already stated, the learned trial judge decided that Ann should be made a Ward of Court but that she should remain in the custody of the Doyles. In reaching this conclusion he considered the wording of Article 42.5 of the Constitution, the terms of the Adoption Act 1988, the decision of this court in the case of In Re J.H. [1985] I.R. 375 and also some elements of the later decision of this court in the case of Northern Area Health Board v An Bord Uchtála [2002] 4 I.R. 252. He held that for a number of combined reasons, including the placement of Ann for adoption and the failure to reclaim her at an early stage, the applicants had failed in their duty to the child, that this amounted to abandonment, and in addition that there were compelling reasons why Ann should not be returned to the custody of her birth parents.
THE NOTICE OF APPEAL
43. In their notice of appeal the applicants set out a total of thirty grounds of appeal. There is no need to recite the grounds in full. They are grouped in three sections. The first group of grounds concerns the learned judge’s assessment of the evidence and his conclusions that the applicants had failed in their parental duty, had abandoned their child, and that their right to custody of their child should be refused. Several grounds also relate to the weight given by the learned trial judge to the issue of attachment. The second group of grounds dealt with the trial judge’s findings in regard to modern developments in psychology and the theory of attachment and with his finding that the absence of co-operation and/or distrust on the part of the applicants and the respondents were such that a planned or phased transfer of care was not possible. The third group of grounds dealt with the learned trial judge’s application of the legal test to the determination of the case before him and his failure to afford sufficient weight to the inalienable and imprescriptible rights guaranteed to the family under articles 41 and 42 of the Constitution and also to their rights under article 8 of the European Convention on Human Rights.
SUBMISSIONS OF COUNSEL
44. In both written and oral submissions to this court on the appeal senior counsel for Brian Byrne, Ms Browne, and senior counsel for Catherine Byrne, Ms O’Toole, stressed that the proceedings were an application under article 40.4 of the Constitution. The single issue before the court was whether the respondents continued custody of the child in question was in accordance with law. Counsel referred to the inalienable and imprescriptible rights of the applicants as a family based on marriage, as set out in articles 41 and 42 of the Constitution. They emphasised the established weighty presumptions as to the married family’s right to custody of their child and the presumption that the child’s welfare was to be found within the constitutional family.
45. Ms Browne argued that the situation in the present case was almost exactly parallel to that in the case of In Re J.H. [1985] I.R. 375 and that the decision of this court in that case should apply in the present circumstances. The evidence concerning bonding or attachment was equally present in the In Re J.H. case but was held not to be a sufficiently compelling reason to deprive the natural parents of their statutory and constitutional right to the custody of their child. Ms O’Toole submitted that the evidence before the High Court did not in any way amount to a failure of duty to their child by the applicants, still less did it amount to abandonment.
46. The Health Service Executive had not appealed against the judgment and order of the High Court. The court, however, permitted Mr Rogers, senior counsel on behalf of the Health Service Executive, to make the limited but important submission that the finding by the learned trial judge that placement for adoption in itself could amount in any way to a failure of duty, or even more seriously, abandonment by a parent, represented a danger to the whole structure and system of the adoption process.
47. Senior counsel for the second and third named respondents, Mr Durcan, supported the conclusions of the High Court. He approached the principles involved from the point of view of the constitutional rights of the child. He submitted that the rights of a child are to have his or her needs provided for by his or her parents and a corresponding right and duty of a parent or parents is to provide for those needs. He accepted that there was a constitutional presumption that the needs of a child are to be met and its welfare secured within its family but argued that in exceptional cases the presumption could be rebutted if there were compelling reasons why a child’s welfare could not be secured within his or her family or that the parents had failed to provide for the needs of the child. He accepted that this test was set out in the case of In Re J.H. and that this was the appropriate test to be applied.
48. Mr Durcan submitted that the relevant statutory provisions reflected the constitutional position as previously described. A guardian or guardians of a child were entitled to the custody of that child and further had a right to seek the restoration of such custody as against a third party. However such right was not absolute in that there were specific statutory provisions in the Guardianship of Infants Act 1964 which restricted the right to obtain such a restoration of custody. The statutory restrictions on the right of a guardian to the restoration of custody of a child reflected or mirrored the provisions of Article 42.5 of the Constitution. He submitted that custody of a child essentially meant the right to physical care and control of that child. (R.C. v .I.S. [2003] 4 I.R. 431 at page 439 per Finlay Geoghegan J.)
49. Mr. Durcan submitted that the learned trial judge had identified and adopted the test as set out In re J.H. There was ample evidence before him to hold as he did. Mr Durcan referred to case law subsequent to In Re J. H. which, he argued, widened the concept of failure of parental duty. Counsel submitted also that in the particular circumstances of this case the relevant test in regard to failure of duty was whether the applicants by reason of their physical or moral circumstances had failed in their duty to provide for the needs of their child. If parents failed in the duty to provide for the needs of their child then they no longer should obtain the benefit of the constitutional presumption that the child's welfare was to be found in their family, since the presumption would be inconsistent with the reality which had occurred.
THE LAW
(a) The Constitution
50. Article 40.4.1 and 2 of the Constitution provides:
"4.1 No citizen shall be deprived of his personal liberty save in accordance with the law.
4.1 Upon complaint being made by or on behalf of any person to the High Court or any judge thereof alleging that such person is being unlawfully detained, the High Court and any and every judge thereof to whom such complaint is made shall forthwith inquire into the said complaint and may order the person in whose custody such person is detained to produce the body of such person before the High Court on a named day and to certify in writing the grounds of his detention, and the High Court shall, upon the body of such person being produced before that court and after giving the person in whose custody he is detained an opportunity of justifying the detention, order the release of such person from such detention unless satisfied that he is being detained in accordance with the law."
51. Articles 41 & 42 provide as follows:
“Article 41.1.1° The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.
2° The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.
Article 42.1 The State acknowledges that the primary and natural educator of the child is the Family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children.
5. In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.”
(b) The Adoption Acts, 1952 to 1998
52. In this case particular reference is made to the Adoption Act, 1974, s. 3, and to the terms of the Adoption Act, 1988 which for the first time permitted the adoption of the children of married parents. G. v An Bord Uchtála [1980] IR 32 provided a number of dicta elucidating the rights of unmarried parents and their children. In the Article 26 reference case In the Matter of Article 26 of the Constitution and In The Matter of the Adoption (no 2) Bill, 1987 [1989] IR 657 this court, in the judgment of Finlay C.J., set the parameters for the adoption of children born to legally married parents.
53. Prior to the marriage of Brian and Catherine Byrne the Doyles had intended to bring proceedings pursuant to s.3 of the Adoption Act, 1974 the provisions of s.3 are as follows:
"3(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, or
(b) withdraws a consent already given, then
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."
54. Considerable reference was made during the course of the hearing to the case of Northern Area Health Board v An Bord Uchtála [2002] 4 IR 252. In the course of my judgment in that case I gave a very brief history of the reasons for the enactment of the Adoption Act, 1974 and the Adoption Act, 1988. In my view a consideration of this legislative history may be of assistance in assessing the differing - and changing - position of the parties in the instant case. Under the heading "The Legislative Context" I stated:
"Prior to considering the interpretation and application of the provisions of sections 3 and 4 of the Adoption Act to the facts of the instant case it would, in my view, be helpful to look at the legislative history and context of the statute itself. Section 9 of the Act provides in the usual form that the Act of 1988 and the previous Adoption Acts from 1952 onwards, may be cited together and “shall be construed together as one”.
The Adoption Act 1952 provided for a system of legal adoption for the first time in this jurisdiction. Under section 10 of that Act the only children eligible for adoption were those who were either illegitimate or were orphans both of whose parents were dead. A dual system of consent by the mother of such a child was established. She first had to agree to place her child for adoption and at a later stage, after the child had reached the age of at least six months, she executed a “consent” to adoption under section14 of the Act of 1952. This consent was essential and had to be given in writing in the prescribed form. The mother’s consent could be withdrawn at any time before the making of the adoption order. The respondent (An Bórd Uchtála) could dispense with the mother’s consent only in very narrow circumstances – if she was incapable by reason of mental infirmity of giving consent or she could not be found.
Under this legislation considerable problems arose over the years in cases where the mother had placed her child with prospective adopters (generally through an adoption society) and subsequently failed or refused to execute the consent to adoption. In some cases the mother wished to reclaim the child; in others she did not. The children involved were thus often left in the long term care of the prospective adopters but with none of the security of adoption.
In an endeavour to cure this mischief the Oireachtas enacted the Adoption Act 1974. Section 3 of that Act provided that in a case where the mother had “agreed to the placing of the child for adoption” and subsequently failed or refused to give the requisite consent (or withdrew a consent already given) the High Court could, in the best interests of the child, make an order authorising the respondent to dispense with the mother’s consent. Much of the established case law concerning adoption from the leading case of G. v An Bord Uchtála [1980] IR 32 onwards, has dealt with the interpretation of this section.
The position, however, remained that only illegitimate or orphan children were eligible for adoption. The children of married parents who formed part of families whose rights arose under Articles 41 and 42 of the Constitution, could never be adopted even in cases where they had been left in the care of foster parents for many years and where there was no likelihood that they would ever return to the care of their parents. Other children, as in the case of the child at the centre of the present case, had been for a long period in the care of foster parents but could not be adopted because their unmarried parents had never agreed to place them for adoption in the first place. It was with a view to curing this mischief that the Oireachtas enacted the Act of 1988. The long title of the Act describes it as “an Act to provide, in exceptional cases, where the parents for physical or moral reasons have failed in their duty towards their children, for the supplying, by the adoption of the children, of the place of the parents and for that purpose and other purposes to amend and extend the Adoption Acts 1952 to 1976.”"
55. The second and third named respondents rely on a number of dicta in the judgment in the Northern Area Health Board case. In considering the force and applicability of those dicta the somewhat unusual facts of that case must be borne in mind. Firstly, the child in question was the child of an unmarried mother who suffered from a degree of both mental illness and mental disability. Her child, who suffered from cerebral palsy, had been in the care of foster parents for twelve years. These foster parents had cared tenderly for the child and wished to give her the security of adoption. The natural mother had visited her daughter from time to time, mainly at the request of the foster parents. The medical evidence was that the mother would never be able to care for her child and indeed had difficulty in caring for herself. She had consistently refused to agree to place her child for adoption, thus s.3 of the 1974 Act did not apply. The application for an adoption order therefore fell under the strict requirements of the 1988 Act. It must be remembered, however, that the natural mother, being unmarried, while she had a right to custody of her child under Article 40 of the Constitution, had not the constitutional protections and presumption which benefit the married family under Articles 41 and 42. In the light of these facts the court held that the mother had failed in her duty to her child, that such failure was likely to continue and that such failure amounted to abandonment of her rights as a mother.
56. While the Northern Area Health Board case establishes that the concept of failure of duty for physical reasons includes failure for reasons of mental illness, and that such failure need not be blameworthy, it does not go further than that. The facts of the instant case are in no way comparable to the facts in the Northern Area Health Board case.
57. It is clear, and is accepted by all parties, that the test be applied to the matters at issue in this case is that established by this court in the case of In re JH [1985] IR 375. The facts in that case bore a remarkable resemblance to those in the present case. The child in question was born to an unmarried mother and father, and was placed for adoption by the mother shortly after birth. The mother consented to the child’s adoption in February, 1983 but withdrew her consent in February, 1984. The prospective adopters issued proceedings pursuant to section 3 of the Adoption Act, 1974 in the same month. The mother and father of the child married on the 24th March, 1984. In June, 1984 they applied to re-register the child’s birth, but on an application by the prospective adopters to the High Court Lynch J. made an order prohibiting such re-registration pending the determination of the Adoption Act proceedings. The natural parents issued proceedings under the Guardianship of Infants Act, 1964 seeking custody of the child. The natural father had at no stage consented to the making of an adoption order. On that account Lynch J. refused to make an order under section 3 of the Act of 1974 and the re-registration of the birth was then permitted.
58. The prospective adopters brought cross-proceedings pursuant to the Guardianship of Infants Act, 1964 claiming custody of the child. Lynch J. rejected a claim by the adopting parents that the natural parents by their conduct had abandoned or abdicated their rights to the child.
59. The court heard evidence from two leading psychiatrists. This evidence dealt in large part with the issues of bonding an attachment. Lynch J. summarised that evidence as follows:
“I regard as very important evidence relevant to the issue now arising as to the general custody of the child the uncontradicted evidence of the two psychiatrists as to the effect on the child of transferring her from the custody of the adopting parents to the custody of the parents. On that evidence, which I accept, I am satisfied that there is an appreciable risk of long term psychological harm to the child by such a transfer. The evidence did not, however, indicate whether it is more or less probable that such long-term harm may occur, but it did establish to my satisfaction that the risk of such harm is sufficiently proximate that considerable weight must be given to that risk in deciding these claims and counterclaims for custody of the child. There would of course be an immediate upset for the child from which she would probably recover within a relatively short time, but, while not ignoring such short-term distress, it is the risk of long term detrimental effects that is more important and to be taken into account in deciding the question of custody.….
The child is clearly bonded to the adopting parents and the boy as though they were her own parents and brother respectively. Any sundering of these relationships will cause considerable immediate suffering to the child and a real possibility, if not a probability, which it is impossible to say one way or the other, of long-term serious harm.” (page 388)
60. In reaching his conclusions, Lynch J. outlined the test he intended to apply:
“Section 3 of the Guardianship of Infants Act, 1964 provides that in deciding any question relating to the custody of the child I must regard the welfare of the child as the first and paramount consideration.
In the context of this case, and bearing in mind the secure and happy home which the child at present enjoys, I think that I can best give effect to that section by asking and answering the question: ‘Is there anything really worthwhile to be gained for the child by transferring her from the adopting parents to the parents?’ Dealing with the problem in this way is to look at it from the child’s point of view as required by section 3 of the Act of 1964.” (page 388)
61. Lynch J. noted the anomalous legal position if the child was left with the adopting parents, and having applied the test already stated he concluded:
“If one looks at the claim to custody through the eyes of the parents they have a very strong case to be awarded custody of the child. If, on the other hand, one looks at the claim to custody through the eyes of the adopting parents they also have a very strong case to be awarded the custody of a child. That is why it is so very important in the circumstances of this particular case to look at it through the eyes, or from the point of view, of the child and the best way of doing so is, in my view, by posing and answering the question which I have already put above.
I have come to the conclusion that the answer to my question is that there is not anything really worthwhile to be gained for the child by transferring her from the adopting parents to the parents. If custody were changed I think that the risk of long term psychological harm, and therefore of unhappiness, is sufficiently proximate to outweigh the contrary factors referred to above.” (my emphasis) (page 389)
62. Lynch J., therefore, awarded custody to the adopting parents but with access to the natural parents. The natural parents appealed. They were successful in their appeal.
63. In his judgment in this court Finlay C.J. set out the principles of law applicable to the case as follows:
“Having considered these decisions and the relevant provisions of the Constitution I have come to the conclusion that the principles of law applicable to this case are as follows:
1. The infant, being the child of married parents, now legitimised, has in addition to the rights of every child, which are provided for in the Constitution and were identified by O’Higgins C.J. in G. v. an Bord Uchtála [1980] I.R. 32 at p. 56, rights under the Constitution as a member of a family, which are:
(a) to belong to a unit group possessing inalienable and imprescriptible rights antecedent and superior to all positive law (Article 41, s. 1);
(b) to protection by the State of the family to which it belongs (Article 41, s. 2); and
(c) to be educated by the family and to be provided by its parents with religious, moral, intellectual, physical and social education (Article 42, s. 1).
2. The State cannot supplant the role of the parents, in providing for the infant the rights to be educated conferred on it by Article 42, s. 1, except ‘in exceptional cases’ arising from a failure for moral or physical reasons on the part of the parents to provide that education (Article 42, s. 5).
3. The Act of 1964 must, if possible, be given an interpretation consistent with the Constitution: (see East Donegal Co-Operative v. The Attorney General [1970] I.R. 317; MacDonald v. Bord na gCon [1965] I.R. 217.
In the case, therefore, of a contest between the parents of a legitimate child – who with the child constitute a family within the meaning of Articles 41 and 42 of the Constitution – and persons other than the parents as to the custody of the child, as this case is, it does not seem to me that section 3 of the Act of 1964 can be construed as meaning simply that the balance of welfare as defined in section 2 of the Act of 1964 must be the sole criterion for the determination by the court of the issue as to custody of the child. …
A child of over two years of age, as this infant is, in the dominant or general custody of persons other than its parents and continuing in such custody against the wishes of its parents, cannot be said to enjoy the right of education by its family and parents granted by Article 42, s. 1 of the Constitution. And no additional arrangements, as were indeed put in train in this case by the orders of the High Court for access by its parents to the child or participation by them in the decision-making processes concerning its education, could alter that situation. Furthermore, notwithstanding the presumption of validity which attaches to the Act of 1964 and the absence of a challenge in these proceedings to that validity, the court cannot, it seems to me, as an organ of the State supplant the right to education by the family and parents which is conferred on the child by the Constitution unless there is established to the satisfaction of the court a failure on the part of the parents as defined in Article 42, s. 5 and ‘exceptional circumstances’.
I would, therefore, accept the contention that in this case s. 3 of the Act of 1964 must be construed as involving a constitutional presumption that the welfare of the child, which is defined in s. 2 of the Act in terms identical to those contained in Art. 42, s. 1, is to be found within the family, unless the Court is satisfied on the evidence that there are compelling reasons why this cannot be achieved, or unless the Court is satisfied that the evidence establishes an exceptional case where the parents have failed to provide education for the child and to continue to fail to provide education for the child for moral or physical reasons.”
64. Finlay C.J. held that, “since the correct test had not been applied by the learned High Court judge, the case should be remitted to Lynch J. to be considered further by him.”
65. Griffin J., Hederman J. and O’Hanlon J. expressed agreement with the Chief Justice. McCarthy J. also agreed with the principles set out in the judgment of Finlay C.J. In a brief judgment he held that the key issue was whether the court was satisfied on the evidence that there were compelling reasons why the welfare of the child could not be achieved within the family. At the close of his judgment, however, he very clearly left open the question as to whether on the evidence in the case the compelling reasons did or did not exist. He said:
“I wish to emphasise, however, that I express no view as to whether on the evidence already heard it would be open to conclude that the compelling reason or reasons required had been established.”
66. When the case was returned to the High Court Lynch J. heard further expert evidence in regard to attachment. He was critical of certain attitudes of the natural mother, and believed that the natural parents underestimated the problems which might arise if the child was transferred to them. He remained uncertain and apprehensive regarding the medium and long term effects of a transfer of custody. Nevertheless, he concluded that such adverse results as might result from such transfer had not been sufficiently established to rebut the constitutional presumption that the welfare of the child was to be found within its constitutional family, nor could they amount to compelling reasons why that welfare could not be achieved.
67. He therefore awarded custody to the natural parents.
THE ISSUES AND CONCLUSIONS
68. In his judgment the learned trial judge provides a complex survey and analysis of the evidence before the court. It is clear that the learned judge felt considerable sympathy both for the Byrnes and for the Doyles. Having read both the lay and the expert evidence he awarded custody of Ann to the Doyles. In so doing the learned trial judge fully acknowledged that the relevant test to be applied was that established in In Re J.H. In applying that test he held in the first place that the Byrnes had failed in their duty to Ann and had abandoned her. In addition he held that there were compelling reasons why the welfare of Ann could not be achieved in the custody of the Byrnes.
69. In this context it should also be noted that the second and third named respondents, through their counsel, accepted that the learned trial judge was correct in applying the test in In Re J. However, Mr. Durcan set that test in the context of the individual constitutional rights of the child.
70. The first issue this court must consider is whether the Byrnes failed in their duty towards their daughter. I have had the benefit of reading in draft the judgment of Geoghegan J. During the course of his judgment Geoghegan J. analyses the findings of the trial judge on this issue and is satisfied that there is no basis for any finding that there was a failure of duty. I am in agreement both with Geoghegan J’s reasoning and with his finding on this issue.
71. I would add that I accept the submission of Mr. Rogers on behalf of the Health Service Executive that to find that a placement for adoption either wholly or partly amounted to a failure of duty or abandonment represented a threat to the stability of the statutory system of adoption. In the past there have been a considerable number of cases considered by both the High Court and this court pursuant to section 3 of the Act of 1974; in none of these cases has it been suggested that placement for adoption by a parent, where that parent expressly placed the child in what was believed to be in the child’s best interests, could amount to a failure of duty.
72. As far as the learned trial judge’s finding of abandonment is concerned, it must be acknowledged that counsel for the Doyles in his oral submissions to this court made little or no mention of the issue of abandonment. On the facts, even leaving aside the hesitations and doubts felt by each of the Byrnes throughout the adoption process, this was at all times intended to be an “open” adoption. The plan, which was agreed both by the Health Service Executive and the Doyles, was that the Byrnes would have access at stated intervals to their daughter in the future. In my view, such an intention cannot be consistent with an intention to abandon permanently parental rights as is described in the judgment of this court in In re the Adoption Bill, 1987 (already cited).
73. There remains the “compelling reasons” test. In holding that the requisite compelling reasons existed, the learned trial judge relied both on the medical evidence and on what he saw as the impossibility of achieving the properly phased, or gradual, transfer of Ann due both to the strong feelings of the Doyles and to a lack of trust between the couples.
74. As far as the expert medical evidence is concerned, there is a considerable level of agreement between the witnesses. All agreed that an immediate or summary change of custody is virtually certain to cause severe psychological damage to the child. Dr. McDonald, in his report, movingly describes the stages of suffering through which the child is likely to go in these circumstances, ending in despairing indifference towards her carers. In differing degrees, all the experts also agree that a transfer of custody is possible if it is gradual, phased, carefully managed, and carried out with the advice and assistance of experts. All the experts also agree that even in this ideal situation the child may still suffer lasting harm. Notably, Dr. McDonald, who has had long experience of children who have been transferred from one carer to another, is at pains both in his report and in his oral evidence to dispel the commonly held belief that young children are resilient and will readily recover. He speaks of the damaged children he has seen in the course of his work.
75. Added to this evidence is the uncertainty as to the possibility of a properly managed transfer being arranged. The learned trial judge attributes this to a lack of trust between the parties. In this I think he lays too much weight on the differences that arose between them at a particular period. It would be wrong for this court to permit its decision to be swayed by the present refusal of the Doyles to contemplate taking part in a phased transfer; it would be equally wrong not to acknowledge the difficulties for all parties, including Ann, in such a transfer. The future is simply uncertain.
76. It must, however, be recalled that the unanimous medical evidence of the two leading psychiatrists in In Re J.H. was in every way parallel to the evidence in the present case. Both short term and long term dangers were pointed out, and Lynch J. had considerable doubts about the general attitude of the natural mother to the prospective adopters. Yet the test set by Finlay C.J. in his judgment – compelling reasons why the child’s welfare could not be achieved within the natural family – is so exacting that it would be difficult to see it being met other than in the most extreme circumstances. This is particularly so when the test is given the added weight of being set in the context of the constitutional declaration of the rights of the family and of parents, and the related constitutional presumption that the welfare of the child is to be found within the family. These constitutional rights and presumptions apply, of course, to the legally married family alone.
77. It is this constitutional context which leaves me to consider the dramatic and remarkable part played in the life and future of Ann by the marriage of her parents. Prior to the Byrnes marriage Ann was placed with entirely suitable prospective adopters in the hope of shortly becoming part of a constitutional family. No criticism has been made of her care and development. Following the natural mother’s decision to withdraw her consent to adoption (a decision which, of course, she had a perfect right to make) it was open to the Doyles to initiate proceedings under section 3 of the Act of 1974, a course which it appears they planned to take. Given the evidence before the High Court and the conclusions drawn from that evidence by the learned trial judge, the probability is that there was a full agreement to place the child for adoption. In such a case, the central issue before the court to which all evidence would be directed would be the best interests of Ann.
78. On 9th January, 2006 the Byrnes intermarried. I have no doubt that their marriage reflected their commitment to each other and their determination to recover custody of their child; it admittedly also reflected their legal advice. Once the marriage took place the Byrnes became a constitutional family with all the concomitant rights and presumptions. The present Article 40 proceedings were then initiated. The central issue to be considered by the court underwent a metamorphosis; it was no longer the best interests of the child but the lawfulness or otherwise of the Doyles’ custody of her. When deciding whether the Doyles’custody of Ann is in accordance with law it is no longer possible for the court to follow the original approach of Lynch J. in In Re J.H. – “to look at it through the eyes, or from the point of view of the child”. It is clear that the court is bound by the decision in In Re J.H.; the full rigour of the test established in that case must be applied.
79. Ann, on unchallenged evidence, is now a happy and secure little two-year-old girl. She is in the loving care of David and Eileen Doyle whom she knows as her father and mother. She has the love and companionship of Eileen Doyle’s mother, whom she sees as her grandmother, and of other extended family and friends. She faces an uncertain future. The expert evidence as to whether she will suffer long term harm by being transferred to the care of her natural parents is predictive rather than certain. But so too is the assessment evidence of S. C. concerning the parenting ability of the Byrnes. Indeed the very concept of a presumption is in itself predictive rather than certain.
80. In common with Lynch J. in In Re J.H., I remain uncertain and apprehensive about the effects of a transfer of Ann’s custody, and about her future in general.
81. Nevertheless, I do not consider that the medical and other evidence before the High Court judge met the heavy burden of establishing that there were compelling reasons that her welfare could not be achieved in the custody and care of her natural parents. An additional and crucial factor in my reaching this conclusion is that, given her parents’ marriage and the re-registration of her birth, there is now no realistic possibility that Ann can be adopted by the Doyles. The Byrnes cannot be held to have failed in their duty towards her or to have abandoned their rights as parents. If Ann remains with the Doyles in what amounts to continuing fosterage this would give rise to practical problems for her in the future. Her position would be insecure and anomalous and there would be no way of guarding against further litigation in the future concerning either her continuing care and custody or the extent of access to her by her natural parents.
82. In his judgment, Geoghegan J. refers to the fact that in “some quarters” the decision taken by the Supreme Court in In Re J. has been subjected to criticism. The learned judge rightly expresses the view that unless and until the Constitution itself is amended there is no justification for that criticism. I am in agreement with this view. The judgment of this court, as expressed by Finlay C.J., reflects the unequivocal wording of Articles 41 and 42 of the Constitution, as does the judgment of the court in In re The Adoption Bill 1987 (already cited).
83. It would be disingenuous not to admit that I am one of the “quarters” who have voiced criticism of the position of the child in the Constitution. I did so publicly in the report of the Kilkenny Incest Inquiry in 1993. The present case must, however, be decided under the Constitution and the law as it now stands.
84. With reluctance and some regret I would allow this appeal.