The Gazette 1979

GAZETTE

SEPTEMBER 1979

3. The consent of a ward of court shall not be

dispensed with by virtue of a High Court order

under this section except with the sanction of the

Court.

The learned President noted that "[t]his section clearly

extensively enlarged the possibility of the making of an

Adoption Order notwithstanding the absence of consent

on the part of the mother of an illegitimate child".

continued:

"Up to its enactment an Adoption Order could only

be made by the Board in the absence of such consent

if the mother was rendered incapable by incapacity of

giving or refusing her consent or could not be found"

[see s. 14 (2) of the Adoption Act 1952]. "A new

jurisdiction was now conferred upon the High Court

entitling it, notwithstanding the active opposition of

the mother or her failure to make up her mind or to

communicate or deal with the problem arising, to dis-

pense with her consent thus not, it should be

emphasised, making itself an Adoption Order but

permitting the Adoption Board to consider the entire

matter in the absence of such consent."

However, it has been pointed out by Mr. Alan Shatter

Family Law in the Republic of Ireland

that section 3 of

the 1974 Act does nothing to solve

"the problem of the

child who is placed in an orphanage or fosterage for all or

most of its infancy but whose mother will not permit it to

be. placed for adoption, the whereabouts of the mother

being known". The author submits that

"if a person unreasonably refuses to agree to the

placing of a child for adoption, the [Adoption] Board

should be empowered to dispense with the require-

ment of that person's consent to the making of an

adoption order, if it is for the child's welfare that it be

adopted".

Constitutional rights

The learned President approved of the statement of

Walsh J., in

The State (Nicolaou) v. An Bord Uchtála

that the natural personal rights of the mother of an

illegitimate child do not come within the ambit of articles

41 and 42 of the Constitution. Mr. Justice Walsh had

stated in that case, in relation to the mother of an

illegitimate child that "lh]er natural personal right to the

custody and care of her child, and such other natural,

personal rights as she may have, (and this court does not in

this case find it necessary to pronounce upon the extent of

such rights) fall to be protected under article 40, section 3

and are not affected by article 41 or 42 of the Constitution.

Following that decision Mr. Justice Finlay held that the

plaintiff had a "constitutional right to the custody and to

the control of the upbringing of her daughter". He was

also of the opinion that the illegitimate child had "a con-

stitutional right . . . to bodily integrity" and also an

unenumerated right to an opportunity to be reared with

due regard to her welfare, religious, moral, intellectual,

physical and social."

The learned President pointed out that

"[t]he defence and vindication of these interrelated

but not necessarily conflicting rights may, in many

instances, require the law to strike a balance between

them, but it cannot as a general proposition be satis-

fied by the upholding of one set of rights to the total

or virtual exclusion of the other".

2 0 4

The balance to which Mr. Justice Finlay referred is struck

in the provisions of the

Guardianship of Infants Act

1964

which empowers the High Court to make an order

for the production of an infant and to have regard to the

conduct of the parent when deciding whether or not to

make an order.

The learned President said of the provisions

setting

out the powers and duties of guardians that they "would

appear to be no more than a statutory expression and

declaration of the constitutional rights of the mother of an

illegitimate child to its custody and to the control of its

upbringing".

The learned President placed particular emphasis on the

safeguards created in the Adoption Acts to prevent the

mother of an illegitimate child from surrendering her con-

stitutional rights by placing it for adoption without "full

knowledge, complete

understanding

and

mature

judgment".

Section 3 of the Adoption Act 1974

Counsel representing the notice parties (i.e. the

applicants for adoption) contended that once the mother

of an illegitimate child had agreed to the placing of that

child for adoption then, upon an application being made

by the prospective adopters to the High Court pursuant to

section 3, the only issue to be decided by the High Court

was

the welfare of the child.

"In other words that if upon such application it

appears to the High Court, disregarding the reasons

which the mother may give for her refusal to give her

consent or the reasons which may surround her

original consent to placement, that on balance the

welfare of the child would be better served by remain-

ing with the prospective adopters that the Court

should make an order under the section at least

leaving the child in the custody of the prospective

adopters for such period as will enable the Adoption

Board to reach a conclusion as to whether or not to

make an adoption order".

Mr. Justice Finlay rejected this interpretation in favour of

that which was advanced on behalf of the plaintiff,

viz,

that

"having regard to the constitutional rights of the

mother of an illegitimate child; to the provisions of

the Guardianship of Infants Act 1964 and in par-

ticular to sections 14 and 16 thereof the Court should

not exercise its discretion to make an order under

Section 3 unless either the refusal of the mother to

consent to adoption is unreasonable or the welfare of

the child overwhelmingly demands the making of an

order under Section 3 in the sense that to restore it to

the custody of its mother would deprive it of the

reasonable possibility of securing and preserving its

bodily integrity and its opportunity to be reared and

educated with due regard to its welfare".

The learned President was satisfied that to put the first

construction on s. 3 would be by reason of the agreement

of the natural mother to the placement of her illegitimate

child for adoption, to uphold the constitutional rights of

the child to the total or virtual exclusion of the constitu-

tional rights of its mother. Accordingly, he held that

"the Court should not intervene unless the mother

has capriciously

and irresponsibly

refused or

withdrawn her consent or by her conduct, abandoned