The Gazette 1979

GAZETTE

SEPTEMBER 1979

or deserted the child or unless she has failed to

establish to the Court that she is a fit and proper

person to have custody of the child or unless the over-

whelming interests of the welfare of the child require

that it should not be restored to her custody

but that

subject to the approval of the Adoption Board it

should be left in the custody of the prospective

adopters" (

italics supplied).

Applying this construction of Section 3 to the facts the

learned President

held

that:

1. (a) the plaintiff had not abandoned or deserted her

child.

(b) the plaintiff was a fit and proper person to have

custody of the child.

2. the welfare of the child did not in any sense over-

whelmingly require that she should remain in the

custody of the applicants for adoption.

3. the child should be returned to the plaintifT.

THE SUPREME COURT DECISION

The Supreme Court (O'Higgins C J . , Walsh, Henchy,

Kenny and Parke JJ.) delivered judgments on 19

December 1978 and, by a majority of three to two, dis-

missed the appeal of the notice parties.

The sole issue to be decided was whether "in pursuance

of s. 3(2) of the Adoption Act 1974, the Adoption Board

should be authorised to dispense with the consent of the

mother in the making of an adoption order in favour of

the couple . . . to whom the child was given for

adoption".

The Chief Justice and Mr. Justice Parke delivered dis-

senting judgments and it is proposed to examine these

judgments first before examining those of the majority of

the Court.

The Chief Justice was of the opinion that the President

had applied the wrong test when deciding that the plain-

tiff should have custody of the child. In his view section 3

could not apply

"if the constitutional rights

of the mother continued

to exist because legislation could not affect or prevail

over these rights".

The Chief Justice continued

"Accordingly, the section could only be operative in

circumstances in which the agreed placing of the

child for adoption constituted a consensual abandon-

ment of constitutional rights and an acceptance by

the mother of the provisions of the Adoption Acts in

so far as her rights were concerned".

It should be stated parenthetically that this would also

appear to be the view of other members of the Supreme

Court.

It will be recalled that the President, being of the

opinion that the constitutional rights of the mother con-

tinued in existence after her clear and definite agreement

to place for adoption, construed s. 3 so that the Court

could not intervene

inter alia,

unless the "overwhelming

interests of the welfare of the child requireld] that it

should not be restored to her custody".

The learned President had dealt with the welfare of the

infant, having regard to the circumstances of each of the

parties, but, in the view of the Chief Justice and of the

other members of the Court, he had not considered "the

one question which larose] under section 3, namely, what

was "in the best interests of the child".

In the opinion of the Chief Justice the plaintiff agreed

to the placing of her child for adoption with full know-

ledge of the consequences, one of which was the loss of

her constitutional rights. In his opinion the President

should not have taken into consideration the mother's

constitutional rights and should have had regard only, to

the child's age, its relationship with the plaintiff and the

probable home circumstances which the plaintiff could

arrange. The Chief Justice noted that the making of an

order "in the best interests of the child" involved con-

siderations such as, the circumstances of the mother, her

reasons for refusing or withdrawing her consent and the

prospects of the child's future when affected by the order.

The learned judge commented that

"[i]n suggesting matters to be considered [he was]

doing no more than that and many other matters

which [he had] not adverted to [might] have to be

considered in assessing "the best interests of the

child".

The Supreme Court as a court of appeal, he remarked,

could not perform this task and accordingly, the Chief

Justice, "with very much regret" concluded that the case

should be remitted to the High Court to have the issue

under s. 3 determined in accordance with what was in the

best interests of the child".

Mr. Justice Parke agreed with the Chief Justice that the

case should be remitted to the High Court to have (it is

presumed)

the issue of what was in the best interests of

the child decided without having regard to the constitu-

tional rights of the mother.

In his view that "fundamental question" was "the

ascertainment of the rights of the mother in respect of her

illegitimate child".

He determined that the mother's

rights were "among the Personal Rights which the State

guarantees in its law to defend and vindicate under article

40.3.1 of the Constitution".

He was satisfied that "the

mother waived or abandoned her [constitutional] rights so

as to leave the matter to be decided under section 3 unless

by so doing she infringed or injured the constitutional

rights of her child".

The learned judge also considered the rights of the

child and he was of the opinion that the child had

personal rights which were recognised under article 40 of

the Constitution.

A majority of the members of the Supreme Court,

viz,

Walsh, Henchy and Kenny JJ., affirmed the order of the

High Court, but for different reasons.

Mr. Justice Henchy agreed with the Chief Justice and

Mr. Justice Parke that the President of the High Court,

because of the incorrect view he took of the law, "did not

in terms make any finding as to where the best interests of

the child Hay 1" but he differed from them on the dis-

position of the case. In his view there was nothing in the

transcript of evidence which was available to the Supreme

Court which would permit a finding adverse to the mother

on that issue.

In his opinion the mother of an illegitimate child had no

constitutional rights in relation to her child. However, he

stated that the rights of the child under article 42 of the

Constitution were available equally to legitimate and

illegitimate children. He remarked that "the mother's

rights in regard to the child, although deriving from the

ties of nature, are given a constitutional footing only to

the extent that they are founded on the constitutionally

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