|N & anor -v- Health Service Executive & ors|
| IESC 60|
Supreme Court Record Number:
|273 & 283/06|
High Court Record Number:
|2006 181 SS|
Date of Delivery:
Composition of Court:
|Murray C.J., McGuinness J., Hardiman J., Geoghegan J., Fennelly J.|
|Allow And Set Aside|
Link to Judgment
- 47 -
THE SUPREME COURT
Murray C.J. 273/06 and 283/06
IN THE MATTER OF THE CONSTITUTION
IN THE MATTER OF N.
N. and N.
THE HEALTH SERVICE EXECUTIVE-WESTERN AREA
and G. and G.
JUDGMENT of Mr. Justice Hardiman delivered the 13th day of November, 2006.
[Fictitious names have been ascribed to all parties, and to the child whose custody is in issue, to protect their anonymity].
This is an appeal from the order of the High Court (McMenamin J.) perfected the 7th day of July, 2006, whereby he refused the applicants relief pursuant to Article 40.4.2 of the Constitution.
The order was based on a strikingly detailed and humane judgment of the learned trial judge which is, however, challenged on this Appeal as being in certain important respects mistaken in law.
Article 40.4.2 is our constitutional Habeas Corpus procedure. It is one of the great remedies provided in the Constitution, for the rapid investigation of any complaint that a person is being wrongfully detained. The sub-article provides as follows:
AN BORD UCHTÁLA
This procedure is here invoked in respect of a child now aged about two years and four months old, a little girl. The applicants are her natural parents who are now married to each other. The mother became pregnant while she and the father were approaching the end of their third level studies, and the pregnancy confronted them with an acute dilemma. After a great deal of agonising and discussions with social workers, in the period before and after her birth on 7th July, 2004, they placed the child for adoption. The mother signed the necessary consent forms. The child was placed with the prospective adoptive parents in the month of November, 2004. Before an adoption order was made, however, the natural parents changed their minds in relation to adoption. This was not a wholly surprising development: there seem to have been uncertainties on the topic from the beginning. This decision was communicated in writing to the Adoption Board in September of 2005 and was not, I have to say, acted upon very rapidly. The child was still in the custody of the other couple when, in the month of February, 2006, the parents, who had married the previous month, instituted the present Article 40.4.2 proceedings seeking the release of the child from the custody of the prospective adopters.
In one very obvious sense, this case is a tragic one. Its result will of necessity inflict enormous grief and loss on one of the contending couples. The tragedy lies in the fact that neither deserves this fate: both are caring conscientious people, fit and capable in every way to be the guardians of a child. When only one couple can have what both so ardently desire there must of necessity be hardship. Any judge called upon to determine such a case is all too painfully aware of the hardship but a court cannot permit a comparative balancing of the degree of hardship to the adults involved to dictate the result of the case. That result must instead be determined in the manner required by the Constitution and the law. From the terms of Article 40.4.2 itself, quoted above, it will be seen that, once an inquiry under that sub-article has been ordered, as has happened here, the onus lies on the party currently detaining the child, the prospective adoptive parents, to justify their custody of her.
It is, of course, within the experience of those concerned in the adoption process, and of the Courts, that a natural mother may come to the conclusion that adoption is not in the best interest of the child and may withhold her consent to adoption or withdraw a consent already given. Equally, it is clear that in certain circumstances the prospective adopters may be able to apply to the Court to dispense with the natural mother’s consent. Both the placing mother and prospective adoptive parents are routinely put on notice of these possibilities by the Adoption Board and are aware of them. Each, therefore, is specifically aware on entering the adoption process that it may result in a sad parting between the child and the prospective adopters with whom he or she has been placed, or on the other hand in a situation where a mother involuntarily loses the care and custody of her child whom she wishes to nurture personally. In my view, having regard to the grave obligations of a parent, or a person who wishes to assume the position of parent in relation to a particular child, such person must be regarded as accepting these risks of great personal distress on their entry into the adoption process, and of assuming a moral responsibility to act in the child’s interest, even in very fraught and distressing circumstances.
In this particular case the natural parents of the child married each other in January, 2006, thus becoming with the child a constitutional family. This fact significantly altered the legal context of the case: the adoption of a child who is part of the natural and constitutional family can only take place under very restrictive conditions set out in the Adoption Act, 1988, and discussed below. This, in turn, has led the respondents to make arguments of a far reaching, novel, and sometimes tendentious sort which are discussed at length below. It has led them to make very serious allegations against the parents, some of which were not pursued in this Court and none of which are true. It also led the prospective adopters to employ a private detective to conduct surveillance of the natural parents, presumably with a view to finding evidence, if possible, to suggest that the marriage was not a genuine one. If this is so it has to be said immediately that the strategy was a failure: no such evidence was adduced. It must also be noted that, unfortunately, the proposed adoptive mother misrepresented the facts in the High Court by denying the employment of the detective, though she corrected this the next day, before her testimony ended.
I will now set out the constitutional provisions, and certain other materials, which provide the constitutional and legal requirements which permit a court to pronounce on the validity of the prospective adopters justification of their withholding the child from the custody of its parents.
The applicants are the natural parents of the child and are now married to each other. These persons constitute a family within the meaning of Article 41 of the Constitution. The institution of the family is there defined “as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law”. Moreover, by Article 42, this family possesses the status of “the primary and natural educator of the child”, extending to the right and duty to provide religious and moral, intellectual, physical and social education. This plainly involves the proposition that the parents have, and are entitled to have, the custody and society of the child on a day to day basis. These provisions clearly put the applicants in a strong position.
These prerogatives, rights and duties of the parents may in limited circumstances be displaced, on the basis of what is provided in Article 42.5 of the Constitution:
“Upon complaint being made by or on behalf of any person to the High Court or any judge thereof alleging that such person is being unlawfully detained, the High Court and every judge thereof to whom such complaint is made shall forthwith enquire into the said complaint and may order the person in whose custody such person is detained to produce the body of such person before the High Court on a named day and to certify in writing the grounds of his detention, and the High Court shall, upon the body of such person being produced before that Court and after giving the person in whose custody he is detained an opportunity of justifying the detention, order the release of such person from such detention unless satisfied that he is being detained in accordance with law”.
Accordingly, any resistance to the right of the applicants to the custody of the child for the purpose of rearing her in accordance with their constitutional rights and duties, must find a basis in Article 42.5 as it has been expounded by the Courts in several decisions discussed below. The threshold for such resistance is a high one, and requires that there be established “exceptional” circumstances “where the parents for physical or moral reasons” have been shown to have “failed in their duty towards their children…”. On the authority of the judgment in this Court in
Re J. H. an Infant  IR 375 such intervention may also be justified if it is established that there are compelling reasons why that the welfare of the child cannot be secured in the custody of the parents. In considering whether these criteria have been met, on the authority of the same case, one starts with the constitutional presumption that the welfare of a child is to be found within the family.
I do not regard the constitutional provisions summarised above, or the jurisprudence to which they have given rise, as in any sense constituting an adult centred dispensation or as preferring the interests of marital parents to those of the child. In the case of a child of very tender years, as here, the decisions to be taken and the work to be done, daily and hourly, for the securing of her welfare through nurturing and education, must of necessity be taken and performed by a person or persons other than the child herself. Both according to the natural order, and according to the constitutional order, the rights and duties necessary for those purposes are vested in the child’s parents. Though selflessness and devotion towards children may easily be found in other persons, it is the experience of mankind over millennia that they are very generally found in natural parents, in a form so disinterested that in the event of conflict the interest of the child will usually be preferred. A graphic and ancient example of this may be found in I Kings 3:16-28. This bond is greatly valued by parents and children alike, and by natural siblings in respect of their shared parentage. It is illustrated by the frequently found phenomenon of the mature adult who, separated at birth or in infancy from his or her parents and siblings, feels a strong desire to locate them many years later. It is equally illustrated by the widespread legal recognition given to the family, even in instruments whose social and cultural context is different from, and perhaps more varied than, those of the Constitution of Ireland. I cannot escape the feeling that this factor is insufficiently emphasised in the High Court judgment here. Like Geoghegan J. and Fennelly J., I have been struck by the coincidental reporting, while the judgments in this case were being drafted, of an English case, Re G. (Children)  4 AER 241. The context of that case is far removed from the facts of the present dispute. But it is most interesting to see that, in a jurisdiction lacking the specific social and cultural context which has led Ireland to protect the rights of the family by express constitutional provision, the interest of a child in being reared in his or her biological family is nonetheless fully acknowledged. I wish specifically to refer to what was said in that case by Lord Nicholls of Birkenhead:
“In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents but always with due regard for the natural and imprescriptible rights of the child.”.
Quite evidently, the Constitution establishes demanding criteria which must be met before the right of the child to be reared and nurtured by his or her parents, and the right of the parents to take and act on the decisions required by the obligation to nurture the child, can be displaced either in relation to a particular issue or in general. In part, the argument on behalf of the proposed adopters in this case invited the Court to review and displace the position of the parents as guardians of the child’s welfare, by adopting less demanding criteria.
In the case of a young child, an approach to its welfare which is sometimes described as “child centred”, in a particular sense, in reality involves acting wholly or partly upon some third parties view of the interests of the child. It is, of course, difficult to criticise an approach denominated “child centred” or to fail to acknowledge imperatives denominated “the rights of the child”. But, especially in dealing with very young children who can express no meaningful views of their own, it is of great importance that terms such as those just mentioned should be thought through, should evoke an intellectual and not merely an emotional response, and that their actual content should be ascertained. A right conferred on or deemed to inhere in a very young child will in practice fall to be exercised by another on his or her behalf. In practice, therefore, though such a right may be ascribed to a child, it will actually empower whoever is in a position to assert it, and not the child himself or herself. The person actually asserting such a right may of course be a parent or guardian, but it might equally be a public authority, a stranger, or indeed the State itself. Thus, in North Western Health Board v. H.W.  3 IR 622, a public authority sought to assert an alleged right of a child of very tender years in direct opposition to the views of his (concededly very conscientious) parents: the public body sought to compel the subjection of the child to a particular medical test, even though there was no statutory provision for such compulsory testing. Still more strikingly, in The Attorney General v. X and Ors.,  IR 1 the Attorney General sued a fourteen year old child and her parents, claiming orders restraining the girl, who was pregnant as a result of a criminal assault, and her parents from interfering with the right to life of the “unborn”, restraining them from leaving the jurisdiction for nine months and restraining them from procuring or arranging an abortion inside or outside the jurisdiction. This relief was refused in the Supreme Court on many grounds one of which (per O’Flaherty J.) was that it constituted “… an unwarranted interference with the authority of the family”.
The X case surprised many who had not realised that by acknowledging a right in “the unborn” (an entity which, like a young child, cannot personally assert the right), the Eight Amendment to the Constitution had opened the door to the assertion of that right against individual citizens, including the mother of the unborn, by unrelated third parties, public authorities or the Attorney General. Indeed, prior to the X case, persons concerned about the dissemination in Ireland of information about abortion services in the United Kingdom had incorporated a limited company, SPUC Ltd., which the Courts recognised as having locus standi to litigate against the providers of such information.
The creation or acknowledgement of an entirely independent right in a person or entity personally incapable of exercising that right may have unintended or undesired legal consequences.
The effect of our constitutional dispensation is that, presumptively, the right to form a view of the child’s welfare and to act on it belongs to the parents. The facts of this case make it unnecessary to consider the difficulties which arise where the parents themselves are in disagreement as to how the welfare of the child may best be secured.
There are certain misapprehensions on which repeated and unchallenged public airings have conferred undeserved currency. One of these relates to the position of children in the Constitution. It would be quite untrue to say that the Constitution puts the rights of parents first and those of children second. It fully acknowledges the “natural and imprescriptible rights” and the human dignity, of children, but equally recognises the inescapable fact that a young child cannot exercise his or her own rights. The Constitution does not prefer parents to children. The preference the Constitution gives is this: it prefers parents to third parties, official or private, priest or social worker, as the enablers and guardians of the child’s rights. This preference has its limitations: parents cannot, for example, ignore the responsibility of educating their child. More fundamentally, the Constitution provides for the wholly exceptional situation where, for physical or moral reasons, parents fail in their duty towards their child. Then, indeed, the State must intervene and endeavour to supply the place of the parents, always with due regard to the rights of the child.
If the prerogatives of the parents in enabling and protecting the rights of the child were to be diluted, the question would immediately arise: to whom and on what conditions are the powers removed from the parents to be transferred? And why?
There is, of course, no doubt that the form and content of our constitutional dispensation in regard to the family and children was significantly influenced by Christian, and specifically Catholic, teaching on those subjects. But that is not to say that the preference for the natural parents as carers for a child is exclusively referable to those sources. In my judgment in North Western Health Board v. H.W.  3 IR 622 I expressed the view that this preference for the parents as the natural and primary guardians was equally consistent with quite different strands of thought, even a Benthamite one. I reiterate that view here, without repeating what was said in the judgment referred to. A presumptive view the children should be nurtured by their parents is, in my view, itself a child centred one and the alternative view, calling itself “child centred” because it is prepared more easily to dispense with the rights and duties of parents must guard against the possibility that in real individual cases it may become merely a proxy for the views of social workers or other third parties. That is not for a moment to belittle the need for State intervention in the nurturing of children in appropriate cases, but to emphasise that the presumption mandated by our Constitution is a presumption that the welfare of the child is presumptively best secured in his or her natural family.
It is also noteworthy that, in the language of the Constitution, State intervention or provision in the event of a failure in parental duty is in the nature of an “endeavour to supply the place of the parents”. In the specific context of adoption O’Higgins C.J. said in the course of his judgment in G. v. An Bord Uchtála  IR 32:
“In this case, as in all cases concerning the upbringing of children, the Court seeks to identify the course which is in the best interests of the children. Their welfare is the Court’s paramount consideration. In reaching its decision the Court should always have in mind that in the ordinary way the rearing of a child by his or her biological parent can be expected to be in the child’s best interests, both in the short term and also, and importantly, in the longer term. I decry any tendency to diminish the significance of this factor. A child should not be removed from the primary care of his or biological parents without compelling reasons. Where such a reason exists the judge should spell this out explicitly”.
It appears to me to follow from this language that the State has adopted a preference for a familial model in its attempts to secure the welfare of a child in respect of whom the nurturing of his or her natural family is unavailable. But this is a default position: the child has a right to the nurture of his or her natural family where that is possible.
Aspects of the facts of the case.
The facts of this case are set out in the judgment of the learned High Court judge. I do not propose to repeat them here but I wish to draw attention to certain aspects of them. Firstly, the natural parents are healthy intelligent and serious minded young people. They are both qualified in respected disciplines with secure prospects in life. They approached the dilemmas and responsibilities posed by the natural mother’s pregnancy in a notably mature and conscientious way: indeed the social worker who dealt with them found them in some ways unique. This practitioner first met them before the birth, having been introduced by the mother’s maternity unit social worker “so that adoption could be considered”. In an affidavit this practitioner described the events in the immediate aftermath of the birth and after the child had been placed in pre-adoptive foster care and concluded:
“… the State has the added obligation to defend and vindicate in its laws all natural rights of all citizens. In relation to illegitimate children and certain others the State has by the Adoption Acts endeavoured to discharge this obligation. The purpose of these Acts is to give to these children the opportunity of becoming members of a family and to have the status and protection which such membership entails”.
It is has not at any stage been suggested that the natural parents are in any sense unfit parents and I am satisfied that no such suggestion could properly be made. The parents have, since the placement for adoption, taken all possible and appropriate steps to maintain regular contact with the child as far as that was permitted.
Secondly, there were certain unusual features of the pre-adoption procedures. It transpired that the proposed adopters and in particular the lady, were known to certain of the social workers involved, including the social worker assigned to the natural parents. Considerations of anonymity make it undesirable to say precisely how this came about. There is however evidence that it came to cloud their relationship with this practitioner, and indeed others. There is a distinct change in the tone and content of social work notations about the mother after she manifested an intention to regain custody of the child.
Thirdly, it appears to me to be significant that at the time of the pregnancy and birth both natural parents were students albeit at a very advanced stage of their studies. By the time they sought the return of the child both were in good employment. They had also committed themselves to a permanent relationship with each other; apparently this took place in August 2005.
Fourthly, it is clear from the report of the social worker assigned to them that for long periods the natural parents were in considerable uncertainty in relation to adoption. The report observes that the natural mother had “chosen to breast feed [the child] for the first twenty-four hours. This again would be unique in my experience of mothers placing their child in pre-adoptive foster care”. It was also observed that “From the outset it seemed that [the natural mother] was in two minds as to whether adoption was the right option for them and whether she could cope with the emotional strain of the separation”.
Fifthly, in the course of the adoption process the social worker assigned to the natural parents drew up a document entitled “Adoption Profiles for Matching Panel”. This was done in September, 2004, and extends to some fourteen pages. Apart from the final version there were a number of drafts of the document. In one of these the social worker noted with concern that the principal reason for placing the child for adoption in the natural parents’ mind was that they were unmarried and they felt the child should have two parents. But they also felt that they might continue with their relationship. The social worker interlineated in a draft a sentence “This overriding reservation and contradiction causes me consternation and reservation in supporting them in their decision to place [the child] for adoption despite their consistency of opinions”.
Before the final version of the document was produced this sentence was removed at the suggestion of the natural parents. But it seems to me to suggest, at a minimum, a marked element of fluidity in the natural parents’ rather agonised consideration of what was best to be done. Subsequently, in April, 2005, the social worker described the natural mother as saying that she was questioning her decision to place the child for adoption. The natural father was reported at the same time as “indicating that he had reservations about the adoption”. There was dispute on the evidence as to what precisely was said at this stage and, as indicated, the version just summarised is that of the social worker.
Finally, there is no doubt that subsequent to the natural mother’s request for the return of the child in September, 2005, relations became rather fraught between the natural parents and the social worker. The latter, as the learned trial judge found, was in a somewhat invidious position by reasons of the connection to both couples and this may have resulted in the social worker “expressing in rather stark and emotive terms the effect of the applicants’ decision to reclaim custody of her on the [proposed adopters]”. There was an unresolved conflict of evidence as to whether very melodramatic language indeed was used by the social worker in that connection. What is clear, however, is that the natural parents became concerned that the passage of time was weakening their position. This is a matter of some significance having regard to the nature of the case advanced on behalf of the respondents. The parents felt that after they attempted to regain custody of the child they were being “stalled”, to use a word the mother used in dealing with the Adoption Board. I cannot disagree with her. This was the background to the initiation of the present proceedings.
Submissions of the parties:
As will be clear from the summary of the constitutional position set out above, the applicants’ case is one of powerful simplicity. They are a married couple and the natural parents of the child and therefore presumptively entitled to her care and custody. No adoption order has been made nor, they submit, can one now be made. If this is so, they are the only family in the constitutional sense that the child will ever have. The say that this case is in every way comparable to that of J.H., cited above, and that the unchallenged authorities of that case requires that this dispute be resolved in their favour.
In the proposed adopters’ statement of grounds justifying their detention of the infant, they say:
“I felt that the extent to which they made arrangements to see and keep contact with [the child] was unique. I found [the natural father’s] degree of involvement to be unique out of all the birth fathers I have dealt with as a social worker in this situation”.
The case for the proposed adopters has been considerably refined in the course of subsequent written and oral submissions. As argued on hearing of this appeal the outline of their case was as follows:
“The infant [name deleted] named in the title hereof was lawfully placed in the custody and care of the second and third-named respondents by [named deleted], a registered adoption society. The [natural parents] had authorised the said placement. It is in the best interest of [the child] to remain in the second and third-named respondents custody and care. The applicant and the notice party have abandoned or deserted the infant and/or so conducted themselves so that the Court should in its discretion decline to enforce any right which they may have to the custody of the infant. Further there are compelling reasons why the infant should remain with [the proposed adopters].”
This last is a significant submission for a number of reasons. Firstly, the natural parents through their respective counsel, Ms. Dervla Browne S.C. for the father and Ms. Mary O’Toole S.C. for the mother, at all times made it clear that, if the return of the child to their custody was ordered, they would observe “best practise” in relation to the mode such return which “in practise meant a phased return”. They were willing to do this whether or not there was a court order in that regard. But, Mr. Durcan on the other hand submitted that it was probable that his clients would not be able to co-operate with such a phased return. But a phased return would be necessary, he submitted, in the interest of the child. Therefore no return should be ordered.
A point abandoned.
Mr. Durcan also, on the hearing of the appeal, in an important respect presented an argument somewhat more limited than that which had found favour with the learned High Court Judge. Section 16 of the Act of 1964 relates to a situation:
(1) The constitutional presumption that the welfare of the child was to be found in her natural family was accepted.
(2) The test for whether that presumption had been rebutted was submitted to be that set out in the judgment of Finlay C.J. in J.H., cited above.
(3) Specifically it was submitted that there were two separate and distinct methods by which, on the authorities cited, the constitutional presumption could be rebutted that these were:
(a) The demonstration of compelling reasons why the welfare of the child cannot be secured within the family or
(b) The demonstration of a failure of parental duty as envisaged by Article 42.5 of the Constitution.
(4) The meaning of “compelling reasons” why the welfare of the child cannot be secured in the family is to be derived, it was submitted, in light of the judgment in J.H. and in light of a psychological evidence. As it transpired Mr. Gerard Durcan S.C. for the proposed adopters advanced a very particular construction of the term “compelling reasons”, in particular of the adjective.
(5) The meaning of the term “failure of duty” must be seen in the same context.
(6) In particular a disruption of attachment can in certain circumstances meet the “compelling reasons” test, as defined in Mr. Durcan’s argument.
(7) It was submitted that the learned trial judge had ample grounds for coming to the conclusion that he did and that his views on the facts should not be disturbed.
(8) Sections 3, 14, and 16 of the Guardianship of Infants Act, 1964, are all applicable on the hearing of this Article 40 application. This argument was somewhat nuanced in that it was conceded that s.3 applied subject to the constitutional presumption which was conceded to exist. Mr. Durcan said however that “If we rebut the presumption then s.3 applies in its full bloom, so to speak”.
(9) It was submitted that the actions of the applicants can and do constitute a failure of duty within the meaning of Article 42.5 of the Constitution.
(10) There was finally advanced a somewhat stark argument in relation to the form of relief available. It was said that the only form of order which could be granted in these Article 40 proceedings was an order for the immediate transfer of the child to the natural parents. Mr. Durcan S.C. submitted “You cannot make a phased reintroduction order in Article 40 proceedings, even if the evidence establish that such an order would be in the interest of the child”. (Emphasis added).
The learned High Court Judge had held that, in the circumstances of this case, abandonment of the child by her natural parents had been established. It is fair to say that he made this finding only after adopting a novel and somewhat technical meaning of the words “abandonment” and “desertion”, a meaning less pejorative than the words bear in their ordinary significance. On the hearing of this appeal, however, Mr. Durcan said that he “was not seriously standing over” those findings. In my view this was an entirely proper concession for Mr. Durcan to make, because there is no permissible meaning of those rather stark words which could possibly be applied, on any view of the evidence, to the conduct of the natural parents in this case. Instead, he placed his principal reliance, on this aspect of the case, on the concept of “conduct” as it appears in s.14 of the Act. This submission will be further discussed below. But it is clear that the respondents’ abandonment of the learned trial judge’s findings that the applicants had abandoned the child is a significant shift in their case as pleaded from the start and as argued, apparently, throughout the 23 day hearing in the High Court. The respondents’ new stance suggests a belated recognition that there was no evidence at all capable of supporting this grave allegation. In my view, it should never have been made.
The allegation of failure in duty to the child is of course also a most serious one to bring against parents and this was persisted in up to the end.
The J.H. test.
A passage in the judgment of Finlay C.J. in the case of In re J.H., cited above, is so central to Mr. Durcan’s argument that it is necessary to quote it extensively. It is as follows:
“Where a parent has -
(a) Abandoned or deserted a child or
(b) Allowed a child to be brought up by another person at that person’s expense… for such a length of time and under such circumstances as to satisfy the Court that the parent was unmindful of his parental duties,
the Court shall not make an order for the delivery of the child to the parent unless the parent has satisfied the Court that he is a fit person to have the custody of the child”.
The last paragraph of the above quotation is that on which Mr. Durcan relies as containing the test for which he contends. He refers to the two preceding paragraphs as setting the context of that test and I have accordingly included them in the citation.
It will however be noted that the J.H. case in its relevant portion was a claim for relief under the Guardianship of Infants Act, 1964. This Section is not directly at issue in the present proceedings. However, though not specifically invoked in the applicant’s proceedings it was not seriously disputed that s.3 applied subject to the constitutional presumption set out in the third paragraph of the above quotation.
By reason of the centrality of the passage, I propose next to set out the third paragraph quoted above with the deletion of material not immediately relevant to the present case. This, I am satisfied, is necessary to deal clearly with a particular and central submission advanced by Mr. Durcan. Thus treated, the paragraph reads as follows:
“In the case, therefore, of a contest between the parents of a legitimate child - who with the child constitute a family within the meaning of Articles 41 and 42 of the Constitution - and persons other than the parents as to the custody of the child, as this case is, it does not seem to me that s.3 of the Act of 1964 can be construed as meaning simply that the balance of welfare as defined in s.2 of the Act of 1964 must be the sole criterion for the determination by the Court of the issue as to the custody of the child. To put the matter in another way, it does not appear to me that this is a case, as would be the situation in a contest between the parents of a legitimate child as to which of them should have general custody, where the Court could or should determine the matter upon the basis of the preferred custody, having regard to the welfare of the child as defined in s.2 of the Act.
A child of over two years of age, as this infant is, in the dominant or general custody of persons other than its parents and continuing in such custody against the wishes of its parents, cannot be said to enjoy the right of education by its family and parents granted by Article 42, s.1 of the Constitution. And no additional arrangements, as were indeed put in train in this case by the orders of the High Court for access by its parents to the child or participation by them in the decision-making processes concerning its education, could alter that situation. Furthermore, notwithstanding the presumption of validity which attaches to the Act of 1964 and the absence of a challenge in these proceedings to that validity, the Court cannot, it seems to me, as an organ of the State, supplant the right to education by the family and parents which is conferred on the child by the Constitution unless there is established to the satisfaction of the Court a failure on the part of the parents as defined in Article 42, s.5 and ‘exceptional circumstances’.
I would, therefore, accept the contention that in this case s.3 of the Act of 1964 must be construed as involving a constitutional presumption that the welfare of the child, which is defined in s.2 of the Act in terms identical to those contained in Article 42, s.1, is to be found within the family, unless the Court is satisfied on the evidence that there are compelling reasons why this cannot be achieved, or unless the Court is satisfied that the evidence established an exceptional case where the parents have failed to provide education for the child and to continue to fail to provide education for the child for moral or physical reasons.”
This is the passage relied on by Mr. Durcan as grounding what he consistently called the “compelling reasons” test. The paragraph then continued:
“… Section 3 of the Act of 1964 must be construed as involving a constitutional presumption that the welfare of the child… is to be found within the family, unless the Court is satisfied on the evidence that there are compelling reasons why this cannot be achieved…”.
“… or unless the Court is satisfied that the evidence establishes an exceptional case where the parents have failed to provide education for the child and to continue to provide education for the child for moral or physical reasons”.
Throughout his submission, Mr. Durcan referred to the “compelling reasons test”, which he contrasted with the “failure of duty” test. Each was a test which, if met, would mean that the constitutional presumption in favour of the natural family was displaced. Mr. Durcan emphasised that, in his submission, it was sufficient for him to meet either of those tests to have the effect he desired. As his submissions went on it was clear that the term “compelling reasons” as he used it was divorced from the context in which it appeared in the judgment of Chief Justice Finlay and was increasingly used in a different sense to that in which it appeared there. Unfortunately, it came to be used in the same sense in the judgment of the learned trial judge. It is quite clear to me that, in order properly to rely on the authority of the judgment of the former Chief Justice in J.H., the phrase must be used in the context in which Finlay C.J. used it.
Mr. Durcan’s novel usage of the phrase was not accidental. It was based on a very particular, indeed peculiar, construction of the phrase which Mr. Durcan expressed as follows:
In my view, there is no support whatever for this construction of the phrase. The word “compelling” is an adjective and the noun it qualifies is “reasons”. Unless the basic norms of the English language are to be ignored for the purposes of making an argument, it follows that it is the reasons which must be compelling. The reasons in question are reasons why the welfare of the child cannot be secured or achieved in the natural family. The phrase “compelling reasons” is a fairly familiar use of language. I would not normally subject a passage in a judicial decision to the sort of minute linguistic analysis which is sometimes appropriate in the construction of a statute. But I feel compelled to do so here in order to illustrate that the ingenious argument advanced by Mr. Durcan, which is quite central to this aspect of his case, is wholly insupportable.
The ordinary meaning of the verb “compel”, according to the Oxford dictionary, is “to urge irresistibly, to constrain, to oblige, to force”. A compelling (or coercive) argument is one which, once its premises are established, leaves no option but to accept the conclusion. The phrase “compelling reasons” is to be understood in the same sense. Mr. Durcan’s argument ignores both the existence of the word “reasons” and the (grammatically and logically) obvious exclusive reference of the word “compelling” to it.
If the relevant passage is read as I have found it should be, it requires the Court to be satisfied, on evidence, that there are compelling reasons why the welfare of the child “cannot” be achieved in the constitutional family. I believe this to be both the correct meaning of the phrase in the ordinary and natural meaning of the words used, and equally to be the only meaning consistent with the constitutional context. The phrase “compelling reasons” why the child’s welfare cannot be secured in the family, plainly connotes that, to meet the test, there must be found coercive reason to believe that the proper nurturing of the child in the natural family is not possible. The phrase therefore has a natural and inescapable significance for the type of evidence required and the standard it must meet. In his judgment in the same case, indeed, McCarthy J., speaking of the same phrase, said:
“I say that it is the nature of what may happen that must be ‘compelling’, and not the evidence or the burden of proof. The test is met if what may happen is so compelling as to interfere with the welfare of the child”.
Mr. Durcan’s alternative view of the phrase “compelling reasons” has informed the respondents case from the beginning, when they pleaded that “There are compelling reasons why the child should remain with the [the proposed adopters]”. This distorts the test and impermissibly shifts its focus from its original one: are there compelling reasons why the welfare of the child cannot be achieved within the family? There is no element of the comparative to the question thus put.
The effect of this distortion of the test is far reaching, and specifically it colours the approach to the expert evidence. While it is for an expert to testify in accordance with his or her genuine views and expertise, it is for a lawyer to guide expert testimony towards the legally relevant issues. The test proposed by the respondents subtly but radically subverts the true test, to the point where it does not seem to me that the respondents’ expert was asked to opine on it at all. This conclusion is strengthened by reading the expert’s view of her role in the “reasons for referral” section of her report. The alternative test proposed by Mr. Durcan focuses on what may happen on the worst view and asks whether that would be a “compelling” event, in the sense of a grave or serious one (“… it is the nature of what may happen that must be ‘compelling’…”). But the true test is that set out in the previous paragraph and asks whether there is coercive or strong reason to believe that the proper nurturing of the child in the natural family is not possible. The law has always recognised that rights and obligations must necessarily be constrained or limited by what is actually possible (ad impossiblem nemo tenetur). I believe that Chief Justice Finlay’s qualification of the constitutional presumption arising from the terms of Article 42.5, expressed in the phrase “… unless the Court is satisfied on the evidence that there are compelling reasons why this cannot be achieved…”, is simply a necessary and apt expression of that immemorial recognition of reality.
Findings of the High Court in relation to “compelling reasons”.
As will be seen below, the High Court’s reasons for finding that there had been in this case a failure in parental duty were various and complex. Having reached a conclusion on that point the learned judge turned his attention to the question of “compelling” reasons in a relatively short passage at p.101 - 103 of the judgment. Certain other topics are considered in that passage as well and it is not until p.105, after a digression, that the judge concluded “the Court concludes that failure of duty and compelling reasons have been established”. The significant findings appear to be as follows:
“The key issue is whether the Court is satisfied on the evidence that there are compelling reasons why the welfare of the child, as defined, cannot be achieved within the family… it may seem inappropriate in a case so inevitably distressing as this to speak of a burden of proof; I would merely wish to emphasise that the ‘compelling reason or reasons’ must, in my view, be clearly established”.
From this passage it appears to me that the sole basis upon which the judge concluded that what he termed the “compelling reasons” test had been met was that “the present position of mistrust… now renders the possibility of an immediate appropriate phased reintroduction… highly unlikely” so that “any process of transfer would necessarily be either precipitated or (albeit phased) take place in the absence of the trust and cooperation which is necessary to ensure that no damage would occur to [the child]”.
I do not find this reasoning readily consistent with an earlier finding of the learned trial judge, at p.76 of the judgment where he said;
“Matters cannot be seen in isolation from the other aspect of the test: compelling reasons. On the evidence any process of reintroduction would have to be careful phased and reliant on the co-operation of all those engaged in the process, and no party is entitled to exercise a veto.
But the situation of distrust which now presently exists and the relationship between the parties, including the first-named respondent, is such that it is difficult to conclude that any immediate successful phased reintroduction can take place in the short term. In so finding I am taking into account the evidence of [one of the applicants’ experts]…
The Court concludes that as a matter of probability the present position of mistrust, which I emphasise now renders the possibility of an immediate, appropriate phased reintroduction permitting [the child’s] attachment to the applicants as highly unlikely. In the circumstance the evidence leads to the conclusion that any process of transfer would necessarily be either precipitated or, (albeit phased) take place in the absence of the trust and cooperation which is necessary to ensure that no damage would occur to [the child]. On the evidence therefore which is presently available, the Court concludes that as a matter of probability, having regard to the circumstances, [the child] would thereby sustain emotional damage with the effects which have been outlined in evidence.
[The Court then briefly considered certain countervailing factors, discussed below, and continued].
But in the assessment of these issues the Court must identify those issues which are proximate and probable and which arise directly in these proceedings and weigh them against issues which may arise in the mediate and long-term. In consideration of this case I conclude that what must be dealt with now is the question of the lawfulness of [the child’s] custody and the questions which immediately bear on my alteration of that custody. One cannot but revert to the evidence of [an expert] who was asked whether in the event of a summary transfer she considered that there was a high risk of permanent and significant damage. She stated that she was absolutely opposed to the summary return of the child and her recommendation was posited on the respondents’ cooperation with the changeover. She said that circumstances might arise from the [respondents] finding it too painful or too difficult to cooperate, in which circumstances the applicant should reconsider the understanding of the best interests of [child]. When she was asked if the respondents’ found it too painful and too upsetting so that they were unable to cooperate would she still be in favour of the handover of the child, she responded that there was a very high risk of the best interests of the child not being met”.
This point is indeed repeated at the end of the first paragraph of the critical portion of the judgment on this aspect: “No party is entitled to exercise a veto”.
But it appears to me that, having held that “In no circumstances could a court countenance a veto based either on bona fide reasons or otherwise…”, the learned trial judge then based his decision to the effect that the “compelling reasons” test had been met precisely and exclusively on the prospect that the attitude of the respondents, and the distrust between the parties, would preclude the transfer of the custody in accordance with best practise. It appears to me inescapable that this reasoning in practice confers a veto on the respondents. The evidential basis for the view that they would withhold their cooperation will be considered later.
Expert evidence and the attitude of the respondents.
On the topic of the expert evidence in this case and the learned trial judge’s approach to it, I agree so completely with the judgments about to be delivered by Geoghegan J. and Fennelly J. that I forebear to traverse the same ground. Much of it is, as the respondents’ expert Professor Iwaniec said in the context of the modality of any return to the custody of the natural parents, “almost common sense”. Nor, allowing for the natural differences of emphasis between persons, expert or not, expressing fundamentally similar views, was there a great deal of distinction to be made between the experts. It is perhaps insufficiently noted in the High Court judgment that two at least of them, including Dr. Iwaniec, spoke eloquently of the benefits of being reared in one’s natural family. The evidence as to the capacity of a child to form attachments is such that no-one, expert or not, could dissent from it: like certain other aspects of the case it is a matter of which mankind has had conscious experience for millennia. Nor could anyone, expert or not, doubt the desirability of making any change in the child’s custody a planned, phased and gradual one and the much better prospects, especially in the long term, of a transfer of custody thus affected. Nor, on the evidence, was there any suggestion of any difficulty in arranging this in the present case except the possible difficulty from the prospective adopters. I would simply make two comments, additional to those of Geoghegan J., upon this state of evidence. Firstly, the attempt to suggest there was anything in the evidence in this case which could be used to distinguish or disapply the cases of J. or J.H., cited above, absolutely failed. A perusal of, for example, the report of the latter case, extending to the judgments of Lynch J. in the High Court as well as those in the Supreme Court, manifests a consciousness of the difficulties of transferring a child from custody where it has formed attachments no less informed and sensitive than that emerging from a perusal of the evidence in the present case. Moreover, insofar as the two cases mentioned were distinguished on the basis of a difference in psychological insights, this was done in the judgment of the learned trial judge in an extremely general fashion, and does not refer to any specific evidence for the conclusion distinguishing J.H. It is clear that the Court in that case had the benefit of expert evidence of the highest quality.
But the nub of the matter, in the end, is not found in any difference of expert testimony but on the weight to be attached, against the background of the expert testimony, to the threatened refusal of the second and third-named respondents to co-operate in any way with a phased handover. It is important to emphasise that what was relied upon was not (according to Mr. Durcan) a wilful refusal to co-operate but what was said to be an inability to do so. The concept of non-cooperation due to distrust does not seem to me consistent with an emotional inability to co-operate but rather with a decision to withhold co-operation, based on an intellectual judgement or assessment by the respondents.
“This is not to ignore the risk, which must not be ignored, that for bona fide reasons the [respondents] may be unable to cooperate in a transfer process. But in no circumstances could a court countenance a veto based either on bona fide reasons or otherwise when issues of this type are at stake”.
The Respondents position on re-introduction. In this connection I wish to emphasise my agreement with what the learned trial judge said in a passage cited above:
Unfortunately, it seems to me that the learned trial judge in effect departed from this finding in his subsequent ruling. As already explained I am of the view that while his findings as to failure in duty was a complex and nuanced one, his findings at what he described as “compelling reasons” test was exclusively based on this aspect: the probable non-cooperation of the second and third-named respondents with a planned reintroduction of the child to the natural parents, due to “mistrust”.
Apart from any other question, I must say that I cannot admit this prospect as a legitimate consideration. There is ample and uncontradicted evidence from reputable sources that a phased reintroduction is required in the interests of the child. No-one can doubt that this process would be very distressing for the prospective adopters, perhaps heartbreaking, but the risk of this grief is one (as I have already pointed out) necessarily undertaken by mothers as well as by prospective adopters, and the risk of it is something specifically drawn to their attention at the start of the adoption process. The evidence for the proposition that such co-operation would not be forthcoming in this case seems to me to come down to the ipse dixit of the second and third-named respondents: it was noteworthy that while certain other witnesses speculated as to the difficulty of the necessary co-operation, the expert deployed by the respondents themselves, Professor Iwaniec was careful to say that she had not actually “dealt with” what would be required with them. It is also noteworthy that the learned trial judge in the curial passage of his judgment on this aspect, cited above, seemed to attribute the prospect of a lack of co-operation to the distrust between the parties rather than to emotional inability on the part of the second and third-named respondents. As Fennelly J. has pointed out, most of the evidence of mistrust related to distrust between the parents and the social workers, rather than between the parents and the proposed adopters.
This Court is here exercising a constitutional jurisdiction which obliges it, unless satisfied that the child is in the custody of the respondents in accordance with law, to release her from such custody, a proposition for which J.H. is a sufficient authority. The withdrawal of the mother’s consent and her request for custody of the child, in the circumstances of this case, seem to me to require the child’s release from such custody. On this fundamental question, the second and third-named respondents own statement as to what they think they might be able to do, or unable to do, after their custody is terminated is not dispositive. Nor can I accept that their self characterisation on this topic can interfere with the express constitutional right of the child to be reared in her family i.e. by the applicants. Apart from these fundamental considerations, I agree with Geoghegan J. that failure, to co-operate with an arrangement so plainly in the interests of the child as a phased reintroduction, would, if indeed such failure occurred, cast doubt on their sincerely proclaimed affection for the child and on their entertaining, with regard to her, true parental feelings. I hope and am, I think, entitled to presume (or “posit” as Professor Iwaniec did) despite what has been said, that the child’s interests would in the end govern the respondents’ actions. But even if it did not, that fact cannot itself be used to deny the child, and her natural parents, the order they are otherwise, in my view, entitled to.
Findings of the High Court on failure in duty.
On the hearing of this appeal, no party found it easy to identify with precision the learned trial judge’s reasons for finding that the natural parents, for physical or moral reasons, failed in their duty towards the child. The judge’s reasoning on this topic is to be found in a lengthy portion of the judgment extending from p.94 - p.101. At p.97 the learned trial judge rejected the submission that a failure in duty was established simply by reason of the parents’ placement of the child for adoption. This finding is undoubtedly correct and in accordance with authority. But the learned trial judge continued “However when combined with other cogent material there may be sufficient evidence, even having regard to the constitutional presumption, to demonstrate that there has been such a failure”.
On the next page the learned trial judge found that the applicants, at the time the child was placed for adoption, could have “albeit with difficulty” provided for the child themselves. This appears to me to exclude the rational possibility of finding a failure in duty towards the child for physical reasons, leaving only the possibility of a failure for moral reasons open. The learned trial judge then continued, at p.98:
“This is not to ignore the risk, which must not be ignored, that for bona fide reasons the [respondents] may be unable to co-operate in a transfer process. But in no circumstances could a court countenance a veto, based either on bona fide reasons or otherwise when issues of this type are at stake”.
There then follows a lengthy passage, between p.98 and the end of p.100 which addresses the evidence of experts as to what would be necessary in order to transfer the child, already attached to the respondents, to the custody of the applicants. This passage also addresses the distrust which existed between the parties. The learned trial judge continued at the end of p.100:
“I do not consider that the placement of [the child] for adoption, and the cessation of the parental duties which thereby took place was either culpable or blameworthy. I have already pointed out my view to the contrary in the instant case. In my view what was done was both a brave and a generous gesture. It was done with [the child’s] best interests at heart. However it is one factor to which the Court may have regard in an assessment of whether or not there has been a failure of duty”.
The first striking features of this passage are the two specific findings: first, that it would not have been physically impossible for the applicants to have provided for the child themselves. Accordingly, they could not be regarded as having failed in their duty for physical reasons. The second specific finding is the rejection of the proposition that a placement for adoption could in itself constitute a failure in duty. But it is made perfectly clear that it is at the same time one factor which the Court may have regard to on the question of whether or not there has been a failure in duty.
The next striking feature of the passage is that, apart from the two specific findings noted above, it is expressed at a high level of generality or vagueness. Mr. Durcan S.C. attributed this to the fact that “The English used is unfortunate”. I disagree. I am satisfied that this quality results from the learned trial judge’s commendable desire to be as emollient as possible in this very sensitive case. But it has the consequence that it is very difficult to ascertain in what precisely the failure in duty is thought to reside. A large number of matters are mentioned without any specific identification of how, precisely, they constitute or contribute to a finding of failure in duty on the part of the applicants, whether each bears the same weight or, if not, which predominate. A considerable number of these matters - those listed in the paragraph quoted above beginning “Having regard to the evidence…” - relate to the stages of the adoption procedure itself, and the applicants participation in it. The learned trial judge correctly concluded that the placing for adoption in itself could not constitute a failure in duty but goes on to hold that it, and the subsequent steps in the adoption procedure, are amongst the factors which “taken together” can lead to a finding of failure in duty. Whether this is a proper approach to the question of failure in duty will be next considered below, with the assistance of authorities some of which were cited by the learned trial judge.
As I construe the other factors mentioned, they appear to be as follows: leaving the child with the adoptive parents for such a period as made it likely, as actually happened, that she would become attached to them; not cooperating with a proposed assessment by a named expert but instead obtaining their own, leading to a “discontinuity in the evidence”; and “the distrust which now most unfortunately exists between the applicants and the first-named respondent and the second and third-named respondents”. The attitude of the applicants to the Health Service Executive and its employees is then summarised in a passage which concludes “It is difficult to avoid the conclusion that these views are explicable by human nature”. That is very kind, but not very informative.
Legal status of the placement for adoption and later actions.
It is, as the learned trial judge found, beyond argument that the placement for adoption cannot in itself amount to a failure in parental duty. A consideration of the reasons for this, as they have been identified by the Courts, is useful also in considering the legal status for present purposes of actions subsequent to the placement, forming part of the adoption process. Specifically, the question arises of whether these matters can legitimately be regarded as constituting or forming part of a failure in duty. The cases go further than simply deeming the actual placing for adoption not to be, per se, a failure in parental duty.
For forty years now it has been contended in cases such this that the act of placing a child for adoption evidences either a failure in duty or an abandonment or desertion of a child so as to trigger certain provisions of the Guardianship of Infant Act, 1964, or its statutory precursors. Such submissions have always been rejected. Re J. an Infant  IR 295, was a case whose facts are remarkably similar to those of the present case, though it obviously predates the Adoption Acts of 1974 and 1988. In his judgment Teevan J., one of the members of a Divisional Court of the High Court, summed up the position as follows:
“Having regard to the evidence I consider that there has been established a failure of duty sufficient to rebut the constitutional presumption by reason of these present factors taken together: there is also the placement of [the child] for adoption, the reaffirmation by signature of the Form 10 on the 22nd April, 2005, the signature of the final adoption form on the 7th July, 2005, and the evidence which I accept surrounding the access which took place on 8th August and its immediate aftermath. While these factors together may not constitute acquiescence or waiver from the relief sought they are nonetheless important. In her letter of the 24th October, 2005, the second-named applicant stated that she had placed matters ‘on the long finger’ by which she meant she had deferred the revocation of consent to the adoption until 26th September, 2005. The reasons for that were completely understandable.
Further, while the applicants may not always have held the knowledge which they now have in relation to the issues of attachment, they did have some commonsense information reflected in their desire that the third-named respondent should not work for a one year period - that was their desire that [the child] should settle and establish strong links with the persons who were attending to be her adoptive parents. These were issues which were in the applicants’ minds at the time of [the child’s] placement for adoption. It was an issue of sufficient importance for them to raise it in the course of their discussion which took place in an atmosphere of goodwill with regard to [the child’s] future. These provided the context in which [the child’s] bonding and attachment took place.
It is the tragedy of this case that the atmosphere of goodwill which there was for [the child] and the priority which all parties had for her best interests has ended in this situation. However having regard to these factors taken together the Court concludes that there was a failure of duty as defined”.
This is a suggestive passage in a number of ways. But specifically its inconsistency with the proposition that the act of placing for adoption could constitute a failure in duty is obvious.
The issue was more specifically addressed in G. v. An Bord Ucthála  32. In the course of his judgment in the Supreme Court Henchy J. said at p.89:
“Originally the respondents’ custody of the child was legal, for it was with the consent, indeed on the desire and request, of the mother that the infant, then an illegitimate child, was placed in such custody. The mother has withdrawn her consent to the child remaining in the custody of the respondents. The respondents, nevertheless, refused to return the child to her parents. The respondents are devoid of right in the matter. They have no legal right to or over the child. They cannot therefore set up a right in themselves as a cause against an order of Habeas Corpus. To my mind that is the end of the case.”
In Re J.H., cited above, Finlay C.J. set out the facts of the placement of a child for adoption, held that this was done in the best interests of the child and concluded “I am satisfied that the mother never abandoned or deserted the child or abandoned her rights to the child and that she is a fit person to have custody of and to rear the child”.
Lynch J., in the circumstances of that case, had to address the provisions of s.3 of the Adoption Act, 1974, permitting a court to dispense with the consent of the natural mother. He held, at p.383:
“If, contrary to my opinion, it could be held that the mother of an illegitimate child has a constitutional right to the custody of her child, a consent to placement for adoption could never amount, in itself, to an extinguishment of that right, for it amounts to no more than a consent by the mother to putting her rights or some of them in temporary abeyance. It is difficult to see how s.3 of the Act of 1974 could be operated to defeat the mother’s un-forfeited or un-abandoned constitutional rights, when the test is what is in the best interests of the child rather than the effectuation of the child’s constitutional rights, which rights may be satisfied whether the adoption order is made or not.”
Finally, the status of a placement for adoption, and of certain subsequent matters in the adoption process, was considered by this Court in MOC v. Sacred Heart Adoption Society and Ors.  1 ILRM 297. Here the submission was specifically made that, by placing her child for adoption, a mother was surrendering or abandoning her rights, both constitutional and legal. This view was described as “fundamentally misconceived”. The unanimous judgment of this Court, that of O’Flaherty J., set out a passage of the judgment of Henchy J. in G., cited above. Speaking of the consent to the placement of the child for adoption the learned judge said:
“… The Section must be read consistently with the continuing right of a natural mother to refuse, or withdraw, her consent to the adoption of her child without such refusal or withdrawal being liable to be automatically overwritten by an order of a court under the Section should the proposed adopters apply for such an order. Section 3 of the Adoption Act, 1974, does not purport to appeal or abolish the natural mother’s right to refuse or withdraw her consent to the adoption of her child and indeed that right has been reiterated in s.3 of the Adoption Act, 1976.
The Court must therefore respect the natural mother’s right to refuse or to withdraw her consent to the adoption of her child…”. ( Emphasis added)
Continuing, O’Flaherty J. said:
“This consent acts to produce a temporary derogation or suspension of the mother’s rights to custody. It does not amount to a waiver or abandonment so as to destroy the mother’s rights: only the adoption order can have that effect. Until the passing of the Act of 1974, the mother’s consent to the making of an adoption order (which is the second consent) could not be dispensed with. Now, under s.3 of that Act, it may be dispensed with provided the High Court so permits on being satisfied that it would be in the best interests of the child.”
I pause to observe that the Act of 1974 cannot apply to the child at the centre of this case, because she is the child of married parents and could only be the subject of an adoption order under the terms of the Adoption Act, 1988, which will be discussed below.
It is clear that these authorities make it impossible in regard to a placement for adoption as constituting a failure in duty. But Mr. Durcan did not abandon the possibility that the Court might take a different view. Confronted with the volume of authority just indicated he said:
“The correct approach is to regard the mother’s constitutional rights as subsisting right up to the time that an adoption order is made by the Adoption Board. It is clear, of course, that those constitutional rights will have undergone a modification by virtue of the fact that she has placed the child for adoption and, as Finlay C.J. points out, the possible consequences that my flow from that decision must be made very clear to her. But the fact that she has placed the child for adoption is by no means the end of the process. The High Court Judge in deciding whether an order should be made dispensing with the consent must, of course, bring all his or her experience and powers of intellect, as well as of heart, to bear on what will often be an excruciatingly difficult decision. In doing that the judge must always put at the forefront of all considerations what the best interests of the child require having regard to the terms of s.3 of the Act of 1974.”
Mr. Durcan suggested that this long established position now has to be “looked at” in the light of other cases of which he mentioned specifically Northern Area Health Board and Ors. v. An Bord Uchtála  4 IR 252. This case turned on s.3(1)(i)(a) of the Adoption Act, 1988. The MOC case is not mentioned in the judgments and to my recollection was not mentioned in the argument. Mr. Durcan conceded that neither in this case “nor in any of the others I have in mind” was there any dissent from or reluctance to follow what was said in this topic in the cases cited, notably MOC. But he said, the cases he had in mind suggested a different approach. He did not put this point further.
I entirely agree with what is said about the Northern Area Health Board case in the judgment of Mrs. Justice McGuinness.
The case of MOC is the last of a number of cases emphasising that a placement for adoption cannot be a failure in duty towards the child so placed. But it goes further. It points out that the placement, though incapable of constituting a failure in parental duty, constitutes a modification of the mother’s constitutional rights in relation to the child. This modification is all the more significant for practical purposes on the signing of the second consent, the consent to the making of an adoption order: if consent is withdrawn the Court may in certain circumstances, on the application of the proposed adopters, make an order dispensing with consent and authorising the Adoption Board to make an adoption order in its absence. This, however, in my view, is the full extent of the possible consequences flowing from a mother’s withdrawal of her consent. It is a consequence which is in no way punitive or based on a failure in parental duty by her for moral reasons. On the contrary, I wish to adopt the words of Lynch J. in J.H. cited above where he says that the Court must respect the natural mother’s right to withdraw her consent to the adoption of her child and that s.3 of the 1974 Act must be read consistently with the “continuing right of a natural mother to… withdraw her consent to the adoption of her child…”. The fact that a withdrawal may in certain circumstances be followed by an order dispensing with the consent does not in any way trench on the mother’s rights to withdraw her consent, or permit her to be penalised for doing so.
Accordingly it seems to me to be impossible, and contrary to authority, to regard any of the specific matters listed by the learned trial judge which are part of the adoption process as constituting any part of the basis for a finding of breach of duty. These are “The placement of the child for adoption, the reaffirmation by signature of Form 10 on the 22nd April, 2005, the signature of the final adoption form on the 7th July, 2005, and the evidence surrounding the access which took place on the 8th August and its immediate aftermath”. All of these matters flowed from the initial placement for adoption and all but the last are part of the statutory process. The last factor was an arrangement come to through the social workers and is my view part of the adoption process as applied in this case.
There are two other features of the learned trial judge’s findings in this respect which I think it necessary to discuss. Firstly, it is in my view fundamentally unsound to regard something (such as the withdrawal of consent) which on the authorities the mother has a perfect right to do, which right the Courts must respect, as constituting the whole or any part of a failure of a parental duty by her. This much is, I think, plain from the foregoing passage of this judgment. It appears to me that the learned trial judge was misled by the fact that such withdrawal might (not would) have had the consequences of allowing a court to dispense with her consent into thinking that such consent was therefore a failure in duty, or one of the factors which together with others might constitute a failure in duty.
But even if, contrary to my view, placement for adoption, the signing of the first consent, the signing of the second consent or the subsequent withdrawal of consent could constitute, alone or in combination with other things, a failure in parental duty, it would be absolutely necessary that this should be explained in unambiguous terms to a young woman contemplating the placement of her child for adoption. There is no need to enlarge on the difficulties, emotional and otherwise, and pressures to which such a person is naturally subject. Equally, the law on this topic is very clear. In MOC, cited above it was put as follows:
“I accept that the previous authorities would view the placement for adoption as incapable of constituting a failure of duty”. (Emphasis added)
It was put thus in O.G. v. An Bord Uctála  ILRM 514 by Finlay C.J.:
“Now, there is no doubt that the placement for adoption is a giant step and may lead to the High Court later dispensing with the consent of the mother to the adoption - which is this case. Therefore, the consequences of placement for adoption must be explained very clearly to the mother.”
There was no suggestion that in this case, or in any other case, the mother was told that the mere act of placing her child for adoption itself or the later stage of the process constituted any part of the facts upon which a court might later be asked to find that the mother had failed in her duty towards her child.
In the course of the appeal hearing, Mr. Durcan S.C. was asked by the Court whether, on his argument, the possibility of the placement for adoption, and participation in later stages of the adoption process, being regarded as part of the evidence contributing to the finding of failure in duty should not have been explained to the adoptive mother. A similar question was raised at the same time about certain other points he made, relating to the development of attachment between the child and the adoptive parents. These questions arose in part because Mr. John Rogers S.C., who made brief submissions on behalf of the Health Service Executive, had expressed a concern that if Mr. Durcan’s submissions were correct there might be very considerable consequences for the whole adoption, and indeed fostering, process.
Mr. Durcan replied to this by saying that assuming his submissions to be correct, “There wouldn’t be a change in what a woman putting a child up for adoption would need to be told”. He reiterated that the placing of a child for adoption “is capable of constituting a part of what is required to establish abandonment or failure of duty”. He said that it was “desirable” that a woman placing a child for adoption be told of this possible effect of a placement and the succeeding stages, and of the development of attachment for persons other than her parents, but maintained that “it’s not necessary”.
I cannot too strongly reject this submission. In my view, based on the principles set out in the two cases last cited, it is essential that a young woman thinking of placing a child for adoption should have the whole of the legal consequences of her actions explained to her in language she can understand. Mr. Durcan’s submission amounts to saying that it is sufficient if some, but not all, of these consequences are explained. He gave no authority, and I do not believe there is any, for his submission that it was merely desirable, but not necessary, that all of the consequences be explained. For a court to hold, in the absence of such explanation, that the initial placement for adoption itself might be regarded as constituting part of the evidence for a parental failure in duty, which might divest her of her parenting rights and cause her to lose contact with her child, would be to approve a form of ambush of a person in a vulnerable position.
Accordingly, even if Mr. Durcan were correct in his submission that the placement for adoption and the other matters relied on could constitute part of the evidence establishing a failure in parental duty by the mother, I would hold that the failure to inform of her this possibility would invalidate the placement and all subsequent stages of the adoption process.
The second rider I wish to add to my discussion of the topic of failure in parental duty arises from the learned trial judge’s (to me) puzzling assertion that a considerable number of the matters which he relied on as establishing failure in duty were nevertheless neither culpable nor blameworthy and in some cases were positively laudable. It will be recalled that, as I understand it, the judgment of the learned trial judge excluded a failure in duty by the applicants for physical reasons.
In In the matter of Article 26 of the Constitution and in the matter of the Adoption (No. 2) Bill 1987  I.R. 656 Finlay C.J., giving the judgment of the Court, considered the provisions of s.3 (I) (A) of that measure. This spoke of a failure in duty towards a child, in terms indistinguishable in meaning from the language of Article 42.5. At p.664 Finlay C.J. said:
“A mother agreeing to place her child for adoption could not be said to reach a fully informed decision so to agree, unless at the time she made the agreement she was aware that the right which she undoubtedly has to withdraw that consent or to refuse further to consent to adoption is subject to the possibility that on application by the prospective adopting parents, the Court could conclude that it was in the best interest of the child to dispense with the mother’s consent and if, following upon such a decision the Bord decided that it was appropriate to order the adoption of the child, she (the mother) could lose, forever, the custody of the child”.
In the present case, both a failure in duty for physical reasons and a failure for reasons outside the control of the applicants, have been excluded from consideration, and properly so. This appears to me to leave only the possibility of a failure in duty for moral reasons. I am unable to see how such a failure would not be in some degree blameworthy. I believe that there is a deep contradiction in the judgment of the learned trial judge in this respect. As already stated, I believe that this arises from his very laudable desire to be as kind and emollient as possible. But it gives rise to such conundrums as how the placing for adoption, and the suspension of certain parental duties which thereby took place, can be described as “neither culpable nor blameworthy” but instead “both a brave and a generous gesture, done with [the child’s] best interests at heart”, and can also be, at the same time,“one of the factors to which the Court may have regard in the assessment as to whether or not there has been a failure of duty”.
All of the foregoing phrases appeared in the same paragraph, of the judgment. They are in obvious tension with of each other, especially when one reflects that the only failure for which there is scope in this case is a failure in parental duty towards the child for moral reasons.
Although very kindly meant, it is not in the end a kindness to the applicants so to lower the requirements which must be met to establish a morally based failure in parental duty towards the child, as to include matters which are not merely not blameworthy but are actually laudable. By almost emptying the words of Article 42.5 of meaning this exposes the parents to a finding of failure in their duty to the child when they have been guilty of no such thing. A failure in duty to a child, for reasons other than illness or impossibility, is a grave moral failing which cannot be committed without personal fault. A “failure in duty” is the condition precedent, in Article 42.5 of the Constitution, to the supplanting of parental function by the State. This supplanting cannot take place except for grave reason. If one reads “failure in duty”, in circumstances like those of this case, as not necessarily involving either incapacity or a grave moral failing, one seriously dilutes the protection which Article 42.5 was intended to confer on parents against their position as such being undermined by over-ready State intervention in the family. I would repeat in this context what I said in North Western Health Board v. H.W., cited above, in construing Article 42.5. The need to establish “failure in duty” is a bulwark of the rights of the family and its members. Any dilution of the content of the phrase undermines that protection. In this case the respondents have submitted that the parents can be found, for moral reasons, to have failed in their duty towards the child, and this submission has been upheld, without any finding of personal fault. Such an interpretation risks reducing Article 42.5 of the Constitution to an empty formula. I respectfully agree with the observations of Fennelly J. on this subject.
Other aspects of “failure”.
It follows from my findings above that I consider that the learned trial judge erred in construing a failure in parental duty towards this child in part from the act of placing for adoption and the other specific matters set out at paragraph 100 of his judgment. That finding is, in my view, sufficient in itself to set aside the findings of the High Court that the applicants had failed in their parental duty towards this child. However, since the weight which the learned trial judge attributed to any particular factor in reaching his decision as to failure in duty is not stated, I will briefly consider the other factors which, apparently, fed into this decision. They have been summarised above. I have read the treatment of these factors in the judgment of Mr. Justice Geoghegan and I agree with it. I simply cannot see how non-attendance on a particular expert can be reckoned as constituting or contributing to a breach of duty when a High Court order has made it perfectly clear that the applicants were under no obligation to attend that particular gentleman. Since attendance was optional, there is no obligation on the applicants to justify their non-attendance: they were perfectly entitled to, and did, consult an expert of their own. Both experts are competent and reliable people and there was never any suggestion to the contrary. I frankly do not understand what is meant by the observation that the applicant’s failure to attend the first expert led to a “discontinuity in the evidence”. The case did not, in the end, suffer from any insufficiency of evidence. But the basic point is a blindingly simple one: attendance on the named expert was, by Court order, optional: therefore omission to attend cannot in any sense be reckoned as a failure in duty. The adoption process has a time scale of its own, not dictated by the parties. In any event, any such breach of duty, to be properly considered in this aspect of the case, would have to be a breach of duty towards the child. It is quite impossible to see how consulting Dr. Byrne rather than Dr. McDonald could be so regarded.
I have already set out my view that neither the placing of the child for adoption nor the actions of the mother in the later stages of the adoption procedures, while the child was in the custody of the prospective adopters, could constitute “failure in duty”. By parity of reasoning I do not believe that inevitable passage of time involved in those procedures, during which a child will naturally bond with those of who have custody of him or her, can constitute a failure in duty. I am impressed by the fact that it is now between thirteen and fourteen months since the mother clearly and unambiguously withdrew her consent to adoption and asserted her right to have the care and custody of the child. I do not believe that the considerable lapse of time since she did that can be laid at her door. It appears to me from a perusal of the documents, and from certain of the findings of the learned trial judge referred to above, that certain social workers, at least, reacted badly to her decision and very much favoured the adoption of the child by the proposed adopters. Unfortunate language was used in this connection, and perhaps absolutely inappropriate language on occasion. The mother was referred for counselling but there seems to have been a misunderstanding between the parties as to what precisely the purpose of the counselling was. The authorities do not appear to me to have responded with a proper level of urgency and seriousness to this major decision on the part of the mother, which she was entitled to have respected, up to the time when she and her husband embarked on the present proceedings.
The learned trial judge also appears to have taken into account, as a matter grounding a finding of a failure in parental duty by the applicant, the distrust which now existed between the parties, including the professionals involved. I do not believe that this distrust is attributable wholly, or even mainly, to the applicants. It was always unfortunate, and became more unfortunate as time and events moved on, that the proposed adopters were not, as I presume they normally would be, strangers to the parents’ social worker. When this fact is viewed in association with some of the language used, an element of alarm on the part of the mother is in my view understandable, not simply on the basis of the emotions which might be attributed to her, but on a wholly objective basis. Equally, she felt that she was being stalled and I cannot find that that feeling was objectively unreasonable either. The single action in the entire history of this case most unambiguously indicative of distrust was the retention by the second and third-named respondents of a private detective to discover what he could to the applicants’ disadvantage. These aspects of mistrust cannot conceivably be regarded as constituting, or contributing to, a failure in duty towards the child on the part of the applicants, since they were not responsible for them.
Finally, there are passages in the learned trial judge’s judgment which suggest that mistrust in question is partly based on robust exchanges in court proceedings and during a mediation process. I would flatly decline to pay any attention to what happened in the mediation process, in the interest of that process itself. Clearly no meaningful mediation could take place if parties did not feel free to participate in the process without risking being prejudiced in the proceedings which would follow if the mediation was unsuccessful. The argument addressed to this Court as to damage to the relationship between the parties arising from the nature of the cross-examinations in the High Court was so vague that I could not ground any conclusion on it.
Status of the infant if relief refused.
It is clear from the foregoing that I would decline to find either that the natural parents have failed in their parental duty towards their child or that there is any compelling reason to believe that the welfare of the child cannot be secured in her natural and constitutional family consisting of herself and the two applicants. Furthermore, the allegation that the applicants had abandoned or deserted their child was, very correctly, not pursued in this Court. No suggestion that the applicants were unfit parents was ever made thereby, apart from anything else, making it impossible to apply s.16 of the Guardianship of Infants Act, 1964, as amended to the circumstances of the case. I may say that I do not regard s.14 of the same Act as having any application, being confined as it is to an order for the production of the child, an order which can be made at the preliminary stage of the Article 40.4.2 procedure which is now past.
Apart from the foregoing point, which relates to the construction of s.14 and particularly of the word “production” as it appears there and in Article 40.4.2 of the Constitution, there is a more fundamental issue on the statutory provision. If, as found in J.H., s.3 of the Act of 1964 requires to be construed in light of Article 42.5 of the Constitution, it seems to follow that s.14 must also be so construed. In the course of the argument on this appeal, Mr. Durcan was asked whether the word “conduct”, a derivative of which was used in s.14 must therefore be conduct which would meet the definition of failure in duty, as envisaged by Article 42.5. He agreed “I think that must be so”. On that basis, which I believe to be correct, the rejection of the learned trial judge’s finding of failure in duty must equally foreclose a finding adverse to the applicants under the “conduct” provision of s.14. When this became clear the applicants attempted to resile from the concession which had been made, but in my view unconvincingly so.
These findings, again apart from any other effect, appear to me wholly to rule out any prospect of the respondents meeting the onerous conditions contained in s.3 of the Adoption Act, 1988, for the adoption of a child in the circumstances of this one, whose parents are married to each other. This involves a proof of a failure in duty towards the child for physical or moral reasons, amounting to an “abandonment” on the part of the parents of “all parental rights”. It would also have to be shown that the failure on the part of the parents would continue without interruption until the child reaches the age of eighteen years. This would be quite impossible to show because it is simply not the case.
Accordingly, if this child is not restored to the custody of her parents in the natural and constitutional family, she will live with the second and third-named respondents in what one of the expert witnesses described with moderation as “a complex” situation. She will not bear their name, since she has been registered as the child of the natural parents subsequent to their marriage. They would be neither natural nor adoptive parents and the household would not constitute a natural or a constitutional family which included her. The learned trial judge, based on his findings as to failure in duty, abandonment, or desertion, held out some prospect that there might at some time in the future be an adoption by the second and third-named respondents but I can no see no prospect of that, and no grounds on which it would be proper. Accordingly the parents would remain guardians of the child with rights to be consulted on, and to influence, parenting decisions, a situation which would be replete with the potential for conflict and insecurity.
As I view the case, the applicants are the members, together with the child, of the only family the child can ever have. In the absence of some form of impossibility as expressed in the “compelling reasons” test, or of a failure in duty on the part of the applicants, the child has an imperative right to be reared nurtured and educated by her parents and the parents have a correlative right to her care and custody.
The Constitution, statute law and case law are alike protective of the position of a mother, or a family, against third parties (including the State itself) who seek to displace her or them as guardians of their child against their wishes. In the specific case of adoption, the law goes to considerable length to make sure that a mother’s consent is an informed consent freely given and even then the mother’s right to withdraw that consent is recognised in law. Third-party intervention in the rearing of a child against the will of its parents is justifiable only in exceptional cases, where the parents for physical or moral reasons fail in their duty towards their child. More specifically, adoption of a child of a married couple is possible only in very limited circumstances where there has been a failure in parental duty amounting to an “abandonment” of all parental rights.
In this case, grave allegations have been made against the natural parents of the child. I believe that these were made because only grave allegations would suffice to undermine the position of the natural parents which is very strong in law. I am satisfied that these allegations are without foundation. Some of them, including a charge that they had abandoned or deserted her were very properly not pursued in this Court and in my opinion should never have been made at all. They are unstatable both in fact and in law. Furthermore, in a case such as this where there is no question of physical incapacity to rear a child, an allegation of failure in duty to the child is also a very grave allegation. The respondents devotion to her is beyond question, as is their desire to have the care of her, but that does not mean that groundless allegations can be made in order to keep her in their custody. Certain of the other allegations made are plainly unstatable as a matter of law and again in my opinion should never have been made. In particular it is necessary to emphasise as strongly as possible, once again, that the action of a mother in placing her child for adoption can never be, either in fact or in law, regarded as a failure in the mother’s duty towards the child, or as one of the number of acts or omissions constituting such a failure. If this is not firmly recognised, the whole basis on which adoption (and possibly fosterage) takes place will be undermined and people who may be vulnerable will be unfairly stigmatised.
One of the most disturbing features of this case is the time which has elapsed since the mother requested the return of her child. At that time, she had been with the proposed adopters for ten months and was about fourteen months old. She has now been in their care for twenty-four months and is about two years and four months old. Clearly this passage of time will make her reintroduction to her parents more difficult: that, indeed, was one of the principal arguments deployed by the respondents.
But all of this additional time elapsed by reason of the omission to return to the child, or to take the legal steps under the 1974 Act which done could have justified her retention, and latterly by resistance to this application. I have to say, with regret, that I regard the arguments deployed, in answer to the parents claim to the custody of their child, as contrived. It is fair to note that, in the High Court, the Health Services Executive took the view that the child should be restored to her parents’ custody.
We have seen that the argument grounding an alleged failure in duty as originating in the placement of the child for adoption is not merely illogical and wrong, but contrary to express authority: this was indeed conceded. But this argument and it corollaries formed a significant part of the respondents’ case. And the respondents’ submissions on “compelling reasons” were artificial and deeply flawed for the reasons set out above.
These arguments, however, were necessary to the respondents’ case because, after the marriage of the parents and the re-registration of the child’s birth, the child’s entitlement to be reared by them and their entitlement to her custody were indefeasible unless the exceptional provisions of Article 42.5 of the Constitution and the statutes deriving from it could be applied. All these provisions are designed to deal with very extreme situations of parental unfitness. The respondents’ real case, which might have been made in a timely application under s.3 of the 1974 Act, was that the interests of the child would be best served in their custody. But when the parents formally asserted their constitutional and legal position in February, 2006, they were met with wholly untrue allegations that they had abandoned or deserted the child, failed in their duty to her, and given rise to compelling reasons why her welfare could not be secured in their custody. Since there was a complete absence on the facts of the sort of graphic and tragic evidence of unfitness of the parents necessary to sustain these contentions, the contrived arguments rejected in this judgment were instead deployed. Moreover, the time taken to resolve the issues thus raised was sought to be counted against the applicants. All this was in my view unfair both to the child and to her parents.
Article 40.4.2, under whose provisions this litigation arises, is one of the great bulwarks of personal liberty and of a free society. Every citizen has an absolute and unqualified right to have recourse to it on his or own behalf or on behalf of another. Clearly, most disputes as to the custody of children (the overwhelming majority of which are between natural parents) will be dealt with under the Guardianship of Infants Acts. But where, as here, it is alleged that a child is being detained in the custody of persons who have no legal mandate to do so it is the right of her parents to challenge that custody and to use Article 40.4.2 for that purpose. I would not be in any way critical of the decision to proceed in that manner. Equally, it would have been open to the proposed adoptive parents up to January 2006 to ask the Court to exercise the jurisdiction conferred by s.3 of the Adoption Act, 1974, and permit the making of an adoption order without the consent of the mother, but this was not done in the present case.
I regard as wholly disingenuous the submission made on behalf of the respondents that because the proceedings were brought under Article 40.4.2, the powers available to the Court were limited to the stark alternatives of refusing relief altogether, or directing an immediate, unprepared for, transfer of custody. The very starkness of these alternatives, it was argued, was an argument for refusing relief altogether.
I agree with the form of order proposed by the learned Chief Justice in this case. I am satisfied, for the reasons which he gives, that there is ample power to make an order in that form. I have no doubt that the power of the Court is not constrained in the extraordinary fashion contended for by the respondents. I am quite satisfied that the welfare of the child, in the long term and in the short term, as well the rights and responsibilities of the parties to this litigation, require that the order proposed should be made.
This case, of course, is decided on its own facts, and not those of any hypothetically different case. Those facts include the marriage of the parents in January, 2006, and the subsequent re-registration of the child’s birth. Like Mrs. Justice McGuinness, I have no doubt that this marriage reflects the parties’ commitment to each other. Its timing may also reflect legal advice. They self consciously rejected the idea of marrying just because the baby was expected, or just after her birth. Both the mother’s demand for the return of the child to her custody, and the subsequent marriage, followed the parents making a permanent commitment to each other. This took place, on the evidence, in August, 2005, after there had been ample opportunity for reflection and after the excitements and pressures immediately surrounding the birth of the child had abated. It is also relevant to recall that the employment of a private detective by the respondents was apparently sparked by the marriage, and done with a view to attacking the genuiness of that union, if it were possible to do so. This did not prove possible.
I do not accept the view that the marriage was in any sense a mere stratagem, a deus ex machina, undertaken merely for litigious advantage. Moreover, it is neither necessary nor possible to decide what the result of any litigation, by the parents or by the proposed adopters, would have been in the absence of the marriage. But it would be wrong to conclude that but for the marriage the child would be left in the custody of the adoptive parents.
I would allow the appeal and substitute for the order of the High Court an order in the form proposed by the learned Chief Justice.
N. & N. and Anor v. G. & G. and Anor.
“The first essential here provided is that for not less than twelve months the sole parent or each of the parents for physical or moral reasons have failed in their duty towards the child. The most important element in this provision is the concept of failure which must be construed as being total in character. No mere inadequacy of standard in the discharge of the parental duty would, in the opinion of the Court, suffice to establish this proof. Furthermore, the failure must arise for physical or moral reasons. This does not mean that the failure must necessarily in every case be blameworthy, but it does mean that a failure due to externally originating circumstances such as poverty would not constitute a failure within the meaning of the sub-clause.”