In the Matter of an Inquiry Pursuant to Article 40.4.2 of Bunreacht na hEireann.

And in the Matter of Baby A, an Infant.

The Eastern Health Board (applicant) v E, A and A (respondents).

Family Law - Adoption - Consent - Lawful Custody - Enquiry pursuant to Article 40.4.2 of the Constitution - Child Care Act 1991 - Adoption Act, 1952 - Adoption Act 1998.

The High Court (before Miss Justice Laffoy); judgment delivered 16 August 1999.

There was a lawful duty upon the applicant pursuant to section 3(1) of the Child Care Act 1991 to inquire into the welfare and whereabouts of the infant at the centre of the dispute, Baby A. The couple (the first and second respondents) who for the time being had custody of the infant had placed themselves into a position involving a conflict of interest. The consent given by the mother (the third respondent) of Baby A to the placing of the infant into the custody of the first and second respondents was neither a fully free nor informed consent and was therefore not a valid consent.

The High Court so held in a granting an order pursuant to Article 40.4.2 of the Constitution directing that the custody of Baby A by the first and second respondents was unlawful.

Patrick MacEntee SC, Felix McEnroy SC and Carmel Stewart BL for the applicant; Michael Forde SC and Kieron Wood BL for the first and second respondents; John J. Phelan SC and Mary Laverty BL for the third respondent.

Miss Justice Laffoy conducted an inquiry into the lawful detention or otherwise by the first and second respondents of the infant at the centre of the dispute, Baby A. The background to the present hearing was that Miss Justice Laffoy had already made an order directing the first and second respondents to produce the infant before the court. On the following night Miss Justice Laffoy made a further order directing the first and second respondents to relinquish custody of the infant. Miss Justice Laffoy now considered the issue of whether the period of custody of the infant by the first and second respondents prior to the making of the complaint was lawful.

The first and second respondents contended that, at all times up until the making of the complaint, the infant was in their lawful custody with the consent of the third respondent, the mother of the infant.

Miss Justice Laffoy outlined the facts of the case. The third respondent, the mother of the infant, while pregnant, had sought pregnancy counselling advice from an agency which was run by the first and second respondents. The mother was then referred by the agency to their representative living in her own town. The mother was then referred to a medical practitioner practising in Dublin. The medical practitioner gave oral evidence that the mother telephoned her and she arranged to have the mother seen by a consultant obstetrician in a Dublin hospital. The medical practitioner also gave evidence that the mother had made it clear to her that she wished to have the infant adopted.

On the same day that the mother met the consultant obstetrician she also met the first respondent, the proprietor of the agency she had originally contacted. The first respondent outlined the adoption procedures that were available and mentioned that he and his wife (the second respondent) would themselves be glad to adopt the infant.

In any event the mother had the baby prematurely in a hospital in her home town. However, she had planned to have the infant in a Dublin hospital. Evidence was tendered from health-care professionals who attended the birth that the mother was very upset during her stay in hospital. Neither the mother nor her family members availed of the professional advice that was offered to them by the hospital staff at this time. Miss Justice Laffoy was of the opinion that the failure to avail of such professional advice was misguided.

On the same day that the mother left hospital the infant was handed over to the first respondent. Miss Justice Laffoy said that a number of factors then intervened. Principal among these was the handing over by the first respondent of an infant known as Baby B to the grandmother of Baby B. Baby B had also been placed with the first and second respondents. Also the first and second respondents were at this time moving from a number of different locations for a variety of reasons. The father of Baby A towards the end of June having learnt of the infant's birth wrote a letter via his solicitors in an appropriate and sensitive fashion to the mother of Baby A seeking joint guardianship of the infant. It was at this juncture that the mother of Baby A sought reassurance from the first respondent that everything was above board and legal and proper. The mother was assured that everything was in order and to this end the mother met a barrister, who met her in her capacity as a friend of the first and second respondents. It also transpired that the barrister who had met the mother of Baby A had also some involvement in issues concerning Baby B.

Miss Justice Laffoy held that, applying the civil standard of proof, the first and second respondents had received Baby A for the purpose of adoption and, in so doing, had contravened section 34 of the Adoption Act 1952 as amended by section 7 of the Adoption Act 1998. Miss Justice Laffoy held that on any view of the relevant evidence, Baby A was not given to the first and second respondents as temporary carers, but rather that she was given to them because they had a declared an intention to adopt her and that handing the infant over was intended to be the initiation of that process. Accordingly the custody of Baby A, by the first and second named defendants, was at all times unlawful.

As to the issue of consent, Miss Justice Laffoy made reference to the dicta of Mr Justice Blayney in Bank of Ireland v Smyth [1996] 1 ILRM 241. Miss Justice Laffoy also referred to G v An Bord Uchtala [198 0] IR 32 and also quoted with approval the comments of the former Chief Justice, Mr Justice Finlay, in N (otherwise K) v K [1985] IR 733 in relation to the consent necessary in order to enter into a valid marriage. In Miss Justice Laffoy's view the consent to effect a transfer of custody, as in the present case, was of equal importance as a consent to marry or a consent to placement for adoption and the stipulated requirements as set out in the aforementioned authorities must be adhered to in order that such a consent be valid.

The consent of the mother of Baby A was neither informed nor free and was not a real consent. Miss Justice Laffoy stated that in relation to the course of action taken by the first respondent it was hard to imagine a more glaring situation of conflict of interest than one in which a person who assumes the role of counsellor and adviser to a young girl in the later stages of a crisis pregnancy proposes himself and his wife as prospective adoptive parents of the baby and proposes taking custody of the baby within days of the baby's birth. Miss Justice Laffoy stated that in her view, the first respondent acted in a totally inappropriate manner towards the mother of Baby A at all times.

Miss Justice Laffoy also stated that the first respondent misled the mother as to his advice regarding the "private" adoption route in that, from April of this year, he knew if it involved a non-relative it was illegal. Also Miss Justice Laffoy disapproved of his attempts to use other professionals to "ring fence" his position. The onus of proof to establish that the decision of mother was a free one unimpaired by any defects lay on the first respondent to discharge and he had singularly failed to do so.

Miss Justice Laffoy also stated that if it were to be shown that the consent of the mother was a real one then it was a decision which was irrational, bizarre and could have been downright dangerous. This was a decision which had seriously compromised the welfare of Baby A and therefore one that the applicant was bound to seek to negative under the Child Care Act 1991. On this basis also Miss Justice Laffoy held that the custody of Baby A was unlawful.

By way of postscript Miss Justice Laffoy stated that, with the benefit of a period of reflection, in her view from the date of the second order the first and second respondents had de facto ceased to have custody of Baby A and effectively had abandoned their claim of entitlement to custody. In the light of the foregoing and in particular in relation to the comments of the Supreme Court in the case of In Re D [1987] IR 449 with regard to nature of the court's jurisdiction in relation to Article 40.4.2 Miss Justice Laffoy considered that she had decided a moot.

Solicitors: Roger Greene & Sons (Dublin) for the applicant; George F. Daly & Co (Cork) for the first and second respondents; Kenny Stevenson Chapman (Dublin) for the third respondent.