Judgment Title: N. & anor. -v- Health Service Executive & ors.
Composition of Court: Murray C.J., McGuinness J., Hardiman J., Geoghegan J., Fennelly J.
Judgment by: Murray C.J.
Status of Judgment: Unapproved
Outcome: Allow And Set Aside
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THE SUPREME COURT
Murray C.J. 273 & 283/06
IN THE MATTER OF THE CONSTITUTION
IN THE MATTER OF N.
N and N
HEALTH SERVICE EXECUTIVE
G and G
AN BORD UCHTÁLA
Judgment of Murray C.J. delivered the 13th day of November, 2006Having also come to the conclusion that the interests and welfare of the infant in this case require that she be returned to the custody of her parents, I agree with the conclusions reached in the judgments of my colleagues, Hardiman J., Geoghegan J. and Fennelly J. for the reasons set out in their judgments which relate to the issues necessary to be decided in this case. Since the claim in this case has been made by way of proceedings pursuant to Article 40.4. of the Constitution and since the immediate care and welfare of the infant is a matter to which the Court must have regard, it is necessary to address the form of order which the Court should make.
A successful application pursuant to Article 40.4. concerning an unlawful detention would normally lead to an order for the release of the person concerned from the unlawful detention with no further order being necessary. In this case there are special circumstances, namely the welfare of an infant of tender years, to be taken into account when determining the manner in which effect may be given to the order of this Court pursuant to A. 40.
The claim of the third and fourth named respondents in this case, which was also based essentially on the welfare of the infant, was that they have been and are entitled, as of right, to retain her in their custody. It is this custody which the applicants claimed amounted to unlawful detention within the meaning of Article 40 of the Constitution. On the basis that the respondents’ claim is not well-founded it remains for the Court to make such order as it considers appropriate in a case of this nature pursuant to Article 40.4.2 of the Constitution. At the time of the infant’s placement with the respondents and at least up until the time when her parents, the applicants, withdrew their consent to the adoption and sought the return of the infant, the respondents’ custody of the infant was lawful. That custody was permitted to continue while these proceedings were pending, although at one point during the proceedings the infant was made a Ward of Court and provision made for the applicants to meet with her. That custody or detention is now at an end. In short, the respondents are no longer entitled as of right or as a matter of law to the custody of the infant. Accordingly the infant must be released from that custody with a view to returning her to that of her parents.
Nonetheless it remains for the Court, having regard to the constitutional rights and welfare of the infant, to decide on the future but immediate care and custody of the infant with a view to giving effect to the consequence of the Court’s decision namely her return to the custody of her parents. In this regard I would recall that in Re. The Adoption (No. 2) Bill, 1987 Finlay C.J., in pronouncing the judgment of the Court, noted (at 663) that in addition to its rights identified in Articles 41 and 42 of the Constitution an infant also had “other personal rights which, though unenumerated, derived from the Constitution”. He went on to say, that in any event, “… by virtue of Article 40, s. 3 of the Constitution [the State] is obliged, as far as practicable to vindicate the personal rights of the child …”. The Courts established by the Constitution, as the judicial organ of State, are enjoined to observe that obligation. Where an infant is being transferred from the custody of a couple with whom it has formed an attachment to the custody of natural parents it is clearly in the interests of her welfare as guaranteed by the Constitution that such a transfer should take place in a manner and circumstances which, as far as practicable, protects that welfare so that any adverse effects on the child are obviated or minimised. In my opinion it is the duty of the Court to protect those rights.
In my view the Court has jurisdiction, in the circumstances of a case such as this, involving as it does a minor of very tender age, to make ancillary or interim orders concerning the immediate custody of such infant which are necessary in order to protect her rights and welfare pending effect being given to the substantive order of the Court.
I am reinforced in that view by the decision of this Court in D.G. –v- Eastern Health Board  3 IR 511 where a conflict had arisen between a minor’s constitutional right to liberty and an order directing his detention in St. Patrick’s Institution for three weeks solely because that was essential in order to provide for his welfare having regard to a severe personality disorder. He was 17 years old at the time of this Court’s decision. The High Court had ordered the minor’s detention in St. Patrick’s Institution in the absence of any other suitable facility within the State and it being therefore the place most suitable to ensure his welfare having regard to his needs.
In that case Hamilton C.J., delivering the majority judgment, found:
(3) He exercised such jurisdiction for a short period namely three weeks and that he was correct in so doing.
The exercise by the High Court of its jurisdiction in this regard should not in anyway be used by the respondents in these proceedings to relieve them of their statutory obligations in regard to the applicant and they should continue their efforts to make suitable alternative arrangements consistent with the needs of the applicant and if any such arrangements can be made, he should not be detained in a penal institution.”
In my view this is such a case and indeed the circumstances could be said to be more exceptional. It goes without saying that in this case the infant must at all times be in the care and custody of other persons. It is common case among all parties, the applicants, the respondents and the Health Service, that every effort and arrangement should be made, under professional supervision, to ease the transition of the infant from the custody of the respondents to those of the applicants. Such an approach is essential to the welfare of the infant because a peremptory transfer would be potentially damaging to the infant. Reference has been made in the judgments of the members of the Court to the reservations expressed on behalf of the respondents as to their capacity to cooperate fully with such arrangements but the Court cannot presume, at this stage, in the light of the decision which it makes today, how they will respond to the needs of the infant in this regard.
The present situation is as follows. The custody which the respondents exercised in respect of the infant on the basis of its placement with them or any other basis which may have been relied upon up to now is terminated. It was unlawful and she is now released from it.
Having regard to the evidence concerning the interests and welfare of the infant it is open to the Court, and indeed in my view incumbent upon the Court, to make provision for the manner in which the transfer of full custody to the applicants should be achieved during a purely transitional period. Although there was evidence, relevant to the issue in this case, concerning the need for what was variously described as a phased transfer of custody from the respondents to the applicants, there was no detailed evidence given as to precisely how this might be best achieved. This is because although the desirability, in principle, of a phased transfer of custody in the interests of the infant was relevant to the issues to be determined in these proceedings, the actual methods or arrangements by which it would be brought about were not relevant and not addressed. That only arises as a distinct and separate matter once the issue in these, the Article 40 proceedings, has been determined. That having been determined, it is then a separate matter for the Supreme Court to subsequently decide, by way of an ancillary order, how a phased transfer of custody may be best achieved in the light of the relevant facts and circumstances which will now arise following the Court’s decision in this case.
The Health Service, in the circumstances of the case, is particularly well placed and has a responsibility to provide professional advice and supervision as to how this might be achieved. Obviously it is similarly open to the other parties to obtain professional advice or make submissions concerning this matter.
For that purpose the Court requires that further submissions be made, having regard to the facts and circumstances which now arise, so that the Supreme Court can decide what form the further order should take. Clearly the parties must have a reasonable time to prepare for that question but it is also in the interests of the child that it should be dealt with the shortest possible time. To that end that matter will be listed before the Supreme Court for hearing in the immediate future on a date to be notified to the parties by the Registrar. In the light of the submissions of all the parties, and obviously much may depend on the cooperation of the parties, the Court will determine whether it is possible to make the ancillary order on that date or whether further submissions and consideration will be required in the matter.
In the meantime, for that brief period, the Court will in the interests of the infant, make an interim order authorising, by virtue of that order, the infant to remain in the custody of the respondents.
The order of the Court will accordingly be:
(a) An order directing the release of the infant from the custody of the third and fourth named respondents and returned to that of her parents, the applicants;
There was ample evidence before the trial judge on which he could base such a finding.
During the pregnancy, in or about April 2004, Brian and Catherine attended M. T., a medical social worker. It appears to have been during this period that the applicants decided to have Ann adopted. On 8th April 2004 M.T. referred the applicants to the Health Service Executive for the purposes of adoption and they were allocated to Mr R. a senior social worker with a great experience of adoption work. A meeting took place on 24th June 2004 with Brian and Catherine, M.T. and Mr R. At that meeting the question of adoption was discussed and planned.
On 7th July 2004 Ann was born in hospital. The following day the parents agreed to pre-adoptive foster care and were introduced to L.D. the foster carer. On 11th July Ann was admitted to foster care with L.D. and Catherine signed a document entitled “Voluntary Care Agreement Admission to Care”. The trial judge was satisfied that during the duration of this placement in foster care Catherine was informed that she could change her mind and resume caring for Ann herself. He considered that the evidence also established that she was in fact encouraged that she could do so by Mr R. during the course of counselling from July to September 2004. After Ann had been placed in foster care Mr R. met Catherine and Brian, for counselling and to progress the adoption procedure, on 21st and 29th July 2004, 5th August 2004, 6th August, 1st September and 10th and 14th September, 2004.
At the trial there were a number of clashes between the evidence of the applicant and that of Mr R., the social worker. Having heard the witnesses in person the learned trial judge preferred in all cases the evidence of Mr R., which was confirmed by his contemporaneous notes. The judge, however, felt that the Byrnes were doing their best to tell the truth and to describe what occurred to the best of their recollection. During the course of the trial it became clear that certain of the averments in Brian’s original affidavit grounding his proceedings were patently inaccurate and indeed false. His explanation of this was somewhat vague and not particularly credible but he was permitted by the court to swear an additional affidavit correcting some of the errors. On consideration it would seem to me that some of this evidence which was not accepted by the trial judge was a form of “wishful thinking” by Brian rather than deliberate untruth.
While Ann was in foster care Brian and Catherine visited her and on one occasion took her home for an overnight visit. On 14th September 2004 Brian signed an acknowledgement reciting that he was aware that the adoption process had started and that prior to the making of a final adoption order he did not wish to be heard by An Bord Uchtála. During this period Brian told his parents of Ann’s birth. Shortly thereafter Catherine told her parents and they visited Ann. Also during this period adoption profiles were prepared by Mr R. with the assistance of Catherine and Brian. These adoption profiles were documents setting out the type of adopters that Catherine and Brian wished to become the adopters of Ann.
On the 14th September 2004 Catherine signed a form consenting to place Ann for adoption. This is a statutory form provided by An Bord Uchtála and is known as “Form 10”.
Form 10 consists of two parts. The first is a Memorandum setting out details of the child whose placement is in question. The Memorandum goes on to set out the legal effects of an Adoption Order, and details of the consent required for the actual making of an Adoption Order (as opposed to the preliminary consent to place the child for adoption) (my emphasis). The memorandum explains the circumstances in which the consent of the natural father is needed as follows:
“The consent of the natural father to the making of an adoption order for a child born outside marriage is required in the following circumstances:-
(a) where he marries the mother after the birth of the child, or
(b) where he has been appointed a guardian of the child or has been granted custody of the child pursuant to a court order (or otherwise has custody).”
“The law permits An Bord Uchtála (the Adoption Board) to dispense with the consent of any person to the making of an Adoption Order if it is satisfied that that person:-
(b) cannot be found.
(a) giving custody of the child to the prospective adopters, and
(b) authorising An Bord Uchtála (the Adoption Board) to dispense with such consent to the making of an Adoption Order in their favour.”
“If, after the child has been placed with prospective adopters and before the making of the Adoption Order, you change your mind and want to reclaim your child, you should contact the Adoption Society without delay. If the prospective adopters decline to give up the child, it is open to you to institute proceedings to have custody of the child restored to you. Should this situation arise you would need to consult a solicitor as a court case may be involved.”
The second part of Form 10 is headed “Receipt for Form 10”. This Receipt is signed by the mother and witnessed. The signature indicates acceptance of the following statement:-
“I have received from you a statement in Form 10. That statement was attached to this receipt and I have myself torn it off. I understand that statement. I also understand that my signature on this Receipt is evidence that I have consented to the placing of the said child for adoption.”
At the bottom of the form the person administering the form signs and certifies as follows:-
“I certify that on behalf of (Adoption Society) I have handed the statement attached to this Receipt to the (natural mother/natural father) and explained its contents to her/him. I am satisfied that she/he understands it.”
The receipt for Form 10 is then torn away from the Memorandum. The receipt is to be forwarded to An Bord Uchtála and the Memorandum is to be kept by the child’s mother and, if relevant, father. This is done so that the information contained in the Memorandum is available to be consulted in the future at any time by the natural mother and father.
In the present case the learned trial judge accepted that Form 10 was properly explained and administered on 14th September 2005 and that Catherine understood it when she signed it. The wording of the Form is reasonably clear. Both applicants had a high level of education and, as found by the learned trial judge, were of good understanding of the issues involved in adoption. Like the learned trial judge, I find it difficult to accept the evidence of the applicants that they retained the belief that if Catherine changed her mind Ann would more or less automatically be returned to their custody, even after a considerable period of time had elapsed.
On 30th September 2004 a body entitled the Regional Adoption Panel considered the case and identified the second and third named respondents, David and Eileen Doyle, as suitable adopters for Ann. On 28th October the Byrnes and the Doyles met, introduced by their respective social workers. The meeting went well. It is described by McMenamin J. as follows:
“Brian and Catherine agreed that the Doyles were appropriate adopters. They corresponded with, and fulfilled each of the requirements that they had as to their interests in education, sport and outdoor activities, Roman Catholic religious beliefs, the location of their house and their preparedness to engage in an ‘open adoption’, that is one which the birth parents could have occasional access to the child to be so placed.”
On 1st November 2004 the Doyles first met Ann at L.D.’s house where she was in foster care. The introductory programme went successfully and on 5th November Ann moved to the Doyles house on prospective adoptive placement. The Byrnes had no further contact with Ann until Christmas, when they sent her a Christmas card and accompanying letter. Both card and letter expressed happiness with the adoption and strongly implied that Ann would remain with the Doyles.
From time to time both Brian and Catherine, separately and together, expressed doubts about Ann’s adoption, but were reassured, and accepted, that this was a normal reaction. Due to an administrative error whereby the correct original Form 10 had not been forwarded to the Adoption Board it became necessary for Catherine to sign a second Form 10. Both she and Brian gave evidence that by then they had real doubts regarding the adoption, but they did not overtly express them. Catherine signed the new Form 10 on 22nd April 2005.
Despite further doubts Catherine also signed Form 4A, colloquially known as the “final consent” to adoption, on 11th July 2005. This form does not, in reality, bring finality to the process. Until an Adoption Order is actually made by An Bord Uchtála it is open to the natural mother to withdraw her consent and seek the return of her child. Such a request may, of course, be met by an application by the prospective adopters pursuant to section 3 of the Adoption Act 1974. It is important to note that at all times the Doyles accepted that this was to be an “open adoption” and this was so stated at the of the signing of Form 4A. At all times the Doyles accepted that the Byrnes could visit Ann at least once a year. At a later stage the Byrnes requested a twice yearly visit. The Doyles were willing to agree to this but the adoption social worker with whom they were dealing felt that it was too early in the adoption to permit a twice yearly visit.
Both Catherine and Brian strongly assert that the only reason that Catherine signed the “final consent” form was that they were told that otherwise they would have no access to Ann under the “open adoption” arrangement. This is strongly denied by the social workers involved and there is no independent evidence that any such pressure was put on either parent. Indeed, on 18th July 2005 Brian telephoned Mr R. and expressed satisfaction that the consent had been signed.
On 8th August 2005 Catherine and Brian had an access meeting with Ann and the Doyles. This was supervised by social workers, a circumstance at which Brian protested, but otherwise the visit went well. However Catherine and Brian were by this time experiencing a high level of doubt about the placement. Apparently in August they entered into a commitment with one another and decided to reclaim Ann. They did not openly express this decision until 26th September 2005, when Catherine wrote directly to An Bord Uchtála withdrawing her consent to the adoption and seeking the return of Ann. David and Eileen Doyle refused to return the child on grounds of the child’s best interests. Catherine, who was angered by the delay in the return of Ann, wrote again demanding that the child be returned by early December. At this stage the Doyles had taken legal advice and put in train the initiation of proceedings pursuant to section 3 of the 1974 Act.
Various meetings between the Byrnes and H.S.E. personnel took place between October and December 2005, to no particular avail. There was also some correspondence. At this stage no question had been raised regarding the applicants intention to marry.
Towards the end of 2005 the applicants received legal advice that their legal position would be enhanced if they were married. On the 2nd December 2005 Catherine signed the requisite document whereby Brian became a guardian of Ann. On 8th December Brian made a telephone call to the District Registrar’s office for births, deaths, marriages and civil partnerships for Derry City Council. He later submitted two completed marriage notice application forms by fax. While Catherine said that a reason for having the marriage in Derry was that it was near to her family home, it seems undoubted that the basic reason was that the notice period for marriage in Northern Ireland was fourteen days rather than the three months required in this jurisdiction. Arrangements for the marriage were made for 22nd December but were cancelled at very short notice. A further arrangement was made for 3rd January and again cancelled at very short notice. The marriage actually took place in the Civil Registry in Derry on the 9th January 2006. The parties arrived alone and it was necessary for the couple to ask two total strangers to witness the ceremony. This was despite the fact that evidence was given that both Catherine’s parents and a personal friend of hers were in Derry at the time.
A mediation process between the Byrnes and the Doyles took place in February but was unsuccessful. The present Article 40 proceedings were initiated by Brian Byrne on the 17th February 2006. Catherine was named in those proceedings as a notice party and she subsequently became a full party. On the 1st March 2006 David and Eileen Doyle certified grounds for the detention of Ann.
THE EVIDENCE IN THE HIGH COURT
At the hearing before the High Court evidence was given by or on behalf of all three parties – the applicants, the first named respondent (the Health Service Executive), and the second and third named respondents. For various reasons, largely connected to the availability of expert witnesses, the normal order of witnesses had to be rearranged from time to time.
Leaving aside for the moment the expert witnesses, David and Eileen Doyle gave evidence, in particular regarding their relationship with Ann. David’s mother, the child’s grandmother, and Eileen’s sister also gave evidence of the close-knit and happy extended family circle. Both David and Eileen gave evidence of their acute suffering on account of Catherine’s and Brian’s wish to obtain custody of Ann and both said that they would find it unimaginable and impossible to take part in a phased transfer of Ann to the Byrnes. Brian and Catherine Byrne gave evidence of the history of their relationship, the placement of Ann for adoption, their growing doubts and their eventual decision to seek the return of Ann to their custody as a married couple. They were cross-examined at length, particularly in regard to the advice given to them by Mr R., the social worker, and other employees of the Health Service Executive.
The main witness of fact called by the Health Service Executive was Mr R. who gave evidence of the entire course of his relationship with the applicants and of the history of the placement. He too was cross-examined at length. In quite a number of instances his evidence clashed with that of the applicants. Where it did so the learned trial judge preferred the evidence of Mr R. which was supported by contemporaneous notes. In his judgment the learned trial judge carefully analysed his reasons for preferring the evidence of Mr R. I see no reason to doubt his decision to that effect (see Hay v O’Grady  1 I.R. 210). In his judgment McMenamin J. also notes that neither Brian’s parents nor Catherine’s parents gave evidence.
At the hearing of the appeal before this court, however, reliance was in the main placed on the expert evidence led by all parties on the issue of bonding and attachment and the danger to the child inherent in separating her from those whom she naturally regarded as her mother and father and with whom she had bonded. Expert evidence was given on behalf of the applicants by Dr. Nollaig Byrne, consultant child and adolescent psychiatrist in the Mater Hospital and Clinical Director of the Child Adolescent Mental Health Service in that hospital. Evidence on behalf of the second and third named respondents was given by Professor Iwaniec, a medical professor at Queens University Belfast who had also been director of a child care institute. Expert evidence on behalf of the Health Service Executive was given by Dr. Jerry McDonald, a clinical psychologist employed by the Newry and Mourne Health and Social Services Trust, who is also an area professional adviser to one of the Northern Ireland health boards. Dr. McDonald was called by the Health Service Executive precisely because he was an expert in the area of attachment. The intention was that he would interview and assess Brian and Catherine Byrne. Unfortunately in the event the Byrnes declined to be assessed by him.
Evidence on behalf of the Health Service Executive was also given by Ms S. C., social worker, who had carried out an assessment of all parties at the behest of the Health Service Executive. Ms C’s evidence was strengthened by the fact that she was the only one of the five witnesses who had met and assessed both the Byrnes and the Doyles. She also had had experience of children being transferred from one carer to another during the course of her employment with the Health Service Executive. These, however, had been in the main children from disturbed or otherwise deprived backgrounds. The weakness of her evidence was that, as she frankly admitted, she had had no experience of adoption work and her expertise in the field of attachment was quite limited. In her written report, however, she made reference to established authorities on bonding and attachment such as Bowlby and the more recent expert Fahlberg.
The evidence of the four expert witnesses has been analysed in some detail by Geoghegan J. in his judgment and I see no need to repeat that analysis. In brief, all four experts agreed that what was described as a “summary” move of Ann from the care of the Doyles, whom Ann knew and loved as her family, to the care of the Byrnes, who from the point of view of Ann were virtual strangers, would cause serious both immediate and lasting damage. Dr. Nollaig Byrne, in reply to cross-examination, went so far as to say that if the Doyles found it “too painful and difficult” to co-operate in a gradual transfer then “(the Byrnes) should reconsider their understanding of the best welfare of (Ann).” (Day 2 page 70)
The experts also agreed, with varying degrees of emphasis, that a phased and gradual transfer of care, with the co-operation of the Doyles and expert support and assistance for the Byrnes, could be achieved. Such a phased and gradual transfer could take a period of up to a year. It was likely to cause some immediate suffering to Ann but the chances of long term harm would be greatly reduced, though not entirely eliminated. All four experts also relied on Bowlby as an established authority on bonding attachment and on Fahlberg (2004) as a more modern authority. All experts stressed the importance of the gradual nature of the transfer and the need for co-operation between the present carers and the new carers. They also stressed the fact that both pre and post-placement visits and contacts could be used to minimise the trauma of separation and loss to the child.
I am in agreement with Geoghegan J. in noting that all this expert evidence is predictive in nature (unavoidably so). Neither the expert witnesses nor the court can be certain as to the outcome of the transfer of Ann to the custody of her birth parents. In addition in the present case the unpredictability of Ann’s future is exacerbated by the evidence given repeatedly by the Doyles that they would simply be unable to cope with the pain and grief of facilitating a phased transfer of Ann to the Byrnes. As a result of this evidence, and of what he described as a “lack of trust” between the parties, the learned trial judge seems to have accepted that a correctly phased transfer of custody could not be envisaged.
Leaving aside the clear point that the court cannot be bound by a refusal, however understandable, by the present carers to co-operate in a transfer, the difficulty remains that neither the expert witnesses nor the court can predict with any degree of certainty the future behaviour of the two couples concerned or its effect on the child.
THE DECISION OF THE HIGH COURT
It is clear from his detailed and careful judgment that the learned trial judge gave considerable thought to his conclusions both on the evidence and on the law in the present case. It is also clear that he felt great sympathy for both the couples involved and above all a deep concern for the future welfare of the child Ann.
As already stated, the learned trial judge decided that Ann should be made a Ward of Court but that she should remain in the custody of the Doyles. In reaching this conclusion he considered the wording of Article 42.5 of the Constitution, the terms of the Adoption Act 1988, the decision of this court in the case of In Re J.H.  I.R. 375 and also some elements of the later decision of this court in the case of Northern Area Health Board v An Bord Uchtála  4 IR 252. He held that for a number of combined reasons, including the placement of Ann for adoption and the failure to reclaim her at an early stage, the applicants had failed in their duty to the child, that this amounted to abandonment, and in addition that there were compelling reasons why Ann should not be returned to the custody of her birth parents.
THE NOTICE OF APPEAL
In their notice of appeal the applicants set out a total of thirty grounds of appeal. There is no need to recite the grounds in full. They are grouped in three sections. The first group of grounds concerns the learned judge’s assessment of the evidence and his conclusions that the applicants had failed in their parental duty, had abandoned their child, and that their right to custody of their child should be refused. Several grounds also relate to the weight given by the learned trial judge to the issue of attachment. The second group of grounds dealt with the trial judge’s findings in regard to modern developments in psychology and the theory of attachment and with his finding that the absence of co-operation and/or distrust on the part of the applicants and the respondents were such that a planned or phased transfer of care was not possible. The third group of grounds dealt with the learned trial judge’s application of the legal test to the determination of the case before him and his failure to afford sufficient weight to the inalienable and imprescriptible rights guaranteed to the family under articles 41 and 42 of the Constitution and also to their rights under article 8 of the European Convention on Human Rights.
SUBMISSIONS OF COUNSEL
In both written and oral submissions to this court on the appeal senior counsel for Brian Byrne, Ms Browne, and senior counsel for Catherine Byrne, Ms O’Toole, stressed that the proceedings were an application under article 40.4 of the Constitution. The single issue before the court was whether the respondents continued custody of the child in question was in accordance with law. Counsel referred to the inalienable and imprescriptible rights of the applicants as a family based on marriage, as set out in articles 41 and 42 of the Constitution. They emphasised the established weighty presumptions as to the married family’s right to custody of their child and the presumption that the child’s welfare was to be found within the constitutional family.
Ms Browne argued that the situation in the present case was almost exactly parallel to that in the case of In Re J.H.  I.R. 375 and that the decision of this court in that case should apply in the present circumstances. The evidence concerning bonding or attachment was equally present in the In Re J.H. case but was held not to be a sufficiently compelling reason to deprive the natural parents of their statutory and constitutional right to the custody of their child. Ms O’Toole submitted that the evidence before the High Court did not in any way amount to a failure of duty to their child by the applicants, still less did it amount to abandonment.
The Health Service Executive had not appealed against the judgment and order of the High Court. The court, however, permitted Mr Rogers, senior counsel on behalf of the Health Service Executive, to make the limited but important submission that the finding by the learned trial judge that placement for adoption in itself could amount in any way to a failure of duty, or even more seriously, abandonment by a parent, represented a danger to the whole structure and system of the adoption process.
Senior counsel for the second and third named respondents, Mr Durcan, supported the conclusions of the High Court. He approached the principles involved from the point of view of the constitutional rights of the child. He submitted that the rights of a child are to have his or her needs provided for by his or her parents and a corresponding right and duty of a parent or parents is to provide for those needs. He accepted that there was a constitutional presumption that the needs of a child are to be met and its welfare secured within its family but argued that in exceptional cases the presumption could be rebutted if there were compelling reasons why a child’s welfare could not be secured within his or her family or that the parents had failed to provide for the needs of the child. He accepted that this test was set out in the case of In Re J.H. and that this was the appropriate test to be applied.
Mr Durcan submitted that the relevant statutory provisions reflected the constitutional position as previously described. A guardian or guardians of a child were entitled to the custody of that child and further had a right to seek the restoration of such custody as against a third party. However such right was not absolute in that there were specific statutory provisions in the Guardianship of Infants Act 1964 which restricted the right to obtain such a restoration of custody. The statutory restrictions on the right of a guardian to the restoration of custody of a child reflected or mirrored the provisions of Article 42.5 of the Constitution. He submitted that custody of a child essentially meant the right to physical care and control of that child. (R.C. v .I.S.  4 IR 431 at page 439 per Finlay Geoghegan J.)
Mr. Durcan submitted that the learned trial judge had identified and adopted the test as set out In re J.H. There was ample evidence before him to hold as he did. Mr Durcan referred to case law subsequent to In Re J. H. which, he argued, widened the concept of failure of parental duty. Counsel submitted also that in the particular circumstances of this case the relevant test in regard to failure of duty was whether the applicants by reason of their physical or moral circumstances had failed in their duty to provide for the needs of their child. If parents failed in the duty to provide for the needs of their child then they no longer should obtain the benefit of the constitutional presumption that the child's welfare was to be found in their family, since the presumption would be inconsistent with the reality which had occurred.
(a) The Constitution
Article 40.4.1 and 2 of the Constitution provides:
"4.1 No citizen shall be deprived of his personal liberty save in accordance with the law.
4.1 Upon complaint being made by or on behalf of any person to the High Court or any judge thereof alleging that such person is being unlawfully detained, the High Court and any and every judge thereof to whom such complaint is made shall forthwith inquire into the said complaint and may order the person in whose custody such person is detained to produce the body of such person before the High Court on a named day and to certify in writing the grounds of his detention, and the High Court shall, upon the body of such person being produced before that court and after giving the person in whose custody he is detained an opportunity of justifying the detention, order the release of such person from such detention unless satisfied that he is being detained in accordance with the law."
Articles 41 & 42 provide as follows:
“Article 41.1.1° The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.
2° The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.
Article 42.1 The State acknowledges that the primary and natural educator of the child is the Family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children.
5. In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.”
(b) The Adoption Acts, 1952 to 1998
In this case particular reference is made to the Adoption Act, 1974, s. 3, and to the terms of the Adoption Act, 1988 which for the first time permitted the adoption of the children of married parents. G. v An Bord Uchtála  IR 32 provided a number of dicta elucidating the rights of unmarried parents and their children. In the Article 26 reference case In the Matter of Article 26 of the Constitution and In The Matter of the Adoption (no 2) Bill, 1987  IR 657 this court, in the judgment of Finlay C.J., set the parameters for the adoption of children born to legally married parents.
Prior to the marriage of Brian and Catherine Byrne the Doyles had intended to bring proceedings pursuant to s.3 of the Adoption Act, 1974 the provisions of s.3 are as follows:
"3(1) In any case where a person has applied for an adoption order relating to a child and any person whose consent to the making of an adoption order relating to the child is necessary and who has agreed to the placing of the child for adoption either -
(a) fails, neglects or refuses to give his consent, or
(b) withdraws a consent already given, then
the applicant for the adoption order may apply to the High Court for an order under this section.
(2) The High Court, if it is satisfied that it is in the best interests of the child so to do, may make an order under this section -
(a) giving custody of the child to the applicant for such period as the Court may determine, and
(b) authorising the Board to dispense with the consent of the other person referred to in subsection (1) of this section to the making of an adoption order in favour of the applicant during the period aforesaid."
Considerable reference was made during the course of the hearing to the case of Northern Area Health Board v An Bord Uchtála  4 IR 252. In the course of my judgment in that case I gave a very brief history of the reasons for the enactment of the Adoption Act, 1974 and the Adoption Act, 1988. In my view a consideration of this legislative history may be of assistance in assessing the differing - and changing - position of the parties in the instant case. Under the heading "The Legislative Context" I stated:
"Prior to considering the interpretation and application of the provisions of sections 3 and 4 of the Adoption Act to the facts of the instant case it would, in my view, be helpful to look at the legislative history and context of the statute itself. Section 9 of the Act provides in the usual form that the Act of 1988 and the previous Adoption Acts from 1952 onwards, may be cited together and “shall be construed together as one”.
The Adoption Act 1952 provided for a system of legal adoption for the first time in this jurisdiction. Under section 10 of that Act the only children eligible for adoption were those who were either illegitimate or were orphans both of whose parents were dead. A dual system of consent by the mother of such a child was established. She first had to agree to place her child for adoption and at a later stage, after the child had reached the age of at least six months, she executed a “consent” to adoption under section14 of the Act of 1952. This consent was essential and had to be given in writing in the prescribed form. The mother’s consent could be withdrawn at any time before the making of the adoption order. The respondent (An Bórd Uchtála) could dispense with the mother’s consent only in very narrow circumstances – if she was incapable by reason of mental infirmity of giving consent or she could not be found.
Under this legislation considerable problems arose over the years in cases where the mother had placed her child with prospective adopters (generally through an adoption society) and subsequently failed or refused to execute the consent to adoption. In some cases the mother wished to reclaim the child; in others she did not. The children involved were thus often left in the long term care of the prospective adopters but with none of the security of adoption.
In an endeavour to cure this mischief the Oireachtas enacted the Adoption Act 1974. Section 3 of that Act provided that in a case where the mother had “agreed to the placing of the child for adoption” and subsequently failed or refused to give the requisite consent (or withdrew a consent already given) the High Court could, in the best interests of the child, make an order authorising the respondent to dispense with the mother’s consent. Much of the established case law concerning adoption from the leading case of G. v An Bord Uchtála  IR 32 onwards, has dealt with the interpretation of this section.
The position, however, remained that only illegitimate or orphan children were eligible for adoption. The children of married parents who formed part of families whose rights arose under Articles 41 and 42 of the Constitution, could never be adopted even in cases where they had been left in the care of foster parents for many years and where there was no likelihood that they would ever return to the care of their parents. Other children, as in the case of the child at the centre of the present case, had been for a long period in the care of foster parents but could not be adopted because their unmarried parents had never agreed to place them for adoption in the first place. It was with a view to curing this mischief that the Oireachtas enacted the Act of 1988. The long title of the Act describes it as “an Act to provide, in exceptional cases, where the parents for physical or moral reasons have failed in their duty towards their children, for the supplying, by the adoption of the children, of the place of the parents and for that purpose and other purposes to amend and extend the Adoption Acts 1952 to 1976.”"
The second and third named respondents rely on a number of dicta in the judgment in the Northern Area Health Board case. In considering the force and applicability of those dicta the somewhat unusual facts of that case must be borne in mind. Firstly, the child in question was the child of an unmarried mother who suffered from a degree of both mental illness and mental disability. Her child, who suffered from cerebral palsy, had been in the care of foster parents for twelve years. These foster parents had cared tenderly for the child and wished to give her the security of adoption. The natural mother had visited her daughter from time to time, mainly at the request of the foster parents. The medical evidence was that the mother would never be able to care for her child and indeed had difficulty in caring for herself. She had consistently refused to agree to place her child for adoption, thus s.3 of the 1974 Act did not apply. The application for an adoption order therefore fell under the strict requirements of the 1988 Act. It must be remembered, however, that the natural mother, being unmarried, while she had a right to custody of her child under Article 40 of the Constitution, had not the constitutional protections and presumption which benefit the married family under Articles 41 and 42. In the light of these facts the court held that the mother had failed in her duty to her child, that such failure was likely to continue and that such failure amounted to abandonment of her rights as a mother.
While the Northern Area Health Board case establishes that the concept of failure of duty for physical reasons includes failure for reasons of mental illness, and that such failure need not be blameworthy, it does not go further than that. The facts of the instant case are in no way comparable to the facts in the Northern Area Health Board case.
It is clear, and is accepted by all parties, that the test be applied to the matters at issue in this case is that established by this court in the case of In re JH  IR 375. The facts in that case bore a remarkable resemblance to those in the present case. The child in question was born to an unmarried mother and father, and was placed for adoption by the mother shortly after birth. The mother consented to the child’s adoption in February, 1983 but withdrew her consent in February, 1984. The prospective adopters issued proceedings pursuant to section 3 of the Adoption Act, 1974 in the same month. The mother and father of the child married on the 24th March, 1984. In June, 1984 they applied to re-register the child’s birth, but on an application by the prospective adopters to the High Court Lynch J. made an order prohibiting such re-registration pending the determination of the Adoption Act proceedings. The natural parents issued proceedings under the Guardianship of Infants Act, 1964 seeking custody of the child. The natural father had at no stage consented to the making of an adoption order. On that account Lynch J. refused to make an order under section 3 of the Act of 1974 and the re-registration of the birth was then permitted.
The prospective adopters brought cross-proceedings pursuant to the Guardianship of Infants Act, 1964 claiming custody of the child. Lynch J. rejected a claim by the adopting parents that the natural parents by their conduct had abandoned or abdicated their rights to the child.
The court heard evidence from two leading psychiatrists. This evidence dealt in large part with the issues of bonding an attachment. Lynch J. summarised that evidence as follows:
The child is clearly bonded to the adopting parents and the boy as though they were her own parents and brother respectively. Any sundering of these relationships will cause considerable immediate suffering to the child and a real possibility, if not a probability, which it is impossible to say one way or the other, of long-term serious harm.” (page 388)
In the context of this case, and bearing in mind the secure and happy home which the child at present enjoys, I think that I can best give effect to that section by asking and answering the question: ‘Is there anything really worthwhile to be gained for the child by transferring her from the adopting parents to the parents?’ Dealing with the problem in this way is to look at it from the child’s point of view as required by section 3 of the Act of 1964.” (page 388)
I have come to the conclusion that the answer to my question is that there is not anything really worthwhile to be gained for the child by transferring her from the adopting parents to the parents. If custody were changed I think that the risk of long term psychological harm, and therefore of unhappiness, is sufficiently proximate to outweigh the contrary factors referred to above.” (my emphasis) (page 389)
Lynch J., therefore, awarded custody to the adopting parents but with access to the natural parents. The natural parents appealed. They were successful in their appeal.
In his judgment in this court Finlay C.J. set out the principles of law applicable to the case as follows:
1. The infant, being the child of married parents, now legitimised, has in addition to the rights of every child, which are provided for in the Constitution and were identified by O’Higgins C.J. in G. v. an Bord Uchtála  I.R. 32 at p. 56, rights under the Constitution as a member of a family, which are:
(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).
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  I.R. 317; MacDonald v. Bord na gCon  I.R. 217.
In the case, therefore, of a contest between the parents of a legitimate child – who with the child constitute a family within the meaning of Articles 41 and 42 of the Constitution – and persons other than the parents as to the custody of the child, as this case is, it does not seem to me that section 3 of the Act of 1964 can be construed as meaning simply that the balance of welfare as defined in section 2 of the Act of 1964 must be the sole criterion for the determination by the court of the issue as to custody of the child. …
A child of over two years of age, as this infant is, in the dominant or general custody of persons other than its parents and continuing in such custody against the wishes of its parents, cannot be said to enjoy the right of education by its family and parents granted by Article 42, s. 1 of the Constitution. And no additional arrangements, as were indeed put in train in this case by the orders of the High Court for access by its parents to the child or participation by them in the decision-making processes concerning its education, could alter that situation. Furthermore, notwithstanding the presumption of validity which attaches to the Act of 1964 and the absence of a challenge in these proceedings to that validity, the court cannot, it seems to me, as an organ of the State supplant the right to education by the family and parents which is conferred on the child by the Constitution unless there is established to the satisfaction of the court a failure on the part of the parents as defined in Article 42, s. 5 and ‘exceptional circumstances’.
I would, therefore, accept the contention that in this case s. 3 of the Act of 1964 must be construed as involving a constitutional presumption that the welfare of the child, which is defined in s. 2 of the Act in terms identical to those contained in Art. 42, s. 1, is to be found within the family, unless the Court is satisfied on the evidence that there are compelling reasons why this cannot be achieved, or unless the Court is satisfied that the evidence establishes an exceptional case where the parents have failed to provide education for the child and to continue to fail to provide education for the child for moral or physical reasons.”
Finlay C.J. held that, “since the correct test had not been applied by the learned High Court judge, the case should be remitted to Lynch J. to be considered further by him.”
Griffin J., Hederman J. and O’Hanlon J. expressed agreement with the Chief Justice. McCarthy J. also agreed with the principles set out in the judgment of Finlay C.J. In a brief judgment he held that the key issue was whether the court was satisfied on the evidence that there were compelling reasons why the welfare of the child could not be achieved within the family. At the close of his judgment, however, he very clearly left open the question as to whether on the evidence in the case the compelling reasons did or did not exist. He said:
When the case was returned to the High Court Lynch J. heard further expert evidence in regard to attachment. He was critical of certain attitudes of the natural mother, and believed that the natural parents underestimated the problems which might arise if the child was transferred to them. He remained uncertain and apprehensive regarding the medium and long term effects of a transfer of custody. Nevertheless, he concluded that such adverse results as might result from such transfer had not been sufficiently established to rebut the constitutional presumption that the welfare of the child was to be found within its constitutional family, nor could they amount to compelling reasons why that welfare could not be achieved.
He therefore awarded custody to the natural parents.
THE ISSUES AND CONCLUSIONS
In his judgment the learned trial judge provides a complex survey and analysis of the evidence before the court. It is clear that the learned judge felt considerable sympathy both for the Byrnes and for the Doyles. Having read both the lay and the expert evidence he awarded custody of Ann to the Doyles. In so doing the learned trial judge fully acknowledged that the relevant test to be applied was that established in In Re J.H. In applying that test he held in the first place that the Byrnes had failed in their duty to Ann and had abandoned her. In addition he held that there were compelling reasons why the welfare of Ann could not be achieved in the custody of the Byrnes.
In this context it should also be noted that the second and third named respondents, through their counsel, accepted that the learned trial judge was correct in applying the test in In Re J. However, Mr. Durcan set that test in the context of the individual constitutional rights of the child.
The first issue this court must consider is whether the Byrnes failed in their duty towards their daughter. I have had the benefit of reading in draft the judgment of Geoghegan J. During the course of his judgment Geoghegan J. analyses the findings of the trial judge on this issue and is satisfied that there is no basis for any finding that there was a failure of duty. I am in agreement both with Geoghegan J’s reasoning and with his finding on this issue.
I would add that I accept the submission of Mr. Rogers on behalf of the Health Service Executive that to find that a placement for adoption either wholly or partly amounted to a failure of duty or abandonment represented a threat to the stability of the statutory system of adoption. In the past there have been a considerable number of cases considered by both the High Court and this court pursuant to section 3 of the Act of 1974; in none of these cases has it been suggested that placement for adoption by a parent, where that parent expressly placed the child in what was believed to be in the child’s best interests, could amount to a failure of duty.
As far as the learned trial judge’s finding of abandonment is concerned, it must be acknowledged that counsel for the Doyles in his oral submissions to this court made little or no mention of the issue of abandonment. On the facts, even leaving aside the hesitations and doubts felt by each of the Byrnes throughout the adoption process, this was at all times intended to be an “open” adoption. The plan, which was agreed both by the Health Service Executive and the Doyles, was that the Byrnes would have access at stated intervals to their daughter in the future. In my view, such an intention cannot be consistent with an intention to abandon permanently parental rights as is described in the judgment of this court in In re the Adoption Bill, 1987 (already cited).
There remains the “compelling reasons” test. In holding that the requisite compelling reasons existed, the learned trial judge relied both on the medical evidence and on what he saw as the impossibility of achieving the properly phased, or gradual, transfer of Ann due both to the strong feelings of the Doyles and to a lack of trust between the couples.
As far as the expert medical evidence is concerned, there is a considerable level of agreement between the witnesses. All agreed that an immediate or summary change of custody is virtually certain to cause severe psychological damage to the child. Dr. McDonald, in his report, movingly describes the stages of suffering through which the child is likely to go in these circumstances, ending in despairing indifference towards her carers. In differing degrees, all the experts also agree that a transfer of custody is possible if it is gradual, phased, carefully managed, and carried out with the advice and assistance of experts. All the experts also agree that even in this ideal situation the child may still suffer lasting harm. Notably, Dr. McDonald, who has had long experience of children who have been transferred from one carer to another, is at pains both in his report and in his oral evidence to dispel the commonly held belief that young children are resilient and will readily recover. He speaks of the damaged children he has seen in the course of his work.
Added to this evidence is the uncertainty as to the possibility of a properly managed transfer being arranged. The learned trial judge attributes this to a lack of trust between the parties. In this I think he lays too much weight on the differences that arose between them at a particular period. It would be wrong for this court to permit its decision to be swayed by the present refusal of the Doyles to contemplate taking part in a phased transfer; it would be equally wrong not to acknowledge the difficulties for all parties, including Ann, in such a transfer. The future is simply uncertain.
It must, however, be recalled that the unanimous medical evidence of the two leading psychiatrists in In Re J.H. was in every way parallel to the evidence in the present case. Both short term and long term dangers were pointed out, and Lynch J. had considerable doubts about the general attitude of the natural mother to the prospective adopters. Yet the test set by Finlay C.J. in his judgment – compelling reasons why the child’s welfare could not be achieved within the natural family – is so exacting that it would be difficult to see it being met other than in the most extreme circumstances. This is particularly so when the test is given the added weight of being set in the context of the constitutional declaration of the rights of the family and of parents, and the related constitutional presumption that the welfare of the child is to be found within the family. These constitutional rights and presumptions apply, of course, to the legally married family alone.
It is this constitutional context which leaves me to consider the dramatic and remarkable part played in the life and future of Ann by the marriage of her parents. Prior to the Byrnes marriage Ann was placed with entirely suitable prospective adopters in the hope of shortly becoming part of a constitutional family. No criticism has been made of her care and development. Following the natural mother’s decision to withdraw her consent to adoption (a decision which, of course, she had a perfect right to make) it was open to the Doyles to initiate proceedings under section 3 of the Act of 1974, a course which it appears they planned to take. Given the evidence before the High Court and the conclusions drawn from that evidence by the learned trial judge, the probability is that there was a full agreement to place the child for adoption. In such a case, the central issue before the court to which all evidence would be directed would be the best interests of Ann.
On 9th January, 2006 the Byrnes intermarried. I have no doubt that their marriage reflected their commitment to each other and their determination to recover custody of their child; it admittedly also reflected their legal advice. Once the marriage took place the Byrnes became a constitutional family with all the concomitant rights and presumptions. The present Article 40 proceedings were then initiated. The central issue to be considered by the court underwent a metamorphosis; it was no longer the best interests of the child but the lawfulness or otherwise of the Doyles’ custody of her. When deciding whether the Doyles’custody of Ann is in accordance with law it is no longer possible for the court to follow the original approach of Lynch J. in In Re J.H. – “to look at it through the eyes, or from the point of view of the child”. It is clear that the court is bound by the decision in In Re J.H.; the full rigour of the test established in that case must be applied.
Ann, on unchallenged evidence, is now a happy and secure little two-year-old girl. She is in the loving care of David and Eileen Doyle whom she knows as her father and mother. She has the love and companionship of Eileen Doyle’s mother, whom she sees as her grandmother, and of other extended family and friends. She faces an uncertain future. The expert evidence as to whether she will suffer long term harm by being transferred to the care of her natural parents is predictive rather than certain. But so too is the assessment evidence of S. C. concerning the parenting ability of the Byrnes. Indeed the very concept of a presumption is in itself predictive rather than certain.
In common with Lynch J. in In Re J.H., I remain uncertain and apprehensive about the effects of a transfer of Ann’s custody, and about her future in general.
Nevertheless, I do not consider that the medical and other evidence before the High Court judge met the heavy burden of establishing that there were compelling reasons that her welfare could not be achieved in the custody and care of her natural parents. An additional and crucial factor in my reaching this conclusion is that, given her parents’ marriage and the re-registration of her birth, there is now no realistic possibility that Ann can be adopted by the Doyles. The Byrnes cannot be held to have failed in their duty towards her or to have abandoned their rights as parents. If Ann remains with the Doyles in what amounts to continuing fosterage this would give rise to practical problems for her in the future. Her position would be insecure and anomalous and there would be no way of guarding against further litigation in the future concerning either her continuing care and custody or the extent of access to her by her natural parents.
In his judgment, Geoghegan J. refers to the fact that in “some quarters” the decision taken by the Supreme Court in In Re J. has been subjected to criticism. The learned judge rightly expresses the view that unless and until the Constitution itself is amended there is no justification for that criticism. I am in agreement with this view. The judgment of this court, as expressed by Finlay C.J., reflects the unequivocal wording of Articles 41 and 42 of the Constitution, as does the judgment of the court in In re The Adoption Bill 1987 (already cited).
It would be disingenuous not to admit that I am one of the “quarters” who have voiced criticism of the position of the child in the Constitution. I did so publicly in the report of the Kilkenny Incest Inquiry in 1993. The present case must, however, be decided under the Constitution and the law as it now stands.
With reluctance and some regret I would allow this appeal.
JUDGMENT of Mr. Justice Hardiman delivered the 13th day of November, 2006.
[Fictitious names have been ascribed to all parties, and to the child whose custody is in issue, to protect their anonymity].
This is an appeal from the order of the High Court (McMenamin J.) perfected the 7th day of July, 2006, whereby he refused the applicants relief pursuant to Article 40.4.2 of the Constitution.
The order was based on a strikingly detailed and humane judgment of the learned trial judge which is, however, challenged on this Appeal as being in certain important respects mistaken in law.
Article 40.4.2 is our constitutional Habeas Corpus procedure. It is one of the great remedies provided in the Constitution, for the rapid investigation of any complaint that a person is being wrongfully detained. The sub-article provides as follows:
In one very obvious sense, this case is a tragic one. Its result will of necessity inflict enormous grief and loss on one of the contending couples. The tragedy lies in the fact that neither deserves this fate: both are caring conscientious people, fit and capable in every way to be the guardians of a child. When only one couple can have what both so ardently desire there must of necessity be hardship. Any judge called upon to determine such a case is all too painfully aware of the hardship but a court cannot permit a comparative balancing of the degree of hardship to the adults involved to dictate the result of the case. That result must instead be determined in the manner required by the Constitution and the law. From the terms of Article 40.4.2 itself, quoted above, it will be seen that, once an inquiry under that sub-article has been ordered, as has happened here, the onus lies on the party currently detaining the child, the prospective adoptive parents, to justify their custody of her.
It is, of course, within the experience of those concerned in the adoption process, and of the Courts, that a natural mother may come to the conclusion that adoption is not in the best interest of the child and may withhold her consent to adoption or withdraw a consent already given. Equally, it is clear that in certain circumstances the prospective adopters may be able to apply to the Court to dispense with the natural mother’s consent. Both the placing mother and prospective adoptive parents are routinely put on notice of these possibilities by the Adoption Board and are aware of them. Each, therefore, is specifically aware on entering the adoption process that it may result in a sad parting between the child and the prospective adopters with whom he or she has been placed, or on the other hand in a situation where a mother involuntarily loses the care and custody of her child whom she wishes to nurture personally. In my view, having regard to the grave obligations of a parent, or a person who wishes to assume the position of parent in relation to a particular child, such person must be regarded as accepting these risks of great personal distress on their entry into the adoption process, and of assuming a moral responsibility to act in the child’s interest, even in very fraught and distressing circumstances.
In this particular case the natural parents of the child married each other in January, 2006, thus becoming with the child a constitutional family. This fact significantly altered the legal context of the case: the adoption of a child who is part of the natural and constitutional family can only take place under very restrictive conditions set out in the Adoption Act, 1988, and discussed below. This, in turn, has led the respondents to make arguments of a far reaching, novel, and sometimes tendentious sort which are discussed at length below. It has led them to make very serious allegations against the parents, some of which were not pursued in this Court and none of which are true. It also led the prospective adopters to employ a private detective to conduct surveillance of the natural parents, presumably with a view to finding evidence, if possible, to suggest that the marriage was not a genuine one. If this is so it has to be said immediately that the strategy was a failure: no such evidence was adduced. It must also be noted that, unfortunately, the proposed adoptive mother misrepresented the facts in the High Court by denying the employment of the detective, though she corrected this the next day, before her testimony ended.
I will now set out the constitutional provisions, and certain other materials, which provide the constitutional and legal requirements which permit a court to pronounce on the validity of the prospective adopters justification of their withholding the child from the custody of its parents.
The applicants are the natural parents of the child and are now married to each other. These persons constitute a family within the meaning of Article 41 of the Constitution. The institution of the family is there defined “as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law”. Moreover, by Article 42, this family possesses the status of “the primary and natural educator of the child”, extending to the right and duty to provide religious and moral, intellectual, physical and social education. This plainly involves the proposition that the parents have, and are entitled to have, the custody and society of the child on a day to day basis. These provisions clearly put the applicants in a strong position.
These prerogatives, rights and duties of the parents may in limited circumstances be displaced, on the basis of what is provided in Article 42.5 of the Constitution:
Accordingly, any resistance to the right of the applicants to the custody of the child for the purpose of rearing her in accordance with their constitutional rights and duties, must find a basis in Article 42.5 as it has been expounded by the Courts in several decisions discussed below. The threshold for such resistance is a high one, and requires that there be established “exceptional” circumstances “where the parents for physical or moral reasons” have been shown to have “failed in their duty towards their children…”. On the authority of the judgment in this Court in
Re J. H. an Infant  IR 375 such intervention may also be justified if it is established that there are compelling reasons why that the welfare of the child cannot be secured in the custody of the parents. In considering whether these criteria have been met, on the authority of the same case, one starts with the constitutional presumption that the welfare of a child is to be found within the family.
I do not regard the constitutional provisions summarised above, or the jurisprudence to which they have given rise, as in any sense constituting an adult centred dispensation or as preferring the interests of marital parents to those of the child. In the case of a child of very tender years, as here, the decisions to be taken and the work to be done, daily and hourly, for the securing of her welfare through nurturing and education, must of necessity be taken and performed by a person or persons other than the child herself. Both according to the natural order, and according to the constitutional order, the rights and duties necessary for those purposes are vested in the child’s parents. Though selflessness and devotion towards children may easily be found in other persons, it is the experience of mankind over millennia that they are very generally found in natural parents, in a form so disinterested that in the event of conflict the interest of the child will usually be preferred. A graphic and ancient example of this may be found in I Kings 3:16-28. This bond is greatly valued by parents and children alike, and by natural siblings in respect of their shared parentage. It is illustrated by the frequently found phenomenon of the mature adult who, separated at birth or in infancy from his or her parents and siblings, feels a strong desire to locate them many years later. It is equally illustrated by the widespread legal recognition given to the family, even in instruments whose social and cultural context is different from, and perhaps more varied than, those of the Constitution of Ireland. I cannot escape the feeling that this factor is insufficiently emphasised in the High Court judgment here. Like Geoghegan J. and Fennelly J., I have been struck by the coincidental reporting, while the judgments in this case were being drafted, of an English case, Re G. (Children)  4 AER 241. The context of that case is far removed from the facts of the present dispute. But it is most interesting to see that, in a jurisdiction lacking the specific social and cultural context which has led Ireland to protect the rights of the family by express constitutional provision, the interest of a child in being reared in his or her biological family is nonetheless fully acknowledged. I wish specifically to refer to what was said in that case by Lord Nicholls of Birkenhead:
Quite evidently, the Constitution establishes demanding criteria which must be met before the right of the child to be reared and nurtured by his or her parents, and the right of the parents to take and act on the decisions required by the obligation to nurture the child, can be displaced either in relation to a particular issue or in general. In part, the argument on behalf of the proposed adopters in this case invited the Court to review and displace the position of the parents as guardians of the child’s welfare, by adopting less demanding criteria.
In the case of a young child, an approach to its welfare which is sometimes described as “child centred”, in a particular sense, in reality involves acting wholly or partly upon some third parties view of the interests of the child. It is, of course, difficult to criticise an approach denominated “child centred” or to fail to acknowledge imperatives denominated “the rights of the child”. But, especially in dealing with very young children who can express no meaningful views of their own, it is of great importance that terms such as those just mentioned should be thought through, should evoke an intellectual and not merely an emotional response, and that their actual content should be ascertained. A right conferred on or deemed to inhere in a very young child will in practice fall to be exercised by another on his or her behalf. In practice, therefore, though such a right may be ascribed to a child, it will actually empower whoever is in a position to assert it, and not the child himself or herself. The person actually asserting such a right may of course be a parent or guardian, but it might equally be a public authority, a stranger, or indeed the State itself. Thus, in North Western Health Board v. H.W.  3 IR 622, a public authority sought to assert an alleged right of a child of very tender years in direct opposition to the views of his (concededly very conscientious) parents: the public body sought to compel the subjection of the child to a particular medical test, even though there was no statutory provision for such compulsory testing. Still more strikingly, in The Attorney General v. X and Ors.,  IR 1 the Attorney General sued a fourteen year old child and her parents, claiming orders restraining the girl, who was pregnant as a result of a criminal assault, and her parents from interfering with the right to life of the “unborn”, restraining them from leaving the jurisdiction for nine months and restraining them from procuring or arranging an abortion inside or outside the jurisdiction. This relief was refused in the Supreme Court on many grounds one of which (per O’Flaherty J.) was that it constituted “… an unwarranted interference with the authority of the family”.
The X case surprised many who had not realised that by acknowledging a right in “the unborn” (an entity which, like a young child, cannot personally assert the right), the Eight Amendment to the Constitution had opened the door to the assertion of that right against individual citizens, including the mother of the unborn, by unrelated third parties, public authorities or the Attorney General. Indeed, prior to the X case, persons concerned about the dissemination in Ireland of information about abortion services in the United Kingdom had incorporated a limited company, SPUC Ltd., which the Courts recognised as having locus standi to litigate against the providers of such information.
The creation or acknowledgement of an entirely independent right in a person or entity personally incapable of exercising that right may have unintended or undesired legal consequences.
The effect of our constitutional dispensation is that, presumptively, the right to form a view of the child’s welfare and to act on it belongs to the parents. The facts of this case make it unnecessary to consider the difficulties which arise where the parents themselves are in disagreement as to how the welfare of the child may best be secured.
There are certain misapprehensions on which repeated and unchallenged public airings have conferred undeserved currency. One of these relates to the position of children in the Constitution. It would be quite untrue to say that the Constitution puts the rights of parents first and those of children second. It fully acknowledges the “natural and imprescriptible rights” and the human dignity, of children, but equally recognises the inescapable fact that a young child cannot exercise his or her own rights. The Constitution does not prefer parents to children. The preference the Constitution gives is this: it prefers parents to third parties, official or private, priest or social worker, as the enablers and guardians of the child’s rights. This preference has its limitations: parents cannot, for example, ignore the responsibility of educating their child. More fundamentally, the Constitution provides for the wholly exceptional situation where, for physical or moral reasons, parents fail in their duty towards their child. Then, indeed, the State must intervene and endeavour to supply the place of the parents, always with due regard to the rights of the child.
If the prerogatives of the parents in enabling and protecting the rights of the child were to be diluted, the question would immediately arise: to whom and on what conditions are the powers removed from the parents to be transferred? And why?
There is, of course, no doubt that the form and content of our constitutional dispensation in regard to the family and children was significantly influenced by Christian, and specifically Catholic, teaching on those subjects. But that is not to say that the preference for the natural parents as carers for a child is exclusively referable to those sources. In my judgment in North Western Health Board v. H.W.  3 IR 622 I expressed the view that this preference for the parents as the natural and primary guardians was equally consistent with quite different strands of thought, even a Benthamite one. I reiterate that view here, without repeating what was said in the judgment referred to. A presumptive view the children should be nurtured by their parents is, in my view, itself a child centred one and the alternative view, calling itself “child centred” because it is prepared more easily to dispense with the rights and duties of parents must guard against the possibility that in real individual cases it may become merely a proxy for the views of social workers or other third parties. That is not for a moment to belittle the need for State intervention in the nurturing of children in appropriate cases, but to emphasise that the presumption mandated by our Constitution is a presumption that the welfare of the child is presumptively best secured in his or her natural family.
It is also noteworthy that, in the language of the Constitution, State intervention or provision in the event of a failure in parental duty is in the nature of an “endeavour to supply the place of the parents”. In the specific context of adoption O’Higgins C.J. said in the course of his judgment in G. v. An Bord Uchtála  IR 32:
It appears to me to follow from this language that the State has adopted a preference for a familial model in its attempts to secure the welfare of a child in respect of whom the nurturing of his or her natural family is unavailable. But this is a default position: the child has a right to the nurture of his or her natural family where that is possible.
Aspects of the facts of the case.
The facts of this case are set out in the judgment of the learned High Court judge. I do not propose to repeat them here but I wish to draw attention to certain aspects of them. Firstly, the natural parents are healthy intelligent and serious minded young people. They are both qualified in respected disciplines with secure prospects in life. They approached the dilemmas and responsibilities posed by the natural mother’s pregnancy in a notably mature and conscientious way: indeed the social worker who dealt with them found them in some ways unique. This practitioner first met them before the birth, having been introduced by the mother’s maternity unit social worker “so that adoption could be considered”. In an affidavit this practitioner described the events in the immediate aftermath of the birth and after the child had been placed in pre-adoptive foster care and concluded:
It is has not at any stage been suggested that the natural parents are in any sense unfit parents and I am satisfied that no such suggestion could properly be made. The parents have, since the placement for adoption, taken all possible and appropriate steps to maintain regular contact with the child as far as that was permitted.
Secondly, there were certain unusual features of the pre-adoption procedures. It transpired that the proposed adopters and in particular the lady, were known to certain of the social workers involved, including the social worker assigned to the natural parents. Considerations of anonymity make it undesirable to say precisely how this came about. There is however evidence that it came to cloud their relationship with this practitioner, and indeed others. There is a distinct change in the tone and content of social work notations about the mother after she manifested an intention to regain custody of the child.
Thirdly, it appears to me to be significant that at the time of the pregnancy and birth both natural parents were students albeit at a very advanced stage of their studies. By the time they sought the return of the child both were in good employment. They had also committed themselves to a permanent relationship with each other; apparently this took place in August 2005.
Fourthly, it is clear from the report of the social worker assigned to them that for long periods the natural parents were in considerable uncertainty in relation to adoption. The report observes that the natural mother had “chosen to breast feed [the child] for the first twenty-four hours. This again would be unique in my experience of mothers placing their child in pre-adoptive foster care”. It was also observed that “From the outset it seemed that [the natural mother] was in two minds as to whether adoption was the right option for them and whether she could cope with the emotional strain of the separation”.
Fifthly, in the course of the adoption process the social worker assigned to the natural parents drew up a document entitled “Adoption Profiles for Matching Panel”. This was done in September, 2004, and extends to some fourteen pages. Apart from the final version there were a number of drafts of the document. In one of these the social worker noted with concern that the principal reason for placing the child for adoption in the natural parents’ mind was that they were unmarried and they felt the child should have two parents. But they also felt that they might continue with their relationship. The social worker interlineated in a draft a sentence “This overriding reservation and contradiction causes me consternation and reservation in supporting them in their decision to place [the child] for adoption despite their consistency of opinions”.
Before the final version of the document was produced this sentence was removed at the suggestion of the natural parents. But it seems to me to suggest, at a minimum, a marked element of fluidity in the natural parents’ rather agonised consideration of what was best to be done. Subsequently, in April, 2005, the social worker described the natural mother as saying that she was questioning her decision to place the child for adoption. The natural father was reported at the same time as “indicating that he had reservations about the adoption”. There was dispute on the evidence as to what precisely was said at this stage and, as indicated, the version just summarised is that of the social worker.
Finally, there is no doubt that subsequent to the natural mother’s request for the return of the child in September, 2005, relations became rather fraught between the natural parents and the social worker. The latter, as the learned trial judge found, was in a somewhat invidious position by reasons of the connection to both couples and this may have resulted in the social worker “expressing in rather stark and emotive terms the effect of the applicants’ decision to reclaim custody of her on the [proposed adopters]”. There was an unresolved conflict of evidence as to whether very melodramatic language indeed was used by the social worker in that connection. What is clear, however, is that the natural parents became concerned that the passage of time was weakening their position. This is a matter of some significance having regard to the nature of the case advanced on behalf of the respondents. The parents felt that after they attempted to regain custody of the child they were being “stalled”, to use a word the mother used in dealing with the Adoption Board. I cannot disagree with her. This was the background to the initiation of the present proceedings.
Submissions of the parties:
As will be clear from the summary of the constitutional position set out above, the applicants’ case is one of powerful simplicity. They are a married couple and the natural parents of the child and therefore presumptively entitled to her care and custody. No adoption order has been made nor, they submit, can one now be made. If this is so, they are the only family in the constitutional sense that the child will ever have. The say that this case is in every way comparable to that of J.H., cited above, and that the unchallenged authorities of that case requires that this dispute be resolved in their favour.
In the proposed adopters’ statement of grounds justifying their detention of the infant, they say:
(2) The test for whether that presumption had been rebutted was submitted to be that set out in the judgment of Finlay C.J. in J.H., cited above.
(3) Specifically it was submitted that there were two separate and distinct methods by which, on the authorities cited, the constitutional presumption could be rebutted that these were:
(a) The demonstration of compelling reasons why the welfare of the child cannot be secured within the family or
(b) The demonstration of a failure of parental duty as envisaged by Article 42.5 of the Constitution.
(4) The meaning of “compelling reasons” why the welfare of the child cannot be secured in the family is to be derived, it was submitted, in light of the judgment in J.H. and in light of a psychological evidence. As it transpired Mr. Gerard Durcan S.C. for the proposed adopters advanced a very particular construction of the term “compelling reasons”, in particular of the adjective.
(5) The meaning of the term “failure of duty” must be seen in the same context.
(6) In particular a disruption of attachment can in certain circumstances meet the “compelling reasons” test, as defined in Mr. Durcan’s argument.
(7) It was submitted that the learned trial judge had ample grounds for coming to the conclusion that he did and that his views on the facts should not be disturbed.
(8) Sections 3, 14, and 16 of the Guardianship of Infants Act, 1964, are all applicable on the hearing of this Article 40 application. This argument was somewhat nuanced in that it was conceded that s.3 applied subject to the constitutional presumption which was conceded to exist. Mr. Durcan said however that “If we rebut the presumption then s.3 applies in its full bloom, so to speak”.
(9) It was submitted that the actions of the applicants can and do constitute a failure of duty within the meaning of Article 42.5 of the Constitution.
(10) There was finally advanced a somewhat stark argument in relation to the form of relief available. It was said that the only form of order which could be granted in these Article 40 proceedings was an order for the immediate transfer of the child to the natural parents. Mr. Durcan S.C. submitted “You cannot make a phased reintroduction order in Article 40 proceedings, even if the evidence establish that such an order would be in the interest of the child”. (Emphasis added).
A point abandoned.
Mr. Durcan also, on the hearing of the appeal, in an important respect presented an argument somewhat more limited than that which had found favour with the learned High Court Judge. Section 16 of the Act of 1964 relates to a situation:
(a) Abandoned or deserted a child or
(b) Allowed a child to be brought up by another person at that person’s expense… 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 child to the parent unless the parent has satisfied the Court that he is a fit person to have the custody of the child”.
The allegation of failure in duty to the child is of course also a most serious one to bring against parents and this was persisted in up to the end.
The J.H. test.
A passage in the judgment of Finlay C.J. in the case of In re J.H., cited above, is so central to Mr. Durcan’s argument that it is necessary to quote it extensively. It is as follows:
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 Article 42, s.1, is to be found within the family, unless the Court is satisfied on the evidence that there are compelling reasons why this cannot be achieved, or unless the Court is satisfied that the evidence established 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.”
The last paragraph of the above quotation is that on which Mr. Durcan relies as containing the test for which he contends. He refers to the two preceding paragraphs as setting the context of that test and I have accordingly included them in the citation.
It will however be noted that the J.H. case in its relevant portion was a claim for relief under the Guardianship of Infants Act, 1964. This Section is not directly at issue in the present proceedings. However, though not specifically invoked in the applicant’s proceedings it was not seriously disputed that s.3 applied subject to the constitutional presumption set out in the third paragraph of the above quotation.
By reason of the centrality of the passage, I propose next to set out the third paragraph quoted above with the deletion of material not immediately relevant to the present case. This, I am satisfied, is necessary to deal clearly with a particular and central submission advanced by Mr. Durcan. Thus treated, the paragraph reads as follows:
Throughout his submission, Mr. Durcan referred to the “compelling reasons test”, which he contrasted with the “failure of duty” test. Each was a test which, if met, would mean that the constitutional presumption in favour of the natural family was displaced. Mr. Durcan emphasised that, in his submission, it was sufficient for him to meet either of those tests to have the effect he desired. As his submissions went on it was clear that the term “compelling reasons” as he used it was divorced from the context in which it appeared in the judgment of Chief Justice Finlay and was increasingly used in a different sense to that in which it appeared there. Unfortunately, it came to be used in the same sense in the judgment of the learned trial judge. It is quite clear to me that, in order properly to rely on the authority of the judgment of the former Chief Justice in J.H., the phrase must be used in the context in which Finlay C.J. used it.
Mr. Durcan’s novel usage of the phrase was not accidental. It was based on a very particular, indeed peculiar, construction of the phrase which Mr. Durcan expressed as follows:
The ordinary meaning of the verb “compel”, according to the Oxford dictionary, is “to urge irresistibly, to constrain, to oblige, to force”. A compelling (or coercive) argument is one which, once its premises are established, leaves no option but to accept the conclusion. The phrase “compelling reasons” is to be understood in the same sense. Mr. Durcan’s argument ignores both the existence of the word “reasons” and the (grammatically and logically) obvious exclusive reference of the word “compelling” to it.
If the relevant passage is read as I have found it should be, it requires the Court to be satisfied, on evidence, that there are compelling reasons why the welfare of the child “cannot” be achieved in the constitutional family. I believe this to be both the correct meaning of the phrase in the ordinary and natural meaning of the words used, and equally to be the only meaning consistent with the constitutional context. The phrase “compelling reasons” why the child’s welfare cannot be secured in the family, plainly connotes that, to meet the test, there must be found coercive reason to believe that the proper nurturing of the child in the natural family is not possible. The phrase therefore has a natural and inescapable significance for the type of evidence required and the standard it must meet. In his judgment in the same case, indeed, McCarthy J., speaking of the same phrase, said:
The effect of this distortion of the test is far reaching, and specifically it colours the approach to the expert evidence. While it is for an expert to testify in accordance with his or her genuine views and expertise, it is for a lawyer to guide expert testimony towards the legally relevant issues. The test proposed by the respondents subtly but radically subverts the true test, to the point where it does not seem to me that the respondents’ expert was asked to opine on it at all. This conclusion is strengthened by reading the expert’s view of her role in the “reasons for referral” section of her report. The alternative test proposed by Mr. Durcan focuses on what may happen on the worst view and asks whether that would be a “compelling” event, in the sense of a grave or serious one (“… it is the nature of what may happen that must be ‘compelling’…”). But the true test is that set out in the previous paragraph and asks whether there is coercive or strong reason to believe that the proper nurturing of the child in the natural family is not possible. The law has always recognised that rights and obligations must necessarily be constrained or limited by what is actually possible (ad impossiblem nemo tenetur). I believe that Chief Justice Finlay’s qualification of the constitutional presumption arising from the terms of Article 42.5, expressed in the phrase “… unless the Court is satisfied on the evidence that there are compelling reasons why this cannot be achieved…”, is simply a necessary and apt expression of that immemorial recognition of reality.
Findings of the High Court in relation to “compelling reasons”.
As will be seen below, the High Court’s reasons for finding that there had been in this case a failure in parental duty were various and complex. Having reached a conclusion on that point the learned judge turned his attention to the question of “compelling” reasons in a relatively short passage at p.101 - 103 of the judgment. Certain other topics are considered in that passage as well and it is not until p.105, after a digression, that the judge concluded “the Court concludes that failure of duty and compelling reasons have been established”. The significant findings appear to be as follows:
But the situation of distrust which now presently exists and the relationship between the parties, including the first-named respondent, is such that it is difficult to conclude that any immediate successful phased reintroduction can take place in the short term. In so finding I am taking into account the evidence of [one of the applicants’ experts]…
The Court concludes that as a matter of probability the present position of mistrust, which I emphasise now renders the possibility of an immediate, appropriate phased reintroduction permitting [the child’s] attachment to the applicants as highly unlikely. In the circumstance the evidence leads to the conclusion that any process of transfer would necessarily be either precipitated or, (albeit phased) take place in the absence of the trust and cooperation which is necessary to ensure that no damage would occur to [the child]. On the evidence therefore which is presently available, the Court concludes that as a matter of probability, having regard to the circumstances, [the child] would thereby sustain emotional damage with the effects which have been outlined in evidence.
[The Court then briefly considered certain countervailing factors, discussed below, and continued].
But in the assessment of these issues the Court must identify those issues which are proximate and probable and which arise directly in these proceedings and weigh them against issues which may arise in the mediate and long-term. In consideration of this case I conclude that what must be dealt with now is the question of the lawfulness of [the child’s] custody and the questions which immediately bear on my alteration of that custody. One cannot but revert to the evidence of [an expert] who was asked whether in the event of a summary transfer she considered that there was a high risk of permanent and significant damage. She stated that she was absolutely opposed to the summary return of the child and her recommendation was posited on the respondents’ cooperation with the changeover. She said that circumstances might arise from the [respondents] finding it too painful or too difficult to cooperate, in which circumstances the applicant should reconsider the understanding of the best interests of [child]. When she was asked if the respondents’ found it too painful and too upsetting so that they were unable to cooperate would she still be in favour of the handover of the child, she responded that there was a very high risk of the best interests of the child not being met”.
I do not find this reasoning readily consistent with an earlier finding of the learned trial judge, at p.76 of the judgment where he said;
This point is indeed repeated at the end of the first paragraph of the critical portion of the judgment on this aspect: “No party is entitled to exercise a veto”.
But it appears to me that, having held that “In no circumstances could a court countenance a veto based either on bona fide reasons or otherwise…”, the learned trial judge then based his decision to the effect that the “compelling reasons” test had been met precisely and exclusively on the prospect that the attitude of the respondents, and the distrust between the parties, would preclude the transfer of the custody in accordance with best practise. It appears to me inescapable that this reasoning in practice confers a veto on the respondents. The evidential basis for the view that they would withhold their cooperation will be considered later.
Expert evidence and the attitude of the respondents.
On the topic of the expert evidence in this case and the learned trial judge’s approach to it, I agree so completely with the judgments about to be delivered by Geoghegan J. and Fennelly J. that I forebear to traverse the same ground. Much of it is, as the respondents’ expert Professor Iwaniec said in the context of the modality of any return to the custody of the natural parents, “almost common sense”. Nor, allowing for the natural differences of emphasis between persons, expert or not, expressing fundamentally similar views, was there a great deal of distinction to be made between the experts. It is perhaps insufficiently noted in the High Court judgment that two at least of them, including Dr. Iwaniec, spoke eloquently of the benefits of being reared in one’s natural family. The evidence as to the capacity of a child to form attachments is such that no-one, expert or not, could dissent from it: like certain other aspects of the case it is a matter of which mankind has had conscious experience for millennia. Nor could anyone, expert or not, doubt the desirability of making any change in the child’s custody a planned, phased and gradual one and the much better prospects, especially in the long term, of a transfer of custody thus affected. Nor, on the evidence, was there any suggestion of any difficulty in arranging this in the present case except the possible difficulty from the prospective adopters. I would simply make two comments, additional to those of Geoghegan J., upon this state of evidence. Firstly, the attempt to suggest there was anything in the evidence in this case which could be used to distinguish or disapply the cases of J. or J.H., cited above, absolutely failed. A perusal of, for example, the report of the latter case, extending to the judgments of Lynch J. in the High Court as well as those in the Supreme Court, manifests a consciousness of the difficulties of transferring a child from custody where it has formed attachments no less informed and sensitive than that emerging from a perusal of the evidence in the present case. Moreover, insofar as the two cases mentioned were distinguished on the basis of a difference in psychological insights, this was done in the judgment of the learned trial judge in an extremely general fashion, and does not refer to any specific evidence for the conclusion distinguishing J.H. It is clear that the Court in that case had the benefit of expert evidence of the highest quality.
But the nub of the matter, in the end, is not found in any difference of expert testimony but on the weight to be attached, against the background of the expert testimony, to the threatened refusal of the second and third-named respondents to co-operate in any way with a phased handover. It is important to emphasise that what was relied upon was not (according to Mr. Durcan) a wilful refusal to co-operate but what was said to be an inability to do so. The concept of non-cooperation due to distrust does not seem to me consistent with an emotional inability to co-operate but rather with a decision to withhold co-operation, based on an intellectual judgement or assessment by the respondents.
The Respondents position on re-introduction.In this connection I wish to emphasise my agreement with what the learned trial judge said in a passage cited above:
Apart from any other question, I must say that I cannot admit this prospect as a legitimate consideration. There is ample and uncontradicted evidence from reputable sources that a phased reintroduction is required in the interests of the child. No-one can doubt that this process would be very distressing for the prospective adopters, perhaps heartbreaking, but the risk of this grief is one (as I have already pointed out) necessarily undertaken by mothers as well as by prospective adopters, and the risk of it is something specifically drawn to their attention at the start of the adoption process. The evidence for the proposition that such co-operation would not be forthcoming in this case seems to me to come down to the ipse dixit of the second and third-named respondents: it was noteworthy that while certain other witnesses speculated as to the difficulty of the necessary co-operation, the expert deployed by the respondents themselves, Professor Iwaniec was careful to say that she had not actually “dealt with” what would be required with them. It is also noteworthy that the learned trial judge in the curial passage of his judgment on this aspect, cited above, seemed to attribute the prospect of a lack of co-operation to the distrust between the parties rather than to emotional inability on the part of the second and third-named respondents. As Fennelly J. has pointed out, most of the evidence of mistrust related to distrust between the parents and the social workers, rather than between the parents and the proposed adopters.
This Court is here exercising a constitutional jurisdiction which obliges it, unless satisfied that the child is in the custody of the respondents in accordance with law, to release her from such custody, a proposition for which J.H. is a sufficient authority. The withdrawal of the mother’s consent and her request for custody of the child, in the circumstances of this case, seem to me to require the child’s release from such custody. On this fundamental question, the second and third-named respondents own statement as to what they think they might be able to do, or unable to do, after their custody is terminated is not dispositive. Nor can I accept that their self characterisation on this topic can interfere with the express constitutional right of the child to be reared in her family i.e. by the applicants. Apart from these fundamental considerations, I agree with Geoghegan J. that failure, to co-operate with an arrangement so plainly in the interests of the child as a phased reintroduction, would, if indeed such failure occurred, cast doubt on their sincerely proclaimed affection for the child and on their entertaining, with regard to her, true parental feelings. I hope and am, I think, entitled to presume (or “posit” as Professor Iwaniec did) despite what has been said, that the child’s interests would in the end govern the respondents’ actions. But even if it did not, that fact cannot itself be used to deny the child, and her natural parents, the order they are otherwise, in my view, entitled to.
Findings of the High Court on failure in duty.
On the hearing of this appeal, no party found it easy to identify with precision the learned trial judge’s reasons for finding that the natural parents, for physical or moral reasons, failed in their duty towards the child. The judge’s reasoning on this topic is to be found in a lengthy portion of the judgment extending from p.94 - p.101. At p.97 the learned trial judge rejected the submission that a failure in duty was established simply by reason of the parents’ placement of the child for adoption. This finding is undoubtedly correct and in accordance with authority. But the learned trial judge continued “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”.
On the next page the learned trial judge found that the applicants, at the time the child was placed for adoption, could have “albeit with difficulty” provided for the child themselves. This appears to me to exclude the rational possibility of finding a failure in duty towards the child for physical reasons, leaving only the possibility of a failure for moral reasons open. The learned trial judge then continued, at p.98:
There then follows a lengthy passage, between p.98 and the end of p.100 which addresses the evidence of experts as to what would be necessary in order to transfer the child, already attached to the respondents, to the custody of the applicants. This passage also addresses the distrust which existed between the parties. The learned trial judge continued at the end of p.100:
Further, while the applicants may not always have held the knowledge which they now have in relation to the issues of attachment, they did have some commonsense information reflected in their desire that the third-named respondent should not work for a one year period - that was their desire that [the child] should settle and establish strong links with the persons who were attending to be her adoptive parents. These were issues which were in the applicants’ minds at the time of [the child’s] placement for adoption. It was an issue of sufficient importance for them to raise it in the course of their discussion which took place in an atmosphere of goodwill with regard to [the child’s] future. These provided the context in which [the child’s] bonding and attachment took place.
It is the tragedy of this case that the atmosphere of goodwill which there was for [the child] and the priority which all parties had for her best interests has ended in this situation. However having regard to these factors taken together the Court concludes that there was a failure of duty as defined”.
The next striking feature of the passage is that, apart from the two specific findings noted above, it is expressed at a high level of generality or vagueness. Mr. Durcan S.C. attributed this to the fact that “The English used is unfortunate”. I disagree. I am satisfied that this quality results from the learned trial judge’s commendable desire to be as emollient as possible in this very sensitive case. But it has the consequence that it is very difficult to ascertain in what precisely the failure in duty is thought to reside. A large number of matters are mentioned without any specific identification of how, precisely, they constitute or contribute to a finding of failure in duty on the part of the applicants, whether each bears the same weight or, if not, which predominate. A considerable number of these matters - those listed in the paragraph quoted above beginning “Having regard to the evidence…” - relate to the stages of the adoption procedure itself, and the applicants participation in it. The learned trial judge correctly concluded that the placing for adoption in itself could not constitute a failure in duty but goes on to hold that it, and the subsequent steps in the adoption procedure, are amongst the factors which “taken together” can lead to a finding of failure in duty. Whether this is a proper approach to the question of failure in duty will be next considered below, with the assistance of authorities some of which were cited by the learned trial judge.
As I construe the other factors mentioned, they appear to be as follows: leaving the child with the adoptive parents for such a period as made it likely, as actually happened, that she would become attached to them; not cooperating with a proposed assessment by a named expert but instead obtaining their own, leading to a “discontinuity in the evidence”; and “the distrust which now most unfortunately exists between the applicants and the first-named respondent and the second and third-named respondents”. The attitude of the applicants to the Health Service Executive and its employees is then summarised in a passage which concludes “It is difficult to avoid the conclusion that these views are explicable by human nature”. That is very kind, but not very informative.
Legal status of the placement for adoption and later actions.
It is, as the learned trial judge found, beyond argument that the placement for adoption cannot in itself amount to a failure in parental duty. A consideration of the reasons for this, as they have been identified by the Courts, is useful also in considering the legal status for present purposes of actions subsequent to the placement, forming part of the adoption process. Specifically, the question arises of whether these matters can legitimately be regarded as constituting or forming part of a failure in duty. The cases go further than simply deeming the actual placing for adoption not to be, per se, a failure in parental duty.
For forty years now it has been contended in cases such this that the act of placing a child for adoption evidences either a failure in duty or an abandonment or desertion of a child so as to trigger certain provisions of the Guardianship of Infant Act, 1964, or its statutory precursors. Such submissions have always been rejected. Re J. an Infant  IR 295, was a case whose facts are remarkably similar to those of the present case, though it obviously predates the Adoption Acts of 1974 and 1988. In his judgment Teevan J., one of the members of a Divisional Court of the High Court, summed up the position as follows:
The issue was more specifically addressed in G. v. An Bord Ucthála  32. In the course of his judgment in the Supreme Court Henchy J. said at p.89:
In Re J.H., cited above, Finlay C.J. set out the facts of the placement of a child for adoption, held that this was done in the best interests of the child and concluded “I am satisfied that the mother never abandoned or deserted the child or abandoned her rights to the child and that she is a fit person to have custody of and to rear the child”.
Lynch J., in the circumstances of that case, had to address the provisions of s.3 of the Adoption Act, 1974, permitting a court to dispense with the consent of the natural mother. He held, at p.383:
The Court must therefore respect the natural mother’s right to refuse or to withdraw her consent to the adoption of her child…”. ( Emphasis added)
It is clear that these authorities make it impossible in regard to a placement for adoption as constituting a failure in duty. But Mr. Durcan did not abandon the possibility that the Court might take a different view. Confronted with the volume of authority just indicated he said:
Mr. Durcan suggested that this long established position now has to be “looked at” in the light of other cases of which he mentioned specifically Northern Area Health Board and Ors. v. An Bord Uchtála  4 IR 252. This case turned on s.3(1)(i)(a) of the Adoption Act, 1988. The MOC case is not mentioned in the judgments and to my recollection was not mentioned in the argument. Mr. Durcan conceded that neither in this case “nor in any of the others I have in mind” was there any dissent from or reluctance to follow what was said in this topic in the cases cited, notably MOC. But he said, the cases he had in mind suggested a different approach. He did not put this point further.
I entirely agree with what is said about the Northern Area Health Board case in the judgment of Mrs. Justice McGuinness.
The case of MOC is the last of a number of cases emphasising that a placement for adoption cannot be a failure in duty towards the child so placed. But it goes further. It points out that the placement, though incapable of constituting a failure in parental duty, constitutes a modification of the mother’s constitutional rights in relation to the child. This modification is all the more significant for practical purposes on the signing of the second consent, the consent to the making of an adoption order: if consent is withdrawn the Court may in certain circumstances, on the application of the proposed adopters, make an order dispensing with consent and authorising the Adoption Board to make an adoption order in its absence. This, however, in my view, is the full extent of the possible consequences flowing from a mother’s withdrawal of her consent. It is a consequence which is in no way punitive or based on a failure in parental duty by her for moral reasons. On the contrary, I wish to adopt the words of Lynch J. in J.H. cited above where he says that the Court must respect the natural mother’s right to withdraw her consent to the adoption of her child and that s.3 of the 1974 Act must be read consistently with the “continuing right of a natural mother to… withdraw her consent to the adoption of her child…”. The fact that a withdrawal may in certain circumstances be followed by an order dispensing with the consent does not in any way trench on the mother’s rights to withdraw her consent, or permit her to be penalised for doing so.
Accordingly it seems to me to be impossible, and contrary to authority, to regard any of the specific matters listed by the learned trial judge which are part of the adoption process as constituting any part of the basis for a finding of breach of duty. These are “The placement of the child for adoption, the reaffirmation by signature of Form 10 on the 22nd April, 2005, the signature of the final adoption form on the 7th July, 2005, and the evidence surrounding the access which took place on the 8th August and its immediate aftermath”. All of these matters flowed from the initial placement for adoption and all but the last are part of the statutory process. The last factor was an arrangement come to through the social workers and is my view part of the adoption process as applied in this case.
There are two other features of the learned trial judge’s findings in this respect which I think it necessary to discuss. Firstly, it is in my view fundamentally unsound to regard something (such as the withdrawal of consent) which on the authorities the mother has a perfect right to do, which right the Courts must respect, as constituting the whole or any part of a failure of a parental duty by her. This much is, I think, plain from the foregoing passage of this judgment. It appears to me that the learned trial judge was misled by the fact that such withdrawal might (not would) have had the consequences of allowing a court to dispense with her consent into thinking that such consent was therefore a failure in duty, or one of the factors which together with others might constitute a failure in duty.
But even if, contrary to my view, placement for adoption, the signing of the first consent, the signing of the second consent or the subsequent withdrawal of consent could constitute, alone or in combination with other things, a failure in parental duty, it would be absolutely necessary that this should be explained in unambiguous terms to a young woman contemplating the placement of her child for adoption. There is no need to enlarge on the difficulties, emotional and otherwise, and pressures to which such a person is naturally subject. Equally, the law on this topic is very clear. In MOC, cited above it was put as follows:
It was put thus in O.G. v. An Bord Uctála  ILRM 514 by Finlay C.J.:
In the course of the appeal hearing, Mr. Durcan S.C. was asked by the Court whether, on his argument, the possibility of the placement for adoption, and participation in later stages of the adoption process, being regarded as part of the evidence contributing to the finding of failure in duty should not have been explained to the adoptive mother. A similar question was raised at the same time about certain other points he made, relating to the development of attachment between the child and the adoptive parents. These questions arose in part because Mr. John Rogers S.C., who made brief submissions on behalf of the Health Service Executive, had expressed a concern that if Mr. Durcan’s submissions were correct there might be very considerable consequences for the whole adoption, and indeed fostering, process.
Mr. Durcan replied to this by saying that assuming his submissions to be correct, “There wouldn’t be a change in what a woman putting a child up for adoption would need to be told”. He reiterated that the placing of a child for adoption “is capable of constituting a part of what is required to establish abandonment or failure of duty”. He said that it was “desirable” that a woman placing a child for adoption be told of this possible effect of a placement and the succeeding stages, and of the development of attachment for persons other than her parents, but maintained that “it’s not necessary”.
I cannot too strongly reject this submission. In my view, based on the principles set out in the two cases last cited, it is essential that a young woman thinking of placing a child for adoption should have the whole of the legal consequences of her actions explained to her in language she can understand. Mr. Durcan’s submission amounts to saying that it is sufficient if some, but not all, of these consequences are explained. He gave no authority, and I do not believe there is any, for his submission that it was merely desirable, but not necessary, that all of the consequences be explained. For a court to hold, in the absence of such explanation, that the initial placement for adoption itself might be regarded as constituting part of the evidence for a parental failure in duty, which might divest her of her parenting rights and cause her to lose contact with her child, would be to approve a form of ambush of a person in a vulnerable position.
Accordingly, even if Mr. Durcan were correct in his submission that the placement for adoption and the other matters relied on could constitute part of the evidence establishing a failure in parental duty by the mother, I would hold that the failure to inform of her this possibility would invalidate the placement and all subsequent stages of the adoption process.
The second rider I wish to add to my discussion of the topic of failure in parental duty arises from the learned trial judge’s (to me) puzzling assertion that a considerable number of the matters which he relied on as establishing failure in duty were nevertheless neither culpable nor blameworthy and in some cases were positively laudable. It will be recalled that, as I understand it, the judgment of the learned trial judge excluded a failure in duty by the applicants for physical reasons.
In the present case, both a failure in duty for physical reasons and a failure for reasons outside the control of the applicants, have been excluded from consideration, and properly so. This appears to me to leave only the possibility of a failure in duty for moral reasons. I am unable to see how such a failure would not be in some degree blameworthy. I believe that there is a deep contradiction in the judgment of the learned trial judge in this respect. As already stated, I believe that this arises from his very laudable desire to be as kind and emollient as possible. But it gives rise to such conundrums as how the placing for adoption, and the suspension of certain parental duties which thereby took place, can be described as “neither culpable nor blameworthy” but instead “both a brave and a generous gesture, done with [the child’s] best interests at heart”, and can also be, at the same time,“one of the factors to which the Court may have regard in the assessment as to whether or not there has been a failure of duty”.
All of the foregoing phrases appeared in the same paragraph, of the judgment. They are in obvious tension with of each other, especially when one reflects that the only failure for which there is scope in this case is a failure in parental duty towards the child for moral reasons.
Although very kindly meant, it is not in the end a kindness to the applicants so to lower the requirements which must be met to establish a morally based failure in parental duty towards the child, as to include matters which are not merely not blameworthy but are actually laudable. By almost emptying the words of Article 42.5 of meaning this exposes the parents to a finding of failure in their duty to the child when they have been guilty of no such thing. A failure in duty to a child, for reasons other than illness or impossibility, is a grave moral failing which cannot be committed without personal fault. A “failure in duty” is the condition precedent, in Article 42.5 of the Constitution, to the supplanting of parental function by the State. This supplanting cannot take place except for grave reason. If one reads “failure in duty”, in circumstances like those of this case, as not necessarily involving either incapacity or a grave moral failing, one seriously dilutes the protection which Article 42.5 was intended to confer on parents against their position as such being undermined by over-ready State intervention in the family. I would repeat in this context what I said in North Western Health Board v. H.W., cited above, in construing Article 42.5. The need to establish “failure in duty” is a bulwark of the rights of the family and its members. Any dilution of the content of the phrase undermines that protection. In this case the respondents have submitted that the parents can be found, for moral reasons, to have failed in their duty towards the child, and this submission has been upheld, without any finding of personal fault. Such an interpretation risks reducing Article 42.5 of the Constitution to an empty formula. I respectfully agree with the observations of Fennelly J. on this subject.
Other aspects of “failure”.
It follows from my findings above that I consider that the learned trial judge erred in construing a failure in parental duty towards this child in part from the act of placing for adoption and the other specific matters set out at paragraph 100 of his judgment. That finding is, in my view, sufficient in itself to set aside the findings of the High Court that the applicants had failed in their parental duty towards this child. However, since the weight which the learned trial judge attributed to any particular factor in reaching his decision as to failure in duty is not stated, I will briefly consider the other factors which, apparently, fed into this decision. They have been summarised above. I have read the treatment of these factors in the judgment of Mr. Justice Geoghegan and I agree with it. I simply cannot see how non-attendance on a particular expert can be reckoned as constituting or contributing to a breach of duty when a High Court order has made it perfectly clear that the applicants were under no obligation to attend that particular gentleman. Since attendance was optional, there is no obligation on the applicants to justify their non-attendance: they were perfectly entitled to, and did, consult an expert of their own. Both experts are competent and reliable people and there was never any suggestion to the contrary. I frankly do not understand what is meant by the observation that the applicant’s failure to attend the first expert led to a “discontinuity in the evidence”. The case did not, in the end, suffer from any insufficiency of evidence. But the basic point is a blindingly simple one: attendance on the named expert was, by Court order, optional: therefore omission to attend cannot in any sense be reckoned as a failure in duty. The adoption process has a time scale of its own, not dictated by the parties. In any event, any such breach of duty, to be properly considered in this aspect of the case, would have to be a breach of duty towards the child. It is quite impossible to see how consulting Dr. Byrne rather than Dr. McDonald could be so regarded.
I have already set out my view that neither the placing of the child for adoption nor the actions of the mother in the later stages of the adoption procedures, while the child was in the custody of the prospective adopters, could constitute “failure in duty”. By parity of reasoning I do not believe that inevitable passage of time involved in those procedures, during which a child will naturally bond with those of who have custody of him or her, can constitute a failure in duty. I am impressed by the fact that it is now between thirteen and fourteen months since the mother clearly and unambiguously withdrew her consent to adoption and asserted her right to have the care and custody of the child. I do not believe that the considerable lapse of time since she did that can be laid at her door. It appears to me from a perusal of the documents, and from certain of the findings of the learned trial judge referred to above, that certain social workers, at least, reacted badly to her decision and very much favoured the adoption of the child by the proposed adopters. Unfortunate language was used in this connection, and perhaps absolutely inappropriate language on occasion. The mother was referred for counselling but there seems to have been a misunderstanding between the parties as to what precisely the purpose of the counselling was. The authorities do not appear to me to have responded with a proper level of urgency and seriousness to this major decision on the part of the mother, which she was entitled to have respected, up to the time when she and her husband embarked on the present proceedings.
The learned trial judge also appears to have taken into account, as a matter grounding a finding of a failure in parental duty by the applicant, the distrust which now existed between the parties, including the professionals involved. I do not believe that this distrust is attributable wholly, or even mainly, to the applicants. It was always unfortunate, and became more unfortunate as time and events moved on, that the proposed adopters were not, as I presume they normally would be, strangers to the parents’ social worker. When this fact is viewed in association with some of the language used, an element of alarm on the part of the mother is in my view understandable, not simply on the basis of the emotions which might be attributed to her, but on a wholly objective basis. Equally, she felt that she was being stalled and I cannot find that that feeling was objectively unreasonable either. The single action in the entire history of this case most unambiguously indicative of distrust was the retention by the second and third-named respondents of a private detective to discover what he could to the applicants’ disadvantage. These aspects of mistrust cannot conceivably be regarded as constituting, or contributing to, a failure in duty towards the child on the part of the applicants, since they were not responsible for them.
Finally, there are passages in the learned trial judge’s judgment which suggest that mistrust in question is partly based on robust exchanges in court proceedings and during a mediation process. I would flatly decline to pay any attention to what happened in the mediation process, in the interest of that process itself. Clearly no meaningful mediation could take place if parties did not feel free to participate in the process without risking being prejudiced in the proceedings which would follow if the mediation was unsuccessful. The argument addressed to this Court as to damage to the relationship between the parties arising from the nature of the cross-examinations in the High Court was so vague that I could not ground any conclusion on it.
Status of the infant if relief refused.
It is clear from the foregoing that I would decline to find either that the natural parents have failed in their parental duty towards their child or that there is any compelling reason to believe that the welfare of the child cannot be secured in her natural and constitutional family consisting of herself and the two applicants. Furthermore, the allegation that the applicants had abandoned or deserted their child was, very correctly, not pursued in this Court. No suggestion that the applicants were unfit parents was ever made thereby, apart from anything else, making it impossible to apply s.16 of the Guardianship of Infants Act, 1964, as amended to the circumstances of the case. I may say that I do not regard s.14 of the same Act as having any application, being confined as it is to an order for the production of the child, an order which can be made at the preliminary stage of the Article 40.4.2 procedure which is now past.
Apart from the foregoing point, which relates to the construction of s.14 and particularly of the word “production” as it appears there and in Article 40.4.2 of the Constitution, there is a more fundamental issue on the statutory provision. If, as found in J.H., s.3 of the Act of 1964 requires to be construed in light of Article 42.5 of the Constitution, it seems to follow that s.14 must also be so construed. In the course of the argument on this appeal, Mr. Durcan was asked whether the word “conduct”, a derivative of which was used in s.14 must therefore be conduct which would meet the definition of failure in duty, as envisaged by Article 42.5. He agreed “I think that must be so”. On that basis, which I believe to be correct, the rejection of the learned trial judge’s finding of failure in duty must equally foreclose a finding adverse to the applicants under the “conduct” provision of s.14. When this became clear the applicants attempted to resile from the concession which had been made, but in my view unconvincingly so.
These findings, again apart from any other effect, appear to me wholly to rule out any prospect of the respondents meeting the onerous conditions contained in s.3 of the Adoption Act, 1988, for the adoption of a child in the circumstances of this one, whose parents are married to each other. This involves a proof of a failure in duty towards the child for physical or moral reasons, amounting to an “abandonment” on the part of the parents of “all parental rights”. It would also have to be shown that the failure on the part of the parents would continue without interruption until the child reaches the age of eighteen years. This would be quite impossible to show because it is simply not the case.
Accordingly, if this child is not restored to the custody of her parents in the natural and constitutional family, she will live with the second and third-named respondents in what one of the expert witnesses described with moderation as “a complex” situation. She will not bear their name, since she has been registered as the child of the natural parents subsequent to their marriage. They would be neither natural nor adoptive parents and the household would not constitute a natural or a constitutional family which included her. The learned trial judge, based on his findings as to failure in duty, abandonment, or desertion, held out some prospect that there might at some time in the future be an adoption by the second and third-named respondents but I can no see no prospect of that, and no grounds on which it would be proper. Accordingly the parents would remain guardians of the child with rights to be consulted on, and to influence, parenting decisions, a situation which would be replete with the potential for conflict and insecurity.
As I view the case, the applicants are the members, together with the child, of the only family the child can ever have. In the absence of some form of impossibility as expressed in the “compelling reasons” test, or of a failure in duty on the part of the applicants, the child has an imperative right to be reared nurtured and educated by her parents and the parents have a correlative right to her care and custody.
The Constitution, statute law and case law are alike protective of the position of a mother, or a family, against third parties (including the State itself) who seek to displace her or them as guardians of their child against their wishes. In the specific case of adoption, the law goes to considerable length to make sure that a mother’s consent is an informed consent freely given and even then the mother’s right to withdraw that consent is recognised in law. Third-party intervention in the rearing of a child against the will of its parents is justifiable only in exceptional cases, where the parents for physical or moral reasons fail in their duty towards their child. More specifically, adoption of a child of a married couple is possible only in very limited circumstances where there has been a failure in parental duty amounting to an “abandonment” of all parental rights.
In this case, grave allegations have been made against the natural parents of the child. I believe that these were made because only grave allegations would suffice to undermine the position of the natural parents which is very strong in law. I am satisfied that these allegations are without foundation. Some of them, including a charge that they had abandoned or deserted her were very properly not pursued in this Court and in my opinion should never have been made at all. They are unstatable both in fact and in law. Furthermore, in a case such as this where there is no question of physical incapacity to rear a child, an allegation of failure in duty to the child is also a very grave allegation. The respondents devotion to her is beyond question, as is their desire to have the care of her, but that does not mean that groundless allegations can be made in order to keep her in their custody. Certain of the other allegations made are plainly unstatable as a matter of law and again in my opinion should never have been made. In particular it is necessary to emphasise as strongly as possible, once again, that the action of a mother in placing her child for adoption can never be, either in fact or in law, regarded as a failure in the mother’s duty towards the child, or as one of the number of acts or omissions constituting such a failure. If this is not firmly recognised, the whole basis on which adoption (and possibly fosterage) takes place will be undermined and people who may be vulnerable will be unfairly stigmatised.
One of the most disturbing features of this case is the time which has elapsed since the mother requested the return of her child. At that time, she had been with the proposed adopters for ten months and was about fourteen months old. She has now been in their care for twenty-four months and is about two years and four months old. Clearly this passage of time will make her reintroduction to her parents more difficult: that, indeed, was one of the principal arguments deployed by the respondents.
But all of this additional time elapsed by reason of the omission to return to the child, or to take the legal steps under the 1974 Act which done could have justified her retention, and latterly by resistance to this application. I have to say, with regret, that I regard the arguments deployed, in answer to the parents claim to the custody of their child, as contrived. It is fair to note that, in the High Court, the Health Services Executive took the view that the child should be restored to her parents’ custody.
We have seen that the argument grounding an alleged failure in duty as originating in the placement of the child for adoption is not merely illogical and wrong, but contrary to express authority: this was indeed conceded. But this argument and it corollaries formed a significant part of the respondents’ case. And the respondents’ submissions on “compelling reasons” were artificial and deeply flawed for the reasons set out above.
These arguments, however, were necessary to the respondents’ case because, after the marriage of the parents and the re-registration of the child’s birth, the child’s entitlement to be reared by them and their entitlement to her custody were indefeasible unless the exceptional provisions of Article 42.5 of the Constitution and the statutes deriving from it could be applied. All these provisions are designed to deal with very extreme situations of parental unfitness. The respondents’ real case, which might have been made in a timely application under s.3 of the 1974 Act, was that the interests of the child would be best served in their custody. But when the parents formally asserted their constitutional and legal position in February, 2006, they were met with wholly untrue allegations that they had abandoned or deserted the child, failed in their duty to her, and given rise to compelling reasons why her welfare could not be secured in their custody. Since there was a complete absence on the facts of the sort of graphic and tragic evidence of unfitness of the parents necessary to sustain these contentions, the contrived arguments rejected in this judgment were instead deployed. Moreover, the time taken to resolve the issues thus raised was sought to be counted against the applicants. All this was in my view unfair both to the child and to her parents.
Article 40.4.2, under whose provisions this litigation arises, is one of the great bulwarks of personal liberty and of a free society. Every citizen has an absolute and unqualified right to have recourse to it on his or own behalf or on behalf of another. Clearly, most disputes as to the custody of children (the overwhelming majority of which are between natural parents) will be dealt with under the Guardianship of Infants Acts. But where, as here, it is alleged that a child is being detained in the custody of persons who have no legal mandate to do so it is the right of her parents to challenge that custody and to use Article 40.4.2 for that purpose. I would not be in any way critical of the decision to proceed in that manner. Equally, it would have been open to the proposed adoptive parents up to January 2006 to ask the Court to exercise the jurisdiction conferred by s.3 of the Adoption Act, 1974, and permit the making of an adoption order without the consent of the mother, but this was not done in the present case.
I regard as wholly disingenuous the submission made on behalf of the respondents that because the proceedings were brought under Article 40.4.2, the powers available to the Court were limited to the stark alternatives of refusing relief altogether, or directing an immediate, unprepared for, transfer of custody. The very starkness of these alternatives, it was argued, was an argument for refusing relief altogether.
I agree with the form of order proposed by the learned Chief Justice in this case. I am satisfied, for the reasons which he gives, that there is ample power to make an order in that form. I have no doubt that the power of the Court is not constrained in the extraordinary fashion contended for by the respondents. I am quite satisfied that the welfare of the child, in the long term and in the short term, as well the rights and responsibilities of the parties to this litigation, require that the order proposed should be made.
This case, of course, is decided on its own facts, and not those of any hypothetically different case. Those facts include the marriage of the parents in January, 2006, and the subsequent re-registration of the child’s birth. Like Mrs. Justice McGuinness, I have no doubt that this marriage reflects the parties’ commitment to each other. Its timing may also reflect legal advice. They self consciously rejected the idea of marrying just because the baby was expected, or just after her birth. Both the mother’s demand for the return of the child to her custody, and the subsequent marriage, followed the parents making a permanent commitment to each other. This took place, on the evidence, in August, 2005, after there had been ample opportunity for reflection and after the excitements and pressures immediately surrounding the birth of the child had abated. It is also relevant to recall that the employment of a private detective by the respondents was apparently sparked by the marriage, and done with a view to attacking the genuiness of that union, if it were possible to do so. This did not prove possible.
I do not accept the view that the marriage was in any sense a mere stratagem, a deus ex machina, undertaken merely for litigious advantage. Moreover, it is neither necessary nor possible to decide what the result of any litigation, by the parents or by the proposed adopters, would have been in the absence of the marriage. But it would be wrong to conclude that but for the marriage the child would be left in the custody of the adoptive parents.
I would allow the appeal and substitute for the order of the High Court an order in the form proposed by the learned Chief Justice.
JUDGMENT of Mr. Justice Geoghegan delivered the 13th November 2006
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.
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.
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”).
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.”
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.”
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.
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.
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).”
“(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.”
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.
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.
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.
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  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  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.”
“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.”
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.
(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  I.R. 317; MacDonald v. Bord na gCon  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.”
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.
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?
“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.”
“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.”
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.
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)  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.”
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.
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.
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.
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.”
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.”
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.”
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.
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.”
“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.”
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.”
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.”
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.”
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.
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:
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.”
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.”
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.
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.”
“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.”
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.
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.
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.
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  I.R. 657 and Northern Area Health Board v. An Bord Uchtála  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  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.
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.
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  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.
I am satisfied that there is no basis for any finding that there was a failure of duty.
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  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.”
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.
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.
I would, therefore, allow the appeal and substitute these orders for the orders of the High Court.
Byrne v. HSE & anor.
This appeal concerns a distressing dispute regarding the custody of a child. The outcome of the case is certain to cause distress to one or other of the two couples involved. Both couples are of the highest character. Sadly they are divided rather than united in their devotion to the welfare of the child.
The natural parents applied pursuant to article 40.4.2 of the Constitution for the return of their child. The natural parents had married following placement with the notice parties for adoption. Mr Justice McMenamin in an impressively thorough judgment of 23rd June 2006, declined to make an order for the return of the child to her, now married, natural parents. He found, notwithstanding explicit acceptance that they were motivated by the best interests of their child, that the natural parents were guilty of a failure of duty and of abandonment of her and that there were sufficiently compelling reasons why her best interests could not be secured within her natural family.
In order to preserve the anonymity of the parties, I will use the names assigned to them by the learned trial judge in his judgment. They are not their correct names. I will refer to the first and second named applicants as Brian and Catherine Byrne (or the Byrnes) and to the notice parties as David and Eileen Doyle (or the Doyles). The learned trial judge at times described them as the second and third named respondents.
The learned trial judge has delivered a particularly comprehensive judgment containing a lengthy account of the facts. I will commence with a shorter account.
Brian Byrne was born in May 1982. Catherine Byrne was born in July 1981. They met in March 2002, when both were university students. They commenced to live together. In October 2003 Catherine discovered that she was pregnant. It was not a planned pregnancy. The pregnancy and birth of the child, Ann, were concealed from the parents of both Brian and Catherine.
Ann was born on 7th July 2004. Brian and Catherine were married in Northern Ireland on the 9th of January 2006. They then caused Ann's birth to be re-registered. It is common case that they, with Ann, thus constituted a family within the meaning of the Constitution.
As already stated, neither Brian nor Catherine informed their parents of the pregnancy or of the birth. They continued their studies and sat examinations which took place at Christmas 2003 and April 2004. They attended counselling sessions with a medical social worker. They considered and ultimately decided on the option of adoption. The Byrnes were allocated a senior social worker, hereinafter called Mr F, with the Health Service Executive, whom they first met in June 2004. Ann was born on 7th July 2004. On the following day the Byrnes met Mr F at the hospital to make arrangements for the pre-adoptive foster care of Ann. Catherine signed a "Voluntary Care Agreement Admission to Care," placing Ann in the foster care of Ms I. During the period of foster care Brian and Catherine visited Ann on a regular basis and had two overnight access visits with her. Mr F commented that this degree of contact was unique in his experience and that the father's degree of involvement was unusual among all the birth fathers he had dealt with as a social worker.
It is important to record, at this point, the general view and assessment of the learned trial judge regarding the character and general demeanour of the Byrnes:
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."
There was a good deal of evidence regarding the extent to which Brian and Catherine respectively were fully committed to the adoption process. Brian, for example, was later recorded as saying that he had never wanted adoption. There was a conflict of evidence, in particular, between Brian and Mr F regarding the information conveyed to Brian by the latter. Brian claimed that he had been led to believe that he would have no rights as a natural father. Mr F gave evidence that he had informed Brian of his right to apply to be appointed as a guardian.
On 14th September 2004, Catherine signed the required Form 10, consenting to the placing of A for adoption. At the same time, Brian signed a form acknowledging he did "not wish to be heard by the Adoption Board on the application for the adoption" and that he would "receive no further communication in relation to the adoption of the child unless [he] specifically request[ed] it."
Form 10 is, of course, a most important document, embodying, as it does, the first expression of the natural mother’s agreement to the adoption process. Under the heading, “Effect of an Adoption Order,” it states:
On 30th September 2004, the Regional Adoption Panel identified the Doyles as suitable adoptive parents.
In October 2004, the Byrnes first met the Doyles. The meeting went well. The Byrnes were satisfied that the Doyles were suitable parents for Ann. It was agreed that it would be an open adoption. In November 2004 the Doyles were introduced to Ann, and she was moved to their house on prospective adoptive placement.
Following the placement, the Byrnes ceased to visit or to have access to Ann. There was evidence that both Brian and Catherine had some reservations about the correctness of their decision. Brian expressed “serious reservations” in a telephone call to Mr F. They did not communicate these feelings to the Doyles. They sent the Doyles a Christmas card and a very friendly letter at Christmas 2004.
It is accepted by everybody, including the Byrnes, that Ann has settled extremely well with the Doyles. All of the evidence suggests that she is a very happy with them. She has been made to feel that she is a member of their family.
In February 2005 it was discovered that the form 10 consent had not been sent to the Adoption Board. Mr F, after some difficulty, contacted Catherine and arranged a meeting in order to have a new form signed. The meeting took place in April. There was a dispute in the evidence about this meeting. Both the Byrnes stated that they, by then, wished to change their minds. They did not communicate this to Mr F. Mr F, as found by the learned trial judge, explained Form 10 fully, for the second time. The learned trial judge rejected the Byrnes’ contention that Mr F, by his conduct, prevented them from conveying their change of mind. It seems clear, at the same time, that the Byrnes had genuine doubts. Catherine had attended counselling prior to the meeting in order to discuss her doubts and second thoughts.
At the April meeting, there was again misunderstanding between the Byrnes and Mr F. They contended that they were informed that they would be able to change their minds at any time up to the making of the final adoption order. They said that Mr F confirmed that, while they could do this, it would be “morally wrong."
The learned trial judge expressed his view about this meeting as follows:
He proceeded to say:
Catherine signed the final consent form (Form 4A) at a courthouse where she was then working on 11th July 2005. Again there was some dispute about the circumstances, a matter analysed in great detail by the learned trial judge. Basically, the Byrnes maintained that their right to visit Ann was made conditional on the signature of the form. Mr F disputed this and said that their right to visit and had already been agreed. I do not think it is necessary to review this matter. The learned trial judge preferred the evidence of Mr F. It appears that Mr F accepted that the Byrnes entertained genuine doubts about the correctness of their decision. The learned trial judge accepted that both Brian and Catherine "at many times had second thoughts over the period April to July 2005 on the issue of Adoption." He also referred to their "profoundly conflicted feelings at that time," and to Brian's "mixed emotions and confusion over the period of April to July 2005." But," he said, "those second thoughts never crystallised into a concrete decision to seek to regain custody of Ann." They had not conveyed any change of mind either to the Adoption Board or to the Doyles.
The first actual access visit took place in August 2005. I propose to quote the description of the learned trial judge, highlighting, as it does the contrast between tensions regarding the social workers and the good relations with the Doyles. It reads as follows:
Up to this point, whatever doubts they may have entertained, the Byrnes had not communicated any decision to withdraw from the adoption process. The learned trial judge suggested that the events which occurred at the access visit may well have precipitated the action they then took. They went on holiday together in August 2005. They decided that they would commit themselves to each other and that they would seek the return of Ann.
Withdrawal of consent
While draft letters were prepared, none was sent until 26th September 2005, when Catherine wrote, as follows, to the Adoption Board:
The letter was mistaken in referring to an adoption order, as none had been made.
A number of meetings, some of them very lengthy, took place between the Byrnes and Mr F in the period after the revocation of consent to adoption. These exchanges are reviewed in much detail in the judgment of the learned trial judge. Whether these events are relevant to the decision which has to be made on this appeal must be considered later. The learned trial judge appears at least to have attached importance to them. They are part of the material on which he relied in deciding not to award custody to the Byrnes. I believe that the main elements of the discussions may fairly be summarised as follows.
The Byrnes, particularly Catherine, expressed themselves as having been uncomfortable with their decision to place Ann for adoption for a long time. Catherine said that she had been in turmoil for more than a year.
Mr F, on the other hand is repeatedly recorded as expressing doubts and reservations. These apparently related to the prospects of the Byrnes’ own relationship. They had not at that stage decided to marry. Mr F also expressed concern about the influence of Brian's parents. Mr F urged the Byrnes to consider the effects on Ann and on the Doyles. Amongst the matters raised by Mr F were that Ann might be traumatised or might reject Catherine, and that Catherine's ability to parent might be affected by her own relationship with her mother and the fact that she had been unable to tell her about the pregnancy.
In this context, the Byrnes agreed to obtain counselling. Mr M, a counsellor, gave evidence that he met the Byrnes in the period of October and November 2005. As recorded by the learned trial judge, Mr M "formed the view that the applicants were both intelligent people who had no impediment in their capacity to act as parents." The learned trial judge then remarked:
On 1st November 2005, Catherine wrote to Mr F as follows:
On 11th November, she wrote to say that she had “reconsidered [her] original request to resume full care of [her] daughter by the 2nd December.” She went on: “It is now my intention to have a phased introduction to Ann over a longer period of time, with the approval of David and Eileen.”
The learned trial judge expressed his views about the conduct of Mr F over this period of some two months following the formal withdrawal by Catherine of her consent to adoption:
The Byrnes were married on 9th January 2006 at a Registry Office in Northern Ireland. Again, the learned trial judge recounts the events leading up to that wedding in some detail. Some of that detail makes strange reading. Appointments for the marriage were cancelled on little or no notice. The marriage was attended with little or none of the usual celebrations, attendance of family and so on. It seems reasonably clear that the Byrnes were acting on legal advice to the effect that their marriage would improve their prospects of recovering the custody of Ann. On the other hand, none of this evidence puts in question the extent or genuineness of the long-term commitment of the Byrnes to each other as a couple. Nor has the validity of the marriage been questioned in these proceedings. In these circumstances, I consider that the criticisms of Brian and Catherine regarding the wedding arrangements, though they may be legitimate in social or religious terms, are quite irrelevant to the issues which arise on this appeal.
Undoubtedly, the crucial part of the evidence relates to the bonding of Ann with the Doyles and the effect on her of a transfer back of custody from them to the Byrnes.
Professor Dorota Iwaniec gave evidence on behalf of the Doyles. She is Emeritus Professor of Social Work at Queens University Belfast. She has qualifications in developmental psychology, teaching and social work. She has extensive clinical and research experience of nearly 40 years in child and family work. She has published extensively on emotional abuse and neglect, failure to thrive in children and parenting of children.
Professor Iwaniec was engaged, on behalf of the Doyles, to do an independent assessment of their attachment to Ann and to report on the consequences of discontinuity of attachment, if she were to be separated from the Doyles. She met the Doyles on 22nd April 2006.
In her report, Professor Iwaniec said that the Doyles and Ann presented as being a very close, warm and supportive "family unit" who discharged their parental rights in a well informed, loving and caring manner and that Ann related and interacted with them in a secure way and at-ease way. Parental responsiveness to their needs and behaviour were appropriate for her age and sensitive in nature. The Doyles were well functioning, committed to Ann and with a well established emotional bond between all three of them and the couple provided a high quality of care in meeting her developmental needs. She described the attachment between Ann and David and Eileen as being particularly strong, secure, stable and well-established, as evidenced by the child's behaviour and interaction with her prospective adoptive parents and their mutual relationship.
She also reported more generally on the importance of attachment.
Professor Iwaniec reported that disrupting a well-established sense of security and emotional belonging could have a serious effect on Ann's well being and could lead to emotional and behavioural problems. She thought it was not in the best interests of Ann to destroy this well-established security and emotional stability in order to meet what, in her report, she described as "the sudden needs of her natural parents and their families".
She concluded her report with the suggestion that the Byrnes “should seriously reflect on what they are attempting to do and whether their desires would benefit their daughter in any way.” She observed: “Parents have rights to their children, but not at all cost – children have rights too.”
Professor Iwaniec, in evidence spoke of significant developments in the science and study of attachment over the past twenty five to thirty years. She testified that it is now possible to measure attachment in adults, emphasising that it is important to know what are the capability or styles of attachment in adults which will thereby be transferred into the attachment of the child.
She also said repeatedly that it is very risky for a child to disrupt the kind of security a child has when he or she is moved from a secure and comfortable environment in which trust has been built up. In this respect, she said that it very much depends on how things are handled. “If there are disruptions and discontinuities, then of course it might go a good way, and it might be all right, but quite often it is not all right.” Commenting specifically, on the likely effect of a move of a child from carers with whom the child has established an attachment, she said:
Dr G McDonald, a clinical psychologist, and Service Manager for Clinical Psychology with the Newry and Mourne Health and Social Services Trust was called as a witness by the first-named respondent. He had not seen either of the sets of parents or the child in the case, though he had offered appointments to the Byrnes, of which they did not avail. He also emphasised the importance of attachment and thought that removal of a child from a caring, supportive setting would be fraught with difficulty. His views are no different from those of Professor Iwaniec on the imperative need for a markedly sensitive, gradual and pre-planned move and that it would be necessary for the adults to participate in it. He was also asked for his opinion on the capacity of a couple in the position of the Doyles to do so, although he had not met them. He responded by saying: “Well, as a father, I would find it very, very difficult. I would even go so far as to say impossible to positively to participate in that.” He went on the say that the sensitivity of adults should not be ignored, but also said that in the context of the care and welfare of children, “we’re all obligated to follow court direction.”
Dr Nollaig Byrne, a Child and Adolescent Psychiatrist with the Child and Adolescent Mental Health Service at the Mater Misericordiae Hospital, Dublin, was called as a witness on behalf of the Byrnes. Unlike either of the other experts, she had the opportunity of meeting and evaluating the Byrnes and their capacity to act as parents.
Dr Byrne said that the Byrnes’ commitment was “absolutely unambivalent and committed to making her [Ann]… a part…of their future lives together as a family.” She added that there was no evidence of any psychological impairment which might contradict or undermine this commitment. McMenamin J commented that this evidence is uncontradicted.
Dr Byrne’s evidence regarding the need for careful, gradual and sensitive transfer of custody is largely in agreement with that of the other two expert witnesses, with, perhaps, some difference of emphasis. She said: “there is considerable evidence that if well supported the child will have the resilience to cope.” She added:
A central and agreed element of all this expert evidence is that any transfer of custody must be carried out in a phased, sensitive way and with the cooperation of both sets of parents. This point became crucial to the decision of the learned trial judge. The Byrnes have made it clear that they are prepared to cooperate fully on that basis. The three experts were invited to give evidence on the likelihood of such cooperation being forthcoming from the Doyles, though two of them had never met the Doyles. Eileen Doyle gave evidence in which she was invited by her counsel to deal with this issue. At first, she argued forcibly that it would not be in the best interests of Ann, that such a situation was “unimaginable.” When pressed, she said:
Relationship with Social Workers
Before embarking on the central and difficult issues in this appeal, I wish to comment and dispose of one aspect of the evidence. It will be necessary at a later point to consider the relevance of the relationship of the two sets of parents, with a view especially to considering whether the required cooperation can take place so that Ann can, if the Court so decides, be returned to the Byrnes. There is a lengthy passage in the judgment of the learned trial judge entitled “The Present relationship between the Parties.” Much of the material in that section consists of an examination of the relationship, not between the two couples, but of that between the Byrnes and the social workers, especially Mr F. He refers to “the distrust felt by the Byrnes towards Mr F,” together with various reasons for it. I have already mentioned that the learned trial judge largely preferred the evidence of Mr F whenever there was any conflict, as there was on many points with the evidence of Brian. Mr F had kept detailed notes of their meetings. Significant conflicts related to the information conveyed to Brian regarding his rights as natural father. I have also referred to disputes in the period following Catherine’s withdrawal of consent, where the learned trial judge appears to have been implicitly critical of Mr F.
I would like to state clearly that evidence of distrust between the Byrnes on the one hand and Mr F and other social workers is, in my view, quite irrelevant. It has no bearing on the questions to be decided on this appeal.
The learned trial judge decided not to order the return of Ann to the Byrnes on the basis of two key conclusions, namely:
· The Byrnes had failed in their duty to or had abandoned Ann and were thereby deprived of the entitlement to her custody;
· There were compelling reasons why the welfare of Ann could not be secured in the custody of their natural family within the meaning of the Constitution.
Failure of Duty
The learned trial judge came to the conclusion that the Byrnes had been guilty of “a failure of duty as defined” based on a number of factors “taken together.”
He commenced by rejecting the submission that there can be a failure by a parent or parents to provide for the needs of a child by reason of his or her placement for adoption.
He noted that it was not in dispute that the Byrnes had placed Ann in the care of the Doyles from the age of four months to the age of 15 months without making any request for her return and that, during that time, the notice parties provided for all her needs. The evidence demonstrated that the Byrnes had decided not to provide for their daughter in the sense of caring for her day to day needs in circumstances where it was open to them to do so albeit with difficulty.
He did not consider that the placement of Ann for adoption and the cessation of the parental duties which thereby took place had been either culpable or blameworthy. He said that what had been done had been “both a brave and generous gesture” and had been “done with Ann's best interests at heart.”
Nonetheless, he considered that it “was one factor to which the court may have regard in the assessment as to whether or not there has been a failure of duty.”
He then referred to the combined evidence of the three experts, which I have summarised, to the effect that a sudden and unsupervised return of Ann to her natural parents would be damaging to the welfare of Ann. In this context, he referred to the fact that the Byrnes had not attended Dr McDonald for the purpose of an assessment and said that this created “a discontinuity in the evidence.” He noted that O’Higgins J, at an earlier hearing had permitted the parties to opt as to whether or not they attended such assessments, but continued: “one cannot be blind to the effect of that choice as exercised.”
The learned trial judge then referred to “the distrust which now most unfortunately exists between the applicants and the first named respondent, and the second and third named respondents.” The key conclusion of the learned trial judge appears in the following:
Further, while the applicants may not always have held the knowledge which they now have in relation to the issues of attachment, they did have some common sense information reflected in their desire that the third named respondent should not work for a one year period -- that was their desire that Ann should settle and establish strong links with the persons who were intended to be her adoptive parents. These were issues which were in the applicants' minds at the time of Ann's placement for adoption. It was an issue of sufficient importance for them to raise it in the course of their discussion which took place in an atmosphere of goodwill with regard to Ann's future. These provided the context in which Ann’s bonding and attachment took place.
It is the tragedy of this case that the atmosphere of goodwill which there was for Ann, and the priority which all parties had for her best interests has ended in this situation. However having regard to these factors taken together the court concludes that there was a failure of duty as defined.”
For this conclusion, the learned trial judge referred to The Adoption (No. 2) Bill 1987  IR 656 and the Northern Area Health Board -v- An Bord Uchtála  4 IR 252.
I prefer to commence by considering Article 42, section 5 of the Constitution, which reads:
This provision both in its own terms and as interpreted in the authorities postulates the State supplying the position of parents only “in exceptional cases.” In those cases the governing consideration is that of the “natural and imprescriptible rights of the child." The context is always the constitutional presumption that the rights of the child are best secured within the family constituted by nature and by marriage.
Perhaps the most cogent example of that presumption in action is the decision of this Court in North Western Health Board -v- HW and CW  3 IR 635. In that case, the parents of a fourteen-month old child had refused to permit the administration to their child of the P.K.U. screening test. The medical case for the administration of the test was overwhelming. All the conditions which it is designed to screen are readily treatable and there is no risk attached to its carrying out. There was no legislation requiring parents to consent to the test. Nonetheless, the majority of this Court (Keane C. J. dissenting) held that an exceptional case had not been made out for the intervention of the State. The judgments consider the application of Article 42, section 5 of the Constitution. Denham J held that at page 728:
It does not seem to me possible to hold that the defendants have failed in their duty towards their children……… I do not view a conscientious disagreement with the public health authorities as constituting either a failure in duty or an exceptional case justifying State intervention."
One of the cases upon which the learned trial judge placed reliance to find that there is an expanded notion of failure of duty was The Adoption (No. 2) Bill 1987, cited above. The key passage in the judgment of the Court delivered by Finlay C.J. at page 663 was as follows:
The learned trial judge interpreted the judgment of McGuinness J in the case of Northern Area Health Board -v- An Bord Uchtála, cited above, to establish the proposition that “that in the context of adoption failure to provide for the day to day needs of the child constituted a failure of duty even though there was nothing blameworthy or culpable in the actions of the parent or parents.” In support of that proposition, he cited the following passage from the judgment of McGuinness J:
The learned trial judge appears to have applied a modified test, namely whether “the applicants by reason of their physical or moral circumstances failed in their duty to provide for the needs of the child.” That is not the constitutional test. He also said that what “must be applied here is an objective test as to whether or not in fact the applicants made any contribution to her needs.” He did “not consider that the placement of Ann for adoption, and the cessation of the parental duties which thereby took place was either culpable or blameworthy.” If parents fail in their duty to their child for moral reasons, it is impossible, in my view, to say that they are not blameworthy.
In my view, this was an incorrect approach. There has been no finding of either physical or moral failure as those expressions are normally used. The learned trial judge carefully refrained from identifying any single element among the various ones cited as amounting to any form of failure of duty. I am satisfied that the finding of failure of duty cannot stand.
There is an additional reason. The essence of the finding of failure of duty, however expressed, is the placement for adoption and the leaving of Ann, for that purpose, in the care of the Doyles. While this is combined with other circumstances, especially the fact that they were aware or ought to have been aware of the possibility of Ann bonding with the Doyles, the finding is essentially and entirely dependant on engagement in the adoption process. That is, in my view, a quite dangerous approach, since it raises the possibility in every case of placement for adoption that failure of duty is involved. I will consider the issue separately in the context of whether “compelling reasons” have been established for the non-return of Ann. In the context I am now considering, the seriousness of the matter is that natural parents could be found guilty of failure of duty by the mere fact of the placing of the child for adoption, whether or not in combination with other factors, even though the learned trial judge professes to eschew any such intention.
Hardiman J has expressed the view, with which I fully agree, that it is both impossible and contrary to authority to regard the placement for adoption or any subsequent steps leading to a possible adoption order as forming any part of a failure of duty. I agree with his reasons for that conclusion. As he also points out, the suggestion that the Byrnes had abandoned their child has not been pursued on the appeal and need not be considered. Insofar as may be necessary, I agree with the views expressed on this topic by Geoghegan J.
It is unnecessary for me to review the findings of McMenamin J in detail, since that has been done in the judgments of Hardiman J and Geoghegan J.
It is common case that Ann has, by this stage, formed strong bonds of emotional attachment to the Doyles. Three experts, but particularly Professor Iwaniec, gave evidence to this effect. There was equally strong agreed evidence that a sudden or abrupt transfer of custody of the child to the Byrnes, this would be likely to cause her lasting emotional and psychological damage. It would be essential that any transfer of custody be phased, be conducted sensitively and with the cooperation of both sets of parents. None of this was contested at the hearing of the appeal by the counsel who separately represented each of the Byrnes. This Court is bound to accept that evidence.
The decision of the learned trial judge turned critically on whether it would be possible, in the event that the court were to make an order in favour of the Byrnes for the transfer of custody to them, for the necessary level of cooperation to take place. He expressed himself in the following terms:
The court concludes that as a matter of probability the present position of mistrust, which I emphasise now renders the possibility of an immediate, appropriate, phased re-introduction permitting Ann's attachment to the applicants, as highly unlikely. In the circumstances the evidence leads to the conclusion that any process of transfer would necessarily be either precipitate; or (albeit phased) take place in the absence of the trust and cooperation which is necessary to ensure that no damage would occur to Ann. On the evidence, which is presently available, the court concludes that as a matter of probability, having regard to the circumstances, Ann would thereby sustain emotional damage with the effects which have been outlined in evidence.”
I turn then to the central importance of the family, founded by marriage and the natural blood links and relationship between Ann and the Byrnes. I am in entire agreement with the judgments of Hardiman and Geoghegan JJ on these issues. I can, therefore, state my own views briefly.
The Byrnes constitute with Ann a family. This is no mere constitutional shibboleth. Article 41 speaks of the rights of the family being “antecedent and superior to all positive law.” In my view, that is no more than the statement of the simple facts of life. People of opposite sexes meet, marry, procreate and raise children. Prevailing trends towards the recognition of non-marital and even same-sex relationships are invoked from time to time with a view to expanding the legal definition of the family. None of that arises in the present case. Even if it should become necessary to recognise the family relationships of the increasing number of couples who raise children outside marriage, such a development would be based in most cases on the natural blood bond. It would in no way undermine, but would tend to emphasise the centrality of the mutual rights and obligations of the natural parents and their children.
One does not have to seek far to find that courts widely separated in time and place have accepted the need to recognise and give weight to what has been variously characterised as the blood, or natural or biological link between parent and child. In the case of In re O’Hara  2 I.R. 232 at page 239, Lord Ashbourne L.C. declared:
Fitzgibbon L.J., at page 240 expressed similar sentiments:
As recently as July of this year, Baroness Hale of Richmond, in speaking for a unanimous House of Lords, in Re G (children)(residence: same-sex partner) 4 All ER 241, at 252, cited the latter statement among a number of other authorities representing a statement of the principle of paramountcy of the welfare of the child prior to modern English legislation. With due deference to the very different circumstances of a case concerning the custody of a child born to one partner in a lesbian couple, a case as far removed from the present as it is possible to imagine, it is instructive to note the importance attached to the natural relationship. There is no legal presumption, in modern English law, in favour of natural parents. Lady Hale identified the elements of genetic, gestational and social and psychological parenthood and continued:
The only reason for these observations is to emphasis that the Byrnes constitute a family with Ann regardless of the definition of family which is adopted. I am happy to adopt the references to the several constitutional references to the family and the rights of its members which are contained in the judgments of Hardiman and Geoghegan JJ. Like them, I believe that the decision of this Court in Re J.H., an Infant  I.R. 375, is central and dispositive of the issues in the present case.
The facts of Re J.H. are similar in many respects to those of the present case. The infant girl who was the subject of those proceedings was placed in foster care by her natural mother one week after her birth. She took this course because at the time she was worried about the effect on the child of being brought up by an unmarried mother. Although the mother knew the infant's father, a widower with grown-up children, she did not wish to marry him solely because of her pregnancy. The infant was placed for adoption within three months of birth. The natural mother later married the father. They then applied for the infant's birth to be re-registered. The natural mother, in correspondence with the adoption society, refused to give her consent to an order for the infant's adoption.
Geoghegan J has summarised the history of the litigation in the judgment he has just delivered. In order to resolve the custody dispute between the natural parents and the parents who wished to adopt, Lynch J applied a test, later disapproved by the Supreme Court, as follows: "Is there anything really worthwhile to be gained for the child by transferring her from the adopting parents to the parents?"
Finlay C.J., speaking for a unanimious Supreme Court laid down, at page 394, a number of propositions regarding the constitutional status of the family. The key proposition, based on well-established case-law, was:
The proceedings, in that case, unlike the present, were taken by the natural parents under section 3 of the Guardianship of Infants Act, 1964 for custody of their child. Finlay C.J. ruled on the interpretation of that section as follows:
McMenamin J, however, thought that Re J.H., and Re J  I.R. 295, cited with approval in Re J.H., and discussed in the judgment which Geoghegan J has just delivered, could be distinguished and gave the following reasons:
1. The evidence in the earlier authorities did not establish the probability of a risk of harm or psychological damage such as gave rise to the consideration of the rights of the child. Here the evidence establishes such probability having regard to the circumstances.
In paragraph 3 of the enumerated list of reasons for distinguishing Re J.H., McMenamin J suggests that three authorities identify “constitutional rights held by children including the right to have their welfare determined having due regard for the natural and imprescriptible rights of the child, including the right to be educated by the family and to be provided by its parents with religious, moral, intellectual, physical and social education.” That does not seem to me to be in any way novel. O’Higgins C.J. in G v An Bord Uchtála  I.R. 32, at page 56 explained the rights of the child in a way which has been frequently cited ever since (and is quoted by Geoghegan J today):
After a comprehensive review of these and other authorities, the learned trial judge, in a passage which suggests that he was not purporting to depart from Re J.H. stated:
Before turning to final consideration of the evidence, I would like to comment on an aspect of the matter which has, in my view, received insufficient consideration. There was passing reference in the evidence and in the judgment to what was described by Dr Nollaig Byrne as “complexity” in the life of Ann, were she to remain in the custody of the Doyles. Since the Byrnes are married, it is no longer possible for Ann to be adopted by the Doyles. Adoption of the child of married parents can take place only in the very special—indeed extreme—circumstances provided for by the Adoption Act, 1988. One reason this aspect of the case has been insufficiently explored is that counsel for the Byrnes objected, with considerable success, to questions being put to expert witnesses on the hypothesis that an adoption would not possible. The findings of the learned trial judge on the issue of abandonment might have held out some hope of adoption. In truth, that was never a realistic possibility.
In the result, this matter comes before the Court as an aspect of the wider case. In my view, however, it is highly material. In present circumstances, Ann cannot be adopted. She is registered as a child of the Byrnes. She bears their name. If she stays with the Doyles, the relationship must be that of long-term fosterers. In addition, the Byrnes, remaining her lawful parents and guardians and retain rights and obligations in respect of her health, education and general welfare. This situation can, at best be described as anomalous. It is a long way from a completed adoption. I cannot regard it as being in the long-term interests of Ann. This is an aspect of the case which, in my view, weighs heavily in the balance in favour of a return to the Byrnes.
The effect of the expert evidence is that the welfare of Ann can be achieved provided that there is a phased transfer, handled sensitively and with the cooperation of both parents. On my reading of the evidence and the express findings of the learned trial judge, there is no question of the cooperation and willingness of the Byrnes. I have already given my reasons for omitting from consideration any distrust that may exist or have existed between them and employees of the first-named respondent. The experts were asked to comment hypothetically on whether cooperation would be possible. Perhaps understandably, they seemed, in answer, to stray away from their expert roles. At least two of them answered in terms of their likely personal reactions. They were not, however, in a position to say, unsurprisingly, whether the Doyles would be in a position to cooperate.
The crucial, indeed the determining passage on this entire issue is quoted above. The learned trial judge speaks in terms of general distrust, but does not relate that specifically to any of the evidence. In particular, he makes no finding concerning the evidence given by the Doyles that they would find it extremely difficult or impossible to cooperate.
Counsel on hehalf of the Doyles has laid heavy emphasis on the fact-finding role of the learned trial judge. He has found as a fact, it is argued, that sufficient cooperation will not be possible. In fact, in his concluding passage on this issue, which I have cited above, the learned judge finds rather, at a very general level, that it is the “the present position of mistrust, which I emphasise now renders the possibility of an immediate, appropriate, phased re-introduction permitting Ann's attachment to the applicants, as highly unlikely.”
A distinction must be made between a finding of fact in relation to a present and a past event. The learned judge was analysing the likelihood of a future event happening in a particular way. Insofar as his conclusion rested on the evidence of the Doyles, three important points arise. Firstly, each of them was attempting to predict their own future reaction to a future event of which they had had no previous experience; this was really opinion evidence: “We don’t feel we would be able to cooperate.” Secondly, they had an obvious interest in the outcome, namely that a predicted impossibility of cooperation might persuade the court not to order a transfer of custody. Thirdly, a point which was put to David Doyle, they were necessarily on notice from the commencement of the adoption process that consent to adoption might be revoked and the return of the child ordered. In this context, the learned judge quoted from the evidence of Catherine:
In this context also, it is important to recall the statement by the learned trial judge that:
It is impossible to ignore the enormous trauma involved. No decision of the court will satisfy everybody. Any decision will cause hurt. This is why it is imperative to adhere to clearly established principle. Uncertainty of jurisprudence may cause greater trauma. Clarity should enable problems or conflicts to be resolved quickly. In this case, there is a primordial constitutional principle that a child’s welfare is best served in the heart of its natural family. It is well-established and widely known. There must be compelling reasons to rebut that presumption. I do not believe that there was sufficient evidence to rebut the presumption in this case.
I would allow the appeal and make an order in accordance with the proposal of the Chief Justice.