Gaeilge

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:	Fennelly J.
Status:	Approved
Result:	Allow And Set Aside
Judgments by Link to Judgment Murray C.J. Link McGuinness J. Link Hardiman J. Link Geoghegan J. Link Fennelly J. Link

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Murray C.J.
McGuinness J.
Hardiman J.
Geoghegan J.
Fennelly J.BETWEEN/
JUDGMENT of MR JUSTICE FENNELLY delivered the 13th day of November, 2006.

1. This appeal concerns a distressing dispute regarding the custody of a child. The outcome of the case is certain to cause distress to one or other of the two couples involved. Both couples are of the highest character. Sadly they are divided rather than united in their devotion to the welfare of the child.

2. The natural parents applied pursuant to article 40.4.2 of the Constitution for the return of their child. The natural parents had married following placement with the notice parties for adoption. Mr Justice McMenamin in an impressively thorough judgment of 23rd June 2006, declined to make an order for the return of the child to her, now married, natural parents. He found, notwithstanding explicit acceptance that they were motivated by the best interests of their child, that the natural parents were guilty of a failure of duty and of abandonment of her and that there were sufficiently compelling reasons why her best interests could not be secured within her natural family.

3. In order to preserve the anonymity of the parties, I will use the names assigned to them by the learned trial judge in his judgment. They are not their correct names. I will refer to the first and second named applicants as Brian and Catherine Byrne (or the Byrnes) and to the notice parties as David and Eileen Doyle (or the Doyles). The learned trial judge at times described them as the second and third named respondents.

4. The learned trial judge has delivered a particularly comprehensive judgment containing a lengthy account of the facts. I will commence with a shorter account.

The Byrnes

5. Brian Byrne was born in May 1982. Catherine Byrne was born in July 1981. They met in March 2002, when both were university students. They commenced to live together. In October 2003 Catherine discovered that she was pregnant. It was not a planned pregnancy. The pregnancy and birth of the child, Ann, were concealed from the parents of both Brian and Catherine.

6. Ann was born on 7th July 2004. Brian and Catherine were married in Northern Ireland on the 9th of January 2006. They then caused Ann's birth to be re-registered. It is common case that they, with Ann, thus constituted a family within the meaning of the Constitution.

Adoption History

7. As already stated, neither Brian nor Catherine informed their parents of the pregnancy or of the birth. They continued their studies and sat examinations which took place at Christmas 2003 and April 2004. They attended counselling sessions with a medical social worker. They considered and ultimately decided on the option of adoption. The Byrnes were allocated a senior social worker, hereinafter called Mr F, with the Health Service Executive, whom they first met in June 2004. Ann was born on 7th July 2004. On the following day the Byrnes met Mr F at the hospital to make arrangements for the pre-adoptive foster care of Ann. Catherine signed a "Voluntary Care Agreement Admission to Care," placing Ann in the foster care of Ms I. During the period of foster care Brian and Catherine visited Ann on a regular basis and had two overnight access visits with her. Mr F commented that this degree of contact was unique in his experience and that the father's degree of involvement was unusual among all the birth fathers he had dealt with as a social worker.

8. It is important to record, at this point, the general view and assessment of the learned trial judge regarding the character and general demeanour of the Byrnes:

"The applicants themselves have had education to third level. 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.

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 heartbreaking 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. While the learned trial judge preferred the evidence of Mr F in respect of a number of aspects of their mutual dealings, he made it absolutely clear that he did so only on the basis of a preference for clearer recollection. The evidence of Mr F was, furthermore, supported by a volume of contemporaneous notes. In this period Mr F began the preparation of what are termed Adoption Profiles for the Matching Panel of the Regional Adoption Committee. Brian and Catherine separately provided input into this document.

10. There was a good deal of evidence regarding the extent to which Brian and Catherine respectively were fully committed to the adoption process. Brian, for example, was later recorded as saying that he had never wanted adoption. There was a conflict of evidence, in particular, between Brian and Mr F regarding the information conveyed to Brian by the latter. Brian claimed that he had been led to believe that he would have no rights as a natural father. Mr F gave evidence that he had informed Brian of his right to apply to be appointed as a guardian.

11. On 14th September 2004, Catherine signed the required Form 10, consenting to the placing of A for adoption. At the same time, Brian signed a form acknowledging he did "not wish to be heard by the Adoption Board on the application for the adoption" and that he would "receive no further communication in relation to the adoption of the child unless [he] specifically request[ed] it."

12. Form 10 is, of course, a most important document, embodying, as it does, the first expression of the natural mother’s agreement to the adoption process. Under the heading, “Effect of an Adoption Order,” it states:

“If an adoption order is made for the child, you will lose all your parental rights and will be freed from all parental duties. These rights and duties will be transferred permanently to the adopters. The child will thereafter be regarded as their child as if it were born to them in marriage.”

13. Form 10 also draws the mother’s attention to the fact that a “consent may be withdrawn at any time before the making of an adoption order.” It also contains the following explanation of the circumstances in which the High Court may dispense with consent to the making of the adoption order:

“Where a person who has consented to the placing of a child for adoption fails, neglects or refuses to give consent to the making of an adoption order, or withdraws the consent already given, it is open to the prospective adopters, if they have applied for an adoption order for the child, to apply to the High Court for an order under section 3 of the Adoption Act, 1974. 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 that section (a) giving custody of the child to the prospective adopters, and (b) authorising An Bord Uchtála (The Adoption Board) to dispense with such consent to the making of an adoption order in their favour.”

14. Finally, Form 10 refers to the circumstances where the mother changes her mind and wishes to reclaim her child. At the hearing of the appeal, questions were asked regarding the extent to which a mother has her attention drawn to the eventualities which may arise, if, having signed Form 10 and placed her child with prospective adoptive parents, she withdraws her consent. Form 10 contains the following:

“If, after the child has been placed with the 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 to a solicitor as a court case may be involved.”

15, The form does not, on the other hand, state that the prospective adopters may claim the right to retain custody of the child. As it happens, the original Form 10 consent was not sent to the Adoption Board, but was inadvertently left in the possession of Catherine. This oversight was not discovered until the following year. A new consent had to be signed.

16. On 30th September 2004, the Regional Adoption Panel identified the Doyles as suitable adoptive parents.

17. In October 2004, the Byrnes first met the Doyles. The meeting went well. The Byrnes were satisfied that the Doyles were suitable parents for Ann. It was agreed that it would be an open adoption. In November 2004 the Doyles were introduced to Ann, and she was moved to their house on prospective adoptive placement.

18. Following the placement, the Byrnes ceased to visit or to have access to Ann. There was evidence that both Brian and Catherine had some reservations about the correctness of their decision. Brian expressed “serious reservations” in a telephone call to Mr F. They did not communicate these feelings to the Doyles. They sent the Doyles a Christmas card and a very friendly letter at Christmas 2004.

19. It is accepted by everybody, including the Byrnes, that Ann has settled extremely well with the Doyles. All of the evidence suggests that she is a very happy with them. She has been made to feel that she is a member of their family.

20. In February 2005 it was discovered that the form 10 consent had not been sent to the Adoption Board. Mr F, after some difficulty, contacted Catherine and arranged a meeting in order to have a new form signed. The meeting took place in April. There was a dispute in the evidence about this meeting. Both the Byrnes stated that they, by then, wished to change their minds. They did not communicate this to Mr F. Mr F, as found by the learned trial judge, explained Form 10 fully, for the second time. The learned trial judge rejected the Byrnes’ contention that Mr F, by his conduct, prevented them from conveying their change of mind. It seems clear, at the same time, that the Byrnes had genuine doubts. Catherine had attended counselling prior to the meeting in order to discuss her doubts and second thoughts.

21. At the April meeting, there was again misunderstanding between the Byrnes and Mr F. They contended that they were informed that they would be able to change their minds at any time up to the making of the final adoption order. They said that Mr F confirmed that, while they could do this, it would be “morally wrong."

22. The learned trial judge expressed his view about this meeting as follows:

"Whatever concerns or reservations Brian and Catherine might have felt did not prevent Catherine from signing the form then. Nor did what transpired at the meeting cause the couple to take any subsequent formal action such as writing a letter to stop the adoption from proceeding. It is not possible to resolve the question as to what precisely was said regarding any alleged encounter between Mr F and the Doyles or whether there was some misunderstanding. Mr F and the Doyles actually live a very considerable distance apart, the evidence shows. However the image appears to have fixed in Catherine's memory and for some reason ultimately to have been a source of distrust, from which she inferred that Mr F was in some way more friendly with the Doyles than actually was so."

23.He proceeded to say:

"Catherine's doubts even then must have been truly significant."

24. Catherine signed the final consent form (Form 4A) at a courthouse where she was then working on 11th July 2005. Again there was some dispute about the circumstances, a matter analysed in great detail by the learned trial judge. Basically, the Byrnes maintained that their right to visit Ann was made conditional on the signature of the form. Mr F disputed this and said that their right to visit and had already been agreed. I do not think it is necessary to review this matter. The learned trial judge preferred the evidence of Mr F. It appears that Mr F accepted that the Byrnes entertained genuine doubts about the correctness of their decision. The learned trial judge accepted that both Brian and Catherine "at many times had second thoughts over the period April to July 2005 on the issue of Adoption." He also referred to their "profoundly conflicted feelings at that time," and to Brian's "mixed emotions and confusion over the period of April to July 2005." But," he said, "those second thoughts never crystallised into a concrete decision to seek to regain custody of Ann." They had not conveyed any change of mind either to the Adoption Board or to the Doyles.

25. The first actual access visit took place in August 2005. I propose to quote the description of the learned trial judge, highlighting, as it does the contrast between tensions regarding the social workers and the good relations with the Doyles. It reads as follows:

"Ultimately, access to Ann was arranged for August. However, unfortunately this arrangement did not occur without friction. Prior to seeing Ann a heated discussion took place between Brian, Mr F and Ms K with regard to what the first named applicant regarded as an excessively rigid and intrusive approach to the question of access. In particular Brian took exception to the presence of social workers during the visit and to rigidity in making arrangements which he would have preferred should have been made face to face between themselves and the Doyles. At one stage Catherine left the discussion in tears. She returned after a while and discussed the matter with Brian and said that their priority should be Ann. The actual visit, including the contact between the applicants and the Doyles went well. The Doyles were not aware of the problems that had occurred earlier."

26. Up to this point, whatever doubts they may have entertained, the Byrnes had not communicated any decision to withdraw from the adoption process. The learned trial judge suggested that the events which occurred at the access visit may well have precipitated the action they then took. They went on holiday together in August 2005. They decided that they would commit themselves to each other and that they would seek the return of Ann.

Withdrawal of consent

27. While draft letters were prepared, none was sent until 26th September 2005, when Catherine wrote, as follows, to the Adoption Board:

“Last November my daughter, Ann Byrne, was placed with David and Eileen, her prospective adoptive parents. Even though they are wonderful parents to her, my doubts and unhappiness with the situation have not subsided. It is with a heavy heart that I’m asking for the adoption order to be reversed and for me to resume full care of Ann. I’m doing this for the best interests of Ann and myself and I hope that you can understand this.”

28. The letter was mistaken in referring to an adoption order, as none had been made.

29. A number of meetings, some of them very lengthy, took place between the Byrnes and Mr F in the period after the revocation of consent to adoption. These exchanges are reviewed in much detail in the judgment of the learned trial judge. Whether these events are relevant to the decision which has to be made on this appeal must be considered later. The learned trial judge appears at least to have attached importance to them. They are part of the material on which he relied in deciding not to award custody to the Byrnes. I believe that the main elements of the discussions may fairly be summarised as follows.

30. The Byrnes, particularly Catherine, expressed themselves as having been uncomfortable with their decision to place Ann for adoption for a long time. Catherine said that she had been in turmoil for more than a year.

31. Mr F, on the other hand is repeatedly recorded as expressing doubts and reservations. These apparently related to the prospects of the Byrnes’ own relationship. They had not at that stage decided to marry. Mr F also expressed concern about the influence of Brian's parents. Mr F urged the Byrnes to consider the effects on Ann and on the Doyles. Amongst the matters raised by Mr F were that Ann might be traumatised or might reject Catherine, and that Catherine's ability to parent might be affected by her own relationship with her mother and the fact that she had been unable to tell her about the pregnancy.

32. In this context, the Byrnes agreed to obtain counselling. Mr M, a counsellor, gave evidence that he met the Byrnes in the period of October and November 2005. As recorded by the learned trial judge, Mr M "formed the view that the applicants were both intelligent people who had no impediment in their capacity to act as parents." The learned trial judge then remarked:

“It should be placed on record that this view was borne out by other evidence in general in the case and that the applicants' capacity as parents is not fundamentally in issue, although of course issues have arisen during the course of the relationship between the parties which have some relevance to the point.”

33. On 1st November 2005, Catherine wrote to Mr F as follows:

“I’ve decided to put in writing my wishes for the coming months, so that the Adoption Board … … are aware of my intentions. My counselling sessions will be finished next week and I note that you are awaiting a report from these sessions. With this in mind, I would like to have Ann officially back on the 2nd December. I recognise that this is a very frustrating time for David and Eileen and that my decision will be very difficult on them both. However, I’m making this decision in the best interests of Ann and myself and feel that it is important that a date is now set for her return to my care … …”

34. On 11th November, she wrote to say that she had “reconsidered [her] original request to resume full care of [her] daughter by the 2nd December.” She went on: “It is now my intention to have a phased introduction to Ann over a longer period of time, with the approval of David and Eileen.”

35. The learned trial judge expressed his views about the conduct of Mr F over this period of some two months following the formal withdrawal by Catherine of her consent to adoption:

“I consider that in general Mr F acted appropriately as a senior and long-qualified social worker. But it is only fair to point out that his position as of October and November, 2005 was an invidious one. As a social worker it was his obligation also to have Ann’s best interests in the forefront of his mind. One of the issues which had clearly emerged by this point was the fact of Ann's attachment and bonding, an issue which Mr F had discussed with a psychologist independently of his interaction with the applicants. The ultimate logic of Mr F's situation was that he found himself a social worker to Brian and Catherine, and, to a degree, to David and Eileen as well as having to deal with Ann's best interests. I think that these concerns may have resulted in Mr F expressing in rather stark and emotive terms the effect of the applicants' decision to reclaim custody of Ann on the Doyles. While there is a conflict of evidence as to whether or not Mr F at one meeting used words to the effect "what would happen if the Doyles jumped off a bridge?" it should be sufficient to say, that while understanding the anxieties and concerns of all parties, the utilisation of such terminology would be very inappropriate in such a context. While it must be a concern, the evidence does not establish that Mr F's advice at any time had the effect of overbearing the wishes of the Byrnes or the intentions which they had regarding their own actions.”

36. The learned trial judge made no clear finding about whether Mr F used what he accepted would be “very inappropriate” language attributed to him by Catherine. He did, nonetheless, find that he had expressed himself in “rather stark and emotive terms.” While the learned trial judge was reluctant to criticise Mr F, an experienced social worker, he did express concern. While he also considered that the evidence did not establish that “Mr F's advice at any time had the effect of overbearing the wishes of the Byrnes or the intentions which they had regarding their own actions,” he clearly ascribed to him statements and attitudes which it would not be unfair to describe, as Catherine did, as “stalling.” This appeal is in no way concerned with the appropriateness or otherwise of Mr F.’s behaviour. These matters become relevant only in the context of some of the findings of the learned trial judge regarding distrust between the Byrnes and the social workers, as well as delay on their behalf in seeking the recovery of Ann, amounting to failure of duty to their child. I would add that the inaction which followed Catherine’s formal withdrawal of consent to adoption makes it difficult to justify the judge’s implied criticism of the Byrne’s for their failure to give any such notice at the April meeting.

Marriage

37. The Byrnes were married on 9th January 2006 at a Registry Office in Northern Ireland. Again, the learned trial judge recounts the events leading up to that wedding in some detail. Some of that detail makes strange reading. Appointments for the marriage were cancelled on little or no notice. The marriage was attended with little or none of the usual celebrations, attendance of family and so on. It seems reasonably clear that the Byrnes were acting on legal advice to the effect that their marriage would improve their prospects of recovering the custody of Ann. On the other hand, none of this evidence puts in question the extent or genuineness of the long-term commitment of the Byrnes to each other as a couple. Nor has the validity of the marriage been questioned in these proceedings. In these circumstances, I consider that the criticisms of Brian and Catherine regarding the wedding arrangements, though they may be legitimate in social or religious terms, are quite irrelevant to the issues which arise on this appeal.

Expert evidence

38. Undoubtedly, the crucial part of the evidence relates to the bonding of Ann with the Doyles and the effect on her of a transfer back of custody from them to the Byrnes.

39. Professor Dorota Iwaniec gave evidence on behalf of the Doyles. She is Emeritus Professor of Social Work at Queens University Belfast. She has qualifications in developmental psychology, teaching and social work. She has extensive clinical and research experience of nearly 40 years in child and family work. She has published extensively on emotional abuse and neglect, failure to thrive in children and parenting of children.

40. Professor Iwaniec was engaged, on behalf of the Doyles, to do an independent assessment of their attachment to Ann and to report on the consequences of discontinuity of attachment, if she were to be separated from the Doyles. She met the Doyles on 22nd April 2006.

41. In her report, Professor Iwaniec said that the Doyles and Ann presented as being a very close, warm and supportive "family unit" who discharged their parental rights in a well informed, loving and caring manner and that Ann related and interacted with them in a secure way and at-ease way. Parental responsiveness to their needs and behaviour were appropriate for her age and sensitive in nature. The Doyles were well functioning, committed to Ann and with a well established emotional bond between all three of them and the couple provided a high quality of care in meeting her developmental needs. She described the attachment between Ann and David and Eileen as being particularly strong, secure, stable and well-established, as evidenced by the child's behaviour and interaction with her prospective adoptive parents and their mutual relationship.

42. She also reported more generally on the importance of attachment.

“Attachment of children to parents is seen as the most fundamental requirement of emotional development. Children, in order to survive, have to attach themselves to a person who will respond to their various needs, and who will protect them when in danger, will provide safety, acceptance, reassurance, and comfort. Children come to this world with an inborn predisposition to rely on and to get appropriate care and emotional attention in order to help them grow and develop in a secure environment. Attachment behaviour begins to develop at about 6-7 months and being established at 1 year to 14 months. The very reason why it is important to place children (whenever possible) for adoption in the first 6 months to a year is that they are able to build secure, uninterrupted attachment to a new family, which would give them a good start and a sense of security and belonging for life. Disruption of primary attachment can be extremely painful and damaging to the child's emotional development and can lead to serious emotional and behavioural problems.”

43. Professor Iwaniec reported that disrupting a well-established sense of security and emotional belonging could have a serious effect on Ann's well being and could lead to emotional and behavioural problems. She thought it was not in the best interests of Ann to destroy this well-established security and emotional stability in order to meet what, in her report, she described as "the sudden needs of her natural parents and their families".

44. She concluded her report with the suggestion that the Byrnes “should seriously reflect on what they are attempting to do and whether their desires would benefit their daughter in any way.” She observed: “Parents have rights to their children, but not at all cost – children have rights too.”

45. Professor Iwaniec, in evidence spoke of significant developments in the science and study of attachment over the past twenty five to thirty years. She testified that it is now possible to measure attachment in adults, emphasising that it is important to know what are the capability or styles of attachment in adults which will thereby be transferred into the attachment of the child.

46. She also said repeatedly that it is very risky for a child to disrupt the kind of security a child has when he or she is moved from a secure and comfortable environment in which trust has been built up. In this respect, she said that it very much depends on how things are handled. “If there are disruptions and discontinuities, then of course it might go a good way, and it might be all right, but quite often it is not all right.” Commenting specifically, on the likely effect of a move of a child from carers with whom the child has established an attachment, she said:

“It is incredibly important, I think that it is essentially common sense, that if you want to introduce a new environment to the child, a new caring people [presumably recte couple], new home it has to be a step-by-step approach, it has to be slow, you don’t jump to the next stage, before you master the first step. It sometimes can take a long time, with some children it takes shorter time……some children do adapt, and get adjusted to new situations, but many children don’t.”

47. For Professor Iwaniec, therefore, the step-by-step approach is absolutely essential. This part of the evidence was well summarised by the learned trial judge as follows:

“The witness particularly identified one critical factor: that is the circumstances of any move. She stated that such a move must be by a step by step approach. It should be slow and there should be no moving on rapidly to the next stage. Sometimes such a process can take a long time, dependent on the personality and temperament of the child. Emergency moves of the type which sometimes arise in social work very often produce emotional disturbances and/or psychosomatic disorder in the child ……. The duration of such disturbance may depend to a degree on the temperament of the child. She testified: "In many instances and in majority instances and we really have a lot of empirical evidence for that, the consequences will follow them through their lifetime. That is they will have difficulties in forming relationships in adolescence, forming romantic relationships in adolescence, they will show a lot of antisocial behaviour, aggression, lack of empathy to others, inability to maintain their relationships or even social contact. In adult life they tend to have marital problems, marital breakdowns, family violence, all kinds of disruption, emotional disruption as far as interpersonal relationships are concerned". Such changes are more likely to occur in the event of a summary or immediate move (emphasis added). The witness testified that even in the case of a gradual move such consequences may gradually arise.”

48. This issue was rehearsed repeatedly in the evidence. In the result, Professor Iwaniec strongly advised that any move be effected very gradually and also that the two sets of parents would have to cooperate. Professor Iwaniec was also invited to express an opinion on whether the Doyles would, in fact, be able to cooperate in the transfer. Her evidence on this point was not entirely consistent. She said that the Doyles could not even envisage the situation. On the other hand, she felt that they loved Ann so much that they would do what they could. At another point, she thought that it would not work unless the Doyles were fully and emotionally involved. The overall effect of her evidence was that she was not able to say whether the Doyles would be able to cope.

49. Dr G McDonald, a clinical psychologist, and Service Manager for Clinical Psychology with the Newry and Mourne Health and Social Services Trust was called as a witness by the first-named respondent. He had not seen either of the sets of parents or the child in the case, though he had offered appointments to the Byrnes, of which they did not avail. He also emphasised the importance of attachment and thought that removal of a child from a caring, supportive setting would be fraught with difficulty. His views are no different from those of Professor Iwaniec on the imperative need for a markedly sensitive, gradual and pre-planned move and that it would be necessary for the adults to participate in it. He was also asked for his opinion on the capacity of a couple in the position of the Doyles to do so, although he had not met them. He responded by saying: “Well, as a father, I would find it very, very difficult. I would even go so far as to say impossible to positively to participate in that.” He went on the say that the sensitivity of adults should not be ignored, but also said that in the context of the care and welfare of children, “we’re all obligated to follow court direction.”

50. Dr Nollaig Byrne, a Child and Adolescent Psychiatrist with the Child and Adolescent Mental Health Service at the Mater Misericordiae Hospital, Dublin, was called as a witness on behalf of the Byrnes. Unlike either of the other experts, she had the opportunity of meeting and evaluating the Byrnes and their capacity to act as parents.

51. Dr Byrne said that the Byrnes’ commitment was “absolutely unambivalent and committed to making her [Ann]… a part…of their future lives together as a family.” She added that there was no evidence of any psychological impairment which might contradict or undermine this commitment. McMenamin J commented that this evidence is uncontradicted.

52. Dr Byrne’s evidence regarding the need for careful, gradual and sensitive transfer of custody is largely in agreement with that of the other two expert witnesses, with, perhaps, some difference of emphasis. She said: “there is considerable evidence that if well supported the child will have the resilience to cope.” She added:

“Her birth parents have the capacity and preparation and motivation to create a supportive context for her. And with professional help, to understand and respond to her distress. And they would require the support of the Doyles.”

53. She thought that the distress which Ann might naturally be expected to suffer might not have enduring negative sequelae. She said that there are very few studies “of this kind of special situation.” She conceded that such an event would for her be “unimaginable,” a word which was picked up, as I mention later by David Doyle. She went on:

“…it is about how to support that in a way that the child will have a good adjustment, and there is evidence that shows that if the situation is handled well that children do manage that well.”

54. Dr Byrne agreed in cross-examination that an abrupt change of custody would be damaging to Ann in the event that the Doyles did not cooperate. In that event, she conceded that there would be a high risk that the best interests of the child would not be met.

55. A central and agreed element of all this expert evidence is that any transfer of custody must be carried out in a phased, sensitive way and with the cooperation of both sets of parents. This point became crucial to the decision of the learned trial judge. The Byrnes have made it clear that they are prepared to cooperate fully on that basis. The three experts were invited to give evidence on the likelihood of such cooperation being forthcoming from the Doyles, though two of them had never met the Doyles. Eileen Doyle gave evidence in which she was invited by her counsel to deal with this issue. At first, she argued forcibly that it would not be in the best interests of Ann, that such a situation was “unimaginable.” When pressed, she said:

“We don’t feel we would be able to cooperate. We feel from our physical health, our emotional health, or mental health would be, I don’t know that would be a price that we would have to pay for Ann to be moved and I don’t know where we would end up with it all.”

56. In cross-examination, she repeated the references to physical, emotional and mental ability to stand by and watch the transfer by means of a slow introduction. She thought this would be unbelievably painful. David Doyle gave evidence that he would not be able to be involved in any phased transfer. He recalled Dr Byrne’s use of the term “unimaginable” and added:

“I wouldn’t be physically, mentally or emotionally able to go through that sort of living hell and I think anybody who would, would be superhuman and I am afraid I am only human.”

57. When pressed in cross-examination on the fact that he knew that Ann could be reclaimed at any time before the adoption order was made (which he accepted) and that he must have contemplated the possibility that, in the interests of Ann in a re-introduction, he simply answered that nothing could prepare him for what “we are going through at the moment.”

Relationship with Social Workers

58. Before embarking on the central and difficult issues in this appeal, I wish to comment and dispose of one aspect of the evidence. It will be necessary at a later point to consider the relevance of the relationship of the two sets of parents, with a view especially to considering whether the required cooperation can take place so that Ann can, if the Court so decides, be returned to the Byrnes. There is a lengthy passage in the judgment of the learned trial judge entitled “The Present relationship between the Parties.” Much of the material in that section consists of an examination of the relationship, not between the two couples, but of that between the Byrnes and the social workers, especially Mr F. He refers to “the distrust felt by the Byrnes towards Mr F,” together with various reasons for it. I have already mentioned that the learned trial judge largely preferred the evidence of Mr F whenever there was any conflict, as there was on many points with the evidence of Brian. Mr F had kept detailed notes of their meetings. Significant conflicts related to the information conveyed to Brian regarding his rights as natural father. I have also referred to disputes in the period following Catherine’s withdrawal of consent, where the learned trial judge appears to have been implicitly critical of Mr F.

59. I would like to state clearly that evidence of distrust between the Byrnes on the one hand and Mr F and other social workers is, in my view, quite irrelevant. It has no bearing on the questions to be decided on this appeal.

60. The learned trial judge decided not to order the return of Ann to the Byrnes on the basis of two key conclusions, namely:

· The Byrnes had failed in their duty to or had abandoned Ann and were thereby deprived of the entitlement to her custody;

· There were compelling reasons why the welfare of Ann could not be secured in the custody of their natural family within the meaning of the Constitution.

Failure of Duty

61. The learned trial judge came to the conclusion that the Byrnes had been guilty of “a failure of duty as defined” based on a number of factors “taken together.”

62 He commenced by rejecting the submission that there can be a failure by a parent or parents to provide for the needs of a child by reason of his or her placement for adoption.

63. He noted that it was not in dispute that the Byrnes had placed Ann in the care of the Doyles from the age of four months to the age of 15 months without making any request for her return and that, during that time, the notice parties provided for all her needs. The evidence demonstrated that the Byrnes had decided not to provide for their daughter in the sense of caring for her day to day needs in circumstances where it was open to them to do so albeit with difficulty.

64. He did not consider that the placement of Ann for adoption and the cessation of the parental duties which thereby took place had been either culpable or blameworthy. He said that what had been done had been “both a brave and generous gesture” and had been “done with Ann's best interests at heart.”

65. Nonetheless, he considered that it “was one factor to which the court may have regard in the assessment as to whether or not there has been a failure of duty.”

66. He then referred to the combined evidence of the three experts, which I have summarised, to the effect that a sudden and unsupervised return of Ann to her natural parents would be damaging to the welfare of Ann. In this context, he referred to the fact that the Byrnes had not attended Dr McDonald for the purpose of an assessment and said that this created “a discontinuity in the evidence.” He noted that O’Higgins J, at an earlier hearing had permitted the parties to opt as to whether or not they attended such assessments, but continued: “one cannot be blind to the effect of that choice as exercised.”

67. The learned trial judge then referred to “the distrust which now most unfortunately exists between the applicants and the first named respondent, and the second and third named respondents.” The key conclusion of the learned trial judge appears in the following:

“Having regard to the evidence I consider that there has been established a failure of duty sufficient to rebut the constitutional presumption by reason of these present factors taken together: there is also then the placement of Ann for adoption, the re-affirmation by signature of the Form 10 in April, 2005 (in the circumstances outlined), the signature of the final adoption form in July, 2005 and the evidence (which I accept) surrounding the access which took place in August and its intermediate aftermath. While these factors together may not constitute acquiescence or waiver of the reliefs sought they are nonetheless important. In her letter of October, 2005 the second named applicant stated that she had placed matters "on the long finger" by which she meant she deferred the revocation of consent to the adoption until September, 2005. The reasons for that were completely understandable.

Further, while the applicants may not always have held the knowledge which they now have in relation to the issues of attachment, they did have some common sense information reflected in their desire that the third named respondent should not work for a one year period -- that was their desire that Ann should settle and establish strong links with the persons who were intended to be her adoptive parents. These were issues which were in the applicants' minds at the time of Ann's placement for adoption. It was an issue of sufficient importance for them to raise it in the course of their discussion which took place in an atmosphere of goodwill with regard to Ann's future. These provided the context in which Ann’s bonding and attachment took place.

It is the tragedy of this case that the atmosphere of goodwill which there was for Ann, and the priority which all parties had for her best interests has ended in this situation. However having regard to these factors taken together the court concludes that there was a failure of duty as defined.”

68. It is, of course, implicit in these conclusions that the learned trial judge found that there had been a “failure of duty” on the part of the Byrnes without determining that they had done anything blameworthy. Rather the contrary. They were “brave and generous” and acting “with Ann's best interests at heart.” He considered that the cases demonstrated an “expanded view of failure of duty.”

69. For this conclusion, the learned trial judge referred to The Adoption (No. 2) Bill 1987 [1989] IR 656 and the Northern Area Health Board -v- An Bord Uchtála [2004] 4 IR 252.

70. I prefer to commence by considering Article 42, section 5 of the Constitution, which reads:

“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 to the natural and imprescriptible rights of the child".

71. This provision both in its own terms and as interpreted in the authorities postulates the State supplying the position of parents only “in exceptional cases.” In those cases the governing consideration is that of the “natural and imprescriptible rights of the child." The context is always the constitutional presumption that the rights of the child are best secured within the family constituted by nature and by marriage.

72. Perhaps the most cogent example of that presumption in action is the decision of this Court in North Western Health Board -v- HW and CW [2001] 3 IR 635. In that case, the parents of a fourteen-month old child had refused to permit the administration to their child of the P.K.U. screening test. The medical case for the administration of the test was overwhelming. All the conditions which it is designed to screen are readily treatable and there is no risk attached to its carrying out. There was no legislation requiring parents to consent to the test. Nonetheless, the majority of this Court (Keane C. J. dissenting) held that an exceptional case had not been made out for the intervention of the State. The judgments consider the application of Article 42, section 5 of the Constitution. Denham J held that at page 728:

“The defendants exercised their parental responsibility and duty to the child. It has not been established that they have failed in their duty to the child so that the child's constitutional rights have been or are likely to be infringed, in order that the courts, as guardian of the common good, should intervene to order the taking of the P.K.U. test by way of the blood test as suggested, having regard to the paramountcy of the welfare of the child but with due regard to the rights of the child, including all his constitutional rights.”

73. Murphy J observed at page 732:

“The Thomistic philosophy - the influence of which on the Constitution has been so frequently recognised in the judgments and writings of Walsh J. - confers an autonomy on parents which is clearly reflected in these express terms of the Constitution which relegate the State to a subordinate and subsidiary role. The failure of the parental duty which would justify and compel intervention by the State must be exceptional indeed. It is possible to envisage misbehaviour or other activity on the part of parents which involves such a degree of neglect as to constitute abandonment of the child and all rights in respect of it”

74. Murray J, as he then was, stated at page 740:

Decisions which are sometimes taken by parents concerning their children may be a source of discomfort or even distress to the rational and objective bystander, but it seems to me that there must be something exceptional arising from a failure of duty, as stated by this court in The Adoption (No. 2) Bill, 1987 [1989] I.R. 656, before the State can intervene in the interest of the individual child.

75. Hardiman J said at page 757:

“The sub-article does not constitute the State as an entity with general parental powers, or as a court of appeal from particular exercises of parental authority…………

It does not seem to me possible to hold that the defendants have failed in their duty towards their children……… I do not view a conscientious disagreement with the public health authorities as constituting either a failure in duty or an exceptional case justifying State intervention."

76. I believe that it is intrinsic to these judgments that there must be a clearly demonstrated failure of duty before the State may exercise its power to supply the role of parents. The Article requires that such a failure of duty be for “physical or moral reasons.” I cannot see how any of the matters listed by the learned trial judge as amounting in combination to a failure of duty can amount to either failure for physical or moral reasons. The learned trial judge was at pains not to accuse the Byrnes of anything that could be described as “moral” failure. Nor did he specify any “physical” failure. Rather he appeared to exclude it.

77. One of the cases upon which the learned trial judge placed reliance to find that there is an expanded notion of failure of duty was The Adoption (No. 2) Bill 1987, cited above. The key passage in the judgment of the Court delivered by Finlay C.J. at page 663 was as follows:

“Article 42, s. 5 of the Constitution should not, in the view of the Court, be construed as being confined, in its reference to the duty of parents towards their children, to the duty of providing education for them. In the exceptional cases envisaged by that section where a failure in duty has occurred, the State by appropriate means shall endeavour to supply the place of the parents. This must necessarily involve supplying not only the parental duty to educate but also the parental duty to cater for the other personal rights of the child.”

78. That passage, of course, does not address, in any way, the meaning of “physical or moral reasons.” The learned trial judge attached importance to a further passage on the same page of the judgment of the Court as follows:

“The Court rejects the submission that the nature of the family as a unit group possessing inalienable and imprescriptible rights, makes it constitutionally impermissible for a statute to restore to any member of an individual family constitutional rights of which he has been deprived by a method which disturbs or alters the constitution of that family if that method is necessary to achieve that purpose. The guarantees afforded to the institution of the family by the Constitution, with their consequent benefit to the children of a family, should not be construed so that upon the failure of that benefit it cannot be replaced where the circumstances demand it, by incorporation of the child into an alternative family.”

79. That passage, however, concerns the specific question which arose on the Article 26 reference, namely the possibility of a statutory provision for the adoption of a child of married parents, where, as the long title of the relevant Bill stated, in exceptional cases, “the parents for physical or moral reasons have failed in their duty towards their children.” In the course of that judgment, the Court, in construing Sub-clause (I)(A) of the Bill said that a failure of duty for physical or moral reasons need not “in every case be blameworthy.” The Court continued: “it does mean that a failure due to externally originating circumstances such as poverty would not constitute a failure within the meaning of the sub-clause.” The Court did not say that a failure for moral reasons would not necessarily be blameworthy.

80. The learned trial judge interpreted the judgment of McGuinness J in the case of Northern Area Health Board -v- An Bord Uchtála, cited above, to establish the proposition that “that in the context of adoption failure to provide for the day to day needs of the child constituted a failure of duty even though there was nothing blameworthy or culpable in the actions of the parent or parents.” In support of that proposition, he cited the following passage from the judgment of McGuinness J:

"In the instant case the trial judge had before him ample evidence to establish that on account of her disability the notice party had been unable to fulfil her parental role not alone for the required 12 month period but for the entire of J's life. He stressed that this inability was not blameworthy; it was from what is described in both the statute and Article 42.5 as "physical reasons", I would concur with the trial judge in this case in holding that "physical reasons" must include both physical and mental disability".

81. I cannot, with respect, agree with the learned judge’s interpretation of that passage. It merely states that mental disability, like physical disability, can be a “physical reason,” a proposition which seems both commonsense and uncontroversial. The evidence in that case was that the mother was suffering from serious mental illness and mild mental handicap. She was unable to feed or care for her baby in any way. This reason for her failure to provide was physical and was correctly described as “not blameworthy.” The judgment in the Northern Area Health Board case does not establish any larger principle. Article 42, section 5 of the Constitution uses the expression “physical” or “moral” reasons. The terms are disjunctive. They are not the same. As Hardiman J has pointed out in his judgment, the judgment under appeal excludes physical reasons. The reasons relied upon must, therefore, in order to satisfy the requirements of Article 42.5, be moral ones.

82. The learned trial judge appears to have applied a modified test, namely whether “the applicants by reason of their physical or moral circumstances failed in their duty to provide for the needs of the child.” That is not the constitutional test. He also said that what “must be applied here is an objective test as to whether or not in fact the applicants made any contribution to her needs.” He did “not consider that the placement of Ann for adoption, and the cessation of the parental duties which thereby took place was either culpable or blameworthy.” If parents fail in their duty to their child for moral reasons, it is impossible, in my view, to say that they are not blameworthy.

83. In my view, this was an incorrect approach. There has been no finding of either physical or moral failure as those expressions are normally used. The learned trial judge carefully refrained from identifying any single element among the various ones cited as amounting to any form of failure of duty. I am satisfied that the finding of failure of duty cannot stand.

84. There is an additional reason. The essence of the finding of failure of duty, however expressed, is the placement for adoption and the leaving of Ann, for that purpose, in the care of the Doyles. While this is combined with other circumstances, especially the fact that they were aware or ought to have been aware of the possibility of Ann bonding with the Doyles, the finding is essentially and entirely dependant on engagement in the adoption process. That is, in my view, a quite dangerous approach, since it raises the possibility in every case of placement for adoption that failure of duty is involved. I will consider the issue separately in the context of whether “compelling reasons” have been established for the non-return of Ann. In the context I am now considering, the seriousness of the matter is that natural parents could be found guilty of failure of duty by the mere fact of the placing of the child for adoption, whether or not in combination with other factors, even though the learned trial judge professes to eschew any such intention.

85. Hardiman J has expressed the view, with which I fully agree, that it is both impossible and contrary to authority to regard the placement for adoption or any subsequent steps leading to a possible adoption order as forming any part of a failure of duty. I agree with his reasons for that conclusion. As he also points out, the suggestion that the Byrnes had abandoned their child has not been pursued on the appeal and need not be considered. Insofar as may be necessary, I agree with the views expressed on this topic by Geoghegan J.

Compelling Reasons

86. It is unnecessary for me to review the findings of McMenamin J in detail, since that has been done in the judgments of Hardiman J and Geoghegan J.

87. It is common case that Ann has, by this stage, formed strong bonds of emotional attachment to the Doyles. Three experts, but particularly Professor Iwaniec, gave evidence to this effect. There was equally strong agreed evidence that a sudden or abrupt transfer of custody of the child to the Byrnes, this would be likely to cause her lasting emotional and psychological damage. It would be essential that any transfer of custody be phased, be conducted sensitively and with the cooperation of both sets of parents. None of this was contested at the hearing of the appeal by the counsel who separately represented each of the Byrnes. This Court is bound to accept that evidence.

88. The decision of the learned trial judge turned critically on whether it would be possible, in the event that the court were to make an order in favour of the Byrnes for the transfer of custody to them, for the necessary level of cooperation to take place. He expressed himself in the following terms:

“… the situation of distrust which now presently exists and the relationship between the parties, including the first named respondent, is such that it is difficult to conclude that any immediate successful phased re-introduction can take place in the short term. In so finding I am taking into account the evidence of Dr Antoinette Dalton who give evidence relating to the support and advice which would be available to the applicants in the event of Ann's custody being transferred to them. Dr Dalton did not have the opportunity of assessing Ann or the Doyles. She apparently had one 45 minute discussion with the applicants. While she was able to refer to a number of case histories of children where transfers had taken place, I do not think that they are comparable.

The court concludes that as a matter of probability the present position of mistrust, which I emphasise now renders the possibility of an immediate, appropriate, phased re-introduction permitting Ann's attachment to the applicants, as highly unlikely. In the circumstances the evidence leads to the conclusion that any process of transfer would necessarily be either precipitate; or (albeit phased) take place in the absence of the trust and cooperation which is necessary to ensure that no damage would occur to Ann. On the evidence, which is presently available, the court concludes that as a matter of probability, having regard to the circumstances, Ann would thereby sustain emotional damage with the effects which have been outlined in evidence.”

89. Prior to commenting on the applicable legal principles, I will make some comment on this passage. I cannot accept that the generalised references to distrust are justified. The important matter is that there be cooperation between the two sets of parents. The first-named respondent (the Health Service Executive) does not come into it. In any event, it seems clear from the findings made by the learned trial judge that, from and after the formal withdrawal of consent to adoption by Catherine on 26th September 2005, the first-named respondent, in the person of Mr F engaged in a process which Catherine regarded as “stalling.” The learned trial judge appears to have regarded at least some of his behaviour as inappropriate. In these circumstances, it seems utterly unfair to visit on the Byrnes any consequences of such mistrust. In any event, there was no evidence at all that the Byrnes would be unable to cooperate in the phased transfer. Secondly, I find it difficult to understand the reason for discounting the evidence of Dr Dalton. Nobody had suggested that the Byrnes would be unable to cooperate.

90. I turn then to the central importance of the family, founded by marriage and the natural blood links and relationship between Ann and the Byrnes. I am in entire agreement with the judgments of Hardiman and Geoghegan JJ on these issues. I can, therefore, state my own views briefly.

91. The Byrnes constitute with Ann a family. This is no mere constitutional shibboleth. Article 41 speaks of the rights of the family being “antecedent and superior to all positive law.” In my view, that is no more than the statement of the simple facts of life. People of opposite sexes meet, marry, procreate and raise children. Prevailing trends towards the recognition of non-marital and even same-sex relationships are invoked from time to time with a view to expanding the legal definition of the family. None of that arises in the present case. Even if it should become necessary to recognise the family relationships of the increasing number of couples who raise children outside marriage, such a development would be based in most cases on the natural blood bond. It would in no way undermine, but would tend to emphasise the centrality of the mutual rights and obligations of the natural parents and their children.

92. One does not have to seek far to find that courts widely separated in time and place have accepted the need to recognise and give weight to what has been variously characterised as the blood, or natural or biological link between parent and child. In the case of In re O’Hara [1900] 2 I.R. 232 at page 239, Lord Ashbourne L.C. declared:

“I would never, except for the strongest reasons, deprive the mother of the duty and the right to direct, control, and educate her child under twelve years of age.”

93. Fitzgibbon L.J., at page 240 expressed similar sentiments:

"In exercising the jurisdiction to control or to ignore the parental right the court must act cautiously, not as if it were a private person acting with regard to his own child, and acting in opposition to the parent only when judicially satisfied that the welfare of the child requires that the parental right should be suspended or superseded."

94. As recently as July of this year, Baroness Hale of Richmond, in speaking for a unanimous House of Lords, in Re G (children)(residence: same-sex partner)[2006] 4 All ER 241, at 252, cited the latter statement among a number of other authorities representing a statement of the principle of paramountcy of the welfare of the child prior to modern English legislation. With due deference to the very different circumstances of a case concerning the custody of a child born to one partner in a lesbian couple, a case as far removed from the present as it is possible to imagine, it is instructive to note the importance attached to the natural relationship. There is no legal presumption, in modern English law, in favour of natural parents. Lady Hale identified the elements of genetic, gestational and social and psychological parenthood and continued:

“……in the great majority of cases, the natural mother combines all three. She is the genetic, gestational and psychological parent. Her contribution to the welfare of the child is unique. The natural father combines genetic and psychological parenthood. His contribution is also unique.”

95. In the curial part of her speech, she stated:

“…the fact that CG is the natural mother of these children in every sense of that term, while raising no presumption in her favour, is undoubtedly an important and significant factor in determining what will be best for them now and in the future.”

96. Lord Nicholls of Birkenhead, concurring at page 243, stated:

“In reaching its decision the court should always have in mind that in the ordinary way the rearing of a child by his or her biological parent can be expected to be in the child's best interests, both in the short term and also, and importantly, in the longer term. I decry any tendency to diminish the significance of this factor. A child should not be removed from the primary care of his or her biological parents without compelling reason. Where such a reason exists the judge should spell this out explicitly.”

97. The House of Lords reversed the decision of the Court of Appeal and awarded custody.

98. The only reason for these observations is to emphasis that the Byrnes constitute a family with Ann regardless of the definition of family which is adopted. I am happy to adopt the references to the several constitutional references to the family and the rights of its members which are contained in the judgments of Hardiman and Geoghegan JJ. Like them, I believe that the decision of this Court in Re J.H., an Infant [1985] I.R. 375, is central and dispositive of the issues in the present case.

99. The facts of Re J.H. are similar in many respects to those of the present case. The infant girl who was the subject of those proceedings was placed in foster care by her natural mother one week after her birth. She took this course because at the time she was worried about the effect on the child of being brought up by an unmarried mother. Although the mother knew the infant's father, a widower with grown-up children, she did not wish to marry him solely because of her pregnancy. The infant was placed for adoption within three months of birth. The natural mother later married the father. They then applied for the infant's birth to be re-registered. The natural mother, in correspondence with the adoption society, refused to give her consent to an order for the infant's adoption.

100. Geoghegan J has summarised the history of the litigation in the judgment he has just delivered. In order to resolve the custody dispute between the natural parents and the parents who wished to adopt, Lynch J applied a test, later disapproved by the Supreme Court, as follows: "Is there anything really worthwhile to be gained for the child by transferring her from the adopting parents to the parents?"

101. Finlay C.J., speaking for a unanimious Supreme Court laid down, at page 394, a number of propositions regarding the constitutional status of the family. The key proposition, based on well-established case-law, was:

“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 Uchtla [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).”

102. The proceedings, in that case, unlike the present, were taken by the natural parents under section 3 of the Guardianship of Infants Act, 1964 for custody of their child. Finlay C.J. ruled on the interpretation of that section as follows:

“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 Article 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.”

103. Although this case is not concerned with the interpretation of section 3 of the Act of 1964, the passage cited constitutes an authoritative ruling on the relationship between a child and his family within the meaning of the Constitution. The test it prescribes, which relates to the present part of this judgment is that, in order to justify a court in ruling that a child remain in the custody of persons other than its parents, is that it must be “satisfied on the evidence that there are compelling reasons why [the welfare of the child] cannot be achieved…” within the family. It was correctly pointed out at the hearing that the Supreme Court did not apply this test itself to the case before it. It remitted the matter to Lynch J to reconsider the matter in the light of this correct test. It followed, it was argued, that the Court recognised that, applying a different test, the court might reach the same conclusion. In the event, he reached a different one and awarded custody to the natural parents. He concluded:

“I am satisfied that the parents can and will provide a good home for the child if it is transferred to them. I do not think that such adverse effects as may result from such transfer have been sufficiently established to such a degree as to rebut the constitutional presumption that the welfare of the child is to be found within its constitutional family, or amount to compelling reasons why this cannot be achieved … ”

104. I entirely accept, therefore, that, depending on the evidence, a court may reach a conclusion that the welfare of an infant is better served by not returning it to the custody and care of its natural parents. But the test is that propounded by Finlay C.J. in the passage cited.

105. McMenamin J, however, thought that Re J.H., and Re J [1966] I.R. 295, cited with approval in Re J.H., and discussed in the judgment which Geoghegan J has just delivered, could be distinguished and gave the following reasons:

1. The evidence in the earlier authorities did not establish the probability of a risk of harm or psychological damage such as gave rise to the consideration of the rights of the child. Here the evidence establishes such probability having regard to the circumstances.

2. The evidence herein establishes bonding and attachment to a very high degree.

3. The decisions pre-date the decisions of the Supreme Court in The Adoption (No. 2) Bill 1987, DG -v- The Eastern Health Board [1998] ILRM 241 and The North Western Health Board -v- HW which identifies constitutional rights held by children including the right to have their welfare determined having due regard for the natural and imprescriptible rights of the child, including the right to be educated by the family and to be provided by its parents with religious, moral, intellectual, physical and social education (FN and EB -v- CO) [2004] IR 311 at 323,FinlayGeogheganJ)

4. The right to have its welfare determined has been determined as occupying a high position in the hierarchy of unenumerated constitutional rights.

5. The evidence in both cases did not establish failure of duty or compelling reasons

106. I am not sure that the learned trial judge truly meant that Re J.H. was distinguishable in the sense that it did not apply to the case before him. He accepted the presumption that the welfare of the child is best served within its constitutional family and applied a burden of proof consistent with this. He also sought “compelling reasons” to justify rebuttal of that presumption. In any event, three of the enumerated points are irrelevant to the distinguishability of Re J.H. on legal grounds. Numbers 1, 2 and 5 relate to the facts. Furthermore, it is clear that the learned judge overlooked some relevant findings of Lynch J in Re J.H. At page 388 of the report, in his second judgment, Lynch J stated: “The child is clearly bonded to the adopting parents and the boy [another child of that family]as though they were her own parents and brother respectively.” He also said that there was “uncontradicted evidence of … 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” and that “on that evidence [he was] satisfied that there [was] an appreciable risk of long-term psychological harm to the child by such a transfer.” He added that there was “an appreciable risk of long-term psychological harm to the child by such a transfer.” In his third judgment, delivered after the matter had been sent back by the Supreme Court, he stated:

“The evidence on the previous occasions, and even more strongly on this occasion, is that there will be a very considerable short term upset for the child, and I accept that evidence. The evidence of medium and longer term psychological consequences is also even stronger on this occasion than on the previous occasions, although it remains subject to the reservation that it is predictive evidence and not certain evidence, and to some extent at least it depends on the quality of the parenting which the parents will be able to provide for the child.”

107. Thus, there is no reason to distinguish Re J.H. on the facts. In that case, as in this, there was evidence of bonding and of likelihood of damage.

108. In paragraph 3 of the enumerated list of reasons for distinguishing Re J.H., McMenamin J suggests that three authorities identify “constitutional rights held by children including the right to have their welfare determined having due regard for the natural and imprescriptible rights of the child, including the right to be educated by the family and to be provided by its parents with religious, moral, intellectual, physical and social education.” That does not seem to me to be in any way novel. O’Higgins C.J. in G v An Bord Uchtála [1980] I.R. 32, at page 56 explained the rights of the child in a way which has been frequently cited ever since (and is quoted by Geoghegan J today):

“Having been born, the child has the right to be fed and to live, to be reared and educated, to have the opportunity of working and of realising his or her full personality and dignity as a human being. These rights of the child (and others which I have not enumerated) must equally be protected and vindicated by the State. In exceptional cases the State, under the provisions of Article 42, s. 5, of the Constitution, is given the duty, as guardian of the common good, to provide for a child born into a family where the parents fail in their duty towards that child for physical or moral reasons.”

109. This authority was cited in the judgment in Re J.H. Nothing in any of the three cases mentioned by the learned trial judge qualifies the statement of O’Higgins C.J. Nothing in any of those cases purports in any way to question or modify the dictum of Finlay C.J. in Re J.H. McMenamin J cites The Adoption (No. 2) Bill 1987 as authority by reason of the Court’s rejection of the proposition that “the inalienable and imprescriptible rights of the family make it constitutionally impermissible for a statute to restore to any member of a family constitutional rights of which he has been deprived by a method which alters or disturbs the constitution of the family if the method is necessary to achieve that purpose.” That statement occurred in the context of a Bill providing for the adoption of a child of married parents. I cannot see its relevance to the present case. The decision of this Court in D.G. v Eastern Health Board [1997] 3 I.R. 511 is cited for the proposition that, in the case of conflict of rights, “the welfare of the applicant took precedence over the right to liberty of the applicant.” The High Court had made an order for the detention of the applicant, an unruly youth of 17years. Hamilton C.J. said, at page 524, that it was a “jurisdiction which should be exercised only in extreme and rare occasions…” Again, I can find nothing to put in doubt the decision in Re J.H. The learned judge also cited many passages from the several judgments of this Court in North Western Health Board -v- HW and CW.(the “PKU case”) I have also cited passages from those judgments. Neither the subject-matter of that decision nor any of the judicial pronouncements made seem to me to have any bearing on the present issue.

110. After a comprehensive review of these and other authorities, the learned trial judge, in a passage which suggests that he was not purporting to depart from Re J.H. stated:

“Having regard to the principles outlined I consider that such a balance may be exercised, but only when weighed in accordance with the constitutional presumption which must necessarily arise having regard to the provisions of Article 41 and 42 of the Constitution. Having regard to the observations of the Supreme Court on this issue of "threshold for State intervention" I do not think that these scales, which of necessity must be balanced in a particular way, can be re-calibrated.”

111. I am satisfied that, for the purposes of the present case, the principles laid down in Re J.H. must be applied. It is important to repeat the language used. It requires that the court be “satisfied on the evidence that there are compelling reasons why [the welfare of the child] cannot be achieved,” within the family.

112. Before turning to final consideration of the evidence, I would like to comment on an aspect of the matter which has, in my view, received insufficient consideration. There was passing reference in the evidence and in the judgment to what was described by Dr Nollaig Byrne as “complexity” in the life of Ann, were she to remain in the custody of the Doyles. Since the Byrnes are married, it is no longer possible for Ann to be adopted by the Doyles. Adoption of the child of married parents can take place only in the very special—indeed extreme—circumstances provided for by the Adoption Act, 1988. One reason this aspect of the case has been insufficiently explored is that counsel for the Byrnes objected, with considerable success, to questions being put to expert witnesses on the hypothesis that an adoption would not possible. The findings of the learned trial judge on the issue of abandonment might have held out some hope of adoption. In truth, that was never a realistic possibility.

113. In the result, this matter comes before the Court as an aspect of the wider case. In my view, however, it is highly material. In present circumstances, Ann cannot be adopted. She is registered as a child of the Byrnes. She bears their name. If she stays with the Doyles, the relationship must be that of long-term fosterers. In addition, the Byrnes, remaining her lawful parents and guardians and retain rights and obligations in respect of her health, education and general welfare. This situation can, at best be described as anomalous. It is a long way from a completed adoption. I cannot regard it as being in the long-term interests of Ann. This is an aspect of the case which, in my view, weighs heavily in the balance in favour of a return to the Byrnes.

114. The effect of the expert evidence is that the welfare of Ann can be achieved provided that there is a phased transfer, handled sensitively and with the cooperation of both parents. On my reading of the evidence and the express findings of the learned trial judge, there is no question of the cooperation and willingness of the Byrnes. I have already given my reasons for omitting from consideration any distrust that may exist or have existed between them and employees of the first-named respondent. The experts were asked to comment hypothetically on whether cooperation would be possible. Perhaps understandably, they seemed, in answer, to stray away from their expert roles. At least two of them answered in terms of their likely personal reactions. They were not, however, in a position to say, unsurprisingly, whether the Doyles would be in a position to cooperate.

115. The crucial, indeed the determining passage on this entire issue is quoted above. The learned trial judge speaks in terms of general distrust, but does not relate that specifically to any of the evidence. In particular, he makes no finding concerning the evidence given by the Doyles that they would find it extremely difficult or impossible to cooperate.

116. Counsel on hehalf of the Doyles has laid heavy emphasis on the fact-finding role of the learned trial judge. He has found as a fact, it is argued, that sufficient cooperation will not be possible. In fact, in his concluding passage on this issue, which I have cited above, the learned judge finds rather, at a very general level, that it is the “the present position of mistrust, which I emphasise now renders the possibility of an immediate, appropriate, phased re-introduction permitting Ann's attachment to the applicants, as highly unlikely.”

117. A distinction must be made between a finding of fact in relation to a present and a past event. The learned judge was analysing the likelihood of a future event happening in a particular way. Insofar as his conclusion rested on the evidence of the Doyles, three important points arise. Firstly, each of them was attempting to predict their own future reaction to a future event of which they had had no previous experience; this was really opinion evidence: “We don’t feel we would be able to cooperate.” Secondly, they had an obvious interest in the outcome, namely that a predicted impossibility of cooperation might persuade the court not to order a transfer of custody. Thirdly, a point which was put to David Doyle, they were necessarily on notice from the commencement of the adoption process that consent to adoption might be revoked and the return of the child ordered. In this context, the learned judge quoted from the evidence of Catherine:

"If they just say that they can't [cooperate] and they haven't even tried, well then does that mean leaving Ann where she is, with parents that can't make a decision for her, to look out for her best interests? Perhaps further down the line they will have to make a hard decision for Ann."

118. In this context also, it is important to recall the statement by the learned trial judge that:

“This is not to ignore the risk, which must not be ignored, that for bona fide reasons the Doyles may be unable to cooperate in a transfer process. But in no circumstances could a court countenance a “veto”, based either on bona fide reasons or otherwise, when issues of this type are at stake.”

119. I fully agree with that statement. The entire adoption process is postulated on the possibility that the mother of a child may withdraw her consent at any time up to the making of the adoption order. It is, naturally, a complex, sensitive process. It engages the deepest human emotions. The law recognises in a very considered way that a mother may withdraw from the process. This recognises her natural right to the custody of her child and the Constitution protects that right. Therefore, the courts must consider these cases with great care. The implications of deciding in favour of the Doyles are potentially serious for the entire adoption process. Naturally, a child will be placed for adoption with suitable and carefully chosen parents. In the nature of things, bonds of attachment will be established over weeks and months. On the other hand, only the final adoption order terminates the rights of the natural mother. If the existence of established bonds is a sufficient reason for refusing to return a child to his or her natural parents, the rights of the natural mother may be undermined. This is, everyone will agree, fraught with difficulty for all concerned.

120. It is impossible to ignore the enormous trauma involved. No decision of the court will satisfy everybody. Any decision will cause hurt. This is why it is imperative to adhere to clearly established principle. Uncertainty of jurisprudence may cause greater trauma. Clarity should enable problems or conflicts to be resolved quickly. In this case, there is a primordial constitutional principle that a child’s welfare is best served in the heart of its natural family. It is well-established and widely known. There must be compelling reasons to rebut that presumption. I do not believe that there was sufficient evidence to rebut the presumption in this case.

121. I would allow the appeal and make an order in accordance with the proposal of the Chief Justice.