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 inquiry 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.
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.