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1. This is an enquiry under Article 40.4.2 of the Constitution into a complaint made to me by the Applicant that an infant, to whom I will refer as "Baby A.", was being unlawfully detained by the Respondents from a date four days after her birth until the date of the complaint. By Order made on that date (the first Order) I directed that Baby A. be produced before the Court on the following night and that the Respondents certify in writing the grounds of her detention. Pursuant to an Order made by me on the following night (the second Order) the first and second named Respondents relinquished custody of Baby A. They seek to justify their custody of Baby A. on the basis that she was in their lawful custody up to the date of the second Order with the consent of the third named Respondent (the mother), who is the natural mother of Baby A.

2. Since the date of the second Order, Baby A. has been in the custody of the Applicant and is being taken care of by foster parents approved by the Applicant. The third named Respondent has filed an Affidavit in which she has intimated that she is happy that Baby A. should remain in the custody of the Applicant at this time and through her Counsel, Mr. Phelan, S.C., she has reiterated that position to the Court. In effect, the first and second named Respondents accept the third named Respondent's decision, contending that their custody of Baby A. up to the time the complaint was made to the Court, that is to say, the date of the first Order, was lawful but acknowledging that the consent is now revoked.

3. It was submitted by Mr. McEntee, S.C., on behalf of the Applicant, that this Court, having embarked on an enquiry under Article 40.4.2, the Court must determine whether Baby A. was lawfully detained by the first and second named Respondents on the date of the first Order. It was submitted that she was not in lawful custody of the first and second named Respondents.

4. The Applicant made the complaint to the Court in exercise of its functions under the Child Care Act, 1991 and, in particular, under Section 3(1) of that Act which provides that it shall be the function of every health board to promote the welfare of children in its area who are not receiving adequate care and protection. Although in the Affidavit filed justifying the stance of the first and second named Respondents the locus standi of the Applicant was questioned, Counsel for the first and second named Respondents, Dr. Forde, S.C., in his submissions acknowledged that locus standi is not an issue.

5. This enquiry arises against the background of section 7 of the Adoption Act, 1998, (the Act of 1998), which amended section 34 of the Adoption Act, 1952 (the Act of 1952) and substituted the following provision for subsection (4) of that section:-

6. Subsection (5) of section 34, as amended, makes it an offence to contravene subsection (4) or (4A) and provides a penalty, on summary conviction, of a fine not exceeding £1,500 or imprisonment for a term not exceeding twelve months or both. Subsection (6), as amended, provides that section 34 does not apply to an adoption agency or a person with whom a child is placed by an adoption agency. The expression "adoption agency" means, in that context, a registered adoption society or a health board.

7. The following facts in relation to the circumstances in which Baby A. came into the custody of the first and second named Respondents are undisputed:-

8. Before she met the first named Respondent, the mother had discussed the concept of adoption generally with the Agency's Representative in the provincial town, who told her that she knew of five couples who were seeking to adopt children. The first and second named Respondents were one of the couples and the first named Respondent was represented by the Agency's Representative as being the director of the Agency.

9. The meeting between the mother and the first named Respondent took place at lunch time in a hotel in the city centre. Although the mother was accompanied by her aunts to Dublin, she had lunch with the first named Respondent alone. It is common case that the question of adoption was discussed at the meeting. In his Affidavit the first named Respondent has given the following account of what transpired:-

10. The mother's account of what the first named Respondent told her about adoption is in substantial conformity with that account, although, in her affidavit, she has not related that the first named Respondent told her that she did not have to make up her mind about adoption for six months. The mother has averred that the impression she formed was that the first and second named Respondents already had a child and her impression was that Baby A. would have the company of another child, which was of significance to her. However, on the mother's account, her aunt-in-law learned at some stage before the date of the first Order that the first and second named Respondents no longer had the other child, the mother having changed her mind. As to the outcome of the meeting, the mother has averred as follows:-

11. Because of her condition and her circumstances, the mother and Baby A. were afforded priority status by the medical and nursing personnel in the hospital. They have deposed to her condition during her stay as very upset, distraught and consistently in a distressed condition. She was non-communicative and reluctant to reveal information in relation to her circumstances or her future plans for Baby A. There was a concern that family members were exerting influence over her and making decisions for her. Of particular concern was the fact that neither she nor her family members would avail of the professional advice and assistance of the medical, nursing and ancillary staff in the hospital, which was proffered.

12. The mother's perception of the cause of her distress, as deposed to by her, was the "intrusive attention" of the nursing staff. Her perception is that the nursing staff were suggesting that she was doing something wrong in contemplating adoption. She got conflicting "signals" from the professional staff as to whether she could be discharged from hospital without Baby A., which left her in a state of confusion and bewilderment. She perceived her family, by contrast, as being supportive to her in her decisions. The mother has acknowledged in her Affidavit that the hospital social worker offered her counselling but she did not avail of the offer.

13. Having regard to the state of the evidence, it would not be appropriate to make any finding as to the role of the mother's family members in relation to Baby A. or to impugn their conduct in any way and I do not do so. However, even allowing that the mother's circumstances were a distressing predicament for her family and there may have been particular exacerbating circumstances which have not been divulged in these proceedings, the failure of her family members to avail of the professional advice proffered and to encourage her to have counselling was, to say the least, misguided.

14. By way of further explanation of their movements while Baby A. was with him and his wife, the first named Respondent has averred as follows:-

15. The Applicant has put before the Court a considerable body of evidence on Affidavit in connection with the circumstances in which the first and second named Respondents had custody of another baby, Baby B., between April 1999 and the end of June 1999. A 17 year old single girl, a second level student, to whom I will refer as Miss B., gave birth to Baby B. in the a Maternity Hospital in Dublin in April 1999. She discharged herself from hospital the night following the birth. Three days later the first named Respondent contacted a hospital social worker in the Maternity Hospital and advised her that Baby B. had been placed by Miss B. with him and his wife. Later that day, the hospital social worker, following an enquiry to An Bord Úchtala, informed the first named Respondent that private placement for adoption to a non-relative was illegal under the Act of 1998 and that she intended notifying the Applicant of the situation. The foregoing facts in relation to Baby B. and the communications between the first named Respondent and the hospital social worker are deposed to in an Affidavit sworn by the hospital social worker and have not been controverted by the first named Respondent. On the day the first named Respondent made contact with her, the hospital social worker notified the Applicant's Child Care Manager by facsimile transmission of her knowledge of the circumstances of the birth and placement of Baby B. It was in those circumstances that the first and second named Respondents came to the attention of the Applicant.

16. In his Affidavit, the Applicant has contended that the circumstances surrounding Baby B. have no relevance to this matter. Although he disputes much of what has been averred in relation to Baby B., he stated that, on advice, he had decided not "to take issue in detail" on the question. During the course of the hearing Dr. Forde, S.C., submitted that he should have leave to cross-examine the deponents in relation to the circumstances surrounding Baby B.'s birth and the first and second Respondents' custody of her, namely, Miss B., her mother and her two sisters.

17. While, on the assumption that the facts put before the Court in relation to Baby B. are true, I consider those facts to be relevant to the issues on this enquiry, the Respondent not having had an opportunity to cross-examine the deponents, I consider that I should not have regard to those facts, save to the following extent. The G.P., who gave oral testimony and was available for cross-examination, had an involvement with Baby B. and the Barrister also had an involvement in relation to Baby B. and has sworn an Affidavit deposing to that involvement.

18. The G.P. testified that on a day in April, 1999, three days after her birth, she examined Baby B. on a referral from the Agency. Baby B. was brought to her surgery by the first and second named Respondents whom she believes told her that they hoped to adopt Baby B. Four days later, a public health nurse in the G.P.'s area telephoned the G.P. to tell her that she had given Baby B. a PKU test. The public health nurse advised the G.P. that private adoptions are illegal since last year. Subsequently, the G.P. examined Miss B. at the instigation of the first named Respondent.

19. Turning to the involvement of the Barrister in the affairs of Miss B., in an Affidavit sworn by her Miss B. has averred that at a meeting in the Agency's premises, which took place while Baby B. was in the custody of the first and second named Respondents, she indicated to the first named Respondent that she intended to avail of public adoption procedures. The first named Respondent wanted her to phone a barrister but she declined. He gave her sister the name and telephone number of the barrister. Miss B. did not at any time contact the barrister. To avoid the risk of putting a gloss on the facts deposed to on affidavit I propose quoting both Miss B.'s account and the Barrister's account of the contact. Miss B. has averred as follows:-

20. The Barrister's sworn account of her involvement with Miss B. differs only slightly from Miss B.'s account and is in the following terms:-

21. The Barrister had a further involvement in relation to Baby B. In an Affidavit sworn by him in these proceedings, a sergeant of An Garda Siochana (the Sergeant), having averred that the Applicant had indicated to An Garda Síochana in late June 1999 their concern as to the whereabouts of Baby B. and he had implemented a plan to establish her whereabouts and enquiries had been made at various addresses associated with the first and second named Respondents, continued as follows:-

22. The Barrister's account of her telephone conversation with the Sergeant, as deposed to by her, is as follows:-

23. I now propose focusing on what the mother and the first named Respondent have represented in their respective Affidavits as to the basis on which Baby A. was handed over to the first named Respondent on the day she left hospital.

24. The mother was not present at the handing over. In her first Affidavit she described what happened when she left hospital on that day as follows:-

25. In his Affidavit, the first named Respondent has recounted the events of that day as follows:-

26. Later in his Affidavit the first named Respondent has averred as follows:-

27. In the course of this enquiry, the mother's Counsel, Mr. Phelan, S.C., told the Court that he was instructed by the mother that, if she had known as much about the Agency as she now knows as a result of the proceedings, she would not have been happy to give custody of Baby A. to the first and second named Respondents. In a Supplemental Affidavit sworn by her in the course of the proceedings, she has averred that prior to these proceedings she had no knowledge of the procedures and laws relating to adoption. She assumed that because the Agency was advertising publicly in the Golden Pages they were well versed in the relevant laws and procedures and had the relevant experience and were reputable in the field. She further averred that she believes she was completely mislead by the first named Respondent by misrepresentation and non disclosure.

28. On the basis of the submissions made by Mr. McEntee, I identify the issues relevant to the determination of the question whether the first and second named Respondents' custody of Baby A. was unlawful when the Applicant made its complaint as follows:-

29. Subsections (4) and (4A) of Section 34, in proscribing, subject to the stated exceptions in the two subsections, the giving and receiving of a child for the purpose of adoption clearly comprehend activity akin to a transfer of custody in connection with an agreement to place a child for adoption. This is borne out by subsection (6). As a matter of construction, subsections (4) and (4A) are two sides of the same coin and are designed to outlaw both the giving and receiving of a child outside the permissible parameters delimited in the subsections. The legislative intent in subsections (4) to (6) is quite clear, in my view: a transfer of custody of a child for the purpose of the adoption of the child other than to or by a registered adoption society or a health board can only be lawfully effected by a parent of the child to a relative of the child.

30. In the instant case, the net point which arises on the application of section 34, as amended, to the facts is whether the first named Respondent received Baby A. "for the purpose of adoption", the first and second named Respondents not being relatives of Baby A. I think it is important to emphasise that I am considering this question in the context of an enquiry under Article 40.4.2. and by reference to the standard of proof applicable in civil proceedings, proof on the balance of probabilities. Applying that standard, I believe that the first and second named Respondents received Baby A. for the purpose of adoption for a number of reasons. First, the genesis of the notion that the first and second named Respondents would have a personal involvement with Baby A. was the suggestion made by the Agency's Representative that the first and second named Respondents were seeking to adopt a child and that the mother might like to meet them. Secondly, on the first and only occasion on which the mother met the first named Respondent, on his evidence, the first named Respondent told the mother that he and his wife would be glad to adopt her baby. While both the mother and the first named Respondent in their respective Affidavits have characterised the taking of the baby by the first and second named Respondents as a temporary arrangement, the thrust of the evidence is that it was temporary in the sense that the mother might "change her mind at any time about the adoption", as deposed to by the first named Respondent, and, that it was "subject to [the mother's] final decision on whether or not [she] wanted to place her child for adoption", as deposed to by the mother. Thirdly, what the deponents have averred to in relation to the actual handing over must be considered in the context of the first named Respondent's own evidence of what he told the mother about the law concerning placement for adoption, namely, that "if she chose private adoption, she could leave the child with a couple of her choice". On the basis of the evidence contained in the Affidavits filed by the mother and the first named Respondent, in which, in my view, there is no material conflict, I find that Baby A. was received by the first and second named Respondents as a first step in the process leading to the adoption by them of Baby A. and for the purpose of facilitating that adoption, although it was recognised that the process might not inevitably conclude with an adoption. On any view of that evidence, Baby A. was not given to the first and second named Respondents as mere temporary carers: she was given to them because they had declared an intention to adopt her and that handing her over was intended to be the initiation of that process.

31. Accordingly, I find that the receiving by the first named Respondent of Baby A. contravened section 34 of the Act of 1952, as amended, and the first and second named Respondents' custody of Baby A. was at all times unlawful.

32. In determining whether the mother's decision was good in law, the question for consideration is whether it was a real consent to the giving of custody of Baby A. to the first and second named Respondents.

33. As was pointed out by Blayney J. in Bank of Ireland -v- Smyth [1996] 1 I.L.R.M. 241, the two areas in which the Courts have considered the requirements of a valid consent are marriage and adoption. Given that I have found that the objective of the transfer of custody of Baby A. to the first and second named Respondents was to facilitate the adoption of Baby A., the authorities on the requirements of a valid consent to placing a child for adoption are particularly apposite. Such consent must be fully informed and free [ G. -v- An Bord Uchtála [1980] I.R. 32]. The authorities in relation to the requirements for a valid consent to marriage, in my view, are also of assistance and, in particular, the decision of the Supreme Court in N. (otherwise K.) -v- K. , [1985] I.R. 733. In that case, it was held that a consent to entering into a valid marriage must "be a fully free exercise of the independent will of the parties" (per Finlay C.J. at page 742) and "...based upon adequate knowledge and freed from vitiating factors, commonly described as undue influence or duress, particularly those emanating from third parties" (per McCarthy J. at page 754). In the following passage from the judgment of Finlay C.J. at page 742, the approach a Court should adopt when faced with the question of whether a consent is valid was set out:-

34. In my view, by its nature the decision which led to the transfer of the custody of Baby A. to the first and second named Respondents is of the same order of importance as a consent to marry or a consent to placement for adoption and its validity depends on fulfilment of the requirements stipulated in the authorities to which I have referred.

35. In the light of the facts which I have outlined, in my view, the mother's decision to give Baby A. to the first and second named Respondents, which was given effect to on the day she left hospital and continued until the Applicant intervened, was neither informed nor free and was not a real consent.

36. The decision was made at a time when the mother had received no independent counselling or advice and, indeed, no proper advice at all in relation to the rights of Baby A., her own rights, the rights of the natural father, the law governing the care, welfare and custody and adoption of children and, most importantly, the restrictions imposed under the Act of 1998 in relation to private placements for adoption.

37. Aside from the influence of the first named Respondent, the circumstances of this case strongly suggest that the mother's decision not to retain custody of Baby A. after the birth was not a free decision. Baby A. was the product of a crisis pregnancy which, on the evidence, the mother had extreme difficulty in coping with. It would appear that in her perception, her circumstances were so dire that she contemplated the drastic step of undergoing elective surgery to avoid seeing and bonding with her baby. Both before and after the birth, when she was planning her own and her baby's future, she was extremely upset and distraught and the evidence suggests that her distress was of an order of magnitude that it robbed her of her ability to think rationally.

38. It was in such circumstances and in such distressed condition that she sought advice and support from the Agency which, through its advertisement in the telephone directory, held itself out as giving counselling and support to girls in her predicament and as an organisation she could have trust and confidence in. Instead of giving her appropriate counselling and support, the Agency's Representative sowed the seed of an adoption in her mind, an adoption involving the proprietor of the Agency and put her in contact with the proprietor. Instead of referring her to an adoption agency, which on his own evidence, was the usual practice of the Agency, the first named Respondent proposed himself and his wife as prospective adoptive parents for her baby. It is 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. In my view, the first named Respondent acted in a totally inappropriate manner in relation to the mother at all times.

39. There are additional factors, however, which render the first named Respondent's actions more reprehensible than inappropriateness connotes. Since April 1999, the first named Respondent has been aware that a "private" adoption to a non relative is contrary to law. On his own evidence, he misled the mother by suggesting to her that she could choose to go the "private" adoption route and was entitled to leave her baby with a couple of her choice. Moreover, the Agency and the first named Respondent involved professionals such as the G.P. and the Barrister, in the mother's affairs. On the evidence, it is reasonable to infer that he did so with the intention of bolstering his influence over the mother. The fact that a similar involvement has been established in the case of Miss B. and Baby B. strongly suggests that the mother was the victim of the deliberate design to "ring fence" her and her baby; to remove Baby A. as far as possible from the supervision of the Applicant and other regulatory authorities; and to isolate the mother from independent legal advice and from counselling, so as to overbear her will.

40. The onus is on the first named Respondent to show that the decision of the mother was a free decision unimpaired by her awful circumstances or by any pressure or influence on his part. He has singularly failed to do so.

41. If, contrary to the view I have come to, the mother gave a real consent, it is necessary to consider the nature of her decision and its consequences. It was a decision to give Baby A., of whom she is the sole guardian, when she was only four days old for an indefinite period into the custody of a stranger whom she had met only once and then through the medium of an advertisement in the telephone directory, a stranger who was not subject to any assessment or vetting process by a regulatory authority to determine his suitability to have custody of a newly born infant, a stranger who was not going to be subject to any monitoring or supervision by any regulatory authority during the currency of the custody. The issue here goes to the nature and consequences of the mother's decision; not what was in the best interest of Baby A. or whether the first and second named Respondents are fit persons to be adoptive parents. On any objective appraisal such decision was irrational, even bizarre. It could have been downright dangerous.

42. In my view, it was a decision which seriously compromised the welfare of Baby A. and it was a decision which the Applicant, in fulfilment of its function under the Child Care Act, 1991, was bound to seek to negative.

43. On this basis also, I hold that the first and second named Respondents' custody of Baby A. was unlawful.

44. The decision on the enquiry is that the custody of Baby A. by the first and second named Respondents on the date of the first Order was unlawful.

45. With the luxury of hindsight and some little time for reflection, I have some misgivings as to the course this enquiry has taken. In effect, on the date of the second Order the first and second named Respondents de facto ceased to have custody of Baby A. The attitude they adopted in the light of the mother's decision to leave Baby A. in the custody of the Applicant, in effect, amounted to an abandonment of a claim on their part to an entitlement to custody. In the circumstances, having regard to the nature of the jurisdiction conferred on this Court by Article 40.4.2, as explained by the Supreme Court In Re. D. [1987] I.R. 449 at page 457, I consider that I have decided a moot. I take some comfort from the observations of O'Flaherty J. in M.F. -v- Superintendent of Ballymun Garda Station , [1990] I.L.R.M. 767 at page 772 to the effect that cases concerning the custody of children and the protection of their rights are in a special and, possibly, unique category.

46. Subject to the exceptions hereafter mentioned, no information in relation to these proceedings or the evidence adduced thereon and no information touching or concerning the care and welfare of Baby A. or Baby B. is to be published without leave of the Court save in the terms of the approved judgment. The Applicant shall be at liberty, however, to furnish -