The Gazette 1974

her statements relating to the weapon was true. The proper procedure if it is desired to have a wit- ness treated as hostile is to make an application to the Judge and put before him the material upon which it is sought to have the witness declared to be a hostile witness. This should be done in the absence of the jury and if the Judge rules that witness may be treated as hostile the witness may be cross-examined. If the wit- ness denies the statement, it would be necessary that the person who took the statement should testify to that effect. This procedure bears no resemblance and is quite distinct from the rules and procedure which govern the admissibility of written statements in cross- examination. The prosecution, to prove provocation had not established the necessary basis for introducing the written statement made to the Gardai and that being so, the statement should not have been received 'n evidence. The conviction was accordingly quashed and a new trial ordered. [The People (A.-G.) v Derek Taylor; Court of Crim- inal Appeal (Walsh, Murnaghan and Gannon JJ., per Walsh J.); unreported; 30 July 1973.] Validity of adoption order upheld—no undue influence on the mother by social workers In a reserved judgment delivered in the High Court in Dublin on 25 October 1974, Mr. Justice Butler dis- missed an action brought by a young couple who had sought an order giving them the custody of a four-year- old boy who was born to them before they were married and given for adoption. They had brought their action against the Adoption Board and the Attorney-General, challenging the vali- dity of the adoption order, and they sought a declara- tion that Section 29 of the Adoption Act, 1952, was Unconstitutional. When the action was tried last week, Mr. Justice Butler directed that the names of the plaintiffs should not be published. The baby was born on 15 May 1970 and the couple were married in June 1972. They now live in Ghana. In a very comprehensive judgment, Mr. Justice But- ler dealt at considerable length with a review of the evidence in the case and, having done so, he said that the validity of the adoption order had been attacked by counsel for the plaintiff's on a number of grounds : (1) TTiat there was no valid consent to adoption by the mother; (2) That the Board in making the order did Uot take any adequate steps to satisfy itself that the mother understood the nature and effect of the consent given and of the adoption order; (3) That the Board did not perform its duties with due regard to consti- tutional justice; (4) That the subsequent marriage of toe parents invalidated the adoption order and that, in ®o far as. the Adoption Act provided that the Legitimacy Vet, 1931, should not apply to an illegitimate child in respect of which an adoption order had been made, it ^as unconstitutional; (5) That the powers and func- tions of the Board to make an adoption order were Unconstitutional because they were judicial powers and functions. Vlleged consent obtained by undue influence The first ground of attack was based on the sub- mission that the consent to adoption was obtained by andue influence first by two social workers (one a nun)

in the period up to and immediately following the birth of the baby, the suggestion being that they con- tinually advised the mother that the only choice open to her in the circumstances was to have the baby adopted in the interest of the baby and herself; and secondly by a priest and the same nun in an interview which they had with the mother. In this it was alleged they obtained her agreement to sign her consent against her will and by insisting that it would be wrong to remove the child from the adop- tion, and, thirdly, by a letter of 8 June 1971 from the adoption society which was in effect an ultimatum that if she did not sign the consent she would be exposed as the mother of an illegitimate by having the child deliv- ered to her home in a little over 24 hours. Mr. Justice Butler said that for the purposes of this case he accepted the definition of undue influence sub- mitted by counsel for the plaintiffs, namely, influence which overbore the will of the mother so as to make her act in a manner in which she would not have acted had she been a free agent. He rejected any suggestion that either of the two social workers told the mother during the pregnancy or after the birth that she had no choice but to have the baby adopted. He was satisfied that they were scrupu- lous in trying to avoid persuading the mother towards any particular choice and on the contrary at all stages advised her on the several alternatives that were open to her without bias. He was satisfied that at quite an early stage the mother herself fully understood and considered all the options and, given her unwillingness to adopt any of the others, was driven by the logic of the circumstances to realise that she would have to have the baby adopted. He thought she had reached this conclusion perhaps without consciously admitting it long before she com- municated it to anyone and while she continued to say that she had not yet made any decision in relation to marriage or adoption. As to the interview of July 7th, he accepted the evid- ence of the priest and the nun that the mother did not in fact agree to execute the consent. He thought the explanation of that interview was that for the first time the mother was faced with the necessity of deciding cither to commit herself in writing to adoption or to be faced with an immediate alternative decision. She re- mained uncommitted but he thought her attitude con- tinued to be that referred to by her mother, that she was willing to have the baby adopted but not to sign a consent. Priest and nun were doing their duty He was satisfied that beyond pressing the obvious necessity for her to decide, neither the priest nor the nun forced her to decide in any particular way, and he was further satisfied that the nun again fully explained the other options and was willing to give advice and assis- tance on any of these options had the mother been inclined to adopt them. Being faced with facts was not being unduly influenced if the facts were truly stated. One of the facts was the position of the child, and in stressing, as he was sure they did, that he should not be likely taken from the adopters, the priest and nun were doing no more than their duty. He was satisfied that had the mother expressed a fixed resolve not to have the child adopted as distinct from an unwillingness to sign the consent, both would 247