The Gazette 1979

GAZETTE

SEPTEMBER 1979

Plaintiff found that she could not cope with the child and brought her to a nursery and contacted the social worker from the Health Board. After some discussions, the Plaintiff in- formed the social worker that she had finally decided to place the child for adoption on condition that she was returned to the same prospective parents for adoption. On 2 May 1978 the child was taken from the nursery, the Plaintiff signed the final consent to adoption, and the child was delivered to the prospective adoptive parents. Soon afterwards the Plaintiff contacted the social worker from the Health Board say- ing that she regretted her decision, and on 18 May 1978 she wrote to the Adoption Board withdrawing her consent. The prospective adoptive parents refused to return the child to the Plaintiff and the Plaintiff then in- stituted proceedings against the Health Board, through whose agency the child had purported to be placed for adoption, for return of custody of the child to her pursuant to the Guardianship of Infants Act 1964. The prospective adoptive parents, who had actual custody of the child, were added as notice parties and they applied to the Court for an Order under Section 3 of the Adoption Act 1974 dispensing with the consent of the Plaintiff to adoption and placing the child in their custody pending the decision of the Adoption Board on their application to adopt the child. Finlay P. following the decision of the Supreme Court in G. v. An Bord Uchtála and Ors. (High Court per Finlay P., 19/9/78; Supreme Court, 19/12/78, both unreported) found that he had to decide the following issues, namely, whether Plaintiff had agreed to place her child for adop- tion within the meaning of Section 3 of the Adoption Act 1974 so as to bring into operation the provisions of the said Section 3, and, if so, whether it was in the best interest of the child that she should now remain in the custody of the prospective adoptive parents for some time and that the Plaintiff's consent should be dis- pensed with so as to enable the Adoption Board to make an Adoption Order if they should see fit. In addition, Finlay P. felt that, in addition to the above matters, he would also have to decide the following issues under Sections 14

Rep. 45) where discovery of X-Ray plates or photographs was refused because they did not appear to be "Capable of being interpreted as the thoughts or ideas of any person" (per McLoughlin J.). "In my opinion that decision was wrong and should not be followed. Etymologically the word 'document' is derived from the latin word 'documentum' which in turns comes from the verb 'docere'. It is, therefore, something which teaches or gives information or a lesson or an example for instruction. The main characteristic of a document is then that it is something which gives information. An X-Ray plate or photograph gives information and so is a document and the Defendant is entitled to discovery of it." Lorraine McCarthy v. Liam O'Flynn — Supreme Court (per Henchy and Kenny JJ., with O'Higgins CJ.) — 19 June 1979 — Unreported. FAMILY LAW — ADOPTION Whether consent of natural moter to adoption of her child should be dis- pensed with pursuant to Section 3 of Adoption Act 1974. The Plaintiff was an unmarried mother whose child was born in June 1977. The child was kept in a chil- dren's home and the Plaintiff visited her regularly until late August 1977. From the beginning of September 1977 until the beginning of Decem- ber 1977 the Plaintiff ceased to visit her child and had no contact what- ever with her and deliberately avoided having any contact with the social worker from the children's home then involved. Finally, on 1 December 1977, the Plaintiff met with a social worker from the Eastern Health Board (into whose hands the mother had been placed) and the Plaintiff agreed to place the child for adoption and signed a form to this effect. The child was placed for adop- tion with prospective parents on 19 December 1977. In February 1978, the Plaintiff, having had second thoughts about her decision, refused to sign the final consent to adoption, and in April 1978 the child was returned to her custody. Shortly afterwards, the

RECENT IRISH CASES

DISCOVERY OF DOCUMENTS What is a "document"? — 0 . 31 r. 12 of Superior Court rules in- cludes X-Ray plates and photo- graphs. The Plaintiff sought damages for per- sonal injuries claimed to have been sustained in a motor accident on 1 January 1973. The injuries immedi- ately after the accident appeared to be trivial but on 11 August 1973 the Plaintiff had some kind of fit or seizure and was now permantly paralysed. The Defendant's medical advisors wished to inspect the X-Ray photographs of the Plaintiff taken immediately after the accident to establish that the fit or seizure and the paralysis were not caused by the accident on 1 January 1973. The Plaintiffs solicitors refused to allow this inspection and on application for Discovery was brought before, and refused by the Master of the High Court. The Defendant appealed to the High Court which affirmed the refusal of the Master and the Defendant appealed to the Supreme Court. Held (per Henchy J.), allow- ing the appeal, that the aim of the relevant Rules of the Superior Courts (Order 31) was to enable a party to learn, in advance of the trial, of the existence of the documents on which his opponent might rely at the trial; to give the party who had got discovery an opportunity of seeking production for inspection of any of those documents, and to debar the party who had made discovery from introducing in evidence at the trial such documents as he ought to have discovered. "The word 'document' therefore, should be construed so that it will comprehend the full range of things which could become part of the Court file at the end of the hearing of the proceedings in question. In that sense, the word would clearly included X-Ray films." Per Kenny J.: "The (High Court) Judge and the Master followed what we are told has been the practice in the High Court since 1954. This practice was based on the decision of McLoughlin J. in Lynch v. Fleming (1953/54 Ir. Jur.