Facts

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

(1) the mother is a 21-year-old student in a third-level institution. She is unmarried.

(2) Some time around the beginning of May 1999, when she was about seven months pregnant, the mother, who has averred that she had formed the intention of placing her child for adoption, contacted an "agency" whose advertisement she had seen in the Golden Pages telephone directory, which I will refer to as "the Agency". The advertisement in question represents that the Agency provides a variety of counselling and other services but does not make any specific reference to adoption . . .

(3) The mother wished to have her baby in Dublin and, through the Agency's representative, she made contact by telephone with a medical practitioner practising in Co Dublin (the GP). The GP gave oral evidence in this matter and she was available for cross-examination. Her testimony was that the mother telephoned her on a date in late May 1999, and told her that she had decided to give up her baby for adoption and that she wanted to have an elective Caesarean section so that she would not bond with her baby or see her baby after birth. The GP consulted a number of friends, some of whom are members of the medical profession, who, as the GP put it, share her interest in "life issues". They were all of the view that the mother was in need of counselling. The GP did not arrange counselling for her. However, she made an appointment for the mother with a consultant obstetrician in a maternity hospital in Dublin for a date in June 1999, and she sent a letter of referral to the mother to be given to the consultant obstetrician. The mother was one of about 50 girls with crisis pregnancies who have been referred by the Agency over a time span of 1 1/2 years to the GP, all but three or four of whom have been seen by the GP on only one occasion. The GP never met the mother and there was no follow through by her on her referral of the mother to the consultant obstetrician.

(4) On the appointed date, the mother attended the maternity hospital in Dublin for her appointment with the consultant obstetrician. There is little evidence as to what happened during that appointment save that the mother has averred that she was extremely distressed. The consultant obstetrician insisted that the mother see the social worker in the hospital and, in fact, her evidence is that he brought her physically to see the social worker . . .

(5) On the same day, after her appointment with the consultant obstetrician, the mother met the first named respondent. This was the only occasion on which she met him prior to the date of the second Order and apparently she had not met his wife at all prior to that date. The first named respondent is, in effect, the proprietor of the Agency and runs the crisis pregnancy counselling service provided by the Agency. The first named respondent has explained his connection with the Agency and the nature of the service provided in the following passage in his affidavit:

"I founded (the Agency) in May 1995. The Agency has been providing a holistic, informed-consent counselling service since that date. Voluntary counsellors have provided help and advice for approximately 2,000 women in crisis pregnancies. The Agency encourages women to keep their babies, but does not offer an adoption service . . . " unamh, St Mura in Letterkenny or Life in Donegal . . . I remain a director of the holding company of the Agency . . ."

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

"I explained to the mother that I had been advised that she had a constitutional right to have the baby adopted publicly or privately, subject to the approval of the Adoption Board. I said that a public adoption could involve the baby being put into care for a time, whereas if she chose private adoption, she could leave the child with the couple of her choice. I said my wife and I would be glad to adopt the baby but, until she made up her mind, we would be happy to look after it. I told the mother that she didn't have to make up her mind about adoption for six months after the baby was born and that, in the meantime, she could keep in touch and see the baby whenever she wanted."

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

"From my conversation with him . . . and from the impression I formed of him as a person of position and responsibility, I agreed that depending on how events unfolded, I would consider him suitable for looking after the baby".

(6) Baby A was born three weeks prematurely in a hospital in the provincial town three days later. The mother was very upset during her stay in hospital . . .

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

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

(7) Four days after the birth, the mother was discharged from the hospital in the provincial town with Baby A. She left the hospital in the company of her mother and her aunt-in-law. On the same day, her mother and her aunt-in-law handed the baby over to the first named respondent. The circumstances in which this came about were that the mother's aunt-in-law had telephoned the Agency's representative to inform her of the birth and she, in turn, contacted the first named respondent. He arranged to meet the mother's mother and the aunt-in-law at the hospital on the third day after the birth but when he arrived, he has averred, he was informed that the mother "was not being allowed to leave the hospital with her baby and that she was being pressurised by the medical staff into keeping the child". On the following day, he returned to the provincial town where the mother's mother and the aunt-in-law handed over the baby to him in the home of the Agency's representative.

(8) The factual situation in relation to the whereabouts of Baby A between the date on which she was handed to the first named respondent and the date of the second Order, as deposed to by the first named respondent, is as follows:

(a) He has averred that he took Baby A back to Dublin on the date she was handed to him but he has not disclosed where he was residing for the next four days, although he has averred that Baby A was examined by the GP two days later, which the GP has corroborated;

(b) He was staying in a friend's house in Co Dublin, "house-sitting" while the friend was on holidays thereafter for two weeks. At that time, he and his wife were under a great deal of stress because of the situation in relation to the other baby, to whom I will refer to as Baby B. On a date during that period, he handed Baby B back to her grandmother. In relation to Baby A during this period, the mother's aunt-in-law told him that she had been contacted by a social worker on the telephone who wanted to know Baby A's address. He gave her his mother's address in a Dublin suburb where, he has averred, he intended to stay after leaving Co Dublin;

(c) An unidentified social worker advised him that his mother's house was unsuitable for a small baby, so the first and second named respondents moved from Co Dublin to a rented house on the north side of the city and stayed there for five days;

(d) They then moved permanently to a town in Munster. One of the reasons they decided to move to the town in Munster was that they considered they would have a better chance of adopting in the Southern Health Board region and were considering adopting through an adoption agency under the patronage of a member of the Hierarchy whom the first named respondent knows. While in the town in Munster, they took Baby A to the local health centre and gave details of her birth, her natural mother, their address, telephone number and so forth;

(e) After about two weeks, the respondents and Baby A returned to Dublin for a business visit. They stayed in the rented house on the north side of the city. Because of a family illness, they stayed longer than was planned, although it is not stated how long they stayed;

(f) They were in that house on the date of the second Order, when they were notified of the making of the first Order.

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

"My wife and I believe we have been unfairly treated by certain staff in the Eastern Health Board and we, therefore, tried to ensure that we lived in areas where we could deal with public health nurses and social workers in whom we could have greater confidence."

(9) Despite the fact that, apart from the GP, every medical professional whom the mother encountered before the baby was handed over to the first named respondent advised her of the need for counselling, the mother did not receive any independent counselling or advice as to her options before the baby was given to the first and second named respondents.

(10) The father of Baby A (the natural father) learned of his daughter's birth at the end of June 1999. Subsequently, a firm of solicitors, on his behalf, wrote an appropriate and sensitive letter to the mother indicating that he was anxious to obtain joint guardianship of Baby A. The mother has averred that she sought reassurance from the first named respondent that everything "was above board and legal and proper". He reassured her that such was the case and he arranged for her to meet his own barrister (the Barrister) at the Four Courts in Dublin four days before the making of the first Order. The mother has averred that the Barrister emphasised to her that the Barrister was not seeing her in a professional capacity but merely as a friend of the first and second named respondents. She discussed adoption generally with the mother and the rights of the natural father.

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

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

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

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

"51. I say that I then received a telephone call one afternoon from a lady who introduced herself to me as [the Barrister], a barrister in the Four Courts, and that she was calling me on behalf of [the first named respondent]. I further said that she said that [the first named respondent] was a good friend of hers. I say that she questioned me for a period as to the reasons why [the first named respondent] was not suitable to be the adoptive parent of my child.

"52. I said to [the Barrister] that there were lots of reasons why I felt that [the first named respondent and his wife] were not suitable adoptive parents. I say at this time I felt under pressure and under an obligation to answer the questions of this lady.

"53. I say that I mentioned to [the Barrister] that I was worried about the age of [the first named respondent]. I further say that in reply she stated she knew lots of people who became parents late in life and that it was in her opinion that age was no barrier to adoption. I further say that [the Barrister] expressed the view to me that age could not be a reason to stop an adoption. I further say that she said that [the first and second named respondents] were people in their 50s and this was not old.

"54. I say that [the Barrister] told me in strong terms that I was not obliged to say anything to anybody connected with the health board and that they had no power to make me do so. I further say that she told me that I had full freedom to do as I wished in relation to my child and that the Health board had not got power to make me do anything.

"55. I say that I told [the Barrister] that I wanted to use the normal processes of adoption. I further say at this stage [the Barrister] became very forceful and repeated what she had said to me previously.

"56. I say at this stage that [the Barrister] asked me my age. I say I told her I had my birthday in . . . and that I was 17. I say that she then asked me the age of [the natural father]. I say I asked her why she wanted to know his age. I say she said to me that [the natural father] could be charged with statutory rape in relation to my pregnancy and did I know that. I further say that [the Barrister] said to me that the Eastern Health Board had been known to report things like that.

"57. I say that I was upset by this conversation and I wanted to bring it to an end. I further say that I told [the Barrister] that I was going to speak with the social worker in relation to these matters. I say that at this stage [the Barrister] said to me words, or words to the effect, `but . . . you should realise that I am talking to you in total confidence and I would appreciate if you would not mention my name . . .'

"58. I say that at that stage in the conversation [the Barrister] indicated to me that I could come into the Four Courts to discuss the adoption with her. I say she nominated a specific day and time for this meeting but I declined to attend. I say that [the Barrister] indicated that she would wish to ring me later in the week but I again declined that suggestion. I say I asked [the Barrister] how she got my telephone number and she replied that [the first named respondent] had given it to her and asked her to speak to me."

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

"1. I am the person referred to at paragraphs 51-58 of the affidavit of [Miss B]. . .

2. I say it is true, as deposed at paragraph 51, that I did telephone [Miss B] one afternoon in or about . . . June, 1999. I told her I was requested to do so by [the first named respondent] for the purpose of explaining to her that by giving her child into the care of [the first and second named respondents], she was not doing anything illegal.

3. I do recollect saying that she could not, however, agree to give her baby to them to adopt, as the Adoption Board would have to assess their suitability and they might not be chosen.

4. I believe [Miss B] replied she was not sure she would like [the first and second named respondents] to adopt her child by reason of [the first named respondent's age]. I recall saying I believed he was only in his early 40s and that lots of men over 50 became first-time parents.

5. I believe I did advise that she wasn't obliged to make any decision for about six months on the question of adoption. I did further advise her that, since she was only 16 years old when the baby was conceived, she was not obliged to discuss the matter with anyone at all, including social workers, as it might be alleged her pregnancy was the result of statutory rape.

6. I do not recall becoming in any way forceful, but I did say I was not too happy about telephoning her and would hope our conversation was confidential.

7. I do recall saying I would be happy to meet with her at the Four Courts if she wished to explain how to progress to adoption."

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

"15. I say that on the . . . day of June 1999 [the day before Baby B was handed back to Miss B]. I received a telephone call at . . . Garda station from a lady who identified herself to me as [the Barrister], a barrister. I further said that this lady indicated to me that she was acting on behalf of both [the first and second named respondents].

"16. I explained to [the Barrister] that An Garda Siochana wished to speak with [the first and second named respondents] at the earliest opportunity. I further say, as I explained to [the Barrister], that the minor, Miss B, wished to recover custody of her child. I also indicated to [the Barrister] that An Garda Siochana were satisfied that [the first named respondent] was aware that the proposed private adoption arrangement with this minor may well be unlawful.

"17. I say that I discussed the circumstances of this matter in some detail with [the Barrister] and I was careful to explain to her the view of An Garda Siochana that there was a possibility that the circumstances of this matter may well become a criminal offence.

"18. I say that [the Barrister] indicated to me that she was unable to contact [the first named respondent]. I further say that [the Barrister] indicated she had to depend on [the first named respondent] to make contact with her but if he did telephone her she would get him to get in contact with An Garda Siochana.

"19. I say that [the Barrister] indicated that [the first and second named respondents] were simply on holidays and were not avoiding contact with An Garda Siochana."

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

"9. I say that it is true that I telephoned [the Sergeant], as deposed by him at paragraph 15 of his affidavit . . . However, I believe I stated to [the Sergeant] that I was ringing on behalf of [the first named respondent] to ask why the gardai were looking for him.

"10. I say [the Sergeant] asked me my name and where I was ringing from, and I gave my name and said I was ringing from the Law Library.

"11. I say that it appears that [the Sergeant] wrongly assumed that I was acting for [the first and second named respondents] but I had no reason to believe that there was any question of legal proceedings until [the Sergeant] informed me that a serious situation had arisen about which the gardai were seeking to interview [the first named respondent].

"12. I say that on being given that information, I told [the Sergeant], as he deposed at paragraph 18, that when [the first named respondent] contacted me I would tell him to get in touch immediately with the gardai."