Judgment of Mrs Justice McGuinness delivered the 17th day of December 2002
This is an appeal by the notice party, P. O’D against the judgment and order of Herbert J. delivered the 3rd day of May 2002, wherein the High Court directed, pursuant to the provisions of Section 3(I) of the Adoption Act 1988, that An Bord Uchtála be authorised to make an adoption order in relation to J. O’D in favour of W.H. and P.H.
The Facts
The factual background to these proceedings is set out in full and comprehensive detail by the learned High Court judge in his judgment of 3rd May 2002. Since the facts are by and large not in issue between the parties, it is sufficient to set them out in summary form here. The child who is at the centre of these proceedings, J.O’D (whom I shall call J) was born on 29th December 1988 and is now almost 14 years of age. Her mother, P.O’D, who is the notice party in these proceedings, came from an extremely deprived family and was as a child for a time placed in voluntary care of the local health board. She was diagnosed in 1982 as being mildly mentally handicapped with behaviour problems and difficulties of communication. In 1984 she had further problems of aggressive behaviour and was found to have indications of psychosis. When J. was born P.O’D was 21 years of age. After the birth she was totally unresponsive to the needs of the baby. She was unable to feed her or care for her in any way.
Little is known of the father of J. It appears that he once visited P.O’D and the baby shortly after the birth, when they were still in a mother and baby home, but P. did not want to have anything further to do with him as he had been violent towards her. He never supported J. financially and, it appears, has never had any contact with her. In accordance with the terms of the Adoption Act 1988, the father was notified by registered post on 26th June 1998 of the preliminary hearing before the Adoption Board in connection with the proposed adoption of J. by Mr and Mrs H. The registered letter was returned marked “not known”. The father was also personally served by a summons server with notice of the proceedings before the High Court. He did not appear before the Court nor did he instruct any one to appear on his behalf.
On account of P.O’D’s (whom I shall call P.) inability to care for her baby, J. was admitted to voluntary care with the local health board on the 13th February 1989 when she was six weeks old. She was placed with short term foster parents, but because she was a very difficult baby, this was not successful and she was then placed in a Group Home for Children. In July 1989 Mr and Mrs H., the applicants, were approved as long term foster parents for J., and on 17th August 1989 J. was placed in their care. She has remained in their care continuously since then. She was their first child; Mr and Mrs H. subsequently had another child, a boy named M., placed with them. M. is approximately one year younger than J. and he has been legally adopted by Mr and Mrs. H.
When J. was placed with Mr and Mrs H. they were told that she was a normal child. However, In June 1990, when she was eighteen months old, she was diagnosed as suffering from cerebral palsy with right hemiplegia. Over the years Mr and Mrs H, have provided a happy and secure family life for J. The evidence before the High Court was that they had spared no expense or effort in seeking to remedy the physical and mental problems caused by her cerebral palsy. Their unstinting care has enabled her to attend a normal school and to do well in her education. J. sees Mr and Mrs H. as her primary parents. She has an excellent relationship with M. and sees him as her brother.
During the period 1989 to 1992 Mr and Mrs H. established a good relationship with J’s mother P. From time to time P. visited J. at their home and they brought J. to visit her. It appears, however, that P. was unable properly to grasp the nature of J’s cerebral palsy.
In 1992, on account of Mr H’s professional commitments, the H. family moved to the Dublin area. This was discussed and agreed with P. and with the local health board social workers. After the move to Dublin arrangements were made for P. to visit J. at the H’s home in Dublin. However, in late 1992 P’s health deteriorated. She was referred to Dr. N., a consultant psychiatrist. In March 1993 she was admitted as an in-patient to the Mental Treatment Unit of the County Hospital. After her discharge from hospital she received out-patient treatment. During 1993 P. refused to have any contact with her daughter J. as it would be too upsetting for her. P. remained ill throughout 1993 and 1994. She visited J. once in 1994 but was too unwell to visit at Christmas of that year. During 1995 P. saw J. four times, twice in Dublin and twice in the home of P’s sister. In 1996 there were two access visits; other visits were cancelled because P. was again ill. In September 1997 P. again came under the care of Dr. N., who diagnosed her as suffering from chronic schizo-affective psychosis in addition to her mild mental handicap. Dr. N., who gave evidence in the High Court, told the Court that this condition was permanent and could only be controlled by anti-psychotic and sedative drugs.
During the following years P. continued to suffer from this illness. From time to time she had to spend periods in hospital She was not helped by the fact that conditions in her family home were very difficult; they were described as chaotic by Dr. N. Throughout the period from 1997 to 2001 P. had occasional access visits to J., generally about twice a year. It appears that these were initiated and arranged either by Mr and Mrs H. or by the health board social workers.
Mr and Mrs H. had long been anxious to adopt J., who had become in a real sense a member of their family. P., however, was unwilling to agree to this, despite assurances that she would continue to be able to visit J. and despite the fact that she was perfectly satisfied to leave J. in the permanent long term foster care of Mr and Mrs H.
On 16th May 1997 Mr and Mrs H. applied directly to An Bord Uchtála to adopt J. At this stage their application was not supported by the health board, who, it appears, was concerned about the effects such an adoption would have on P. On the 25th May 1998 An Bord Uchtála in accordance with statutory procedures notified P. of the application. P. indicated that she wished to be heard by the Board. On 25th August 1998 she gave evidence to the Board. She stated that she did not wish J. to be adopted. She wished her to remain permanently in the foster care of Mr and Mrs H. and that she should be able to visit her from time to time.
During 1998 An Bord Uchtála also interviewed Mr and Mrs H., the child J. and representatives of the local health board. On 13th October 1998 the Board made a declaration pursuant to section 2 of the Adoption Act 1988 stating that if an order was made by the Court under section 3(1) it would subject to sub-section (2) make an adoption order in respect of J. This declaration was communicated to all the parties involved.
In June 2000 P. was again admitted to hospital as an in-patient. In a medico-legal report to the health board Dr. N. described P’s position as follows:
“In spite of all the above P. is capable of functioning in the community in a very limited fashion. She has very poor self-care skills and neglects personal hygiene, diet etc. unless she has ongoing supervision. If she had her way she would exist on minerals, sweets etc. She may in the future be a suitable case for medium to long term care. This has already been suggested in the past but P. is reluctant to stay in hospital as a long stay patient and also has been reluctant to remove permanently to a psychiatric hostel in the community although a place there has been offered to her… I understand that the reason for the present concern is that the final adoption of her daughter J. is going through. Solicitors are anxious to know her capacity to understand issues such as her daughter’s placement for adoption. Although P’s intellectual functioning is somewhat limited she does have a basic capacity to understand. There are a lot of references in the notes to her concerns about the adoption in earlier years. These were based on emotional reasoning i.e. she was the one good thing that had happened in her life and she did not want to sever all connection as she saw it. In addition she was concerned about the amount of contact with her daughter and felt that should the adoption become final she might lose all contact with her in the future. However, in latter years P. has become more accepting and is now resigned to the fact that the adoption is in the best interests of J. Social worker, Ms McC., has reassured her quite frequently that the adoptive parents have promised to keep in touch particularly at critical times i.e. Christmas, New Year and birthdays. She is now prepared to give her consent.”
Despite Dr. N’s opinion (which was shared by social workers) in regard to P’s state of mind, P. has not in fact consented to the proposed adoption.
The matter was at this stage transferred from the original local health board to the health board of the area where Mr and Mrs H. now reside and it was decided that that health board would support Mr and Mrs H. in their application to adopt J. Accordingly the health board appears as a party to the present proceedings.
On the 8th March 2001 the special summons initiating the present proceedings was issued. On the 25th May 2001 the High Court (Carroll J.) appointed Ms Barbara Hussey, solicitor, to act as Guardian ad Litem for P. The proceedings were heard before Herbert J. on 24th, 25th and 26th October 2001.
In addition to hearing the parties, the Registrar of An Bord Uchtála, and the relevant medical and social work witnesses, the learned trial judge interviewed the child J. in his chambers in the presence of both sides’ solicitors. A stenographer’s note was taken at this interview and it is included in the transcripts provided to this Court. The child expressed a clear wish to be adopted by Mr and Mrs H., whom she regards as her parents.
On the 3rd May 2001 the learned trial judge gave judgment and made an order pursuant to section 3(1) of the Adoption Order 1988 authorising An Bord Uchtála to make an adoption order in relation to J.O’D in favour of Mr and Mrs H.
Notice of appeal was filed on behalf of the notice party on the 24th May 2002.
The Adoption Act 1988
Before going on to deal with the issues which arise in this appeal, it is necessary to set out the relevant provisions of the Adoption Act 1988. At a later stage in this judgment I will refer to the history of this Act and to its statutory context. The long title of the Act describes it as
The remaining sub-sections of this section are irrelevant. Section 3 provides:
and
(III) that the adoption of the child by the applicants is an appropriate means by which to supply the place of the parents, the Court may, if it so thinks fit and is satisfied, having had due regard for the rights, whether under the Constitution or otherwise, of the persons concerned (including the natural and imprescriptible rights of the child), that it would be in the best interests of the child to do so, make an order authorising the Board to make an adoption order in relation to the child in favour of the applicants.
(2) Before making an order under subsection (1), the Court shall, in so far as is practicable, give due consideration, having regard to his age and understanding, to the wishes of the child concerned.
(3) The Court may, of its own motion or on application to it on that behalf, make an order adding such other persons as it thinks fit as parties to proceedings under subsection (1)…
The health board concerned shall be joined as a party to proceedings under subsection (1) (b).”
The remaining subsections of this section are irrelevant.
Section 4 insofar as it is relevant provides as follows:-
“4.-(1) Subject to the provisions of this section, the Court shall not make an order under section 3(1) without having heard the parents of the child concerned and any other persons who, in the opinion of the Court ought to be heard by it.
(2) Where the parents concerned (or either of them) having been requested to give evidence to the Court of the hearing of an application for an order under section 3(1), fail or refuse to do so, the Court may, if it so thinks fit, notwithstanding the absence of the evidence of the parents or, as the case may be, of either of them make the order.
(3) Where the parents concerned (or either of them) fail to respond to such a request as aforesaid, the failure may be taken by the Court, for the purposes of subsection (2), to be a failure by the parents or, as the case may be by either of them to give evidence to the Court at the hearing concerned…”
Submissions on the Appeal
Extensive grounds of appeal were set out in the notice of appeal and full written submissions were presented on behalf of the appellant, P.O’D, on behalf of the respondents, Mr and Mrs H. and on behalf of An Bord Uchtála. The main issues in contention between the parties were developed during oral submissions before this Court.
Senior counsel for the appellant/notice party P.O’D, Mr Rogers, laid considerable stress on the appellant’s rights to guardianship and custody of her child as set out in the Guardianship of Infants Act, 1964. Section 6(4) of that Act provided that:
“The mother of an illegitimate infant shall be guardian of the infant”.
Section 10(2) (a) of the same Act provided that a guardian under the Act:
“as guardian of the person, shall, as against every person not being, jointly with him, a guardian of the person, be entitled to the custody of the infant and shall be entitled to take proceedings for the restoration of its custody of the infant against any person who wrongfully takes away or detains the infant….”
The appellant therefore had a right under the Act to the custody of her child. In addition she had a constitutional right under Article 40.3 as held by this Court in G v An Bord Uchtála [1980] IR 32. It was clear that the appellant, due to her mental illness, was unable to care for her daughter. This was not in issue and was fully brought out in the evidence of Dr. Neville and the health board social workers. However, she had at all times when she was in sufficiently good health exercised her right of access. Mr Rogers submitted that the right of access was an inherent part of the right to custody and referred to section11 (2) (a) of the Guardianship of Infants Act 1964 which empowered the Court to “give such directions as it thinks proper regarding the custody of the infant and the right of access to the infant of its father or mother” thus coupling custody and access.
Mr Rogers submitted that the appellant had not failed in her duty to her child. She was incapable due to her illness of providing day to day care herself but the voluntary placing of her child in care of the health board and her agreement to the child remaining in the foster care of Mr and Mrs H. was in reality an exercise of her duty towards the child.
Senior Counsel for the appellant also referred to the judgment of the learned trial judge and submitted that there was an internal contradiction in the findings of fact upon which the learned judge had based his conclusions. At page 26 of the judgment the trial judge made findings in regard to the appellant’s failure in her duty towards her child as follows:
“The inexorable weight of the evidence obliges the Court to find that P. for physical reasons and not for moral reasons had totally failed in her duty towards J. for a continuous period of not less than twelve months immediately preceding the making of this application. This does not involve any finding of blameworthiness on her part. The Court finds that this failure has not been due to ‘externally originating circumstances such as poverty’ but is solely due to mental illness, chronic severe depression and a mild impairment of mental function. The Court is satisfied on the balance of probabilities that there is no likelihood of P. resuming the discharge of her duty towards J. before J. reaches the age of eighteen years.”
On the other hand, when dealing with the question of abandonment, at page 28 of the judgment, the learned judge stated:
“However, in the absence of some overwhelming disability or incapacity a total failure of parental duty to a child where the parent could have cared to some extent for the child, even though inadequately and not without the maximum available amount of family and public assistance, must give rise to a presumption of facts that such parents had abandoned the rights as well as the duties. This presumption could, of course, be rebutted by evidence, including statements of the parents inconsistent with abandonment.”
This presumption of abandonment seemed to be based on a finding that the appellant would in fact have been able to care for her child, even if inadequately. This, Mr Rogers argued, was contrary to the expert evidence that was before the Court, in particular the evidence of Dr. Neville who had stated as her opinion that P. would never have been able to care for the child herself and ”would be barely able to care for herself”.
Senior counsel also submitted that the requirement of abandonment under section 3(1) (I) (C) of the 1988 Act should be interpreted strictly. It had been held by this Court in In Re The Adoption (NO 2) Bill 1987 [1989] IR 656 (the Reference Judgment) at page 664 that:
“Failure of parental duty established under sub-clause (I) (A) and (B) is not of itself evidence of abandonment. The necessity for the proof of abandonment indicates a special regard for the constitutionally protected parental rights.”
In this case P.O’D, who had exercised rights of access over the years and who had steadfastly refused to consent to adoption, could not be said to have abandoned either her statutory or her constitutional rights. Counsel placed considerable reliance on the decision of this Court (upholding the decision of Lardner J. in the High Court) in the case of Western Health Board v An Bord Uchtála [1995] 3 IR 178, where a father who had had little or no contact with his child was held on the evidence not to have abandoned all his parental rights. I will refer to this case in more detail in a later part of this judgment.
Mr Rogers also referred to the judgment of Walsh J. in G. v An Bord Uchtála IR 32 where the learned judge held (at page 74) that in order for an agreement by a mother to place her child for adoption to be valid the agreement must be such as to amount to a fully informed, free and willing surrender or abandonment of her natural rights as a mother. Counsel submitted that abandonment of parental rights under the 1988 Act should be measured by a similar standard; the parent must freely and willingly decide to abandon his or her rights.
Senior Counsel for An Bord Uchtála, Ms Flanagan, emphasised that the Board maintained a neutral stance as between the parties in the proceedings. The Board had provided unchallenged evidence to the High Court that it had fulfilled its statutory duty in dealing as it did with the application by Mr and Mrs H. for the adoption of J. and in making the appropriate declaration under section 2 of the 1988 Act. The Board sought only to make submissions in the form of providing a review of the relevant dicta in the cases in which the interpretation of the provisions of the 1988 Act had been considered both by this Court and by the High Court. In her written submission counsel provided a helpful survey of the relevant case law. In particular Ms Flanagan drew attention to the unreported judgment of O’Higgins J. in Southern Health Board and M.D. and J.D. v An Bord Uchtála (unreported High Court O’Higgins J. 20th December 2001).
Senior Counsel for the applicants/respondents, Ms Clissman, submitted that what was required by section 3(1) (I) (A) was “a failure of duty” by the parents. This was not equivalent to a breach of duty; it need not be blameworthy or due to the parents’ fault (see In Re Adoption (No. 2) Bill 1977 [1989] IR 656). Both article 42.5 of the Constitution and section 3 of the Act referred to “physical” reasons – this, counsel submitted, must include mental illness, as it could not in justice be held that a parent could fail in his or her duty through physical illness or disability, but that a mentally ill parent, who was equally disabled from ordinary parenting, could not come within the terms of section 3. She referred to the judgment of O’Higgins J. in Southern Health and M.D. and J.D.v An Bord Uchtála (unreported 20th December 2001), where he held that the mother in the case had failed in her duty towards her child through mental incapacity.
Ms Clissman pointed out that in the instant case all access visits by P. to J. had been initiated either by the foster parents or by the health board. She disagreed with Mr Rogers submission that access was essentially a custody right of the parent, arguing that in the general context of family law access was regarded as a right of the child rather than of the parent. This was reflected in recent amendments to the Guardianship of Infants Act 1964 permitting grandparents and other persons to be granted access in the interests of the child. Ms Clissman submitted that the 1988 Act and the Constitution spoke of the fulfilment of parental duties rather than the exercise of parental rights; the Act was child centred as was stated by Denham J. in SHB v An Bord Uchtála [2000] 1 IR 165. “Parental duties” should be interpreted as the actual responsibility of bringing up the child, providing physical and emotional care day by day, making day by day decisions in regard to the child’s welfare, providing for the child’s education and for the child’s medical care. All of this had been fully and exclusively provided for J. by Mr and Mrs H. While P. had visited J. from time to time, her role had been much like that of an occasional visitor; she was not fulfilling the duties of a parent. She referred to the finding of the learned trial judge (at page 31 of the judgment) that P. was a visitor rather than a parent.
In reference to the requirement of abandonment, Ms Clissman drew attention to the wording of the Act “such failure constitutes an abandonment on the part of the parents of all parental rights”. The abandonment was not a separate item but was directly connected to the failure even if as stated by this Court in the Art. 26 Reference case failure of itself did not necessarily mean that there was abandonment. Counsel relied on the judgment of Denham J. in Southern Health Board v An Bord Uchtála [2000] 1 IR 165 where the learned judge held that abandonment in this context had “a special legal meaning”, which was not equivalent to deserting or forsaking a child. Here P. had totally given over the responsibility of raising her child to the foster parents and was quite specifically happy that her child should remain in their care on a permanent basis. This was the reality of abandonment of her parental rights in the legal sense as outlined by Denham J.
Referring to the position of the father in the Western Health Board case, Ms Clissman pointed out that in that case the father had purposively sought to obtain custody of his child through an application to the District Court under the Guardianship of Infants Act. This was a positive act which along with other evidence had been held to be inconsistent with abandonment. This could be distinguished from the position in the present case.
Ms Clissman acknowledged that P. had refused consent to the adoption of J., but submitted that if this failure to consent as such was held to negative any possible finding of abandonment the clear purpose of the 1988 Act could be set at naught.
The Legislative Context
Prior to considering the interpretation and application of the provisions of sections 3 and 4 of the Adoption Act (“the 1988 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 1988 Act 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. An Bord 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 long term care of the respective 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 An Bord Uchtála to dispense with the mother’s consent. Much of the established case law concerning adoption from the leading case of G vAn Bord Uchtala [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 1988 Act. 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.” While the explanatory memorandum which originally accompanied the Bill as it was introduced in the Oireachtas cannot be authoritative as an aid to interpretation, it is perhaps of interest that in that Memorandum the aim of the Bill was stated to be:-
“To extend the categories of children who may legally adopted, in particular, it will enable the adoption, in certain very restricted and exceptional circumstances, of legitimate children with a parent or parents alive.”
Under the heading “Proposals to extend the Adoption Laws” (at paragraph 5), it was stated:-
“There have been many calls over the years for changes in the adoption laws to enable the adoption of children…who for varying reasons, have been separated from or abandoned by parents who are unlikely to resume, or are incapable of resuming, their parental role. Most of these children would at present be in the care of health boards and would either be with foster parents or in residential children’s homes.”
The Act is therefore a child-centred Act. It provides for the adoption of children of married parents in limited circumstances. It is for this reason that the terms of section 3 of the Act closely reflect the wording of Article 42.5 of the Constitution:-
“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.”
While the unmarried mother does not possess the inalienable and imprescriptible rights attributed to the family under Article 41, she does possess rights under Article 40.3 of the Constitution which have been described and upheld by this Court in G v An Bord Uchtála (to which I shall refer in greater detail later). In a case where she has not agreed to place her child for adoption, the provisions of sections 3 and 4 of the 1988 Act as interpreted by this Court must also apply to her.
It is clear that the Act of 1998 is a remedial, social statute designed to permit the adoption of children who had previously been denied the benefits of adoption. A purposive approach should be applied to the interpretation of such a statute. In his well known dictum in the case of Bank of Ireland v Purcell [1989] IR 327 (referring to the Family Home Protection Act 1976) Walsh J. stated:
“As has been frequently pointed out remedial statutes are to be construed as widely and liberally as can fairly be done.”
Analysis and Conclusions
The Notice Party/Appellant’s Right to Custody
It is common case that J. will remain with the foster parents and applicants for adoption, Mr and Mrs H., until she is eighteen. While, therefore, no issue arises regarding her de facto custody and care, Mr Rogers has put forward arguments regarding P’s constitutional and statutory right to custody of her child, on which she bases his submission that P’s access visits to J. are an exercise of her inherent right to custody and thus of her duty as a parent.
In G. v An Bord Uchtála [1980] IR 32 a majority of this Court held that an unmarried mother had rights under Article 40.3 of the Constitution. The matter is succinctly set out in the judgment of O’Higgins C.J. at page 54 to 55 of the Report under the heading “The Mother’s Rights” as follows:-
“In the first place it should be noted that the mother is not the mother of a family, in the sense in which the term is used in the Constitution. Article 41 of the Constitution, which 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, refers exclusively to the family founded and based on the institution of marriage. It is this family which in, Article 41, s.1, sub-s.2, the State guarantees to protect in its constitution and authority as the necessary basis of social order and as indispensable to the welfare of the nation and the State.
But the plaintiff is a mother and, as such, she has rights which derive from the fact of motherhood and from nature itself. These rights are among her personal rights as a human being and they are rights which, under Article 40, s.3, sub-s.1, the State is bound to respect, defend and vindicate…Suffice it to say that this plaintiff, as a mother, had a natural right to the custody of her child who was an infant, and that this natural right of hers is recognised and protected by Article 40 s.3, sub-s 1, of the Constitution. Section 6, sub-s. 4, and s.10, sub-s. 2(a), of the Guardianship of Infants Act 1964, constitute a compliance by the State with its obligation, in relation to the mother of an illegitimate child, to defend and vindicate in its laws this right to custody. These statutory provisions make the mother guardian of her illegitimate child and give the mother statutory rights to sue for custody.
However, these rights of the mother in relation to her child are neither inalienable nor imprescriptible, as are the rights of the family under Article 41. They can be alienated or transferred in whole or in part and either subject to conditions or absolutely, or they can be lost by the mother if her conduct towards the child amounts to an abandonment or an abdication of her rights and duties.”
G. v An Bord Uchtála was, of course, decided in the context of the Adoption Act 1974. The detailed provisions of the 1988 Act are specifically directed towards protecting the more powerful rights of the married parents under Article 41. However, the provisions of the Act give equally effective protection to the rights of the unmarried parent, while also taking into full account the constitutional rights of the child.
Mr Rogers laid great emphasis on the mother’s statutory right to custody under the Guardianship of Infants Act 1964. Under that Act, the unmarried mother, as sole guardian, is entitled to the custody of her child (section 10). However, this right to custody is by no means absolute. Section 14 of the Act provides:-
“Where a parent of an infant applies to the Court for an order for the production of the infant and the Court is of opinion that that parent has abandoned or deserted the infant or that he has otherwise so conducted himself that the Court should refuse to enforce his right to the custody of the infant, the Court may in its discretion decline to make the order.”
Section 16 provides:-
“Where a parent has –
(a) abandoned or deserted an infant or,
(b) allowed an infant to be brought up by another person at that person’s expense, or to be provided with assistance by a health authority under section 55 of the Health Act 1953 for such a length of time and under such circumstances as to satisfy the Court that the parent was unmindful of his parental duties,
the Court shall not make an order for the delivery of the infant to the parent unless the parent has satisfied the Court that he is a fit person to have the custody of the infant.”
(Section 55 of the Health Act 1953 was the provision then in force which permitted the taking of children into voluntary care by health boards; this matter is now dealt with under the Child Care Act 1991.)
These sections, which were not drawn to the attention of the Court in argument, clearly mirror the constitutional provisions of Article 42.5; they refer both to married and unmarried parents. While these sections refer to custody rather than adoption, they are largely similar in intent to the criteria laid down in the 1988 Act. In my view, therefore, the rights conferred by the Guardianship of Infants Act do not alter or add to the rights already possessed by P. under Article 40.3, as mother of her child. These rights are fully protected by the strict criteria set out in the 1988 Act.
I will now consider the specific criteria set out in section 3 of the Act of 1988.
Section 3(1) (I) (A) Failure of Duty
Section 3(1)(I) sets out a number of matters that must be established to the satisfaction of the Court. Sub-clause (A) provides:-
“That for a continuous period of not less then twelve months immediately preceding the time of the making of the application, the parents of the child to whom the declaration under section 2(1) relates for physical or moral reasons, have failed in their duty towards the child.”
Finlay C.J., delivering the judgment of the Court on the Article 26 Reference to this Court of the Adoption (No. 2) Bill 1987 – later enacted as the Adoption Act 1988 – [1989] IR 656 commented as follows on this sub-clause (at page 668 of the Report):-
“The first essential here provided is that for not less than twelve months the sole parent or each of the parents for physical or moral reasons have failed in their duty towards the child. The most important element in this provision is the concept of failure which must be construed as being total in character. No mere inadequacy of standard in the discharge of the parental duty would, in the opinion of the Court, suffice to establish this proof. Furthermore, the failure must arise for physical or moral reasons. This does not mean that the failure must necessarily in every case be blameworthy, but 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 learned trial judge, having considered the evidence that was before him, held that the notice party had so failed in her duty. At page 26 of his judgment he concluded:-
“The inexorable weight of the evidence obliges the Court to find that P. for physical reasons and not for moral reasons has totally failed in her duty towards J. for a continuous period of not less than twelve months immediately preceding the making of this application. This does not involve any finding of blameworthiness on her part. The Court finds that this failure has not been due to externally originating circumstances such as poverty, but is solely due to mental illness, chronic severe depression and a mild impairment of mental function.”
It was argued on behalf of the appellant that this conclusion was in error principally because it did not take into account P’s access to her child and her exercise of her rights in this regard. It must be borne in mind that the sub-clause speaks of the performance of parental duties rather than the exercise of parental rights. In my view Ms Clissman is correct in her submission that what is meant by parental duties is the normal day to day care of the child. In G. v An Bord Uchtála, O’Higgins C.J. (at page 55) spoke of the relationship between the mother and her child thus:-
“As a mother, she has the right to protect and care for, and to have the custody of her infant child. The existence of this right was recognised in the judgment of this Court in the State (Nicolaou) v An Bord Uchtála [1966] IR 567. This right is clearly based on the natural relationship which exists between a mother and child. In my view, it arises from the infant’s total dependency and helplessness and from the mother’s natural determination to protect and sustain her child. How far and to what extent it survives as the child grows up is not a matter of concern in the present case.”
While the Chief Justice is here speaking of rights, his picture of the parental role is clearly one of actual physical care and protection.
Walsh J. in the same case (at page 67 of the Report) spoke of the relationship between the mother in that case and her child:-
“The mother and her illegitimate child are human beings and each has the fundamental rights of every human being and the fundamental rights which spring from their relationship to each other. These are natural rights. It has already been decided by this Court in Nicolaou’s case that among the mother’s natural rights is the right to custody and care of her child. Rights also have their corresponding obligations or duties. The fact that a child is born out of lawful wedlock is a natural fact. Such a child is just as entitled to be supported and reared by its parent or parents, who are the one responsible for its birth, as a child born in lawful wedlock. One of the duties of a parent or parents, be they married or not, is to provide as best the parent or parents can for the welfare of the child and to ward off dangers to the health of the child.”
Again, Walsh J. is clearly speaking of the actual day to day upbringing of the child.
In the instant case the learned trial judge had before him ample evidence to establish that on account of her disability P. had been unable to fulfil her parental role not alone for the required twelve month period but for the entire of J.’s life. He stressed that this inability was not blameworthy; it was for 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. To hold otherwise would be gravely unjust to those suffering from physical disability. This question was considered by O’Higgins J. in Southern Health Board and M.D. and J.D. v An Bord Uchtála (unreported 20th December 2001) where the mother’s disability was mental rather than physical. At page 16 of his judgment O’Higgins J. stated:-
“Ms Forde, however, submits that the phrase ‘physical reasons’ should be interpreted sufficiently and broadly to take in the disability which exists in the present case, and points out that it would be an anomaly if mental incapacity, no matter how severe, accounting for the failure of the parent in his or her duty towards the child would preclude the making of adoption orders in such cases (other than on the grounds of moral failure).
I was referred to the case P.W. v A.W and Others (an unreported judgment of Ellis J. dated 21st April 1980) where at page 72 of the judgment the following passage occurs:-
‘I also hold that insofar as it was or is the duty of the parents, (and in the circumstances of this case, the duty of A.W.) to provide for the requirements of A. specified in Article 42.1 or generally, that A.W. has failed in such for physical reasons. In my view the word physical as used in Article 42.5 need not include intentional or purposeful reasons, and would include reasons of health, and hence would and thus include the illness and all its detrimental effects and consequences already fully described which have combined to prevent and render her unfit or unable to carry out her required duty or duties towards A. and hence to have failed in such respect.’”
In the case referred to Ellis J. had found that the parent A.W. had suffered from ill health primarily on account of a mental disorder and psychiatric illness which required psychiatric care and treatment as an in-patient in various hospitals in Dublin from time to time, as well as medical treatment, observations and assistance as a hospital out-patient. In the case before him, where the circumstances were somewhat similar, O’Higgins J. adopted the views of Ellis J.
Herbert J. in the instant case held that the level of access of P. to her child J. was not sufficient to off-set his finding of failure of parental duty. P. was, he found, more a visitor than a parent to J. In my view this finding was sufficiently based on the evidence before him and should not be disturbed.
Section 3(1)(I)(B)
Under this sub-clause the Court must be satisfied that it is likely that such failure will continue without interruption until the child attains the age of eighteen years.
On the evidence, it is quite clear that the situation which has obtained since J. was placed in the care of Mr and Mrs H. is unlikely to change. P. herself had expressed herself to be completely satisfied with the excellent care which Mr and Mrs H. are giving to her daughter and wishes J. to remain with them. P’s disability as such that, as stated by Dr. Neville, she can scarcely care for herself and would be quite unable to care for J. I have no doubt that the trial judge’s finding that on the balance of probability there is no likelihood of P. resuming the discharge of her duty towards J. before J. reaches the age of eighteen years is correct.
Section 3(1)(I)(C)
Under this sub-clause the Court must be satisfied that “such failure constitutes an abandonment on the part of the parents of all parental rights, whether under the Constitution or otherwise, with respect to the child.” This is the most difficult criterion to establish, particularly in the instant case. It is, as Ms Clissman pointed out, notable that the criterion of abandonment is not included in the text pf Article 42.5. In the Reference Case judgment Finlay C.J. commented as follows:-
“The concept of abandonment of parental rights falls to be considered after it has been established that a failure of parental duty for physical or moral reasons has continued for more than twelve months and is likely to continue until the child attains eighteen years of age. The sub-clause clearly envisages that there might be cases where such a failure was established but an abandonment of rights was not proved. An abandonment could be established by evidence of the conduct of the parent or parents concerned which would in certain cases include statements made by them and/or the nature and type of the failure and duty which had been established. A mere statement by a parent or parents that they wish to abandon a child would not necessarily constitute proof in any particular case of the fact of abandonment but may do so. Failure of parental duty established under sub-clause (I)(A) and (B) is not of itself evidence of abandonment. The necessity for the proof of abandonment indicates a special regard for the constitutionally protected parental rights.”
The interpretation of this sub-clause is most fully considered by Denham J. in her judgment in Southern Health Board v An Bord Uchtála [2000] 1 IR 165. At page 177 of the Report Denham J. stated:-
“It is understandable that the word ‘abandonment’ in its ordinary meaning would distress parents. The concise Oxford Dictionary defines ‘abandonment’ as :-
‘1. Give up completely or before completion (abandoned hope; abandoned in the game).
2. (a) Forsake or desert (a person or a post of responsibility).
(b) Leave or desert (a motor vehicle or ship…)
3. (a) Give up to another’s control or mercy.
(b) …’
and
‘abandoned’ is defined as’:-
‘1 (a) Of a person…deserted, forsaken (an abandoned child)…’
Thus, it raises images of deserting or forsaking a child. However in section 3(1)(I)(C) the word ‘abandonment’ is used as a special legal term.
The section does not require that there be an intention to abandon. While there may well be cases under section 3 where there is simple abandonment of a child and an intention to abandon a child, these are not the only circumstances where section 3 may be applied. The legal term “abandon” can be used also where, by their actions, parents have failed in their duty so as to enable a Court to deem that their failure constitutes an abandonment of parental rights. The parents in this case did not abandon F.O’D in the sense of deserting him physically in a place, but that does not preclude the operation of the section. The word ‘abandon’ has a special legal meaning.
A similar approach to the term “abandon” and consequently “abandonment” may be seen in the words of Walsh J. in G. v An Bord Uchtála [1980] IR 32 at page 79 where he stated:
‘Article 42 section 5 of the Constitution speaks of the case where parents fail in their duty towards their children for physical or moral reasons; it provides that 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. Under that section the State may very well by legislation provide for the failure of the parents, and in appropriate cases it may very well extend the law beyond simple provisions for a change of custody. A parent may for physical or moral reasons decide to abandon his position as parent or he or she may be deemed to have abandoned that position; a failure in parental duty may itself be evidence of such an abandonment.’”
At page 179 Denham J. went on to say:-
“The section does not require that there be an intention to abandon. While there may well be cases under section 3 where there is simple abandonment of a child and an intention to abandon a child these are not the only circumstances where section 3 may be applied. The legal term ‘abandoning’ can be used also where, by their actions, parents have failed in their duty so as to enable a Court to deem that their failure constitutes an abandonment of parental rights. The parents in this case did not abandon F.O’D in the sense of leaving him physically in a place, but that does not preclude the operation of the section. The term ‘abandoning’ is wider.”
In the instant case Mr Rogers vigorously argued that P’s continuing desire for access to J. and her steadfast refusal to agree to adoption could not amount to abandonment of her child. He referred to the decisions of Lardner J. in the High Court and of this Court in Western Health Board v An Bord Uchtála [1995] 3 IR 178. In that case the parents of the child were husband and wife, but separated in 1987 because the wife was having an affair with another man. In February 1988 they husband had intercourse with his wife without her consent. A child was conceived, but the wife believed it to be the child of the other man. However, the husband appeared as the father on the child’s birth certificate. The wife placed the child with foster parents within days of its birth, and then for adoption. In May 1989 the child was placed with prospective adopters. As the child was being placed for adoption as an extra-marital child, a declaration was required from the father to the effect that he was not the father.
He refused to sign the declaration, but resisted suggestions that he take a DNA test until May 1991. The test established that he was the father. In November 1991 he told a social worker that he wished to obtain the return of his daughter, and in December 1991 his solicitor wrote to the Western Health Board in such terms. In July 1992 the prospective adopters instituted proceedings for an order under section 3 of the Act of 1988; on the same day, the father instituted proceedings seeking custody of the child pursuant to the Guardianship of Infants Act 1964. The application for an order under section 3 of the Act of 1988 was dismissed by the High Court on the basis that while conditions (A) and (B) of Clause (I) of section 3 sub-section 1 had been established the Court was not satisfied that the father had abandoned his parental rights. On appeal this Court upheld the decision of the High Court.
Herbert J. in his judgment in the instant case held that:-
“…Apart from a number of months post partum, during the entire of the years 1993 and 1994 and for two periods amounting in total to five months in 1997, P., if afforded maximum family, public health and social welfare assistance could have cared for J., even if very inadequately. I find that her condition as not such as to prevent her from caring for J. ‘to even a minimum degree’, to adopt the phrase of Keane J. (as he then was) in the case of Southern Health Board v An Bord Uchtála [2000] 1 IR 165 at 181.”
Given the medical and social welfare evidence before the High Court, and given what he himself held in regard to P’s total failure for physical reasons to care for her child, I consider that the learned trial judge fell into error in basing his finding of abandonment on this conclusion. The evidence was clear; P. was unable to fulfil her duty as a parent for physical reasons. I would accept the argument of Mr Rogers that there is an inherent contradiction in holding on the one hand that for physical reasons P. had totally failed in her duty towards her child and on the other hand holding that she could have cared for her child but failed to do so.
The question therefore remains as to whether P’s failure of duty towards her child amounts to abandonment in what Denham J. described as its “special legal meaning”? The statutory requirement is that such failure constitutes an abandonment on the part of the parents of all parental rights. While this Court has held that failure of duty does not necessarily or invariably amount to abandonment, the requirement of abandonment is not to be considered in isolation, separate from the failure of duty. It is “such failure” of duty that may amount to abandonment.
On the facts I would distinguish this case from Western Health Board v An Bord Uchtála. The separated father in that case played no part whatever in the upbringing of his child. It must, however, be borne in mind that he was during that period unaware (apart perhaps from a lingering suspicion) that the child was his. Certainly his wife indicated her belief that it was not. When he realised through the paternity test that the child was his he took positive action to assert his right to custody of the child by issuing proceedings under the Guardianship of Infants Act in the District Court. Throughout the hearing of the case he asserted that his aim was to regain custody of his child.
This is very different from the situation in the present case. Here P.O’D has agreed to the continuing care of J. by Mr and Mrs H. over virtually J’s entire life to date. She is, in addition, happy that this situation should continue. She has allowed and willingly continues to allow J. to become in a practical sense a member of the H. family. She has, in my view, abandoned the custody and care of her daughter to Mr and Mrs H. She has left and will continue to leave to them the crucial decisions regarding J’s health and education and the carrying into effect of those decisions, together with the by no means insubstantial financial costs that arise from them. In my view this situation amounts in a real and objective sense to abandonment of her rights as a parent. As Walsh J. pointed out in the passage quoted above a parent may be deemed to have abandoned his position as a parent. In my view the infrequent visits by P. to her daughter, largely initiated by others, are not inconsistent with the reality of her abandonment of her position as a parent.
It is true that P. has consistently expressed her opposition to adoption. I would, however, agree that such opposition in itself does not contradict the fact of abandonment. The test of abandonment must be an objective one.
As stated by Denham J. in SHB v ABU, an intention to abandon is not required. This is not in any way comparable to the situation under the Adoption Act 1974 where a mother must “agree to place her child for adoption” and where a free and willing consent is required, as argued by counsel for the appellant (see Walsh J. in G. v ABU).
This Court has held that a mere statement by a parent or parents that they wish to abandon a child would not necessarily constitute proof in any particular case of the fact of abandonment. Similarly it appears to me that a statement by a parent opposing adoption is not in itself a proof of non-abandonment. If it were otherwise the child centred purpose of the Act of 1988 could always be defeated by a parental statement of opposition regardless of the factual context.
In the circumstances of this case, and on the evidence that was before the High Court, I consider that the requirement set out in sub-clause (I)C) is satisfied.
Sub-Clause 3(1)(I)(D)
Under this sub-clause the Court must be satisfied that “by reason of such failure, the State, as guardian of the common good, should supply the place of the parents.”
It is clear from the evidence before the High Court that P. is unable to care for her child J. and that she will be unable to do so in the future. J., due to her cerebral palsy, is a particularly vulnerable child who needs the care of loving parents. It is in the circumstances clear that the State should supply this care.
Section 3(1)(II)(A) and (B)
This sub-clause requires that at the time of the making of the application the child is in the custody of and has a home with the applicants and that this position has obtained for the twelve months immediately preceding the making of the application. The unchallenged evidence before the High Court establishes that the requirements of these sub-clauses are satisfied.
Section 3(1)(III)
Under this sub-clause the Court is required to be satisfied that the adoption of the child by the applicants is an appropriate means by which to supply the place of the parents. The Court is required to have due regard to the rights of the persons concerned, particular mention being made of the natural and imprescriptible rights of the child. In the earlier sub-clauses much stress was placed on the duties and rights of the parents. Here, as in article 42.5, the rights of the child are emphasised and held in balance with the parental rights. I have no doubt that the learned trial judge was correct in holding that the requirements of this sub-clause were satisfied.
Section 3(II)
This sub-section provides that before making an order under sub-section (1):-
“The Court shall insofar as is practicable, give due consideration, having regard to its age and understanding, to the wishes of the child concerned.”
At the time of the hearing before the High Court J. was almost twelve years of age. Herbert J. took the view that she was of sufficient age and understanding for the Court to take her views into account. Accordingly, having made proper arrangements, he interviewed her in chambers and a stenographer’s note of this interview was included with the the transcript provided to this Court. In my view the learned trial judge was correct in thus ascertaining the views of the child. J. expressed clear and reasoned views in favour of her adoption by Mr and Mrs H. She wished to have the name of H. and to be the same as her brother M. who is adopted. She also expressed a wish to continue to see P. from time to time, though not wishing to stay with either her or her family. Mr and Mrs H. have made it quite clear that they are happy for P. to visit J. from time to time and there is no reason to believe that they will not continue these visiting arrangements. Adoption practice in general has become more open in recent years. The old insistence on secrecy and a complete exclusion of the natural mother has virtually gone and it is not uncommon for adopted children to continue to meet their birth parents from time to time. Given the attitude of Mr and Mrs H. and the express wishes of J. there is every hope that a satisfactory arrangement can be reached with the agreement of all parties.
Section 4
It is clear that the provisions of section 4 regarding the seeking and hearing of the evidence of the parents have been fulfilled in this case.
Decision
For the reasons stated in this judgment I would dismiss the appeal, confirm the decision of the High Court judge and make an order authorising An Bord Uchtála to make an adoption order in relation to J. in favour of Mr and Mrs H.