In the matter of the Adoption Acts 1952-1991 and the matter of JG (an infant).

DG and MG (plaintiffs) - An Bord Uchtala (defendant).

In the matter of Article 40.4.2 of Bunreacht na hEireann.

And in the matter of the Guardianship of Infants Act 1964.

And in the matter of JG (an infant).

CG (prosecutrix) v Janet Pasley and PACT (respondents) and, by order, DG and MG (notice parties).

Adoption - Consent to placement for adoption by mother - Whether consent valid - Whether consent filly informed - Whether the mother had assimilated the information given to her - Whether mother understood the consequences of her decision - Whether consent freely given - Whether the mother subordinated her will to that of her parents - Extent to which welfare of infant should be considered in Article 40 applications - Adoption Act 1952 (No 25), section 39(1) - Guardianship of Infants Act 1964 (No 7), sections 2, 3, 6(4) and 10(2) (a) Adoption Act 1974 (No 24), section 3 - Constitution of Ireland 1937, articles 40.3, 40.4.2.

The High Court (before Miss Justice Laffoy); judgment delivered 23 May 1996.

WHERE the mother of an infant had placed the infant for adoption and then sought the return of the infant, the court had to determine whether the mother had given a fully informed and free consent.

For a consent by a mother to placement of her child for adoption to be fully informed the mother must be aware of her rights in relation to the child, the two stage nature of the adoption process, the effect of the making of an order on her rights and the possibility that the court could dispense with her consent. It was also necessary to consider the ability of the mother to assimilate the information given to her. Here the mother had not given a valid consent because she did not fully understand that a consequence of her decision to place the child for adoption was that the court could dispense with her final consent.

In determining whether the consent was freely given the test was whether, in the circumstances which prevailed at the time she made her decision, that decision reflected her will or the will or somebody else. In this case, a free consent had not been given as the mother had subordinated her will to that of her parents and, therefore, the consent was not freely given.

Miss Justice Laffoy, in the High Court, so held in declaring that the infant was detained by the plaintiffs in contravention of law and ordering that the infant be returned to the natural mother.

Inge Clissman SC and Dervla Browne BL for DG and MG, James O Dwyer SC and Andrew Walker BL for Janet Pasley and PACT Nastaise Leddy BL for An Bord Uchtala; Anne Dunne SC and Yvonne Murphy BL for CG.

MISS JUSTICE LAFFOY said that the first proceedings were initiated by special summons on 15 March 1996 whereby DG and MG, the plaintiffs, sought an order pursuant to section 3 of the Adoption Act 1974 dispensing with the consent of CG, (the mother) to the making of an adoption order in respect of JG (the infant). The second proceedings, the Article 40 application, commenced prior to the Adoption Act proceedings and were directed against PACT, a registered adoption society (the society), and Janet Pasley, a social worker employed by the society claiming, on behalf of the mother, production of the infant. Both matters were listed for hearing together, the Article 40 application to be heard after the Adoption Act proceedings.

Miss Justice Laffoy then set out the facts of the case saying that the mother was born on 8 December 1976 and grew up on a farm in the north west of the country with her parents and three brothers. She attended a local secondary school and passed her Leaving Certificate examination in June 1994. At around that time she was seeing a boyfriend B who was four years older than her and they had sexual intercourse on one occasion. Shortly afterwards they split up. In January 1995 the mother attended her local general practitioner and discovered that she was almost six months pregnant.

Neither of the mother's parents supported her in her decision to seek the return of the infant and Miss Justice Laffoy said that the image of her parents was of a very conservative, inward looking couple living in a rural community adhering to a Protestant faith and deeply conscious of preserving what they perceived as their good name within that community. The parents were shocked when she told them she was pregnant and her father suggested she have an abortion, which was not a viable proposition nor was it ever contemplated by the mother.

The doctor arranged for the mother to come to Dublin for the birth and the mother testified that her parents wanted her out of the area so nobody would know of the pregnancy. It was their idea that she stay in Dublin until after the birth, give up the child for adoption and then return home. Her absence would be explained on the basis that she was doing a child care course in Dublin.

On 19 January 1995 the parents brought the mother to Dublin by bus and left her with a woman with whom she was to stay in a city centre hotel. The mother moved to an inner city location which provides accommodation for pregnant girls and single girls with babies where she remained until she was admitted to the National Maternity Hospital at Holles Street.

In January 1995 the mother met with a hospital social worker and told her that she wished to place her child with a Protestant family for adoption and that she would like an open adoption as she did not wish to lose contact with her baby. An appointment was made for the mother to meet Janet Pasley. Miss Justice Laffoy said that Mrs Pasley's role in the society was to run a counselling service for unmarried mothers. Mrs Pasley met the mother on five or six occasions before the birth of the child on 22 March. 1995.

Two days after the birth the mother was discharged from the hospital to travel home alone by bus and Miss Justice Laffoy said that it was quite clear that the mother was pressurised by her parents to return home without the infant on that day to allay suspicions about her absence. The infant was detained in hospital over the weekend and then discharged into the custody of Mrs Pasley and placed in a foster home, the mother having signed the necessary forms.

The infant was placed with foster parents until 14 June 1995 when he was placed in the care of the plaintiffs. Miss Justice Laffoy said that it was undisputed that the mother intimated to Mrs Pasley that she wished to place the baby for adoption and did not want anybody at home to know of her pregnancy. The mother's evidence was that prior to the birth she was determined to place the baby for adoption and she never wavered in this.

The mother came to Dublin twice in April 1995 and visited the infant with the foster parents.

The impression Mrs Pasley got was that the mother was sticking by the adoption decision. On the second visit, on 24 April, Mrs Pasley and the mother discussed the proposed adoption. The mother had with her a form signed by B acknowledging that he was aware an application for an adoption was to be made and stating that he did not wish to be heard by the Adoption Board.

At the same meeting, Mrs Pasley and the mother discussed the Form 10, which is the form which records the initial consent of a mother to adoption. Mrs Pasley had furnished a blank Form 10 at a previous meeting. The mother's evidence was that while she had never read the form herself she acknowledged that Mrs Pasley had gone through it in detail before the birth.

Miss Justice Laffoy said that Form 10 is a double leaf document. The first leaf is the statement required by section 39(1) of the Adoption Act 1952 to be furnished by the society to the natural mother before accepting a child for placement and explains the effect of an adoption order on the rights of a mother. The second leaf has three purposes, firstly it records the mother's consent to the placing of the child for adoption. Secondly, it is an acknowledgment that the first leaf has been given to her and that she understands the statement and, thirdly, it contains a certificate on behalf of the society that the statement has been handed to the mother and the contents explained and that the mother understands it.

On the evidence, Miss Justice Laffoy was satisfied that Mrs Pasley went through the Form 10 in detail with the mother. The mother then signed the Form 10 and it was witnessed and completed by Mrs Pasley.

On 27 April, the mother telephoned Mrs Pasley and confirmed that she was going ahead with the adoption and the society decided that placement of the infant with the plaintiffs could go ahead.

Miss Justice Laffoy said that the plaintiffs were a married couple living in a rural area in the north midlands and were practising Protestants. At the end of April 1995 the husband was one month short of his 41st birthday and the wife was seven years younger. They were married for 12 years and in 1987, after it was established that the wife could not have children for medical reasons, they had contacted the society with a view to adopting a child. Miss Justice Laffoy said that the plaintiffs were regarded as a valuable resource by the society because of the shortage of rural couples on the waiting list. In economic terms the plaintiffs were described as comfortable and from the evidence, Miss Justice Laffoy said that it was clear that they lived in harmony with each other and their community. No issue arose as to their suitability to adopt a baby boy.

The plaintiffs first saw the baby at the society's offices in Dublin on 6 May 1995 and arrangements were made for them to meet the mother the following Saturday. The mother cancelled the meeting because she was unwell and testified that she was having doubts at this stage. Miss Justice Laffoy was satisfied that she did not convey these feelings to Mrs Pasley.

On 19 May 1995 the mother came to Dublin with B and they were taken by Mrs Pasley to meet the infant at the foster home. The following morning Mrs Pasley met the mother and B by arrangement. It was obvious to Mrs Pasley that the mother was not happy and at the office the mother became distressed. Miss Justice Laffoy said that the thrust of what the mother told Mrs Pasley was that she wanted to care for the infant herself and did not want to place him for adoption. When the plaintiffs arrived they were told that the mother had changed her mind and the meeting was not going ahead.

Miss Justice Laffoy said that she was satisfied that the mother changed her mind about placing the child for adoption on 20 May 1995. Miss Justice Laffoy also found that not only did the mother not convey to Mrs Pasley that she wanted custody of the infant on that day but she never intended to convey any such request. While Mrs Pasley testified that she did not regard the mother's volte face as a complete change of mind, Miss Justice Laffoy said that this conclusion was based more on her experience of dealing with placements than on her interaction with the mother and might have been coloured by hindsight.

About a week later the mother telephoned Mrs Pasley without prior arrangement and told her it would be best for the infant if she placed him with the plaintiffs. On 30 May, Mrs Pasley met the mother in a provincial town and Mrs Pasley found the mother to be very downs' and grieving for everything in her life. The options open to the mother were discussed and the mother intimated to Mrs Pasley that she wished to place the infant for adoption with the plaintiffs. It was decided that the mother would think things over for a few days and then telephone Mrs Pasley to let her know whether she was going ahead with the adoption. Subsequently the mother telephoned and confirmed that she was going ahead and it was arranged that the mother would come to Dublin on 10 June 1995.

The meeting on 10 June took place at the society's offices and the mother expressed the wish that she herself should hand over the infant to the plaintiffs and it was agreed that contact would be maintained between the mother and the plaintiffs by letter and photographs channelled through the society. The mother actually placed the infant in the care of the plaintiffs on 14 June having travelled from her home to Dublin alone by bus. The meeting was emotionally charged and the mother handed over some presents she had brought for the infant.

In July 1995 the plaintiffs applied to An Bord Uchtala to adopt the infant.

Miss Justice Laffoy said that the mother then returned to her parents' home and by October was settled in employment. By prior arrangement the mother met with Mrs Pasley on 4 October 1995 on which occasion she was very upset and cried. The purpose of the meeting was to discuss the final consent to adoption and Mrs Pasley went through the papers and explained them to the mother. While Mrs Pasley formed the view that the mother was regretting her decision to place the infant for adoption, Miss Justice Laffoy said that she had no inkling that the mother might refuse to sign the final consent.

The mother asked to see the infant again and Mrs Pasley suggested that she put the request in writing which was done on 16 October 1995. In the letter the mother stated that she understood that the time was coming for her to sign the final papers for the adoption and that she wanted to see the infant for one last time. She guaranteed the plaintiffs that she would not change her mind.

The plaintiffs brought the infant to meet the mother at the Dublin offices of the society on 21 November 1995. Afterwards the mother and Mrs Pasley discussed the final consent and it was agreed that it would be signed before Christmas. It was arranged that the mother would come to Dublin to sign the final consent on 5 December 1995. That day the mother telephoned Mrs Pasley to say that she had a difficult weekend with her father and that she could not go on living at home and that she had missed the bus and would come to Dublin on the following Tuesday, 12 December. However, she cancelled that meeting telling Mrs Pasley that she was unwell.

Around 12 December, the mother telephoned a local hospital and asked to speak to a social worker inquiring about how to get the infant back. The hospital social worker referred her to Moya Campbell, a social worker attached to a Roman Catholic adoption society in the area and the mother met Mrs Campbell on 20 December and told her that she wanted her baby back. Mrs Campbell told the mother to advise PACT in writing of her decision as soon as possible. The mother contacted Mrs Campbell again on 10 January 1996 and that same day telephoned Mrs Pasley. A meeting was arranged for 15 January and the mother told Mrs Pasley that she wanted the infant back.

On 22 January the society received a letter from the mother in which she sought the return of the infant and the plaintiffs were informed of this. On 21 February, the society wrote to the mother advising her that the plaintiffs had decided not to return the infant to the mother as they felt that it would not be in his best interests to do so. During a telephone call Mrs Pasley apprised the mother of the contents of the letter and the mother expressed surprise that she had to go to court to get the infant back.

Miss Justice Laffoy said that the infant remained in the custody of the plaintiffs who had been exemplary custodians and would unquestionably be exemplary parents were an adoption order to be made in their favour. The mother was living in rented accommodation locally with two other girls, both single parents and their two children. If the infant were returned to her Miss Justice Laffoy said that the mother intended to apply for a social welfare allowances and continue to work part time. Miss Justice Laffoy said that the mother anticipated that her friends and current boyfriend A would help out. A, who was 27 had known the mother for two years but only became aware of the existence of the infant on 31 December 1995. Marriage had been proposed by A but they had postponed becoming engaged while the proceedings were pending.

turning to the issues in the Adoption Act proceedings, Miss Justice Laffoy referred to section 3(1) of the 1974 Act which provides that where a person has agreed to the placing of a child for adoption and fails, neglects or refuses to give his consent or withdraws a consent already given, then an application may be made to the High Court. On such application the court may give custody of the child to the applicant for such period as the court may determine and authorise the Board to dispense with the consent to the making of the order in favour of the applicant during that period.

Miss Justice Laffoy said that the first issue which arose was whether the mother had made a valid agreement to place the infant for adoption. If such valid agreement was established then a second issue arose, namely, whether it was in the best interests of the infant to make a custody order in favour of the plaintiffs and to authorise the Board to dispense with the mother's consent.

Miss Justice Laffoy said that the test as to whether a valid agreement to place for adoption is whether the mother has given a fully informed and free consent to the placement. In G v An Bord Uchtala [1980] IR 32 Mr Justice O'Higgins said that a fully informed consent is one "given in the full knowledge of the consequences which follow upon her placing her child for adoption".

In M O'C v The Sacred Heart Adoption Society and An Bord Uchtala (unreported, Supreme Court, 10 November 1995) Mr Justice O'Flaherty said that a consent to placement for adoption can never amount, in itself, to an extinguishment of the mother's rights and the effect of a consent to placement was to put the mother's rights in temporary abeyance.

In summary, Miss Justice Laffoy said that for a consent by a mother to the placement of her child for adoption to be fully informed the mother must be aware of (1) the nature of her rights in relation to the child, (2) the two stage nature of the adoption process, (3) the effect of the making of an adoption order on her rights and (4) the effect of section 3 of the 1974 Act and, in particular the possibility that, if she gives an initial consent to the placement the court may override the requirement.

In placing her child a mother's consent must not only be fully informed but also free and in this regard Miss Justice Laffoy referred again to G v An Bord Uchtala where Mr Justice Walsh had said that "a consent motivated by fear, stress or anxiety or a consent or conduct which is dictated by poverty or other deprivations does not constitute a valid consent". Miss Justice Laffoy said that subsequent decisions of the High Court did not appear to favour such a broad definition although in S v Eastern Health Board (unreported, High Court 28 February 1979) Mr Justice Finlay had said that the test to be applied was whether the consent had been freely made and with full knowledge of its consequences and under circumstances where neither the advice of persons engaged in the transaction nor the surrounding circumstances deprived the mother of the capacity to make a fully informed free decision.

Having considered McF v G and G and others [1983] ILRM 228 and AC v St Patrick's Guild Adoption Society (unreported, High Court, 31 July 1995) Miss Justice Laffoy said that while fear, anxiety, stress, economic deprivation and other deprivations are frequently ingredients of the situations which give rise to an inquiry as to whether an agreement to place a child for adoption was freely made, the presence of one or more of these features does not necessarily vitiate a mother's consent.

The true test was whether, in the circumstances which prevail at the time she makes her decision, that decision reflects her will or the will or somebody else.

Miss Justice Laffoy said that the knowledge the mother had of the legal effect of an adoption order and the consequences of the various stages in the process when she handed the infant over to the plaintiffs on 14 June 1995 had been acquired before she signed Form 10 on 24 April 1995. Miss Justice Laffoy was satisfied that Mrs Pasley spent a considerable amount of time explaining the procedures involved and had done so in a manner best designed to enable a girl of just eighteen, in such a predicament, to assimilate the concepts involved.

However, in determining whether a fully informed consent has been given. Miss Justice Laffoy said that it was not sufficient merely to consider whether the relevant information was conveyed to the mother. It was also necessary to consider the ability of the mother to receive and process the information in such a way as to understand the effect and consequences of an adoption and of each step in the process.

Miss Justice Laffoy said that the impression given by the mother's evidence was that she understood the placement of the infant with the plaintiffs to be something akin to an extension of fosterage, and this evidence was not reliable. Miss Justice Laffoy found that the mother understood the nature of her rights in relation to the infant before she signed the Form 10 and that she understood the two stage nature of the adoption process and implemented that understanding by her decision on 20 May 1995 not to go ahead with the adoption. The mother also understood the effect the making of an adoption order would have on her rights and that if the mother gave the initial consent and then changed her mind, the plaintiffs could go to court and fight for the infant.

Miss Justice Laffoy said that question which caused difficulties was whether the mother understood that by giving the initial consent she was creating the possibility that, if she changed he mind and the plaintiffs applied to court, the court could permit the making of an adoption order without the necessity of a final consent from her, in consequence of which she would lose custody of the infant forever. Miss Justice Laffoy concluded that it was probable that the mother did not understand that she would create this possibility if she gave an initial consent.

The evidence established that on the various occasions on which the effect of section 3 of the 1974 Act was explained to the mother, she was not admitting of the possibility that the adoption might not go ahead to conclusion and Miss Justice Laffoy said that the mother did not address her mind to what she was being told about the effect of an application under section 3 and did not assimilate that information. Miss Justice Laffoy was also of the view that the evidence established that Mrs Pasley did all she could to ensure that the mother received objective counselling and emotional support.

However, the mother's decision to place the child for adoption was influenced by her parents whose attitude at all times after they learned of the pregnancy was to banish her and place one option before her - to make the baby disappear. Miss Justice Laffoy was satisfied that the mother's will coincided with her parent's will up to 20 May 1995 and the decision she made when she signed the Form 10 on 24 April 1995 was her own decision and reflected her will at that time.

Miss Justice Laffoy said that the effect of what happened on 20 May 1995 was that the mother annulled her decision to place the infant for adoption and, having done so, she went home to work out a means of implementing her decision to retain custody of the infant. Miss Justice Laffoy said that her father forbade her from bringing the infant home and if she set up an establishment of her own, he made it clear, she would be cutting herself off from her family. Within a week of 20 May 1995 the mother had made a fresh decision to place the infant for adoption but, Miss Justice Laffoy said that in making that decision she subordinated her own will to that of her parents because of fear, which was a product, of her upbringing, stress, anxiety, lack of maturity and deprivation of emotional support. It was not a free decision.

Miss Justice Laffoy said that it was not until around the beginning of December 1995 that the mother became capable of exerting her own will and Mrs Pasley noted that the mother was becoming more independent and rebelling against her father. The inference drawn by Miss Justice Laffoy was that around the beginning of December 1995 the mother had matured and overcome her fear and become sufficiently independent to exert her own will. Miss Justice Laffoy concluded that a valid agreement to place the infant for adoption did not exist because the mother's consent to the placement was neither fully informed nor free. Therefore, section 3 of the 1974 Act was not applicable and the question of the best interests of the child did not arise. Accordingly, the plaintiffs' application in the Adoption Act proceedings was refused.

In dealing with the Article 40 application, Miss Justice Laffoy said that the plaintiffs contended that, even if they were unsuccessful in the Adoption Act proceedings, they were entitled to resist the mother's claim for custody. They also argued that the appropriate procedure was an application under the Guardianship of Infants Act 1964 and not under Article 40. However, Miss Justice Laffoy said that the same principles applied whether the procedure under Article 40 or the procedure under the 1964 Act was invoked.

The plaintiffs relied on section 3 of the 1964 Act which provides that the welfare of an infant is the paramount consideration in any proceedings before a court relating to the custody, guardianship or upbringing of an infant.

Miss Justice Laffoy said that the mother's right to care for and have custody of the infant is protected by Article 40.3 and can be harmonised with the infant's right to have his welfare guarded which is also protected by Article 40.3 and these rights can be protected by allowing the plaintiffs to retain custody of the infant. This would not interfere with the mother's right to sole guardianship, which may enable her to seek custody of the infant at a future date. Alternatively, the right of the infant ranks higher than the right of the mother in the hierarchy of constitutional rights.

In determining the question of custody it was urged that there was no constitutional impediment to following the approach adopted in FW v AW (unreported, High Court, 21 April 1980) where Mr Justice Ellis said that if there was a conflict between the constitutional rights of a child and its mother, then the infants rights should prevail, even if its welfare were to be found in the custody of a stranger and where valid objection could be taken to the mother's inability to provide for her child's welfare. Miss Justice Laffoy said that this decision was the high point in our jurisprudence of a child oriented approach to custody disputes. A different approach was taken in G v An Bord Uchtala where Mr Justice Finlay referred to sections of the 1964 Act dealing with abandonment and desertion and said that they involved some conscious or intentional act or omission by a mother and it was possible to envisage circumstances under which without any positive act or omission on the part of a mother the welfare of an infant would require that it should be placed in the custody of some other person than the mother and the court had a discretion in this regard.

Miss Justice Laffoy said that it was not necessary to express a view on which was the correct test. Taking the plaintiffs' contention at its highest, Miss Justice Laffoy felt that it had not been established that even applying the test from PW the welfare of the infant would not be protected by placing him in the custody of his mother now.

Miss Justice Laffoy said that on the removal of the infant from the plaintiffs it was common case that there would be immediate psychological short term effects on the infant but there was a conflict of evidence as to the long term sequelae. Miss Justice Laffoy said that it was not necessary to resolve this conflict as the probability was that it would be more detrimental to the welfare of the infant to leave him in the custody of the plaintiffs than to restore him to the mother having regard to the difficulties which would arise with the plaintiffs having custody of the infant and the mother remaining as sole guardian.

Accordingly, Miss Justice Laffoy concluded that by law the mother was entitled to custody of the infant and the plaintiffs' retention of the infant against the wishes of the mother was contrary to law.

Solicitors: Martin & Brett (Monaghan) for DG and MG; Orpen Franks (Dublin) for Janet Pasley and PACT; Chief State Solicitor for An Bord Uchtala; Helen Salmon (Law Centre, Letterkenny) for CG.

The Supreme Court; judgment delivered 11 July 1996.

The Supreme Court, on appeal, in a judgment of the Court delivered on 11 July 1996, unanimously upheld the decision of the High Court.