Judgments Of the Supreme Court


Judgment
Title:
N & anor -v- Health Service Executive & ors
Neutral Citation:
[2006] IESC 60
Supreme Court Record Number:
273 & 283/06
High Court Record Number:
2006 181 SS
Date of Delivery:
11/13/2006
Court:
Supreme Court
Composition of Court:
Murray C.J., McGuinness J., Hardiman J., Geoghegan J., Fennelly J.
Judgment by:
Geoghegan J.
Status:
Approved
Result:
Allow And Set Aside
Judgments by
Link to Judgment
Murray C.J.
McGuinness J.
Hardiman J.
Geoghegan J.
Fennelly J.



THE SUPREME COURT
Appeal Nos. 273 & 283/06
Murray C.J.
McGuinness J.
Hardiman J.
Geoghegan J.
Fennelly J.
IN THE MATTER OF THE CONSTITUTION
AND IN THE MATTER OF N. AN INFANT
BETWEEN/
N and N
Applicants/Appellants
and
HEALTH SERVICE EXECUTIVE
AND G AND G
Respondents
and
AN BORD UCHTÁLA
Notice Party

JUDGMENT of Mr. Justice Geoghegan delivered the 13th November 2006

1. I should make it clear at the outset that for reasons of confidentiality the names of the parties in this judgment are not the real names but are the invented names adopted by the learned trial judge.

2. This is an appeal from a decision of the High Court (MacMenamin J.) made in an inquiry conducted pursuant to Article 40.4.2 of the Constitution. The court held that Ann (fictional name) a young child of the above applicants was in the lawful custody of the second and third-named respondents and that accordingly, a conditional order for the inquiry had to be discharged. By the same order the court directed that the child Ann be taken into the wardship of the court but that the respondents should have day to day custody care and control of her. Further orders were made that are not directly material to this judgment.

3. The background to the Article 40 inquiry was that the child was born out of lawful wedlock and as a consequence of an unanticipated pregnancy. The applicants who are the appellants on this appeal were university students when they developed a relationship. They had already commenced living together in a house shared with a mutual friend when the second-named appellant became pregnant at the end of October, 2003. I intend at this stage to give quite a short summary of the basic facts as they are to be found at length in the judgment of the learned trial judge. However, I will outline the key events. The baby was born on the 7th July, 2004. Approximately two weeks before the birth a preliminary meeting did take place between the appellants and a social worker to discuss the prospect of adoption. A day after the birth i.e. 8th July, 2004 the mother agreed to fosterage and the baby was taken into the custody of a foster mother on the 11th July, 2004. The previous night with permission the baby had been taken out of hospital and had stayed with the appellants. The job of liaising with the appellants in connection with the proposed adoption was allocated to a Mr. R., a senior social worker, in what is described as the Long Term Team of the Health Service Executive (“HSE”).

4. Although Catherine Byrne (as she is being called in this judgment) the second-named appellant signed the necessary form to enable placement for adoption and although her husband, Brian, signed an acknowledgment of adoption in September, 2004 there was thereafter a history of spasmodic doubt, vacillation and unease in relation to the proposed adoption on the part of both appellants. There was a certain amount of conflict of evidence between the respective appellants on the one hand and Mr. R on the other hand as to what was said and not said at various meetings between the appellants and him. In every instance where there was conflict, the learned trial judge preferred the evidence of Mr. R. In so far as the conflicting evidence related to matters of fact or even inferences of fact based on the demeanour of the witnesses, I must accept those findings. There are, however, parts of the judgment in which the trial judge draws inferences to the effect that it would be probable that if something or other had been said as alleged by either of the appellants it would have been noted in writing by Mr. R, I am unable necessarily to agree with that view. In some ways understandably, there would seem to me to be a thread running through the evidence that Mr. R. at all material times was encouraging the adoption to proceed. I think that where there was a conflict of evidence of that kind the evidence must be regarded as inconclusive. However, in relation to the view which I have taken on this appeal, nothing turns on these conflicts. It would seem to me that the conflicts largely hinge on the degree of unease rather than the existence of unease about the proposed adoption. A significant and, in the view of Mr. R who was clearly experienced in these matters, an unusual feature was the degree of participation of the father in all the discussions relating to the adoption. The learned trial judge in his judgment referring to this matter said the following:


    “During the period up to placement for adoption the parents visited Ann on a regular basis and had two overnight access visits with her. Mr. R commented that the extent to which they made arrangements to see and keep in contact with Ann was unique in his experience. He also considered that the father’s degree of involvement was unusual among all the birth fathers that he had dealt with as a social worker.”

5. In the very next paragraph the judge went on to note that the appellants have had third level education and that to quote his words:

    “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.”

6. The statutory scheme of adoption in this jurisdiction envisages two consents by the natural mother, one, the initial consent to placement for adoption and later the consent to the adoption order being made. Even then the consent may be withdrawn at any time before the actual adoption order is made. As far as statute law is concerned the only exception is where the High Court dispenses with the necessity for the second consent and that can only be done in exceptional circumstances. I have deliberately used the expression “statute law” because there is also constitutional jurisprudence of an important kind to which I will be returning.

7. I mention all this because at an early stage in his judgment the learned trial judge comments as follows:


    “One issue in the applicants’ evidence was the contention that Mr. R had informed them that they could simply and without qualification or consequence regain custody of the child at any time up to the making of the final adoption order. In this context there arises the question of their understanding of the issue of attachment and bonding. Both Brian and Catherine had asked that the prospective adoptive mother should take time off work in order that Ann would become used to her. While they may not have had as complete an understanding of the issues of attachment and bonding as they acquired thereafter, I think the evidence establishes that they were aware then that important emotional and psychological links between Ann and the Doyles (being the respondents in this appeal and the proposed adoptive parents) would be formed and enhanced from her placement for adoption onwards. This knowledge was reflected by Catherine in the course of her evidence when she described the particular emotional link or bond with her own younger brother because she had been involved in bringing him up.

    Catherine said in evidence that she understood there would be a period of approximately a year, at the end of which the final adoption order would be made. During that one year period she would probably be entitled to reclaim Ann. The Byrnes are both intelligent young people, but both as a matter of evidence and common sense I do not think that they believed that the issue of a child’s development of emotional links over a one year period could remain ‘in abeyance’. It may well be that they did not fully direct their minds to this issue then. The extent of their knowledge of this highly important issue will be dealt with in the consideration of the expert evidence.”


8. I find myself unconvinced by the inferences which the learned trial judge seems to have drawn in the above quoted passages. It would seem to me that if there is a statutory scheme which in plain language (repeated in the relevant forms) both requires double consents and permits withdrawal of consent right up to the time an adoption order is made, it is unreal to suggest that natural parents who may themselves be in quite a distressful state, no matter how educated or sophisticated they are, would draw the conclusion that notwithstanding all those rights apparent in the statutes and more importantly reflected in the forms could come to nought by virtue of the Constitution if the child became strongly bonded to the adoptive parents. That would have to be very carefully explained from the beginning so that there could be no ambiguity and the actual printed forms should reflect it. I am not satisfied that on the evidence such clarity was conveyed. In fairness to the authorities these are rare cases and the constitutional jurisprudence relating to “compelling reasons” and “failure of duty” has been gradually developed in case law to which I will be referring later in the judgment. I merely want to indicate at this stage that there does not appear to me to have been any negligent delay on the part of the natural parents which could reasonably have led them to believe that the right to the return of the child if the adoption was not proceeding could have been lost.

9. Continuing the brief narrative, there was a particular meeting between the natural parents and Mr. R on the 22nd April, 2005. There was a conflict of evidence as to the main purpose of the meeting. Nothing turns on this because although the appellants alleged in evidence that they had intended to state at that meeting that they were changing their minds in relation to the adoption, they admitted that that did not in fact do so. Mr. R, on the other hand, claimed that the main purpose of the meeting was so that a duplicate Form 10 which was the placement form for the adoption would be signed and a duplicate acknowledgment of the adoption be signed by the father. The necessity for this arose because by mistake the wrong part of the form had been retained by Catherine when she originally signed. The trial judge understandably thought it strange that the parties went ahead with this procedure notwithstanding alleged change of mind. There is no doubt that at times the appellants expressed satisfaction with the intended adoption and particularly with the proposed adoptive parents, the respondents. But it is equally clear in my view that they were never entirely happy or certain in their position. In early July, 2005 the question of signing the final consent arose. At this stage, I should perhaps mention that at all material times the adoption was intended to be an open adoption in the sense that on occasions the appellants were to be allowed access to Ann. It never reached the stage however that there were agreed satisfactory arrangements relating to either the frequency of the contact or the form it should take. At the time that the issue of the final consent arose the appellants were particularly anxious to have contact with Ann. There had been some advice from the adoption agency that any such visits should not take place before the adoption order was finalised. It was indicated at that time that such finalisation might not take place till as late as October, 2005. It was alleged by Catherine that she signed the final consent, not because she was happy with the adoption, but in order to see the child. Catherine indeed alleged in evidence that she indicated as much to the designated counsellor on behalf of An Bord Uchtála. As that counsellor never gave evidence the trial judge was not able to make a definite finding. But Mr. R who was in the vicinity at the time denied that there was any pressure on Catherine.

10. None of this matters very much because the consent was subsequently withdrawn. Furthermore, it is quite clear that access to the child Ann was a live issue for discussion to use the wording of the judge.

11. The trial judge refers in his evidence to Mr. R’s record of a telephone call from Brian Byrne on the 18th July, 2005 in which the following was recorded:


    “Both he and (Catherine) are relieved that they have made their final decision and can now get on with their lives. They have photos and cards they would like to pass on to (Ann) from their respective families. (Brian) wanted to know if his family could ever see her or would it always only be (Catherine) and himself. He says both would like to have her more than once a year – could the adopters be asked their views – they would like to see her soon and again would like (Ann’s) adopters to know this .. agreed to discuss this with Ann and Laura (social work professionals dealing with the adoption) who would then discuss it with (Eileen) and (David).”

12. This is just one illustration of the undoubted fact that at times the appellants appeared at least reconciled with and even happy with the proposed adoption. On the other hand the evidence equally illustrates that there were many occasions in which that was not so. Indeed on this latter point the learned trial judge had this to say:

    “(Brian) and (Catherine), I am sure, at many times had second thoughts over the period April to July 2005 on the issue of adoption. But those second thoughts never crystallised then into a concrete decision to seek to regain custody of (Ann). No concerns or reservations were put in writing despite their being invited to do so. It is difficult to reconcile a discussion (which I accept occurred) between (Brian) and (Mr. R) regarding the passing over of photographs or arrangements for the future and more flexible access, with a latent or formulated intention to withdraw consent, halt the adoption process, or to regain custody of (Ann). While, with hindsight, (Brian) and (Catherine) contend that they sought to express a different viewpoint to Mr. R, I am not satisfied that that was so at the time. For the reasons outlined earlier regarding clarity of recollection I prefer the evidence of Mr. R on these questions.”

13. Considerable friction arose out of the access problem and in the view of the trial judge this led to a closer relationship between the appellants. Whether that be so or not, the appellants undoubtedly decided to commit themselves to each other and to seek the return of the child. This would have been in the month of August, 2005. The actual letter of withdrawal of consent was written on the 26th September, 2005 but in the overall context of the length of time they had been told the adoption process would take I do not think any small delay in this regard could be considered blameworthy.

14. Partly because of their new commitment and partly in the context of legal advice the couple married on the 9th January, 2006. I do not think it material to go into the preparations for or the events leading up to arrangements for the marriage itself. The marriage, however, is obviously of the utmost importance because it would be perceived as having a dramatic effect on the legal position. While there are exceptional circumstances now in which an adoption of a child deemed to be a child of the marriage could be effected against the parents’ will, on the view I will be taking in this judgment these would not appear to arise in this case or in connection with the particular placement for adoption that was made. Once the marriage took place and once (as happened) the birth of the child Ann was re-registered there could be no legal adoption under the Adoption Act, 1952, as amended. In a conveniently loose way this case has been described as “an adoption case” but in actual fact from the date of re-registration of the birth, a legal adoption was no longer possible.

15. Notwithstanding the withdrawal of consent there was no immediate return of the child to the natural parents, hence the Article 40 proceedings. In the High Court and on appeal in this court the respondents claim that their custody of Ann is lawful in that it is in the best interests of the child notwithstanding that they can never be adoptive parents and they justify this by reference to provisions in the Constitution. Those provisions and the relevant case law relating to them must now be considered.

16. It has long been established and reiterated in a number of cases that the family as referred to in the Constitution is the family within a lawful marriage. No attempt has been made in this case to have that issue reopened or reconsidered. It is, therefore, fundamental to any consideration of the issues involved in this case that the appellants are now married. It is not relevant to consider what the position might be if they were not married but living together or if they were not married and living apart. Throughout the appeal the court was informed of how custody issues were dealt with where an unmarried mother having placed her child for adoption either did not sign the second consent or withdrew the consent before an adoption order was finalised. Nothing that I say in this judgment as to the legal position in this case, where there has been a marriage, is to be taken as either approving or disapproving of whatever practices may have evolved in situations where there has not been a marriage except, of course, where they have had the approval of this court.

17. Returning to the case at hand, the court has been furnished with a great number of decided cases. I do not propose to review them in detail partly in case the clear principles emerging from the only case that is of real importance namely, In re JH [1985] IR 375 may get lost. I do, however, intend to start my review of the law by referring to a much older case in which the facts are remarkably similar to this one. I do so not merely because of the similarity of facts but also because the decision does not appear to me to be out of date despite arguments which might be made to the contrary. It is in In re J [1966] IR 295. This was a decision of a Divisional Court of the High Court consisting of Murnaghan, Teevan and Henchy JJ) in a habeas corpus application brought, as in this case, by the father and mother of a child born out of wedlock but in circumstances where the parents had since married, as against a couple for the benefit of whom an adoption order had been made in respect of the child but which turned out to be invalid. The natural parents of the child argued that now that the child had been legitimated, they and the child constituted a family within the meaning of Articles 41 and 42 of the Constitution. The originally intended adoptive parents, however, submitted that they could provide for the infant a more substantial and secure financial background than could the real parents and that the child would be harmed by changing custody and that in those circumstances, the court should regard the welfare of the infant as the first and paramount consideration having regard to the section 3 of the Guardianship of Infants Act, 1964. The conditional order of habeas corpus was made absolute by the unanimous decision of the three judges. Each of the judges wrote judgments but the following passage from the judgment of Henchy J. at p. 307 of the report neatly encapsulates the view of the court:


    “The fact that the parents and the child constitute a family enables the prosecutors to invoke Article 42, s. 1 of the Constitution, by which the State acknowledges that the primary and natural educator of the child is the family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children. In the present case it would be impossible, because of the age of the child (seventeen months), to give effect to the parents’ right and duty of education if they are not given custody of the child. The only way in which the parents’ right and duty of educating this child could be supplanted would be by bringing the case within s. 5 of Article 42, which provides that 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. Assuming that it would be competent for this court, functioning as the State in its judicial aspect, to endeavour to supply the place of the parents in a case where s. 5 of Article 42 would otherwise apply, I am not satisfied that this is such a case. Even if it be said that the mother for physical or moral reasons failed in her duty towards the child I am not satisfied that the father did so. And I am quite satisfied that since at least the date of their marriage (2nd August 1965 when the child was some eight months old) both parents have been ready and willing and able to educate the child. Whatever may have been the position before then, I do not think it could be said that since then the parents for physical or moral reasons have failed in their duty towards the child. The Supreme Court has said that ‘sub-Article 5 does not enable the legislature to take away the right of a parent who is in a position to do so to control the education of his child, where there is nothing culpable on the part of either parent or child’: Re Doyle an infant (1955); unreported. If it does not enable the legislature to do so, then it does not enable the court; and it has not been suggested that there has been anything culpable on the part of the parents since at least the date of their marriage. I am of the opinion that this is not one of the exceptional cases provided for by s. 5 of Article 42 and that the prosecutors’ rights and duties recognised by s. 1 of Article 42 can be met only by awarding them the custody of the child.”

18. I now turn to the case of JH already cited. What was finally established by the Supreme Court in that case was that the test as to the welfare of the child stated in section 3 of the Guardianship of Infants Act, 1964 must, if possible, be given a meaning consistent with the infant’s rights as stated in Articles 41 and 42 as a member of a family if the parents are then married. This decision was not and was not intended to be inconsistent with the principle that in a custody issue the best interests of the child are paramount. In the case of married parents however the effect of Article 42 of the Constitution is that there is a constitutional presumption that it is in the best interests of the child to be with the natural parents within a family founded on marriage unless there are very exceptional circumstances and these have been defined as being either “compelling reasons” why such a result cannot be achieved or there is a failure of duty of the kind envisaged by Article 42 s. 5. Article 42 s. 5 reads as follows:

    “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.”

19. It has been established also in the case law that failure of duty is not confined to educational issues and in the case of “physical” reasons there need not necessarily be any blameworthiness. In this context “physical” includes reasons attributable to mental capacity which, of course, obviously there would not normally be any blameworthiness (see the decision of this court as contained in the judgment of McGuinness J. in Northern Area Health Board v. An Bord Uchtála [2002] 4 IR 252).

20. Returning to the J.H. case, Finlay C.J. with whose judgment Griffin, Hederman, McCarthy and O’Hanlon JJ. agreed set out at page 394 of the report the principles of law applicable to the case in the following manner.


    “1. The infant, being the child of married parents, now legitimised, has in addition to the rights of every child, which are provided for in the Constitution and were identified by O’Higgins CJ in G v. An Bord Uchtála [1980] I.R. 32 at p. 56, rights under the Constitution as a member of a family, which are:

      (a) to belong to a unit group possessing inalienable and imprescriptible rights antecedent and superior to all positive law (Article 41, s. 1);

      (b) to protection by the State of the family to which it belongs (Article 41, s. 2); and

      (c) to be educated by the family and to be provided by its parents with religious, moral, intellectual, physical and social education (Article 42, s. 1).


    2. The State cannot supplant the role of the parents, in providing for the infant the rights to be educated conferred on it by Article 42, s. 1, except ‘in exceptional cases’ arising from a failure for moral or physical reasons on the part of the parents to provide that education (Article 42, s. 5).

    3. The Act of 1964 must, if possible, be given an interpretation consistent with the Constitution: see East Donegal Co-Operative v. The Attorney General [1970] I.R. 317; MacDonald v. Bord na gCon [1965] I.R. 217.

    In the case, therefore, of a contest between the parents of an illegitimate child – who with the child constitute a family within the meaning of Articles 41 and 42 of the Constitution – and persons other than the parents as to the custody of the child, as this case is it does not seem to me that section 3 of the Act of 1964 can be construed as meaning simply that the balance of welfare as defined in section 2 of the Act of 1964 must be the sole criterion for the determination by the court of the issue as to the custody of the child. To put the matter in another way, it does not appear to me that this is a case, as would be the situation in a contest between the parents of an illegitimate child as to which of them should have general custody, where the court could or should determine the matter upon the basis of the preferred custody, having regard to the welfare of the child as defined in s. 2 of the Act.

    A child of over two years of age, as this infant is, in the dominant or general custody of persons other than its parents and continuing in such custody against the wishes of its parents, cannot be said to enjoy the right of education by its family and parents granted by Article 42, s. 1 of the Constitution. And no additional arrangements, as were indeed put in train in this case by the orders of the High Court for access by its parents to the child or participation by them in the decision-making processes concerning its education, could alter that situation. Furthermore, notwithstanding the presumption of validity which attaches to the Act of 1964 and the absence of a challenge in these proceedings to that validity, the court cannot, it seems to me, as an organ of the State supplant the right to education by the family and parents which is conferred on the child by the Constitution unless there is established to the satisfaction of the court a failure on the part of the parents as defined in Article 42, s. 5 and ‘exceptional circumstances’.

    I would, therefore accept the contention that in this case s. 3 of the Act of 1964 must be construed as involving a constitutional presumption that the welfare of the child, which is defined in s. 2 of the Act in terms identical to those contained in Art. 42, s. 1 is to be found within the family, unless the court is satisfied on the evidence that there are compelling reasons why this cannot be achieved, or unless the court is satisfied that the evidence establishes an exceptional case where the parents have failed to provide education for the child and to continue to fail to provide education for the child for moral or physical reasons.”


21. I make no apology for setting out such a lengthy quotation as I see no point in attempting to paraphrase it.

22. Although the learned High Court judge rather surprisingly did not analyse in any detail the two cases to which I have referred and which seem to me to be the most relevant, he nevertheless identified the correct principles to be applied from them, that is to say, that the appellants could only be refused the order they were seeking if there were either “compelling reasons” why they ought not to have custody or there was a relevant “failure of duty” on their part of the kind already explained. The learned High Court judge on the evidence found that there were compelling reasons and indeed that there was also a failure of duty. I respectfully disagree with both of those conclusions for reasons which I will elaborate on in due course. There are still aspects of the JH case on which I think it appropriate to comment. In some quarters, the view taken by the Supreme Court has been subjected to criticism. Unless and until the Constitution itself is amended, I cannot see any justification for the criticism. The learned trial judge quite properly did not make any criticism of the decision but he took the view that modern thinking in child psychology which had developed since that case, placed a greater emphasis on the bonding which can exist between, what I might call, acting parents, such as in this case, proposed adoptive parents and a very young infant, the consequence of which is that breaking the bond by removing the child into the custody of different parents, even if they are the natural parents, may cause harm to the child which could even be permanent and that this would be particularly so if the move was made in what has been described at times in this case as “in a summary manner” and not in a gradual fashion following the advice of experts.

23. While no doubt in this particular area of child psychology as in any other area of psychology whether child or otherwise new insights tend to emerge each year and possibly new appraisals made, having closely studied the judgments of Lynch J. in the High Court in the JH case, I am not satisfied that knowledge of the effect of bonding of a small infant and the risks attached to transfers of custody have sufficiently changed, if at all, so as to render redundant the view adopted by the Supreme Court in the judgment of Finlay C.J. It should be recalled that originally in the High Court when dealing with the custody issue, Lynch J. had more or less balanced the merits or otherwise of retaining the child with the adoptive parents or handing the child over to the natural parents who had married. For this purpose, the learned High Court judge invented a test which he adopted. That test was as follows:


    “Is there anything really worthwhile to be gained for the child by transferring her from the adopting parents to the parents?

24. The judge then went on to observe that dealing with the problem in that way was to look at it from the child’s point of view as required by section 3 of the Act of 1964. The judge answered his own rhetorical question in the negative. What he said has huge resonance in this particular case. I think it apt to quote the following passage from the judgment of Lynch J. at p. 388 of the report.

    “I regard as very important evidence relevant to the issue now arising as to the general custody of the child the uncontradicted evidence of the two psychiatrists as to the effect on the child of transferring her from the custody of the adopting parents to the custody of the parents. On that evidence, which I accept, I am satisfied that there is an appreciable risk of long term psychological harm to the child by such transfer. The evidence did not however indicate whether it is more or less probable that such long term harm may occur but it did establish to my satisfaction that the risk of such harm is sufficiently proximate that considerable weight must be given to that risk in deciding these claims and counterclaims for custody of the child. There would of course be an immediate upset for the child from whom she would probably recover within a relatively short time, but while not ignoring such short time distress, it is the risk of long term detrimental effects that is more important and to be taken into account in deciding the question of custody.”

25. Later on the judge said the following:

    “The child is clearly bonded to the adopting parents and the boy as though they were her own parents and brother respectively. Any sundering of these relationships will cause considerable immediate suffering to the child and a real possibility, if not a probability, which it is impossible to say one way or another of long term serious harm.”

26. These observations were all based on the evidence of two of Dublin’s best known child psychiatrists at the time Dr. Paul McQuaid and Dr. Gerrard Byrne. That judgment of Lynch J. was before the Supreme Court and the Supreme Court held that the test applied by Lynch J. was not correct having regard to the constitutional presumption that where the parents are married the welfare of the child is best served by being in their custody unless there are compelling reasons or a failure of duty as explained. Having so laid down that principle, the court sent the case back to Lynch J. who in the course of his judgment in relation to this stage said the following:

    “I remain uncertain and apprehensive regarding the medium and long term effects of a transfer of custody now. Nevertheless, such transfers do occur from time to time in society, owing to some calamity such as the death of both parents in an accident, or more rarely the death of both due to illness and, indeed, occasionally owing to their incapacity without death due to illness and especially mental illness. There appear to be no studies to show what are the effects of the transfer of children in such cases to the good homes of uncles or aunts, or even in the case of the death of the parents to the good homes of strangers by adoption.

    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 affects 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.”


27. Lynch J. then went on to award custody of the child to the natural parents.

28. There are a number of observations to be made. First of all, the earlier judgment of Lynch J. was before the Supreme Court and fully considered. The Supreme Court was well aware, therefore, of the evidence relating to bonding which appears not to have been all that different from the evidence in this case. Secondly, it is important to emphasise that the constitutional presumption that the welfare of the child is best served by being with his married parents is not some kind of artificial presumption. It is clearly based on the perceived wisdom at the time that the Constitution was enacted and, I have no particular reason to believe that it is not still the perceived wisdom even if not wholly approved of in some quarters. The importance of family and marriage and quite frankly also the biological link should not be minimised. It is common knowledge that in the case of so many adoptions, the adopted children at some stage want to see their real parents. Many people, I suspect, would consider that there is an appreciable advantage for a child to be reared within a natural family and having real parents and real aunts and uncles.

29. In case it should be thought in some circles that the attachment of importance to the biological link is an outdated concept and is rooted merely in some conservative Irish view of the family, it is of considerable interest that this same concept has been reiterated by the House of Lords in the recent case of Re G (children) [2006] 4 All E.R. 241. There is, of course, no presumption in favour of the child being with the natural parents under English law ever since a statute of 1925. What the House of Lords has held however is that the biological link is an important factor to be considered in assessing the child’s best interests. Baroness Hale of Richmond who delivered the main speech approved a decision of the full court of the Family Court of Australia in which it was made clear that “the fact of parenthood is to be regarded as an important and significant factor in considering which proposals better advance the welfare of the child.” In the English case, there had been a certain amount of unmeritorious conduct on the part of the natural mother and the conclusion of Baroness Hale was that “the courts below have allowed the unusual context of this case to distract them from principles which are of universal application.” The Baroness identified one of those principles as being that even though there was no presumption in her favour in the case, the fact that one of the parties was the natural mother was “undoubtedly an important and significant factor in determining what will be best for them now and in the future.” She is then critical of the fact that “nowhere is that factor explored in the judgment below.” While the other Law Lords were in agreement with Baroness Hale’s speech Lord Nicholls of Birkenhead added a rider which is worth quoting.


    “I wish to emphasise one point. In this case the dispute is not between two biological parents. The present unhappy dispute is between the children’s mother and her former partner Ms. CW. In this case, as in all cases concerning the upbringing of children, the court seeks to identify the course which is in the best interests of the children. Their welfare is the court’s paramount consideration. 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 reasons. Where such a reason exists the judge should spell this out explicitly.”

30. Lord Rodger of Earlsferry agreed with the speech of Baroness Hale but also with the additional observations of Lord Nicholls. As will have been clear from the quotations the relationship which had broken in that case was a lesbian one. The children were the biological children of one of the two women but each was looking for custody.

31. Returning to this appeal, there is another point of significance. Unlike the case with which Lynch J. was dealing and which could potentially have ended in adoption, in this case, there will never be an adoption. It cannot be altogether satisfactory, though in some cases it may work, that a child is effectively in permanent fosterage with neither natural parents nor adoptive parents looking after him. I mention these factors with a view to rebutting on a prima facie basis at least any criticism there may be of the constitutional provisions or the constitutional presumption. For the reasons which I have indicated, I cannot accept that a decision made by this court as recently as March, 1985 in circumstances where before the court was abundant evidence relating to bonding and the problems of breaking the bonding, there are sufficient new insights in this area since which must lead to a modification of the principles laid down by Finlay C.J. I believe that those principles still hold good. Finally, in this connection it is worth noting that Dr. McDonald, the consultant clinical psychologist who gave evidence relied primarily on three authorities in relation to “attachment theory”. One of these was Bowlby (1969-1980) and the second was a further development of that work by Ainsworth (1969-85). Only the third namely, Fonaghy is as late as 1999.

32. In the light of the constitutional jurisprudence which I have just outlined, I must now consider whether the trial judge’s view that there were “compelling reasons” for not allowing the child to be taken over by the birth parents and that quite apart from that there was also a “failure of duty” on the part of those parents.

33. The trial judge essentially found that the bonding would now be so strong with the Doyles that there would be grave risk of causing serious harm to the child by a transfer and that even if such a transfer was made in a gradual and careful manner in accordance with advice of experts, he did not believe that there would be the necessary cooperation between the Doyles and the Byrnes to achieve such transfer with minimal damage as in his view there was a breakdown of trust.

34. The theory of attachment is not in dispute. What is in dispute is whether the transfer of the child would be attended with such a high risk of damage to the child that it should not be carried out. The first point to be made in this connection is that there was no evidence at all to indicate that the biological parents lacked the skills of parenting or would be unsuitable parents. Indeed at page 9 of the approved judgment, the learned trial judge said the following:


    “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. I am satisfied that they have done their absolute best to tell the truth and to describe what occurred to the best of their recollection. If in the course of this judgment I express a preference for the evidence of one party over another it is because I consider that such evidence should be preferred because of clearer recollection, rather than any question of persons telling untruths.”

35. While that passage does not directly or still less exclusively deal with the issue of suitability as parents, it summarises a general thread running through the judgment that there was no criticism of the appellants as human beings and there was plenty of evidence to suggest that, other things being equal, they would be perfectly good and normal parents. Everything turns therefore on whether the bonding of the child to the second and third-named respondents was so strong that severe damage would probably result. I do not think that the expert evidence establishes this. I realise that counsel for the appellants, Mr. Durcan, relies on the well-known case of Hay v. O’Grady [1992] 1 I.R. 210 as authority for the proposition that in a case such as this not only is this court bound by primary facts found by the trial judge but should be extremely slow to reject inferences drawn by the trial judge. I do not find myself in agreement with that proposition and I will return to it in due course. The inference I would draw from the expert evidence in general is that there are risks attached to the transfer by reason of the bonding, but transfers for many different reasons do have to take place and that what is most important is that it be done with as much care as possible and with expert advice. Sensitive co-operation between both couples is a factor considered to be of great importance.

36. One of the experts who gave evidence was a Dr. Gerry McDonald a clinical psychologist employed by the Newry and Mourne Health and Social Services Trust. He was also an area professional advisor to one of the Northern Ireland health boards. He was asked initially whether he dealt with circumstances where children were being moved from one carer to another. He replied that he dealt with several hundred such cases in a year. He strongly qualified his evidence on the basis that he had not seen any of the adults involved or the child which he said was “markedly unusual”. He was asked what steps should take place if the ultimate determination of the court was that the child should be transferred. His reply was as follows:


    “Preferably judge, a strong recommendation is that it would be graded and pre-planned and graded from one set into another. And I am acutely aware that within this present case that does demand a maturity of adult attitude from the adults. I would also recommend judge, that if such an outcome is deemed by the court that there should be professional advice and guidance to the future primary carers for a period of time, and the time framework that I would have in mind would be a one year period.”

37. He went on to elaborate on that by explaining that the advice and guidance would be a source of support and not the exercise of a monitoring or punitive role by anybody. Dr. McDonald went on to say that if the court deemed that a move was necessitated “it should heighten the awareness of everyone involved in the case as to the frailties of the child’s emotional status.” Dr. McDonald went on to say that the strength of the bond did have implications for the likelihood of damage arising from the interference with it. But he went on to say the following:

    “But if the court deems that a relocation of primary care responsibilities is required in this case, it equally emphasises the need for sensitivity in relation to the adults who are involved in this case and also demanding from the adults a maturity of response.”

38. He confirmed that a “summary or an immediate move” was much more likely to cause damage. Although Dr. McDonald emphasises the implications of bonding, he equally throughout his evidence deals with what is to happen if there is a move. He emphasised for example that if there is a move it must be done “in a markedly sensitive way” and it must be “pre-planned” and “graded”. Co-operation was important but he conceded that it would be a heartbreaking exercise for the adoptive parents. At the end of the initial cross-examination of Dr. McDonald by Mr. Durcan, Dr. McDonald in answer to questions by the judge said that a transfer of a very young child in their first, second or third year may be successful “if it is undertaken in a planned manner with sensitivity in relation to the child’s emotional responses.” In that situation it was possible to reattach a child to a competent adult. And he again clarified the matter for the judge by reiterating that if managed sensitively a transfer can be done.

39. The evidence of Professor Iwaniec who is a medical professor at Queen’s University Belfast and had been a director of an institute of childcare gave somewhat more theoretical evidence but was not essentially in conflict with the evidence of Dr. McDonald. She was asked whether in assessing the likely effect of a move of a child from carers with whom the child had an attachment or the circumstances of the move are they important in the sense of whether it is planned and takes effect over time. Her answer was that “it is incredibly important”. She went on to say the following:


    “I think that it is essentially good practice as well and almost common sense, that if you want to introduce a new environment to the child, a new caring people, new home it has to be step by step approach, it has to be slow, you don’t jump to next stage, before you master the first steps. It sometimes can take a long time, with some children it takes shorter time, with other children it takes longer time, some children do adapt and get adjusted to new situations but very many children don’t.”

40. She said that there was no hard and fast rule and that it would differ from child to child and from circumstances to circumstances. Importantly, the professor was asked that if she was looking at the possible effects of the movement of a child was the quality of the care through which the child is being moved relevant in looking at the effects of the move. She gave an emphatic answer that it was. That answer is, obviously, relevant to this case in that everything points to the birth parents being perfectly suitable parents. I had the impression from the evidence of the professor that most of her experience was in connection with fosterage and, of course, different kinds of foster parents. She refers to the importance of motivation on the part of a foster parent. Although she never met the biological parents she seems to accept that from assessment done they would appear to have “abilities to provide good parenting because they are intelligent, they are well-established, they are professional people, they have support of family.”

41. On behalf of the appellants, evidence was given by Dr. Nollaig Byrne, consultant child adolescent child psychiatrist in the Mater Hospital and clinical director of the child adolescent mental health service in the Mater. She endorsed the general views of Dr. McDonald and Professor Iwaniec as expressed in their reports which she had seen in so far as those reports related to bonding and the obvious risks attached to breaking the bond. Nevertheless, she noted that it was the view of the health board that the child should be returned to the biological parents and the overall effect of her evidence was that she supported this. For reasons which I will indicate later on in the judgment this support is of considerable importance in my view and cannot be disregarded simply on the basis that the learned trial judge preferred the evidence of other experts.

42. Dr. Byrne did not dispute that there could be short term adverse effects in relation to moving Ann from her present care. But in relation to any question of long term damage she said the following:


    “We can only base the experience of the ……..? on what we know of other children of this age who have for whatever reason lost their carers and being moved to new parental context. And there is considerable evidence that if well supported the child will have the resilience to cope with it.”

43. She went on to point out that the birth parents had the capacity and the preparation and the motivation to create a supportive context for the child and with professional help to understand and respond to her distress. She did, however, attach importance also to the support of the Doyles. She summed up her position as follows:

    “So, I think what we say is that, this distress may not have enduring negative sequela, if it is done in the way that professional opinion regards how such a transition might be made. If she is returned to her parents what has happened, birth parents, what has happened in her life will always be a marker in her history as to what happened in her early life, and if handled well this marker will sustain a resilience or it could be a marker for some negative developmental problems including, adult depression.”

44. In other words, the transfer must be handled well. It seems clear also that Dr. Byrne did attach some importance to the blood link between the birth parents and the child but she conceded that more attention would have to be given to the bond than the blood link. She pointed out, however, that “in terms of the bloodline it is interesting that children who are adopted do want to know what their bloodline is, and I think it is important as well, you know, in all sorts of ways for them to know their bloodline.”

45. In response to the opening question of cross-examination by Ms. O’Toole, S.C., Dr. Byrne indicated that overall it was her view that a return to the birth parents was the better solution. The way she put it was this making allowances for poor transcript:


    “Well, I think this little girl already has a very complicated story. I think her return to her birth parents will be a story that - - and in the hope that she will receive the excellent care that they promise, that it is a story of childhood and care and parenthood that she can more easily incorporate and live with than this other complexity.”

46. Immediately after that answer she was asked was she looking at the child’s long term interests and she answered in the affirmative. Dr. Byrne did not deny that the immediate consequences of the transfer could cause distress and would require much care but her view was that it was to the benefit to the child in the long term. Dr. Byrne made clear in her evidence that having assessed the birth parents she found nothing unsuitable such as a cognitive impairment, psychiatric impairment or a personality disorder. This had been a concern of Dr. McDonald who did not see them but the evidence of Dr. Byrne made clear that there were no problems of that kind.

47. Mr. Rogers, S.C. appearing for the health executive who, of course, at the time of the trial favoured the return of the child to the birth parents, asked Dr. Byrne had she comments to make about the suggestion the birth parents had “abandoned” their child. In so far as this question is relevant to this case it is largely a question of law in my view and I will be returning to it. But the answer of Dr. Byrne based on a medical view is of considerable interest. She said the following:


    “Well, I don’t think the form of dealing with the pregnancy and the people they are related to and the conversations and discussions about the best thing to do for (Ann’s) welfare has the form of abandonment. And also their attention to meetings, going through the birth process, thinking about her, little clothes, handing her over, visiting the foster parents and then their contact with (Mr. R) afterwards. I don’t think that anyone would suggest that that was the form of abandonment. Abandonment is when you give birth in the Rotunda and you spend three days there and you drop the baby up to you mother’s house and you take off to England or something. You know, that happens. Or you spend a week with the baby and you take off somewhere and your sister-in-law looks after the baby. You know I think in some countries they have a place where you can bring your abandoned baby to drop it into a church or something. I don’t think there is anything about their intention towards this baby that suggests abandonment. And they don’t admit to any fantasy of abandoning the baby. And generally it would be the mother of course that would abandon the baby, but certainly in discussions with (Catherine) there was never a form about they are thinking or feeling about the baby.”

48. The word “form” in that last line is presumably some mistake in transcription but the general sense of the answer is obvious.

49. Dr. Byrne was then referred by Mr. Rogers to her report in which she had made the following recommendation:


    “The Health Board, … should undertake the reunification of (Ann) with her birth parents. This should be carried out using best practice guidelines that reflects the needs of the child, her birth parents they her previous carers. And the Health Board should seek consultation with a practitioner specialising in parent/child attachment work as a core componement of the reunification work.”

50. In explaining what was meant by “best practice” Dr. Byrne refers to the report of the social worker originally dealing with the matter, S.C. It is more or less on the lines as recommended by Dr. McDonald.

51. At a later stage in her evidence, Dr. Byrne was asked about attachment theory and it was suggested to her that it was “in its infancy” in the late 70s and early 80s. Her answer is along the same lines as I suggested earlier based on the report of the judgment of Lynch J. She said that John Bowlby “one of the most important European child psychiatrists” began his work in the 60s and that two of his books came out in the early 60s. I refer again to this point merely to corroborate the view I have already expressed that the JH case cannot now be sidelined which to some extent it was by the learned High Court judge on the basis of new understanding of attachment.

52. Again, Dr. Byrne’s overall position can be neatly summed up in the answer she gave to Ms. O’Toole’s last question in cross-examination. The question and answer were as follows:


    “Q. What is your opinion of (Ann’s) best interests long term, Dr. Byrne?

    A. Well, unless there is really important material in here that I don’t know about, but I understand that the Health Service Executive is supporting her return to her natural parents, so they have all the information. If the HSE had very important information that I have overlooked that would make this couple, particularly the mother, incapable that is not to devalue the father’s role but she is kind of a key subject at this point. Since we have agreed that there is no incapacity in this couple, in the long term interests of the child in terms of who she is and where she came from and where she is going, her long term best interests are with her birth parents, that is my opinion. It is very distressing for the adoptive parents, it will certainly have a distressing effect on the child in, you know, in the short term.

    The professionals are very accustomed to dealing with, and indeed families themselves, but I hold my position that if this is a committed couple that have given birth to this child, that has thought about this child, that have named this child, that is legally registered as their child, they want to bring this child into the future as their child, forever, her best interests are with them. They could be killed in a car accident next year, you know, so could the adoptive parents, you don’t know what the future is. But as it is laid out here, and as I understand the evolution of family life and birthing and bringing children into the world and caring for them - - and that is not to devalue the role of adoptive parents - - but that is my view.”


53. At first sight it may seem surprising that I have treated of Dr. Byrne’s evidence in somewhat more detail than the evidence of Dr. McDonald and Professor Iwaniec especially as the learned High Court judge preferred the evidence of the latter two experts. The importance of Dr. Byrne’s evidence, however, in my view relates to the concept of “compelling reasons”. It was not a correct approach for the learned High Court judge simply to prefer one expert’s evidence to the evidence of another. He was bound to view the expert evidence in the light of the constitutional presumption in favour of the child being with the birth parents. In those circumstances it would be rare that a finding of “compelling reasons” would be appropriate where there was responsible and credible expert evidence favouring the application of the constitutional presumption.

54. In fairness to the learned trial judge there was no substantial difference between the evidence of the expert witnesses as to the importance of attachment and as to the damage which would be done if the bond was summarily broken. All the experts were agreed that co-operation between the Doyles and the Byrnes would be important in the case of any transfer and that such a transfer would have to be done gradually and in accordance with advices of experts. What the judge rejected however was Dr. Byrne’s overall conclusion. One of the problems is that it is not entirely clear whether there was only one compelling reason albeit a compound one or whether the judge considered that there were alternative compelling reasons. On my reading of the judgment, I have taken the view that it was the former. Essentially, the “compelling reason” why the child could not be handed over to the birth parents in accordance with their normal rights under the Constitution was because, in the view of the judge, even if the idea of the gradual and monitored transfer was posited it would never work because there would be no co-operation between the Doyles and the Byrnes but particularly on the part of the Doyles. The judge considered that this non co-operation would arise from a lack of trust but he also seemed to think that it might not be unreasonable for the Doyles to find themselves quite unable to co-operate. The written submissions on behalf of the Doyles suggest a wider area of non-trust as reflected in the following sentence:


    “In this regard it is clear that his view in relation to the likelihood of success of a phased transfer was not based solely on the likely attitude and actions of the second and third-named respondents but rather on a consideration of the dynamics of the wider relationships between the various persons who would need to co-operate with and trust each other if the phased transfer was to succeed.”

55. I find myself unable to accept that proposition unless very heavy emphasis is based on the word “solely”. For two quite different reasons, I believe that the learned trial judge ought not to have attempted to assess the probabilities as to whether there would be co-operation from the Doyles or not particularly having regard to the fact that the proceedings took the form of an Article 40 application.

56. First of all assuming that the High Court or this court on appeal is entitled to make a special modified order under Article 40 phasing release in a particular way (a point to which I will return) the issue of what is to happen if the court’s preferred solution is thwarted afterwards is not something that should concern the court at this stage. That view may be controversial but even if I am wrong, I still consider that it was not correct for the trial judge to assess the probabilities or otherwise of there being the necessary co-operation because on the evidence in this case (and indeed I suspect in most other cases where it might arise) such assessment cannot properly be made. No matter what was said and understandably said by either of the Doyles or indeed by either of the Byrnes up to now cannot be taken to reflect what their position would be after the court made what it considered to be the appropriate order both in the interests of the child and honouring the constitutional provisions. All the evidence in this case suggests that both the Byrnes and the Doyles are reasonable, intelligent, careful, law abiding and loving people. It is somewhat unfortunate that counsel for the Doyles were presumably under instructions to make the case that co-operation after an order for transfer would be impossible because, I do not think that such instructions were doing justice to the Doyles themselves. Having regard to the bond which they already have now with Ann, I would not be prepared to make any assumption other than an assumption that they would co-operate with the court order. Indeed, if in fact they did not co-operate that might raise questions as to the strength of their affection for the child. Counsel for the Byrnes has already indicated that if, as they argue for, a straight order was made handing the child over to them they would give undertakings as to an appropriate phased transfer. Again, at this stage at least, I think it proper that the court should assume that this attitude was not conditional in any way and that if the court decided to make its own orders in this regard there would be the necessary co-operation on the part of the birth parents.

57. Such confidence on the part of the court which is at any rate appropriate as a matter of principle can, in fact in my view, be supported by the general tenor of the evidence given by Mrs. Doyle in particular under cross-examination by Ms. O’Toole in which the co-operation issue was probed. At the beginning of that cross-examination, Mrs. Doyle accepted that “(Ann’s) best interests” were best determined by the judge. Quite fairly, Mrs. Doyle said that she could not predict how she and her husband would cope with an order in favour of the appellants. Mrs. Doyle, however, made it clear that she would have “to comply with habeas corpus direction”. When asked whether, if the applicants were successful she would simply hand the child over to the Byrnes on foot of an order, she answered again very fairly “we would have to be directed by the court and by the law”. She then went on to concede that there was nothing stopping her and her husband from “entering into an arrangement which makes any hand over easier for (Ann)”. When further asked whether if the habeas corpus application was successful she would hand over the child immediately to Mr. and Mrs. (Byrne). She answered as follows:


    “If it is the law we would have to, we would have no choice, we would be breaking the law otherwise.”

58. A number of her answers were in similar vein but I think it fair to say that the following quite clearly emerged from her replies to this cross-examination. She clearly feared a very slow process of hand over and did not think that she and her husband “would be physically, mentally or emotionally able to watch” such a hand over. The following question and answer is worth quoting.

    “Q. And I accept, and I hear what you are saying, that it is very difficult to know if you were in that end of the road situation how you would react to it, because you don’t know until you are there, but at this point in time, would it be safe to say that you would do your best for her?

    A. We have always done our best for her, so we will continue to do our best for her.”


59. In the next few answers, it seems clear that what she is saying is that she would always wish to do the best for Ann but she was not able to say whether she and her husband would be able to “ facilitate a long painful reintroduction”. Her answers are not always consistent because at one stage she makes it clear that she did not think she and her husband would be able to facilitate visits by the parents. Nevertheless time and again she uses phrases such as “long painful reintroduction”. Her primary worry seemed to be the length of the reintroduction process but it would not seem to me to be a correct inference to draw from her evidence that she would in any way insist on an abrupt transfer if it came to the crunch. All her answers must also be read in the light of the legal advice which she appears to have been given that there was a possibility at least of a legal adoption under the 1988 Act. As I am of the view that there was no failure of duty there would appear to be no reality in that possibility.

60. I think it important to make the observation here that nothing emerges from the evidence that suggests that the Doyles are, because of any personal characteristics any different from any other putative parents in an identical position. It cannot be a correct understanding of the law that the presumption that the child’s welfare is better served with the natural parents in a marriage can be rebutted simply by the effect of procedural delays and still less by a refusal, whether excusable or not to cooperate in a hand over of the child to the natural parents. Fortunately, I take the view that any inference that there probably would be such obstruction cannot be drawn from the evidence.

61. For the reasons which I have indicated, I do not consider that the finding of “compelling reasons” by the learned trial judge was justified. I would just add this rider. Even if my view as to the interpretation of “compelling reasons” was incorrect and that the judge’s balancing approach was sufficient, I find it surprising that no significance seems to have been attached by the judge to the vitally important fact that no adoption as contemplated is now possible. It would seem to me that there is a very big difference between a lawfully adopted child on the one hand and a child in permanent or semi-permanent fosterage on the other hand. The explanation for this omission may be that the trial judge, given that he was also making a finding of failure of duty, contemplated that there could still be an adoption on some future date under the Adoption Act, 1988. As will be clear from the next section of this judgment, I am firmly of the view that to date there was no failure of duty within the meaning of Article 42, s. 5 of the Constitution. It would seem to follow that up to the present date at least there could not be said to be any failure of duty for physical or moral reasons within the meaning of section 3(1) of the Adoption Act, 1988.

62. I now turn to consider the finding of failure of duty. In this connection, the learned trial judge referred to In re the Adoption No. (2) Bill, 1987 [1989] I.R. 657 and Northern Area Health Board v. An Bord Uchtála [2004] 4 I.R. 252. He correctly pointed out that in the former case the Supreme Court recognised that a failure of duty pursuant to Article 42.5 was not confined to a failure to educate but embraced other personal rights of the child and that in the latter case this court in the judgment of McGuinness J. interpreted the words of O’Higgins C.J. in G. v. An Bord Uchtála [1989] I.R. 32 as painting a picture of the parental role as “clearly one of actual physical care and protection”. While these statements of principle are perfectly correct the learned trial judge drew consequences from them with which I must respectfully disagree. The learned High Court judge accepted, as he was bound to do, that a placement for adoption did not constitute failure of duty. This was well established by the case law including re J and re J.H. (an infant) cited above. But he took the view that although placement for adoption of itself could not constitute failure of duty, it could be a factor to be taken into account if combined with other factors. I fail to understand the logic of this position. The judge’s exact words were: “However when combined with other cogent material there may be sufficient evidence, even having regard to the constitutional presumption, to demonstrate that there has been such a failure.” The other factors on which the learned judge relied were that the Byrnes placed Ann in the care of the Doyles from the age of four months to the age of fifteen months without making any request for her return and that during that time the Doyles provided for all her needs. The judge then went on to comment that “the issue is not whether the applicants desired to contribute to (Ann’s) upkeep. What must be applied here is an objective test as to whether or not in fact the applicants made any contribution to her needs.” The judge admitted that for the Byrnes to take care of (Ann) would have been very difficult but that it was not impossible and that they had decided not to provide for their daughter in the sense of caring for her day to day needs when it was open to them to do so with difficulty.

63. As I have already indicated, I cannot agree with this view. The learned trial judge admits that the placement of (Ann) for adoption and the cessation of parental duties as a consequence did not involve any blameworthiness. But he took the view nevertheless that it was one (his emphasis) factor to which the court might have regard in considering whether there was a failure of duty. The learned trial judge also seems to have attached significance to the failure on the part of the Byrnes to present themselves for assessment by Dr. McDonald. Again, he is counting this as an objective factor rather than attaching any blame to them. For my own part, I would regard the failure to attend at Dr. McDonald as wholly irrelevant but secondly, I am not satisfied that blameworthiness is irrelevant. Furthermore, O’Higgins J. in the High Court had absolved the Byrnes from having to undergo re-assessment by Dr. McDonald. As I already mentioned earlier in the judgment, this court in the judgment of McGuinness J. in The Northern Area Health Board case already cited held that there did not have to be blame in relation to a person who by reason of mental handicap was not able to look after her child. But that failure was considered by the court to be a failure for physical reasons. If the alleged failure as, in this case is a failure for moral reasons it is difficult to understand why blameworthiness would not form an essential ingredient.

64. In arriving at the view that there was failure of duty the learned trial judge in the interest of harmonious interpretation equated the word “abandoned” in section 14 of the Guardianship of Infants Act, 1964 with abandonment for the purposes of the Adoption Act, 1988. The judge cited the words of Walsh J. in G. v. An Bord Uchtála [1980] I.R. 32 at 79 and he referred to Article 42, s. 5 of the Constitution and observed that a parent may for physical or moral reasons decide to abandon his position as a parent “or he or she may be deemed to have abandoned the position; a failure in parental duty may itself be evidence of such an abandonment.” I cannot accept that any question of harmonious interpretation is relevant here. Abandonment of a child and abandonment of parental rights are two quite different concepts. Nothing in the procedures which took place in this case from the placement for adoption onwards could be held to constitute abandonment of the child and, therefore, failure of duty under Article 42, s. 5.

65. I am satisfied that there is no basis for any finding that there was a failure of duty.

66. In so far as I have differed in this judgment from views adopted by the learned trial judge in his judgment it is necessary to comment more fully on the well-known principles set out by McCarthy J. in Hay v. O’Grady [1992] 1 I.R. 210 at 217 as it has been strongly argued by Mr. Durcan on behalf of the Doyles that this court should be slow to substitute its own inference of fact for any inference drawn by the trial judge. It would seem that this arises from the third principle set out by McCarthy J. and which reads as follows:


    “Inferences of fact are drawn in most trials; it is said that an appellate court is in as good a position as the trial judge to draw inferences of fact…. I do not accept that this is always necessarily so. It may be that the demeanour of a witness in giving evidence will, itself, lead to an appropriate inference which an appellate court would not draw. In my judgment, an appellate court should be slow to substitute its own inference of fact where such depends upon oral evidence or recollection of fact and a different inference has been drawn by the trial judge. In the drawing of inferences from circumstantial evidence, an appellate tribunal is in as good a position as the trial judge.”

67. In this judgment, in so far as I have disagreed with the learned trial judge, it has been in relation to the effect of the expert evidence and indeed even in respect of that there is very little disagreement. Essentially, my disagreement relates to the legal conclusion. At any rate, I consider that McCarthy J. was mainly referring to lay witnesses. Demeanour is rarely important in the case of expert witnesses.

68. Having concluded that there were neither “compelling reasons” nor “failure of duty”, I come now to consider the difficult question as to what order should the court make. Article 40, s. 4(2) requires that unless it is satisfied that the person being detained is being detained in accordance with the law the court must make an order for the release of such a person from such detention (my emphasis). This important provision of the Constitution has to be given a purposive interpretation in cases where a person being detained is a young infant, as in this case, or a person seriously of unsound mind or with some other incapacity. In such cases, a simple order for release out on to the roads, as it were, makes no sense. In such cases it would seem to me that the court should adopt a twofold exercise.

69. It should order the release of the child from the custody of the second and third-named respondents to the intent that the child be delivered to her natural parents the first and second-named appellants. This would appear to be the appropriate order under Article 40, s. 4(2) of the Constitution, the court having first set aside the entire of the order of the High Court. It is clear that apart from any claim to lawful custody arising from the terms of the High Court order itself which would come to an end once that order is set aside, any other claim to lawful custody by the second and third-named respondents was unfounded from and after the marriage and re-registration of the birth. Having regard to the infancy of the person being released, it is inherently necessary and, indeed, required to protect the constitutional rights of the child that the court should make an appropriate ancillary order in the second instance directing the manner in which the release from custody is to be made. I am in full agreement with the form of procedure in this regard and proposed orders suggested in the judgment of the Chief Justice. There has been abundant evidence to the effect that a transfer, if it is to be done without permanent damage to the child ought to be done in a gradual manner and in accordance with the advice of appropriate experts.

70. I would, therefore, allow the appeal and substitute these orders for the orders of the High Court.






Back to top of document