The Gazette 1979

GAZETTE

SEPTEMBER 1979

G. v. An Bord Uchtála— the best interests of the child and constitutional rights in adoption Gabriel J. McGann, B.A. (Mod) (Dublin), LL.M. (Yale), Barrister-at-Law, Legal Assistant to the President of the Law Reform Commission. This article is written in a personal capacity.

6. Reserved judgment was delivered in the absence of the plaintiff and the notice parties 2 and copies of the written judgment were made available to them immediately. The President of the High Court heard the case during the long vacation and, in a judgment delivered on 19 September 1978, ordered the return of the custody of the infant to her mother. 3 The learned President set out the statutory rights given to the natural mother and her illegitimate child under the Guardianship of Infants Act 1964 and the Adoption Acts 1952-1976 and gave special attention to section 3 of the Adoption Act 1974 which was, in his view, "vital to the proceedings before [him]". Section 3 provides as follows: 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, 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 JUDGEMENT OF THE PRESIDENT Statutory Rights 4

THE FACTS The plaintiff gave birth to a baby girl on 14 November 1977. She was unmarried and the child was illegimate. Upon giving birth to the child, the plaintiff informed only one person, a married sister, of the fact. The plaintiff decided to place her daughter for adoption on 6 January 1978 and for this purpose she signed a form of consent to the placing of her child for adoption. The plaintiff did not inform her parents until a time in late January 1978. They told her, among other things, that if she wished to keep the child they would help and support her. As a result, the plaintiff wrote to the adoption society expressing a wish to keep her child. The adoption society informed the applicants for adoption of the plaintiffs change of mind but they refused to give back the child. The plaintiff brought an action by special summons claiming from the defendants, An Bord Uchtála, the return of her child. ANONYMITY OF THE PARTIES It appeared to the President of the High Court, Finlay P., that it was "vital for the welfare of the infant con- cerned" that the parties to the proceedings should not be aware of each other's identity. Accordingly, the Presi- dent directed the plaintiff and the Board to adopt the pro- cedure which he had already laid down for the bringing of applications under s. 3 of the Adoption Act 1974. The procedure was as follows: 1 1. The Board filed an affidavit exhibiting in a sealed envelope the names and addresses of the persons applying for adoption; 2. The relevant adoption society was added as a defendant; 3. The appropriate officer of the adoption society enquired from the persons seeking adoption (who had actual custody of the infant) whether they wished to appear and be represented at the hearing. 4. The persons in whose custody the infant was, wished to appear and were to be represented by solicitor and counsel and accordingly, were added as notice parties. 5. The learned President gave the following directions (a) he fixed a date for the hearing of the plaintiff and her witnesses in the absence of the notice parties but in the presence of their solicitor and counsel; (b) he fixed a separate date for the hearing of 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.

Contributors to this Issue: Gabriel J. McGann, B.A. Mod. (Dublin), L.L.M. (Yale), Barrister-at-law, Legal Assistant to the President of the Law Reform Commission. Joseph B. Mannix, former Editor of Gazette. B. S. Russell, M.A. Barrister (courtesy of Editor of English Law Society's Gazette).

notice parties and their witnesses in the absence of the plaintiff but in the presence of her solicitor and counsel.

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