Guardianship – Keegan, Supreme Court – 1990

[1990] DIGEST 1
2 I.R.
GUARDIANSHIP
Custody
– Natural father – Natural parents unmarried – Child placed for adoption by mother – Applicant father obtained order for guardianship and custody in Circuit Court -Adoptive parents in better socio-economic position than applicant’s family – Child would be reared in applicant’s parents’ home if he got custody – Evidence of bonds of attachment between child and adoptive parents – Possiblity of mother applying for custody if applicant succeeded – Right of natural father to apply for guardianship – Whether application in reality a joint application for guardianship and custody -Test to be applied – Whether natural father who was a fit person had a right to guardianship defeasible by reasons involving welfare of child, such reasons alone not to deny his rights -Whether section gave natural father a mere right to apply for guardianship with welfare of infant being first consideration and wishes of natural father to be disregarded unless differences in quality of welfare between two competing homes unimportant – Whether section equated natural father’s position at law with that of father married to mother – Whether blood link, guardianship and society of natural father are factors relevant to welfare of child – Whether rights which accrue from relationship of natural father to child vary with circumstances – Psychological theory of attachment – Whether legal test would be applied in light of psychological evidence -Whether differences in upbringing between competing homes springing from socio-economic causes a factor – Adoption Act, 1952 (No. 25), s. 14 – Guardianship of Infants Act, 1964 (No.7), ss. 2, 3, 6, 6A, sub-s. 4 and 10, sub-ss. 1 and2 – Status of Children Act, 1987 (No. 26), ss. 9, 11 and 12. Practice – Case stated – Test to be applied in guardianship application by natural father
Section 6A of the Guardianship of Infants Act, 1964, (inserted by s. 12 of the Status of Children Act, 1987) provides: “Where the father and mother of an infant have not married each other, the court may, on the application of the father, by order appoint him to be a guardian of the infant”. Section 3 of the Act of 1964 provides: “Where in any proceedings before any court the custody, guardianship or upbringing of an infant . . . is in question the court, in deciding the question, shall regard the welfare of the infant as the first and paramount consideration”. Section 2 of the Act of 1964 (as amended by s. 9 of the Act of 1987) provides inter alia that “‘welfare’ in relation to an infant, comprises the religious and moral, intellectual, physical and social welfare of the infant”. By virtue of s. 10, sub-s. 2 of the Act of 1964, subject to the terms of that order a person appointed a guardian of the person of an infant shall as against every person not being jointly with him a guardian of the person be entitled to the custody of the infant. Section 11 of the Status of Children Act, 1987, substitutes the following sub-section for s. 6, sub-s. 4 of the Act of 1964: “Where the mother of an infant has not married the infant’s father, she, while living, shall alone be the guardian of the infant unless there is in force an order under section 6A (inserted by the Act of 1987) of this Act or a guardian is otherwise appointed in accordance with this Act”. By virtue of s. 14 of the Adoption Act, 1952, an adoption order shall not be made without the consent of every person being the child’s mother or guardian or having charge of or control over the child, unless the Board dispenses with such consent. The applicant was the natural father of the child and lived with his parents, his sister and her child. The first respondent, who was the natural mother of the child, had met the applicant in 1986. She lived with the applicant’s family for a time in 1987 and they lived together as man and wife in other accommodation until they split up in February, 1988. They decided to have a baby about Christmas, 1987, and the first respondent became pregnant. They got engaged in the middle of February, 1988, but the first respondent broke the engagement at the end of February and returned to her parents. The applicant’s efforts to contact her were blocked by her parents. The baby was born in September, 1988. The child was handed over for adoption by the first respondent and was placed for adoption on the 17 November, 1988. When the applicant was informed of this he instituted proceedings in the Circuit Court seeking guardianship and custody of the child. The child had been placed for adoption with a married couple (the second and third notice parties) whose social and financial circumstances and religion were similar to those of the first respondent and her family, who were members of the Church of Ireland. The applicant and his family were Roman Catholics. The applicant was supported by his entire family in his wish for custody and proposed to bring up the child in his parents’ home being cared for during the day by his sister and his mother. The first respondent and the second and third notice parties had appealed to the High Court against the decision of the Circuit Court granting the applicant guardianship and custody (but granting a stay pending appeal). The High Court (Barron J.) reached the following conclusions: (1) The applicant wished bona fide to have custody of the child and felt the existence of an emotional bond. (2) If the child was given into his custody it would be well looked after. (3) If the second and third notice parties retained custody it would be equally well looked after. (4) If the child remained with the second and third notice parties it would obtain the benefit of a higher standard of living and would be likely to remain in school longer than if it passed into the applicant’s custody. (5) There would be short term trauma for a few days to the child if custody passed and as an adult this might make the child less capable of dealing with any serious stress. (6) Taking the child’s welfare as the sole consideration these factors required her to remain with the second and third parties. Barron J. stated his view of the interpretation of s. 6A of the Act of 1964 and the correct test to be applied as: “1. Whether the natural father is a fit person to be appointed guardian and, if so, 2. Whether there are circumstances involving the welfare of the child which require that notwithstanding that he is a fit person he should not be so appointed.”The High Court (Barron J.) held that the applicant satisfied the first condition and that unless the welfare of the child was to be regarded as the sole consideration, he satisfied the second condition. Barron J. expanded this test by stating that “having regard to the purposes of the Status of Children Act, 1987, the rights of the father should not be denied by considerations of the welfare of the child alone, but only where —and they do not exist in the present case —there are good reasons for so doing.” The questions of law for the determination of the Supreme Court which were stated by the High Court (Barron J.) were: (i) Whether his construction of s. 6A of the Act of 1964 was correct, and (ii) If not, what was the proper construction of the section and what other, if any, principles should have been applied or considered whether in relation to guardianship or custody which derive either from law or the provisions of the Constitution? Held by the Supreme Court (Finlay C.J., Walsh, Griffin, and Hederman JJ.; McCarthy J. dissenting) in answering the case stated, 1, that in a case stated on a question of law by the High Court for the determination of the Supreme Court where the High Court was the ultimate court of appeal, the function of the Supreme Court was to accept the facts as found and the inferences raised from them to answer the questions of law submitted. 2. That the combined effects of the statutory provisions in this case were such that the application before the High Court was a joint application for guardianship and custody. 3. That s. 6A of the Act of 1964 gave a natural father the right to apply to be appointed guardian but it neither gave him the right to be guardian nor equated his position at law with regard to the infant with the position of a father married to the mother who is and must remain the guardian. 4. That the court must regard the welfare of the infant as the first and paramount consideration. 5. That the natural father did not have a constitutional right or a natural right identified by the Constitution to guardianship of the child and s. 6A of the Act of 1964 did not declare or acknowledge that right although the blood link between the father and the child and the possibility for the infant to have the benefit of the guardianship and society of its father were one of many factors relevant to its welfare which might be viewed by the court. 6. That the extent and character of the rights which accrued from the relationship of the natural father to an infant varied depending on the circumstances. 7. That, as guardianship was linked to custody in the present case, regard should not be had to the wishes of the applicant to be involved in the guardianship and society of the child unless the court had first concluded that the quality of the welfare which would probably be achieved for the infant by its custody with the second and third notice parties as compared to that which would probably be achieved with its father, was not to an important extent better. Per McCarthy J. (dissenting): Although the High Court found that taking the welfare of the infant as the sole consideration would require the child to remain in the custody of the second and third notice parties and although s. 6A of the Act of 1964 only gave a right to apply for an order of guardianship (which in these circumstances would amount to custody) the purpose of the Act of 1987 was to promote the father into the position of having rights and the test in the case stated was correct provided the trial judge made the welfare of the infant the paramount consideration. The State (Nicolaou) v. An Bord Uchtála [1966] I.R. 567 and G. v. An Bord Uchtála [1980] I.R. 32 considered. Per McCarthy J. (dissenting): The High Court’s construction of s. 6A of the Act of 1964 did not presuppose a right to guardianship in the father and if it did it was a qualified right which did not arise until he made a successful application under s. 6A of the Act of 1964 which should succeed unless he was not a fit person or there were circumstances and good reasons involving the welfare of the infant which required otherwise. Per McCarthy J. (dissenting): Where the child was the fruit of a loving relationship between a man and a woman who wished to have a child, then the father was entitled to an order under s. 6A of the Act of 1964 unless he was not a fit person or there were circumstances involving the welfare of the child which required that he should not be appointed. Per McCarthy J. (dissenting): The second leg of the test set out in the High Court did not depart from the principle that the welfare of the child was the first and paramount consideration but the expansion of the view to state that the rights of the father should not be denied by a consideration of the welfare of the child alone except where there were good reasons for so doing was not correct because if the first and paramount consideration was the welfare of the child, then considerations of the welfare of the child alone might deny what are called the rights of the father. Per McCarthy J. (dissenting): Where the welfare of the child would be adequately secured with the father, as has been found in this case, the fact that there might be added benefits if the child remained in the custody of the prospective adopters did not outweigh the combination of the rights of the father and the benefit to the child of maintaining a blood link and the court would be entitled to grant the order to the applicant. The appeal was reconsidered by the High Court on the basis of the appropriate test as enunciated by the Supreme Court and it was Held by Barron J., in refusing the relief sought, 1, that while liberty to call additional evidence had been refused after the matter came back to the High Court insofar as it might have led to a rehearing of the appeal, liberty had been granted to recall witnesses to deal with any matter that might have arisen since the hearing or which might have been affected by the time lapse of 6 months since the hearing. 2. That the matter would have to be reconsidered on the basis of the appropriate test as enunciated by the Supreme Court but the High Court would have to make such determination of fact as had been rendered necessary by the further evidence adduced. 3. That differences in the upbringing the child would receive in the two competing homes sprang solely from socio-economic causes and should not be taken into consideration especially where one of the claimants was a natural parent as to do so would be in breach of the constitutional obligation to hold all citizens as human persons equal before the law. 4. That the psychological theory of attachment propounded to the courts over many years without evidence to the contrary would be accepted and the legal test would be applied in the light of dangers to the psychological health of the child which the expert witness foresaw would be the result of the change in custody. 5. That the question to be determined before the applicant could be appointed guardian was whether he should also be granted custody since his appointment as guardian would allow him to bar the adoption process and before determining the question of custody the court must be satisfied that if no adoption process was in being, the applicant would have succeeded. 6. That the applicant would have been appointed guardian if this was solely an application for guardianship; it was his wish and intention at the date of the conception of the child that she should be party to a stable relationship. 7. That, applying the test laid down by the Supreme Court, the existence of the blood link should be considered only where the wishes of the father are also to be considered but if this was wrong it was not material to the present case as the expert witness placed no importance on it. 8. That the welfare of the child must be considered first and if this could be met by both claimants, the quality of the welfare which would probably be achieved in each case, but at all times bearing in mind the natural father had no more than the right to apply to be appointed guardian. 9. That the welfare of the child would be met by her growing up in either household but the difference in the quality of the welfare lay in (i) the dangers inherent in breaking the bonds of attachment with the second and third notice parties, (ii) the possibility of the first respondent applying for custody herself if the applicant succeeded, and (iii) the fact that she would become a member of a family recognized by the Constitution if the adoption procedures were completed. 10. That the differences were of such importance that the quality of the welfare likely to be achieved with the second and third notice parties was to an important extent better than that likely to be achieved with the applicant and for that reason his wishes would not be taken into account.
In re S.W., an Infant; J.K v. V.W
(S.C., H.C.)
[1990] 2 I.R. 437; [1990] ILRM 121, 791 [1990] 2 I.R. 437
[1990] 437
2 I.R.
J.K. v. v. W.
In the matter of S.W., an infant, J.K
, Applicant v.
V.W. and The Protestant Adoption Society, Respondents, and An Bord Uchtála and O.R and C.R., Notice Parties
[S.C. No. 324 of 1989]
[H.Ct. No. 108 of 1990]
Supreme Court
1st December 1989

High Court
9th February 1990

Infant – Guardianship – Custody – Natural parents unmarried – Child placed for adoption by mother – Applicant father obtained order for guardianship and custody in Circuit Court – Adoptive parents in better socio-economic position than applicant’s family – Child would be reared in applicant’s parents’ home if he got custody – Evidence of bonds of attachment between child and adoptive parents – Possibility of mother applying for custody if applicant succeeded – Right of natural father to apply for guardianship – Whether application in reality a joint application for guardianship and custody – Test to be applied – Whether natural father who was a fit person had a right to guardianship defeasible by reasons involving welfare of child, such reasons alone not to deny his rights – Whether section gave natural father a mere right to apply for guardianship with welfare of infant being first consideration and wishes of natural father to be disregarded unless differences in quality of welfare between two competing homes unimportant – Whether section equated natural father’s position at law with that of father married to mother – Whether blood link, guardianship and society of natural father are factors relevant to welfare of child – Whether rights which accrue from relationship of natural father to child vary with circumstances – Psychological theory of attachment – Whether legal test would be applied in light of psychological evidence – Whether differences in upbringing between competing homes springing from socio-economic causes a factor – Adoption Act, 1952 (No. 25), s. 14 – Guardianship of Infants Act, 1964 (No. 7), ss. 2, 3, 6, 6A, sub-s. 4 and 10, sub-ss. 1 and 2 – Status of Children Act, 1987 (No. 26), ss. 9, 11 and 12.
Practice – Case stated – Test to be applied in guardianship application by natural father – High Court the final court of appeal in guardianship cases – Case stated to Supreme Court on test to be applied – Time lapse of 6 months before resumption of case in High Court – Function of Supreme Court in case stated on question of law – Whether Supreme Court must accept facts and inferences as found in High Court – Whether High Court test correct – Other principles to be applied – Whether additional evidence could be called when matter returned to High Court – Whether evidence could be adduced on matters affected by lapse of time – Whether High Court could make determination of fact rendered necessary by further evidence – Courts of Justice Act, 1936 (No. 48), s. 38, sub-s. 3.
Constitution – Constitutional rights – Natural rights identified by Constitution – Whether natural father has such rights to the guardianship of child – Whether taking differences between competing homes springing from socio-economic factors into consideration in breach of Constitution – Guardianship of Infants Act, 1964 (No. 7), s. 6A – Constitution of Ireland, 1937, Article 40, s. 1.
Statute – Interpretation – Words and phrases – Provision that welfare of child to be the “first and paramount consideration” – Test to be applied – Guardianship of Infants Act, 1964 (No. 7), ss. 2, 3, 6, and 6A, sub-s. 4 – Status of Children Act, 1987 (No. 26), ss. 9, 11 and 12.
Section 6A of the Guardianship of Infants Act, 1964, (inserted by s. 12 of the Status of Children Act, 1987) provides: “Where the father and mother of an infant have not married each other, the court may, on the application of the father, by order appoint him to be a guardian of the infant”.
________________________________________
[1990] J.K. v. V.W. 438
2 I.R. S.C.
Section 3 of the Act of 1964 provides: “Where in any proceedings before any court the custody, guardianship or upbringing of an infant . . . is in question the court, in deciding the question, shall regard the welfare of the infant as the first and paramount consideration”.
Section 2 of the Act of 1964 (as amended by s. 9 of the Act of 1987) provides inter alia that”‘welfare’ in relation to an infant, comprises the religious and moral, intellectual, physical and social welfare of the infant”.
By virtue of s. 10, sub-s. 2 of the Act of 1964, subject to the terms of that order a person appointed a guardian of the person of an infant shall as against every person not being jointly with him a guardian of the person be entitled to the custody of the infant.
Section 11 of the Status of Children Act, 1987, substitutes the following sub-section for s. 6 sub-s. 4 of the Act of 1964:—
“Where the mother of an infant has not married the infant’s father, she, while living, shall alone be the guardian of the infant unless there is in force an order under section 6A (inserted by the Act of 1987) of this Act or a guardian is otherwise appointed in accordance with this Act”.
By virtue of s. 14 of the Adoption Act, 1952, an adoption order shall not be made without the consent of every person being the child’s mother or guardian or having charge of or control over the child, unless the Board dispenses with such consent.
The applicant was the natural father of the child and lived with his parents, his sister and her child.
The first respondent, who was the natural mother of the child, had met the applicant in 1986. She lived with the applicant’s family for a time in 1987 and they lived together as man and wife in other accomodation until they split up in February, 1988.
They decided to have a baby about Christmas, 1987, and the first respondent became pregnant. They got engaged in the middle of February, 1988, but the first respondent broke the engagement at the end of February and returned to her parents. The applicant’s efforts to contact her were blocked by her parents. The baby was born in September, 1988. The child was handed over for adoption by the first respondent and was placed for adoption on the 17th November, 1988. When the applicant was informed of this he instituted proceedings in the Circuit Court seeking guardianship and custody of the child.
The child had been placed for adoption with a married couple (the second and third notice parties) whose social and financial circumstances and religion were similar to those of the first respondent and her family, who were members of the Church of Ireland. The applicant and his family were Roman Catholics.
The applicant was supported by his entire family in his wish for custody and proposed to bring up the child in his parents’ home being cared for during the day by his sister and his mother.
The first respondent and the second and third notice parties had appealed to the High Court against the decision of the Circuit Court granting the applicant guardianship and custody (but granting a stay pending appeal). The High Court (Barron J.) reached the following conclusions:—
1. (1) The applicant wished bona fide to have custody of the child and felt the existence of an emotional bond.
2. (2) If the child was given into his custody it would be well looked after.
3. (3) If the second and third notice parties retained custody it would be equally well looked after.
4. (4) If the child remained with the second and third notice parties it would obtain the benefit of a higher standard of living and would be likely to remain in school longer than if it passed into the applicant’s custody.
5. (5) There would be short term trauma for a few days to the child if custody passed and as an adult this might make the child less capable of dealing with any serious stress.
6. (6) Taking the child’s welfare as the sole consideration these factors required her to remain with the second and third notice parties.
Barron J. stated his view of the interpretation of s. 6A of the Act of 1964 and the correct test to be applied as:—
“1. Whether the natural father is a fit person to be appointed guardian and, if so,
________________________________________
[1990] J.K. v. V.W. 439
2 I.R. S.C.
2. Whether there are circumstances involving the welfare of the child which require that notwithstanding that he is a fit person he should not be so appointed.”
The High Court (Barron J.) held that the applicant satisfied the first condition and that unless the welfare of the child was to be regarded as the sole consideration, he satisfied the second condition.
Barron J. expanded this test by stating that “having regard to the purposes of the Status of Children Act, 1987, the rights of the father should not be denied by considerations of the welfare of the child alone, but only where — and they do not exist in the present case — there are good reasons for so doing.”
The questions of law for the determination of the Supreme Court which were stated by the High Court (Barron J.) were:—
1. (i) Whether his construction of s. 6A of the Act of 1964 was correct, and
2. (ii) If not, what was the proper construction of the section and what other, if any, principles should have been applied or considered whether in relation to guardianship or custody which derive either from law or the provisions of the Constitution?
Held by the Supreme Court (Finaly C.J., Walsh, Griffin, and Hederman JJ.; McCarthy J. dissenting), in answering the case staled, 1, that in a case staled on a question of law by the High Court for the determination of the Supreme Court where the High Court was the ultimate court of appeal, the function of the Supreme Court was to accept the facts as found and the inferences raised from them to answer the questions of law submitted.
2. That the combined effects of the statutory provisions in this case were such that the application before the High Court was a joint application for guardianship and custody.
3. That s. 6A of the Act of 1964 gave a natural father the right to apply to be appointed guardian but it neither gave him the right to be guardian nor equated his position at law with regard to the infant with the position of a father married to the mother who is and must remain a guardian.
4. That the court must regard the welfare of the infant as the first and paramount consideration.
5. That the natural father did not have a constitutional right or a natural right identified by the Constitution to guardianship of the child and s. 6A of the Act of 1964 did not declare or acknowledge that right although the blood link between the father and the child and the possibility for the infant to have the benefit of the guardianship and society of its father were one of many factors relevant to its welfare which might be viewed by the court.
6. That the extent and character of the rights which accrued from the relationship of the natural father to an infant varied depending on the circumstances.
7. That, as guardianship was linked to custody in the present case, regard should not be had to the wishes of the applicant to be involved in the guardianship and society of the child unless the court had first concluded that the quality of the welfare which would probably be achieved for the infant by its custody with the second and third notice parties as compared to that which would probably be achieved with its father, was not to an important extent better.
Per McCarthy J. (dissenting): Although the High Court found that taking the welfare of the infant as the sole consideration would require the child to remain in the custody of the second and third notice parties and although s. 6A of the Act of 1964 only gave a right to apply for an order of guardianship (which in these circumstances would amount to custody) the purpose of the Act of 1987 was to promote the father into the position of having rights and the test in the case stated was correct provided the trial judge made the welfare of the infant the paramount consideration.
The State (Nicolaou) v. An Bord Uchtála [1966] I.R. 567 and G. v. An Bord Uchtála [1980] I.R. 32 considered.
Per McCarthy J. (dissenting): The High Court’s construction of s. 6A of the Act of 1964 did not presuppose a right to guardianship in the father and if it did it was a qualified right which did not arise until he made a successful application under s. 6A of the Act of 1964 which should succeed unless he was not a fit person or there were circumstances and good reasons involving the welfare of the infant which required otherwise.
________________________________________
[1990] J.K. v. V.W. 440
2 I.R. S.C.
Per McCarthy J. (dissenting): Where the child was the fruit of a loving relationship between a man and a woman who wished to have a child, then the father was entitled to an order under s. 6A of the Act of 1964 unless he was not a fit person or there were circumstances involving the welfare of the child which required that he should not be appointed.
Per McCarthy J. (dissenting): The second leg of the test set out in the High Court did not depart from the principle that the welfare of the child was the first and paramount consideration, but the expansion of the view to state that the rights of the father should not be denied by a consideration of the welfare of the child alone except where there were good reasons for so doing was not correct because if the first and paramount consideration was the welfare of the child, then considerations of the welfare of the child alone might deny what are called the rights of the father.
Per McCarthy J. (dissenting): Where the welfare of the child would be adequately secured with the father, as has been found in this case, the fact that there might be added benefits if the child remained in the custody of the prospective adopters did not outweigh the combination of the rights of the father and the benefit to the child of maintaining a blood link and the court would be entitled to grant the order to the applicant.
The appeal was reconsidered by the High Court on the basis of the appropriate test as enunciated by the Supreme Court and it was
Held by Barron J., in refusing the relief sought, 1, that while liberty to call additional evidence had been refused after the matter came back to the High Court insofar as it might have led to a rehearing of the appeal, liberty had been granted to recall witnesses to deal with any matter that might have arisen since the hearing or which might have been affected by the time lapse of 6 months since the hearing.
2. That the matter would have to be reconsidered on the basis of the appropriate test as enunciated by the Supreme Court but the High Court would have to make such determination of fact as had been rendered necessary by the further evidence adduced.
3. That differences in the upbringing the child would receive in the two competing homes sprang solely from socio-economic causes and should not be taken into consideration especially where one of the claimants was a natural parent as to do so would be in breach of the constitutional obligation to hold all citizens as human persons equal before the law.
4. That the psychological theory of attachment propounded to the courts over many years without evidence to the contrary would be accepted and the legal test would be applied in the light of dangers to the psychological health of the child which the expert witness foresaw would be the result of the change in custody.
5. That the question to be determined before the applicant could be appointed guardian was whether he should also be granted custody since his appointment as guardian would allow him to bar the adoption process and before determining the question of custody the court must be satisfied that if no adoption process was in being, the applicant would have succeeded.
6. That the applicant would have been appointed guardian if this was solely an application for guardianship; it was his wish and intention at the date of the conception of the child that she should be party to a stable relationship.
7. That, applying the test laid down by the Supreme Court, the existence of the blood link should be considered only where the wishes of the father are also to be considered but if this was wrong it was not material to the present case as the expert witness placed no importance on it.
8. That the welfare of the child must be considered first and if this could be met by both claimants, the quality of the welfare which would probably be achieved in each case, but at all times bearing in mind that the natural father had no more than the right to apply to be appointed guardian.
9. That the welfare of the child would be met by her growing up in either household but the difference in the quality of the welfare lay in (i) the dangers inherent in breaking the bonds of attachment with the second and third notice parties, (ii) the possibility of the first respondent applying for custody herself if the applicant succeeded, and (iii) the fact that she would become a member of a family recognized by the Constitution if the adoption procedures were completed.
10. That the differences were of such importance that the quality of the welfare likely to be achieved with the second and third notice parties was to an important extent better than
________________________________________
[1990] J.K. v. V.W. 441
2 I.R. S.C.
that likely to be achieved with the applicant and for that reason his wishes would not be taken into account .
Cases mentioned in this report:—
K.C. v. An Bord Uchtála [1985] I.L.R.M. 302.
R.C. and P.C. v. An Bord Uchtála (Unreported, High Court, O’Hanlon J., 8th February, 1985).
In re K.D., A Minor
• ELR
• WLR
[1988] A.C. 806; [1988] 2 W.L.R. 398; [1988] 1 All E.R. 577.
In re Frost Infants
• IR
• DLTR
[1947] I.R. 3; (1945) 82 I.L.T.R. 24.
G. v. An Bord Uchtála
• IR
• DLTR
[1980] I.R. 32; [1978] I.L.T.R. 25.
J. v. C.
• ELR
• WLR
[1970] A.C. 668; [1969] 2 W.L.R. 540; [1969] 1 All E.R. 788.
Johnson v. Ireland [1987] 9 E.H.R.R. 203.
E.K v. M.K. (Unreported, Supreme Court, 31st July, 1974).
In re M.
• IR
• DLTR
[1946] I.R. 334; (1946) 80 I.L.T.R. 130.
MacD. v. MacD. (1979) 114 I.L.T.R. 60.
McF. v. G. and G. [1983] I.L.R.M. 228.
T.O’G v. A.G. [1985] I.L.R.M. 61.
The State (D.P.P.) v. Walsh [1981] I.R. 412.
The State (Nicolaou) v. An Bord Uchtála
• IR
• DLTR
[1966] I.R. 567; (1966) 102 I.L.T.R. 1.
P.W. v. A.W. (Unreported, High Court, Ellis J., 21st April, 1980).
Case stated.
By application to the Circuit Court dated the 16th December, 1988, the applicant sought to be appointed a guardian of the child, S.W., pursuant to s. 6A of the Guardianship of Infants Act, 1964, as inserted by s. 12 of the Status of Children Act, 1987, and custody pursuant to s. 11 of the Act of 1964. On the 29th May, 1989, the Circuit Court (His Honour Judge Spain) made an order appointing the applicant guardian of the infant and granting him sole care and custody. A stay was granted pending appeal and the applicant’s application for interim access to the infant in the event of an appeal was refused.
The first respondent and the second and third notice parties appealed to the High Court by notices dated the 30th May, 1989, and the 2nd June, 1989. The matter was heard by the High Court (Barron J.) on the 18th, 19th, 20th, 25th, 26th, 27th, 28th and 31st July, 1989. At the conclusion of the hearing an application was made by the first respondent and the second and third notice parties for the court to state a case for the opinion of the Supreme Court pursuant to s. 38, sub-s. 3 of the Courts of Justice Act, 1936. The High Court (Barron J.) stated a case on the 7th September, 1989, as to the proper test to be applied in deciding whether to grant guardianship of an infant to a natural father under s. 6A of the Guardianship of Infants Act, 1964, as inserted by the Status of Children Act, 1987.
The facts and relevant statutory provisions have been summarised in the headnote and are set out in the judgments, infra. The case stated is set out fully in the judgment of Barron J. infra.
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[1990] J.K. v. V.W. 442
2 I.R. Finlay C.J. S.C.
The case was heard by the Supreme Court on the 4th and 5th October, 1989.
Susan Denham S.C. and Gerard Durcan for the second and third notice parties referred to G. v. An Bord Uchtála; K.C. v. An Bord Uchtála; E.K v. M.K; In re Frost Infants; In re K.D., A Minor ; MacD. v. MacD; J. v. C.; In re M. and P. W. v. A. W.
Frank Clarke S.C. and Catherine McGuinness S.C. for the first respondent referred to McF. v. G. and G. .
James O’Reilly S.C. (with him Nastaise Leddy ) for the first notice party.
Mary Robinson S.C. (with her Dervla Browne ) for the applicant referred to The State (Nicolaou) v. An Bord Uchtála; Johnson v. Ireland; The State (D.P.P.) v. Walsh; G. v. An Bord Uchtála; R.C. and P.C. v. An Bord Uchtála and T.O’G. v. A.G..
Susan Denham S.C. in reply referred to Johnson v. Ireland; MacD.v.MacD. and In re K.D., A Minor.
Frank Clarke S.C. in reply.
Cur. adv. vult.
Finlay C.J. 1st December 1989

This is a case stated by Barron J. pursuant to s. 38, sub-s. 3 of the Courts of Justice Act, 1936, submitting to this Court certain questions of law which the learned judge is satisfied are necessary for the determination by him of an appeal brought to the High Court from the Circuit Court concerning certain applications under the Guardianship of Infants Act, 1964, as amended by the Status of Children Act, 1987.
The facts proved or admitted before the learned trial judge necessary for the determination of the issues of law involved are as follows. The applicant is the natural father of the infant and the first respondent is the natural mother. The parties were not married to each other, and each of them is unmarried, the father being approximately twenty-five years of age and the mother twenty-one years of age. The parents commenced a relationship in the spring of 1986 and that continued until the month of February, 1988, when they parted company and have
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[1990] J.K. v. V.W. 443
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not been in significant contact with each other since then. For something over a year of that period the parties lived together. The first respondent became pregnant in early 1988 and it was a planned pregnancy, the parties at that time wishing to have a child. In the month of February, 1988, the first respondent returned to her own home and the parties have not since that time resided together nor had any contact with each other.
The child was born in the late autumn of 1988 and almost immediately the first respondent consented to have it placed for adoption. It was then placed for adoption with her consent and put into the custody of prospective adoptive parents who are the second and third notice parties in the action.The first respondent does not intend to keep the child and has not made any proprosal so to do, but expresses the wish that it is in the interests of the child that the child should be adopted.
As soon as possible after he became aware that the first respondent had consented to the placing of the child in adoption the applicant instituted these proceedings in the Circuit Court, claiming firstly an order pursuant to s. 6A, sub-s. 1 of the Guardianship of Infants Act, 1964, as inserted by s. 12 of the Status of Children Act, 1987, appointing him to be a guardian of the infant and claiming, secondly, custody of the infant. The notice parties eventually joined in the application consisted of the mother of the child, the adoption society which had arranged the adoption, the prospective adoptive parents and An Bord Uchtála. The application was heard in the Circuit Court and the decision of that court was to grant the applicant an order appointing him to be a guardian of the infant and to direct that the custody of the child should be given to him. Against that order the first respondent and the second and third notice parties appealed to the High Court.
In the case stated by him to this Court, Barron J. cited in considerable detail and with great care the facts which were established before him, and this has been of great assistance to the Court. He made certain findings of fact and expresses certain conclusions arising from those findings. As a result of that he raises two questions of law for the determination of this Court.
The function of this Court in those circumstances is neither to inquire into the findings of fact made by the learned High Court judge which are peculiarly his function in a matter in which the High Court is the ultimate court of appeal nor, in my view, to query the inferences raised by him from those facts but, accepting both the facts as found and the inferences raised from them, is to answer the questions of law which are submitted.
The statutory provisions
Section 12 of the Status of Children Act, 1987, amended the Guardianship of Infants Act, 1964, by the insertion after s. 6 of section 6A. Section 6A, sub-s. 1 provides as follows:—
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[1990] J.K. v. V.W. 444
2 I.R. Finlay C.J. S.C.
“Where the father and mother of an infant have not married each other, the court may, on the application of the father, by order appoint him to be a guardian of the infant.”
Section 3 of the Act of 1964 provides that “Where in any proceedings before any court the custody, guardianship or upbringing of an infant . . . is in question, the court, in deciding that question, shall regard the welfare of the infant as the first and paramount consideration.”
Section 2 of the Act provides inter alia that “‘welfare’, in relation to an infant, comprises the religious and moral, intellectual, physical and social welfare of the infant”.
By virtue of s. 10, sub-s. 1 of the Act of 1964 every guardian appointed by the court shall be a guardian of the person and of the estate of the infant unless the court by its order otherwise provides.
By virtue of s. 10, sub-s. 2, subject to the terms of that order a person appointed as guardian of the person of an infant shall as against every person not being jointly with him a guardian of the person be entitled to the custody of the infant.
By virtue of s. 11 of the Status of Children Act, 1987, the following sub-section is substituted for s. 6, sub-s. 4 of the Act of 1964:—
“Where the mother of an infant has not married the infant’s father, she, while living, shall alone be the guardian of the infant unless there is in force an order under section 6A (inserted by the Act of 1987) of this Act or a guardian is otherwise appointed in accordance with this Act.”
By virtue of s. 14 of the Adoption Act, 1952, an adoption order shall not be made without the consent of every person being the child’s mother or guardian or having charge of or control over the child, unless the Board dispenses with such consent. The power of the Board to dispense with such consent is confined to cases where the Board is satisfied that the parent, guardian or person in charge so concerned is incapable by reason of mental infirmity of giving consent or cannot be found.
In the facts of the present case the combined effect of these statutory provisions is:—
1. (1) If the applicant succeeds in obtaining an order appointing him as a guardian of the infant pursuant to s. 6A of the Act of 1964, as inserted, the infant cannot be made the subject matter of an adoption order unless he consents.
2. (2) If the applicant obtains an order under s. 6A which is unconditional, in the absence of a claim by the first respondent for custody herself of the infant which has not been made, the applicant is entitled to custody of the infant.
The learned trial judge was, therefore, in my view, correct in the course of the case stated in identifying the applications before him as being a joint application for guardianship and custody.
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[1990] J.K. v. V.W. 445
2 I.R. Finlay C.J. S.C.
Findings of fact and conclusions
In the course of the case stated the learned trial judge has carefully set out the evidence which he heard of the circumstances and background of the applicant and the nature, circumstances and background of the household into which he proposes to bring the infant child, if granted custody, and the other persons who would be involved with him in the upbringing of the child. He also sets out the circumstances and background of the second and third notice parties, the home in which the child is presently residing in their custody and the background against which it would be brought up in that home. He indicates the evidence given by the first respondent of her preference in the interests of the child for it to be adopted. Having set out these matters in detail he then states the following conclusions which are relevant to the questions of law raised, and these are:—
1. 1. The applicant wishes bona fide to have custody of his child and feels the existence of an emotional bond.
2. 2. If the child is given into the custody of the applicant it would be well looked after.
3. 3. If the second and third notice parties retain custody the child will be equally well looked after.
4. 4. If the child remains with the second and third notice parties it will obtain the benefit of a higher standard of living and is likely to remain at school longer than if it passes into the custody of the applicant.
5. 5. In addition there will be a short term trauma for some few days if custody passes and as an adult this may make the child less capable of dealing with any serious stress in its life.
6. 6. Taking the welfare of the child as the sole consideration these factors require her to remain in her present surroundings.
Having dealt with the submissions made on behalf of the parties as to the legal consequences of these conclusions the learned trial judge stated his view of the interpretation of s. 6A of the Act of 1964 as follows:—
“The test, therefore, is
1. Whether the natural father is a fit person to be appointed guardian and, if so,
2. Whether there are circumstances involving the welfare of the child which require that, notwithstanding he is a fit person, he should not be so appointed.”
Subsequently in the case stated the learned trial judge expands this test, which he states to be in his view the appropriate test, in the following paragraph:—
“In my opinion, having regard to the purposes of the Status of Children Act, 1987, the rights of the father should not be denied by considerations of the welfare of the child alone, but only where — and they do not exist in the present case — there are good reasons for so doing.”
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[1990] J.K. v. V.W. 446
2 I.R. Finlay C.J. S.C.
The questions
Having stated these findings of fact and conclusions the following questions of law for the determination of the Supreme Court were stated by the learned trial judge:—
“(i) Am I correct in my opinion as to the manner in which s. 6A of the Guardianship of Infants Act, 1964, as inserted by s. 12 of the Status of Children Act, 1987, should be construed?
(ii) If not, what is the proper construction of that section and what are the other, if any, principles I should have applied or considered whether in relation to guardianship or custody which derive either from the law or from the provisions of the Constitution?”
Conclusions
I am satisfied that the opinion expressed by the learned trial judge in the case stated as to the manner in which s. 6A of the Act of 1964 should be construed is in law not correct. Section 6A gives a right to the natural father to apply to be appointed guardian. It does not give him a right to be guardian, and it does not equate his position vis-à-vis the infant as a matter of law with the position of a father who is married to the mother of the infant. In the latter instance the father is the guardian of the infant and must remain so, although certain of the powers and rights of a guardian may, in the interests of the welfare of the infant, be taken from him.
The right to apply to be appointed guardian of the infant under s. 6A of the Act of 1964 (as inserted by the Act of 1987) is a right to apply pursuant to a statute which specifically provides that the court in deciding upon such application shall regard the welfare of the infant as the first and paramount consideration.
To construe s. 6A of the Act of 1964 as has been done in the case stated as giving to the father a right to guardianship which cannot be denied unless (a) he is not a fit person, or (b) there are circumstances or good reasons involving the welfare of the child which require that he should not be appointed is incorrect, in my view, for two reasons. It presumes a right to guardianship, whereas s. 6A creates merely a right to apply for guardianship.
A right to guardianship defeasible by circumstances or reasons “involving the welfare of the child” could not possibly be equated with regarding the welfare of the child as the first and paramount consideration in the exercise by the court of its discretion as to whether or not to appoint the father guardian. The construction apparently placed by the learned trial judge in the case stated upon s. 6A to a large extent would appear to spring from the submission made on behalf of the applicant on this appeal that he has got a constitutional right, or a natural right
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[1990] J.K. v. V.W. 447
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identified by the Constitution, to the guardianship of the child, and that the Act of 1987 by inserting s. 6A into the Act of 1964 is thereby declaring or acknowledging that right.
I am satisfied that this submission is not correct and that although there may be rights of interest or concern arising from the blood link between the father and the child, no constitutional right to guardianship in the father of the child exists. This conclusion does not, of course, in any way infringe on such considerations appropriate to the welfare of the child in different circumstances as may make it desirable for the child to enjoy the society, protection and guardianship of its father, even though its father and mother are not married.
The extent and character of the rights which accrue arising from the relationship of a father to a child to whose mother he is not married must vary very greatly indeed, depending on the circumstances of each individual case.
The range of variation would, I am satisfied, extend from the situation of the father of a child conceived as the result of a casual intercourse, where the rights might well be so minimal as practically to be non-existent, to the situation of a child born as the result of a stable and established relationship and nurtured at the commencement of his life by his father and mother in a situation bearing nearly all of the characteristics of a constitutionally protected family, when the rights would be very extensive indeed.
Having reached these conclusions, I would answer the first question raised by the learned trial judge in the negative, stating that the construction placed by him on s. 6A of the Act of 1964, as indicated by the tests outlined by him in the case stated is not correct.
It accordingly becomes necessary to answer the second question raised, namely, to try and set out what the correct construction of the section is and the principles or considerations which are appropriate to the exercise of the discretion created by it.
I am satisfied that the correct construction of s. 6A is that it gives to the natural father a right to apply to the court to be appointed as guardian, as distinct from even a defeasible right to be guardian.
The discretion vested in the court on the making of such an application must be exercised regarding the welfare of the infant as the first and paramount consideration.
The blood link between the infant and the father and the possibility for the infant to have the benefit of the guardianship by and the society of its father is one of many factors which may be viewed by the court as relevant to its welfare.
In a case such as the present case where the application for appointment as a guardian is linked to the application for a present order of custody, regard should not be had to the objective of satisfying the wishes and desires of the father to be involved in the guardianship of and to enjoy the society of his child unless the court has first concluded that the quality of welfare which would probably be achieved for the infant by its present custody, which is with the prospective adoptive parents, as compared with the quality of welfare which would probably be achieved by custody with the father, is not to an important extent better.
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[1990] J.K. v. V.W. 448
2 I.R. Walsh J.; Griffin J.; Hederman J.; McCarthy J. S.C.
Walsh J.
I agree.
Griffin J.
I agree.
Hederman J.
I agree.
McCarthy J.
These being proceedings before a court where the custody, guardianship or upbringing of an infant is in question, the welfare of the infant must be regarded as the first and paramount consideration. (Guardianship of Infants Act, 1964, s. 3). As identified by the Chief Justice and by Barron J., the combined effect of the several relevant statutory provisions is that if the application succeeds then the adoption proceedings must fail and, there being no claim by the mother for custody, the custody must be given to the father. Whatever the legal niceties may be, the effect of the granting of an order under s. 6A would be, in the circumstances of this case, to make the father both guardian and custodian.
The welfare of the infant being identified as the first consideration presupposes a second consideration; the welfare is not the sole consideration.
Barron J. concluded that the child would be well looked after either in the custody of the applicant or in that of the second and third notice parties, but that remaining with the second and third notice parties the child would obtain the benefit of a higher standard of living and was likely to remain at school longer than if in the custody of the applicant. In addition there will be a short-term trauma for some few days if custody passes from the adopters to the applicant and as an adult this may make the child less capable of dealing with any serious stress in life. The final conclusion was that taking welfare as the sole consideration, the latter factors of standard of living, school and the effects of a short-term trauma require the child to remain in the custody of the second and third notice parties. In expressing these conclusions, as I have sought to summarize, the learned trial judge appears satisfied that in the custody of either the applicant or the second and third notice parties the child will be well looked after and raises the issue as to whether or not what may be termed a father’s rights or interests may be weighed in the balance so as to offset whatever additional benefits a higher standard of living and a lengthier period at school may confer upon the child in the custody of the second and third notice parties. At first sight it would seem to the advantage of the infant to enjoy the company of the applicant, the more particularly so when not enjoying that of the first respondent; the applicant has his own right to happiness and fulfilment. Has the father such a right in respect of the child save such as may be given to him by law by an order under section 6A? Section 6A does
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[1990] J.K. v. V.W. 449
2 I.R. McCarthy J. S.C.
not give the right but rather the right to apply for an order of guardianship which in the circumstances would amount to an order for custody. In that sense, it rather begs the question to point to what is a prospective right under the section 6A. In The State (Nicolaou) v. An Bord Uchtála [1966] I.R. 567 this Court held at p.643:—
“It has not been shown to the satisfaction of this Court that the father of an illegitimate child has any natural right, as distinct from legal rights to either the custody or society of that child and the Court has not been satisfied that any such right has even been recognised as part of the natural law. If an illegitimate child has a natural right to look to his father for support that would impose a duty on the father but it would not of itself confer any right upon the father. The appellant has therefore failed to establish that any personal right he may have guaranteed to him by Article 40, section 3, of the Constitution has been in any way violated by the Adoption Act of 1952.”
In G. v. An Bord Uchtála [1980] I.R. 32 at p. 97, Kenny J. appeared to question the claim of the mother of an illegitimate child to have a constitutional right to its custody.
The wording of the judgment in The State (Nicolaou) v. An Bord Uchtála [1966] I.R. 567 seems to leave it open to establishing, I know not how, that the father of an illegitimate child has a natural right to either custody or society of the child. The contrast to the unappealing details set out at p. 641 with the last of those details may be augmented here. Quite apart from the case of the long-term stable relationship between man and woman who, for legal or other reasons, may be unable to marry there may be compared a situation such as here where the father wants to care for the child but the mother feels the child’s welfare would be more secure away from her and with the adoptive parents. An extreme of the latter situation is where a mother, out of spite, seeks to have a child adopted. Has the father no say, once it is established that the adoptive home is, presently at least, a more desirable one? Happiness is not a monopoly of the better off.
Is the fact of there being a prospective adoption to be taken into account at all? If it is, then a spiteful mother could wilfully defeat any father’s claim by setting an adoption in motion.
I tend to share the view that the purpose of the Act was, so to speak, to promote the father into the position of having rights; I find it difficult to accept that a loving father, who with the mother wanted to have a child, has no natural right to the society of the child. It is inevitable and, indeed desirable, that if the child is adopted, the father will never see his child again.
The questions raised
As long as the trial judge bears in mind that the paramount consideration is the welfare of the infant, I see no objection to the test that he applied. The first question is appropriate, relating, as it does, to the application by the father as a
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[1990] J.K. v. V.W. 450
2 I.R. McCarthy J. S.C.
person himself. There are factors to which the trial judge does not make reference in the case stated but which no doubt would be present to his mind — the blood link with the applicant and the constitutional family of the second and third notice parties. I do not subscribe to the view that the construction by the learned trial judge of s. 6A presupposes a right to guardianship in the father; if it does, it is a qualified right — an inchoate right which does not arise unless and until he makes a successful application under s. 6A, but such application should succeed unless he is not a fit person or there are circumstances or good reasons involving the welfare of the child which require that he should not be appointed.
If the father of a child the offspring of a casual encounter were to exercise the right to apply under section 6A he would be met with impressive arguments based upon whether or not he was a fit person or that there were circumstances or good reasons involving the welfare of the child that required that he should not be appointed. Where, however, the child is the fruit of a loving relationship between a man and woman who wished to have a child, then it seems to me that the father, absent such reasons as I have identified, is entitled to an order under section 6A. If there are circumstances or reasons involving the welfare of the child which require that the father should not be appointed guardian, then the court is not regarding the welfare of the child as the first and paramount consideration.
Barron J. stated the test under section 6A as:—
“1. Whether the natural father is a fit person to be appointed guardian and, if so,
2. Whether there are circumstances involving the welfare of the child which require that, notwithstanding he is a fit person, he should not be so appointed.”
I do not consider that the second leg of the test departs from the first and paramount consideration but rather expresses it in a different way. Later, the learned trial judge said:—
“In my opinion, having regard to the purposes of the Status of Children Act, 1987, the rights of the father should not be denied by considerations of the welfare of the child alone, but only where — and they do not exist in the present case — there are good reasons for so doing.”
It is in that expansion of his view that I would disagree with the learned trial judge. It is no more than stating the obvious to say that, if the first and paramount consideration is the welfare of the child, then considerations of the welfare of the child alone may deny what are called the rights of the father. Where, however, the welfare of the child is adequately secured, as has been found to be the case here, then, in my judgment, the fact that there may be added benefits as stated if the child remains in the custody of the prospective adopters, does not outweigh the combination of the rights of the father and the benefit to the child of maintaining the blood link or, more pertinently, the learned trial judge, who is the sole judge of the primary and secondary facts, is entitled so to hold. In my view, on these facts, it is open to the learned trial judge to grant the order sought under section 6A.
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[1990] J.K. v. V.W. 451
2 I.R. Barron J. H.C.
The case was re-listed in the High Court (Barron J.) for submissions on the 7th December, 1989, which were heard on the 7th and 8th December, 1989. The court read the order of the Supreme Court dated the 1st December, 1989. An application by the second and third notice parties to call additional evidence was refused insofar as it might have led to the re-hearing of the appeal. This decision was later affirmed on appeal by the second and third notice parties to the Supreme Court. The High Court gave the parties liberty to recall any witness to deal with any matter which might have arisen since the 31st July, 1989. The case was mentioned on the 15th December, 1989, and on the 11th January, 1990, and there was a further hearing of the case on the 23rd and 24th January, 1990.
Mary Robinson S.C. (with her Dervla Browne ) for the applicant.
Catherine McGuinness S.C. for the first respondent.
James O’Reilly S.C. (with him Nastaise Leddy ) for the first notice party.
Susan Denham S.C. and Gerard Durcan for the second and third notice parties.
Cur. adv. vult.
Barron J. 9th February 1990

These proceedings come before this court by way of an appeal from an order of the Circuit Court made on the 29th May, 1989. The appeal was fully heard by me over several days at the end of July, 1989. Following the conclusion of the hearing an application was made by the natural mother and the prospective adopters for me to state a case for the opinion of the Supreme Court. I acceded to that request and the case stated was as follows:—
“This case is stated by me at the request of counsel for the first respondent and the second and third notice parties pursuant to s. 38, sub-s. 3 of the Courts of Justice Act, 1936. The questions of law on which I agreed to state a case are set out in para. D hereof:—
1. (A) This is an application by the applicant to be appointed a guardian of the infant named in the title hereof under s. 6A of the Guardianship of Infants Act, 1964, as inserted by s. 12 of the Status of Children Act,
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[1990] J.K. v. V.W. 452
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1987, and for custody pursuant to s. 11, sub-s. 4 of the Act of 1964 as inserted by s. 13 of the Act of 1987.
2. (B) The facts proved or admitted before me are as follows:—
1. (i) The applicant is aged twenty five years. He lives at his parents’ home in Dublin with his father and his mother. He has an older brother at home who is employed and who mainly lives at his place of employment. He has two younger brothers at home, both unmarried, one of whom is doing an AnCO course. They are aged nineteen and seventeen years respectively. His sister aged twenty nine and her son aged seven born to a father to whom she was not married, also live in this home.
2. (ii) The applicant’s father was a member of the defence forces for a period of twenty five years. He was in the equitation branch. After leaving the defence forces, where he remained as a private throughout his service, he became a groundsman at a local institution. The applicant’s father was, however, involved in a serious road accident and received injuries to his legs and arms. He is now left as a cripple in the sense that he has plates in his legs and has problems walking. He received a substantial sum of money as compensation, part of which was used to buy and furnish the present family home. The applicant’s mother works in the catering department in Beaumont Hospital. Her duties in the main involve serving meals to patients. The applicant’s sister, M., is not employed and she looks after the household. The family are Roman Catholics.
3. (iii) The applicant had a primary education and three years in vocational education college. He left the V.E.C. at about the age of sixteen having passed the Group Certificate . He had jobs from time to time for a period of two years and then got a permanent job as a machine operator. He is regarded by his employers as a very good worker. He has a knowledge of very many machines, is trustworthy and is never late for work. He does whatever he is told and although he was somewhat flighty when he started he is no longer so.
4. (iv) The applicant has three convictions for taking or being carried in a car without consent for which he received prison sentences. On the 5th October, 1983, he was sentenced to three months imprisonment; on the 10th October, 1983, he was sentenced to six months imprisonment and on the 9th January, 1985, he was sentenced to nine months imprisonment. He also had convictions in relation to the possession of drugs. On the 4th July, 1983, he was given the Probation Act and for a similar offence on the 29th August, 1986, he was fined £25. He also received the benefit of the Probation act on the 10th December, 1981, in respect of
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[1990] J.K. v. V.W. 453
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the larceny of a bicycle wheel. After each of two periods of imprisonment, he was re-employed by his employers.
5. (v) The first respondent is aged 21 years. She lives with her parents. She has a brother who is two years older than herself and who lives on his own. Her father was a production manager in a substantial factory and was made redundant on that factory failing financially. Since then, he has been self-employed. He owns a shop which he runs with the help of his wife and daughter. The family are members of the Church of Ireland. The first respondent herself went to primary school and secondary school and left at the end of the fifth year. Although she did her Intermediate Certificate, she never did her Leaving Certificate.
6. (vi) The first respondent came to Dublin for a year’s course in child-minding and was put up in a hostel run by nuns. She met the applicant at a party in March, 1986, and they fell in love. The first respondent was then attending a course in child-minding. When the course ended about June of that year, she spent her time between her home and the applicant’s home where she was made welcome and was put up for weekends. During that period, intercourse commenced between the two parties.
7. (vii) In November, 1986, the first respondent got accommodation with a female friend of the natural father in a flat in S. street, which was not an ideal place for her and totally contrary to her up-bringing. She did not like it. However she stayed there until the end of February, 1987. At that stage, she had a job in B. and she moved in permanently with the applicant’s family until the end of July, 1987, when the job ended. She went home for a fortnight. She returned to Dublin and found accommodation with an unmarried couple who were friends of the applicant. This was in a rough area. This couple was a friend of the same age as the applicant and a woman S.G. with whom his friend was then living, who was a few years older and who had an unsuccessful marriage which left her with two children aged seven and five. The applicant came to live there about two to four weeks later. They continued living there as man and wife until they split up at the end of February, 1988.
8. (viii) During this period in their relationship, the first respondent felt that the applicant resorted too much to the society of his men friends, but the applicant was unaware of this source of discontent.
9. (ix) The applicant and first respondent decided sometime about Christmas, 1987, that they would have a baby. The first respondent became pregnant and was aware of her condition by the end of January or certainly by early February. They then decided to get engaged which they did on St. Valentine’s Day. The
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[1990] J.K. v. V.W. 454
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pregnancy was confirmed medically on the 22nd February, 1988. The first respondent went home to tell her parents. However, when she was there, she found that she could not tell them and she came back to Dublin.
10. (x) The first respondent’s parents knew she was in Dublin and where she was living. They had invited the applicant for a week-end in the Summer of 1986 and they knew of his criminal record. They were not keen on him and there was also the religious difference, but their daughter was deeply in love and her attitude was that she was happy and couldn’t they leave her be. The first respondent also brought S.G. to see her parents for a week-end. Her father had also met Mrs. K. the mother of the applicant and had not been impressed.
11. (xi) When the first respondent found that she could not tell her parents that she was pregnant, she made up her mind that she wanted to stay with the applicant but that there was not much point staying with him in Dublin because he had his friends there and she did not. She thought that the solution would be to go to England where they could start afresh with no ties. She only had to state that proposition to herself to realize that it was unsuitable. From that point, she drifted into the only possible solution which was to break with the applicant and she did break with him. On Sunday, the 28th February, 1988, she told him that she was breaking with him and asked him to go home, which he did. On the 29th February, 1988, she gave him a letter explaining her situation which stated that he would always be able to see the baby. The applicant thought that she was staying in Dublin but on the Wednesday she went home. He tried to contact her by telephone and he wrote to her but his efforts were deliberately blocked by her parents. There was no further communication or meeting prior to the birth of the child.
12. (xii) The applicant knew roughly when the child was going to be born and he went to the first respondent’s home town on the 1st October, 1988, with S.G. The baby had been born on the 29th September, 1988, in a private nursing home. S.G. went to see the first respondent and she was warmly received but the first respondent did not want to see the applicant. He saw the baby but not the mother. The first respondent became very agitated since she did not wish to see him. The local Protestant minister was visiting her and just after that her own mother turned up. There was an emotional scene and the first respondent asked S.G. to go and she and the applicant left.
13. (xiii) Mrs. K. and S.G. came down at the beginning of November to see the baby and went to where the shop of the first respondent’s father was at that stage. They saw Mr. and Mrs. W., the parents
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[1990] J.K. v. V.W. 455
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of the first respondent there but not the first respondent who in fact heard the entire conversation from a room in the back of the shop. On that occasion the K. family was trying to make contact but was being fended off and was led to believe that the child was going to be kept. In fact, from about six months on in her pregnancy, the first respondent had explored the possibilities of adoption. Certainly, by the date of this visit, she had already handed over the child preparatory to it being placed for adoption. On the 17th November, 1988, the child was placed for adoption. On the 22nd November, 1988, the first respondent wrote to the applicant telling him of the placing. His immediate reaction was to go to a solicitor and that resulted in these proceedings.
14. (xiv) The child has been placed for adoption with the second and third notice parties who have no children, though it is medically possible that they may have children and they have not given up hope of having children whether or not the proposed adoption takes place. The husband was educated to Leaving Certificate standard which he passed. His wife left school after passing Intermediate Certificate. He works for his father. She worked with the local Health Board as a clerk/typist until the child was placed with them. She does not intend to return to work if the child stays with them. They have their own home and are members of the Church of Ireland. Their social and financial circumstances are similar to those of the first respondent and her family.
15. (xv) The applicant wishes bona fide to have custody of his child. He feels the existence of an emotional bond. He is supported by his entire family. If he obtains custody, the child will be brought up in his parents’ home. There is more than adequate accommodation for those who presently live there as well as for the child. She will be cared for during the day mainly by M.K. She will be assisted by Mrs. K. The applicant will fulfil a father’s role. If the child is given into his custody it will be well looked after.
16. (xvi) The first respondent wishes the adoption procedures to continue. If the adopters retain custody, the child will be equally well looked after. There will be differences. The social and financial positions of the applicant and the second and third notice parties are different. If the child remains with the second and third notice parties, she will obtain the benefit of a higher standard of living and is likely to remain at school longer than if she passes into the custody of her father. In addition, there will be a short term trauma for some few days if custody passes and as an adult this may make the child less capable of dealing with
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[1990] J.K. v. V.W. 456
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any serious stress in her life. Taking the welfare of the child as the sole consideration these factors require her to remain in her present surroundings.
1. (C)(i) On behalf of the applicant it has been submitted that the purposes of the Status of Children Act, 1987, is to equalise the rights of children born out of wedlock with the rights of those born within it; that the intention is to create a legal nexus between father and child and that the father should be appointed guardian in all cases when he applies unless there is some factor involving him in his relation with his child which would militate against it’s welfare. It is also submitted that the right sought by the natural father is one recognized by the Convention on Human Rights and that if the meaning of s. 6A can give rise to more than one interpretation it should be construed in accordance with the provisions of the convention. It is accepted that the court should, when considering either the issue of guardianship or custody, have regard to the welfare of the child as the first and paramount consideration. But this should not be the sole consideration. It is submitted that the test should be analogous to that enunciated in K.C. v. An Bord Uchtála [1985] I.L.R.M. 302 and that less compelling circumstances might defeat the natural father since his rights are legal as opposed to being constitutional as in that case.
17. (ii) On behalf of both the first respondent and the second and third notice parties, it has been submitted that the issue as to guardianship should not be considered independently of the issue of custody and that unless some benefit would accrue to the child it should remain in its present custody and accordingly since the applicant would refuse to consent to adoption he should not be appointed guardian unless the court also intended to grant him custody. Substantially, both of these parties submitted that the welfare of the child required her to remain where she was. They also submitted that the rights of the mother being constitutional were superior to those of the father and so the wishes of the mother should be accepted in priority to those of the father.
18. (iii) I am of the opinion that in considering the applications both for custody and guardianship I must have regard to circumstances as they presently exist and that in considering the welfare of the child I must take into account the fact that she has been placed for adoption. Each application must be taken as part of a global application and not as a separate and distinct one. The test therefore is:—
1. (1) whether the natural father is a fit person to be appointed guardian, and, if so:
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2. (2) whether there are circumstances involving the welfare of the child which require that, notwithstanding he is a fit person, he should not be so appointed.
In the present case, I am of opinion that he satisfies the first condition and that unless the welfare of the child is to be regarded as the sole consideration, he satisfies the second condition. In arriving at this opinion, I have applied the principle expressed in the judgment of Walsh J. in G. v. An Bord Uchtála [1980] I.R. 32 at p. 76 referred to in the judgment of Finlay C.J. in K.C. v. An Bord Uchtála [1985] I.L.R.M. 302 at p. 318, as follows:—
‘The word “paramount” by itself is not by any means an indication of exclusivity; no doubt if the Oireachtas had intended the welfare of the child to be the sole consideration it would have said so. The use of the word “paramount” certainly indicates that the welfare of the child is to be the superior or the most important consideration, in so far as it can be, having regard to the law or the provisions of the Constitution applicable to any given case.’
In my opinion, having regard to the purposes of the Status of Children Act, 1987, the rights of the father should not be denied by considerations of the welfare of the child alone, but only where — and they do not exist in the present case — there are good reasons for so doing.
1. (D) The questions of law for the determination of the Supreme Court are:—
1. (i) Am I correct in my opinion as to the manner in which s. 6A of the Guardianship of Infants Act, 1964, as inserted by s. 12 of the Status of Children Act, 1987, should be construed?
2. (ii) If not, what is the proper construction of that section and what other, if any, principles should I have applied or considered whether in relation to the guardianship or custody which derive either from law or from the provisions of the Constitution?”
In answering the questions raised by the case stated the judgment of Finlay C.J. with which the majority of the Court agreed answered the first question “no”and set out the test to be applied as follows:—
“I am satisfied that the correct construction of s. 6A is that it gives to the natural father a right to apply to the court to be appointed as guardian, as distinct from even a defeasible right to be guardian.
The discretion vested in the court on the making of such an application must be exercised regarding the welfare of the infant as the first and paramount consideration.
The blood link between the infant and the father and the possibility for the infant to have the benefit of the guardianship by and the society of its father is one of many factors which may be viewed by the court as relevant to its welfare.
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[1990] J.K. v. V.W. 458
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In a case such as the present case where the application for appointment as a guardian is linked to the application for a present order of custody, regard should not be had to the objective of satisfying the wishes and desires of the father to be involved in the guardianship of and to enjoy the society of his child unless the court has first concluded that the quality of welfare which would probably be achieved for the infant by its present custody, which is with the prospective adoptive parents, as compared with the quality of welfare which would probably be achieved by custody with the father, is not to an important extent better.”
As a result it is clear that I reached my decision on the facts as found by me upon a wrong principle of law. It is therefore necessary for me to reconsider the matter upon the basis of the appropriate test as enunciated by the Supreme Court. I must however make such determination of fact as may be necessary upon the further evidence which has been adduced.
When the matter came back to me, an application was made to call additional evidence. I refused this application insofar as it might have led to a re-hearing of the appeal. However, since six months had elapsed since that hearing I gave liberty to the several parties to recall any witness to deal with any matter which might have arisen since the hearing before me or which might have been affected by the lapse of time.
Four witnesses were recalled. Doctor Byrne, a consultant child psychiatrist gave his opinion of the effect on the psychological health of the child if it was now to be moved from the home of the second and third notice parties to that of the applicant. His evidence did not differ substantially from that which he had given in July. He stressed the short-term trauma involved and was of opinion that this would be of at least three weeks’ duration and could continue for appreciably longer rather than up to two weeks had the child been transferred in July.
His opinion of the longer term effect remained the same. The child would be more vulnerable to stress in later years and less able to cope with it. She might have difficulty in forming trust relationships and this difficulty would be aggravated if M.K., who would be the mother figure if she was given into the custody of the applicant, left home to get married. He also affirmed his concern with the effect on the child psychologically in the event of the applicant being given custody of the likely conflict between the first respondent and the father’s family.
Doctor Byrne’s evidence was based upon the theory of attachment. The child forms attachment to its parents between the ages of six months and twelve months. On average this takes place at eight months. As it grows older this attachment strengthens. By about the age of three the child begins to be able to stand on its own feet and the effect of breaking this bonding with its parents gradually lessens.
In the present case the child in the past six months has begun to develop its personality and at the same time its attachment to its presumed parents has strengthened. On this basis he is satisfied that the short-term effects of any changeover would be much more serious than he had previously indicated.
Unfortunately Doctor Byrne was unable to instance any case histories in support of his opinion. His evidence was that there are very many variables which
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[1990] J.K. v. V.W. 459
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can affect what actually occurs. Here a child has been seen to attach easily. So it is more likely that she will attach to her new parent figures more quickly than he anticipates. Again the only study of which he is aware of the effects of a changeover of a child of this age showed surprisingly to the researcher that the child progressed very well.
These attachments are formed also with the extended family and the short-term trauma involves the effect of the loss of these attachments also.
This theory of attachment is one which the courts have had propounded to them for at least the last ten years with little contrary evidence and has in general been accepted. I accept the theory and indeed in the absence of any evidence to the contrary would be wrong not to do so.
In July I took the view that the short-term effects of a move would not have been as serious as suggested by Doctor Byrne. I still take that view though obviously with the passage of time and the consequent strengthening of the relevant attachments the K. household will take longer to overcome the predicted period of trauma.
I heard evidence also from the second and third notice parties and the social worker who made the pre-placement assessment of this couple. The former confirmed the stronger attachment which had occurred since July. The latter was strongly against any move but the force of her evidence was limited by the fact that her experience of moving children from one home to another related to older children where there were problems affecting the welfare of such children.
I have heard no evidence to cause me to alter my view as to the differences in the upbringing of a child between the two competing homes. These differences spring solely from socio-economic causes and in my view should not be taken into consideration, certainly where one of the claimants is a natural parent. To do otherwise would be to favour the affluent as against the less well-off which does not accord with the constitutional obligation to hold all citizens as human persons equal before the law.
Accordingly in the present case what I must consider is how to apply the legal test in the light of the dangers to the psychological health of the infant which Doctor Byrne foresees would be the result of a change of custody.
This case is not merely an application for the appointment of a natural father as guardian of his child. This is because if he were so appointed he could effectively bar the adoption process by refusing his consent to it. Accordingly the question to be determined before the applicant can be appointed guardian is whether he should also be granted custody.
Before considering this latter question, it follows that the court must be satisfied that if no adoption process was in being, the applicant would have succeeded in his application. If he would not have done so then no question of his obtaining custody could have arisen. It may be that he might still have been granted access but in an adoption situation again this would not have been a question to arise.
If I were dealing solely with an application for guardianship I would have appointed the applicant to be a guardian. At p. 447 of his judgment on the case stated Finlay C.J. said:—
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“The extent and character of the rights which accrue arising from the relationship of a father to a child to whose mother he is not married must vary very greatly indeed depending on the circumstances of each individual case.
The range of variation would, I am satisfied extend from the situation of the father of a child conceived as the result of a casual intercourse, where the rights might well be so minimal as practically to be non-existent, to the situation of a child born as the result of a stable and established relationship and nurtured at the commencement of his life by his father and mother in a situation bearing nearly all of the characteristics of a constitutionally protected family when the rights would be very extensive indeed.”
Although the applicant was never in the situation contemplated at the end of that passage, nevertheless it was his wish and his intention at the date of conception of the child that she should be a party to such a stable relationship, though one based upon marriage to the mother. In my view, it would have been proper in those circumstances to have acceded to his application.
I now pass to whether I may make such order since I may not do so unless I also grant him custody.
In applying the test laid down by the Supreme Court there are three pertinent factors:—
1. (1) The applicant has no legal right to be appointed guardian; he has a right only to apply to be so appointed;
2. (2) The welfare of the child must be regarded as the first and paramount consideration; and
3. (3) The wishes of the applicant should be disregarded unless the quality of welfare which would probably be achieved for the infant by its present custody which is with the second and third notice parties as compared with the quality of welfare which would probably be achieved by custody with the applicant is not to an important extent better.
It seems to me that the existence of the blood link is to be considered only where the wishes of the father are also to be considered. However if I am wrong in that it is not material since Doctor Byrne in his evidence in July placed no importance upon such link at that stage and a fortiori now since the child is older again.
It seems to me that what I must do is consider first the welfare of the child and then, if this can be met by both claimants, the quality of the welfare which will probably be achieved in each case, but at all times bearing in mind that the natural father has no more than the right to apply to be appointed guardian.
It is implicit in my findings of fact that the welfare of the infant will be met by her growing up in either household. If it would not have been, then I would have been wrong to have determined that there was no good reason why the child should not be given into the custody of the applicant.
What I must do is to consider the quality of the welfare likely to be achieved in her present custody as opposed to the quality of welfare likely to be achieved if the child is to be moved. The difference lies in the bonds of attachment which already exist and the dangers inherent in breaking those bonds. Doctor Byrne has
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no doubt that there is no comparison and that it would be greatly preferable for the child to remain where she is.
He bases this opinion upon his view that there will be a short-term trauma during which he would expect the child to be distraught. He accepts however that it is something about which she will have no conscious memory. Nevertheless she will have a sub-conscious memory of it. It will affect her attachments in later life and will render her less able to cope with stresses in personal relationships. If, having been given into the applicant’s custody M.K. or indeed the applicant were to marry there would be a further loss, the effect of which would aggravate this longer term trauma.
When I dealt with this matter in July the strength of the attachments was much less. However, I was of the opinion that the natural father had a legal right to guardianship in the particular circumstances of this case. That being so the factors which Doctor Byrne has highlighted seemed to me to be matters which ought not to have deprived this natural father from being united with his daughter. For the same reason I paid little attention to the possible difficulties arising from future conflict between the first respondent and the applicant’s family. Where however the natural father does not have that legal right then my view was based upon an incorrect premise. Accordingly I must reconsider it in the light of the legal principle that he has no such right. It means that he has not got the favourable position which I thought. In considering the quality of the welfare which would probably be achieved if custody were now given to the applicant I must have regard to all the fears expresed by Doctor Byrne including the stated intention of the first respondent to seek custody for herself in those circumstances. I cannot say how a court would treat any such application. It may fail entirely. It may succeed, or it may succeed to the extent of gaining an order for access in favour of the first respondent.
The result, it seems to me, is this. If the child remains where she is, she will, if the adoption procedures are completed, become a member of a family recognised by the Constitution and freed from the danger of psychological trauma. On the other hand if she is moved she will not be a member of such a family and in the short and long term her future is likely to be very different. The security of knowing herself to be a member of a loving and caring family would be lost. If moved, she will I am sure be a member of a loving and caring unit equivalent to a family in her eyes. Nevertheless the security will be lost and there will be insecurity arising from the several factors which have been enumerated.
In my view these differences and the danger to her psychological health are of such an importance that I cannot hold that the quality of welfare likely to be achieved with the second and third notice parties would not be to an important extent better than that likely to be achieved by custody with the applicant. That being so, his wish and desire to be involved in the guardianship of and to enjoy the society of his child is not a factor which I am to take into account. In these circumstances, the welfare of the infant requires her to remain in her present custody. Accordingly the application for relief must be refused.
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[1990] J.K. v. V.W. 462
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Solicitors for the applicant: Ormond Quay Law Centre.
Solicitors for the first respondent: Limerick Law Centre.
Solicitor for the first notice party: Chief State Solicitor.
Solicitors for the second and third notice parties: Eugene Davy & Co.
Caitlín Ní Fhlaitheartaigh, B.L.
[1990] 2 I.R. 437