The Gazette 1991

consent; it was not sufficient for the Adoption Soci- ety to claim that the Barnardo's social worker had discussed the issue of consent with the mother; and in the circumstances the Court could not hold that the mother's consent should be dispensed with since there had been no valid conscnt; (2) the mother's consent was also flawed arising from the conflict of interest in which the Barnardo's social workers were in as between the mother and any prospective adoptive parents, and having regard to tht inadequate and unsound advice given hy the social workers, the question of dispensing with the mother's consent under s.3 of the 1974 Act did not arise; (3) the welfare of the child did not require that he remain in the custody of the adoptive parents and, while he had been with them for almost two years, he should be returned to the custody of the mother. On appeal HELD hy the Supreme Court (Finlay CJ, McCarthy and O'Flaherty JJ) allowing the appeal and remitting the case to the High Court: (1) the requirements of s.39 of the 1952 Act had been complied with in the instant case since the mother had signed the prescribed consent form, and there was nothing in s.39 to indicate that the Adoption Society was required to furnish the consent form through its servants or agents; and in the circum- stances the trial judge's finding that the adoption was invalid for non-compliance with s.39 should be set aside; (2) a fully informed consent to placement for adoption requires that the mother is aware, at tn* time or ner agreement to placement, mat a court ma* dispense with her consent under s .3 at the 1974 Ac Dicta in C. v Art Bord Uchtala (1980! IR 3/ at> proved- (3) the conclusions reached bv the trw judge as to the quality ofthe mother 's consent in tn«- instant case had been largely influenced by ni- opinion as to the conduct of the social workers who had counselled the mother, but there was no foun- dation in the evidence before him for the conclu- sions which he had drawn; and in the-circumstances the case would be remitted to the High Court for a determination as to whether a valid consent had been given, and if so, whether the consent should be dispensed with. LAND LAW — LANDLORD AND TEN- ANT — SPORTING LEASE — TENNIS CLUB — PARTLY-BUILT LEASE — AP- PLICATION TO ENLARGE LEASE INTO FEE SIMPLE — APPLICATION FOR ENTIRE OF LAND CONTAINED IN .LEASE — WHETHER FEE SIMPLE SHOULD BE GRANTED FOR CLUB HOUSE AND SURROUNDING AREA — Landlord and Tenant (Ground Rents) Act 1967, s.4 Landlord and Tenant (Amendment) Act 1971 — Landlord and Tenant (Ground Rents) (No.2) Act 1978, s.14 The applicants were the trustees of Castleknock Tennis Club. They held a 35 year lease in respect of the club premises from the respondent landlord. The lease was a sporting lease within the meaning of the 1971 Act. The trustees applied, under s.4 of the 1967 Act, for an enlargement of their interest in the premises into a fee simple. The application was allowed by the County Registrar, but on appeal by the respondent was rejected in the Circuit Court. The trustees appealed to the High Court. Lardner | i November 1991 Fitzgerald and Ors v Corcoran Supreme Court 20 February 1991

damages were appropriate in view of the concerted activities of the I.N.T.O., representing all primary teachers in the State, and also having regard to the fact that the constitutional right in question was vested in the plaintiff as an individual and that the. breach of the right was an intended, as opposed to an inadvertent, consequence of the I.N.T.O. strike; (6) while in certain cases, where exemplary dam- ages might otherwise be appropriate, the level of compensatory damages might be sufficient to con- stitute public disapproval of the wrongdoing, in the instant case the trial judge had not erred in awarding exemplary damages, nor had he erred in the actual amount awarded; (7) having regard to the evidence adduced in the High Court, the trial judge had not erred in the award of general damages. In re D.G., an Infant; O.G. v An Bord Uchtala and Ors High Court, 9 Novem- ber 1990; Supreme Court, 26 February 1991 FAMILY LAW — ADOPTION — CON- SENT—WHETHER FULLY INFORMED — WHETHER ADOPTION SOCIETY COMPLIED WITH STATUTORY OBLI- GATION TO INFORM MOTHER OF CONSEQUENCES OF CONSENT — MOTHER ADVISED BY SOCIAL WORKER EMPLOYED BY CHARITABLE ORGANISATION SUPREME COURT- WHETHER INFERENCES DRAWN BY HIGH COURT JUDGE CONSISTENT WITH EVIDENCE — Adoption Act 1952, s.39—Guardianship of Infants Act 1964, s.11 - Adoption Act 1974, s.3 The child, D.G., was born in January 1987. His mother was 15 years old when she became preg- nant. Prior to the birth, the mother had discussed adoption with a social worker and had indicated that she intended to have her child adopted. The social worker was an employee of Barnardo's, a charitable organisation, and the mother continued to be counselled by Barnardo's up to June 1989. The child was put into short term fostering for a time, but the mother resumed caring for the child and she resided in various residences for unmarried moth- ers. She returned with the child to her parent's house in May 1988, but in October 1988 she informed the Barnardo's social worker that she intended to place the child for adoption. The social worker made inquiries through an Adoption Society about pro- spective adoptive parents, and in December 1988, the mother signed a consent to adoption, having had it explained to her by the Barnardo's social worker. Later that month the child was placed with the adoptive parents and remained in their custody thereafter. In March 1989, the child's father applied to be appointed guardian pursuant to the Status of Children Act 1987; during these proceedings the mother re-stated her wish that the child be adopted. In June 1989, however, the mother wrote to the respondent Bord and to the Adoption Society with- drawing her consent to adoption. She instituted proceedings seeking the return of the child; the adoptive parents also instituted proceedings seeking to dispense with the mother's consent under s.3 of the 1974 Act and seeking custody of the child. HELD by Lavan ]: (1) the Adoption Society had failed to comply with s.39 of the 1952 Act since it had not actually furnished to the mother the statutorily pre- scribed form of consent and the explanation of that

Court should refuse to construe it; and having regard to dictionary definitions, which defined depraved as 'immoral, vicious, unprincipled, wicked' thdre was ample evidence on which the judge of the District Court could conclude that the applicants were of so immoral and vicious a character that they were not fit to be detained in a place of detention provided under the 1908 Act; (3) the evidence indicated that the applicants were not being detained in accor- dance with rr. 223 and 224 of the 1947 Prison Rules, but the question arose as to whether such non- compliance entitled the applicants to the form of relief sought, since they did not seek release from custody, and further argument was required. The State (Comerford) v Governor of Mountjoy Prison 11981| ILRM 86 referred to. DAMAGES — EXEMPLARY DAMAGES — BREACH OF CONSTITUTIONAL "MGHT — CONSPIRACY TO DEPRIVE CHILD OF PRIMARY EDUCATION — WHETHER EXEMPLARY DAMAGES SHOULD BE AWARDED — WHETHER DISTINCTION EXISTS BETWEEN PUNI- TIVE AND EXEMPLARY DAMAGES - GENERAL DAMAGES — WHETHER EXCESSIVE — Civil Liability Act 1961, ss.7, 14 The plaintiff had been attending primary school in 1976 when a teachers' strike, organised j y the I.N.T.O., began and which lasted until February 1977. In proceedings arising out of the dispute it was indicated that the I.N.T.O. had acted in breach of the pupils' constitutional right to primary education under Article 42.4: Crowley v Ireland [19801 IR 102. Subsequently, approximately 70 pupils instituted proceedings claiming damages for breach of their rights. The plaintiff in the instant case was measured as havinR an IQ of 126, being in the top 5% of the population. In the High Court, Barron ) assessed .eneral damages at £10,000 and he also awarded exemplary damages of 1,500: (High Court, 2 No- vember 1988) (1989) 7ILT Digest 123. On appeal by the I.N.T.O. HELD by the Supreme Court (Finlay C), Griffin and McCarthy ))) dismissing the appeal: (1) notwithstanding the apparent distinction made in ss.7 and 14 of the 1961 Act between punitive and exemplary damages, there was no distinction in law between them and they must be taken to mean the same thing. Dicta in Kennedy v Ireland 119881 ILRM 472; 11987] IR 587 not followed; (2) the courts were not limited to awarding exemplary damages to instances where the defendants constituted servants or agents of the executive, since if that were so the courts would be setting at nought the rights con- tained in the Constitution. Dicta in The State (Quinn) v Ryan |1965| IR 70 applied; dicta in Rookes v Barnard 119641 AC 1129 not followed; (3) exem- plary damages would not, however, be appropriate in every instance of a breach of constitutional rights, and the court must look at the surrounding circum- stances of each case to determine whether exem- plary damages should he awarded; (4) while a claim for exemplary damages should normally be in- cluded in pleadings, the plaintiff should not be deprived of her claim for exemplary damages since the defendants at no time sought to challenge the failure to include such claim in the course of the trial in the High Court; (5) in the instant case, exemplary Conway v Irish National Teachers Or- ganisation and Ors Supreme Court 14 February 1991

3