The Gazette 1979

GAZETTE

SEPTEMBER 1979

guaranteed rights of the child".

Mr. Justice Henchy observed that, if contrary to his

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 the placement of a child for adoption could

never in itself amount to "an extinguishment of that right,

for it amounts to no more than a consent by the mother to

putting her rights in temporary abeyance".

Mr. Justice Henchy stated that it was "difficult to see

how s. 3 could be operated to defeat the mother's unfor-

feited and 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".

In his view,

"[t]he objective to be attained is not simply the

effectuation of the rights of either mother or child, but

the attainment of a result which will be in the best

interests of the child, by either granting or not

granting to the mother a power to veto the

adoption".

He stated later:

"A judge hearing an application under s. 3 is not

necessarily concerned with the resolution of con-

flicting rights, legal or constitutional".

He noted that the question to be resolved was "not

whether an adoption order should be made in favour of

the adopters . . . but whether it would be in the best

interests of the child to dispense with the mother's

consent". He observed that it was for "the adopters to

show that it would be in the best interests of the child" to

dispense with the mother's consent, and they had failed to

do this.

Mr. Justice Kenny was of the opinion that the best

interests of the child would be better served by refusing to

dispense with the mother's consent. The learned judge

referred to the natural tie that exists between mother and

child:

"The blood link between the applicant and the child

means that an instinctive understanding will exist

between them which will not be there if the child

remains with the adopting parents. A child's parent is

the best person to bring it up as the affinity between

them leads to a love which cannot exist between

adopting parents and the child".

It is submitted that the views of Justice Kenny are not

well supported by the facts. No reason is advanced for the

view that the love a child has for its natural parents

cannot exist betweeen adopting parents and a child. It is

also submitted that the blood link between a natural

mother and her child does not automatically produce an

instinctive understanding between them. This fact is high-

lighted by Goldstein, Freud and Solnit in

Beyond the Best

Interests of the Child.

"Biological parents are credited with an invariable,

instinctively based positive tie to the child, although

this is frequently belied by evidence to the contrary in

cases of infanticide, infant-battering, child neglect,

abuse and abandonment".

It should be noted that the law relating to custody of

children in the United States of America has, in recent

years, undergone comprehensive restatement, the "best

interests of the child" criterion replacing the concept of

"parental rights".

In the United States, the presumption in favour of

parents over third persons has been displaced by section

402 of the Uniform Marriage and Divorce Act. In the

opinion of one writer

"[tlhis change is the result of research which has

indicated that, as far as children are concerned,

psychological rather than biological parenthood is

what counts".

Mr. Justice Walsh was of the opinion that the appeal

should be dismissed. The learned judge was satisfied that

on the evidence the decision of the High Court not to

authorise the Adoption Board to dispense with the consent

of the mother was correct. But the manner in which the

learned judge arrived at this conclusion, based largely on

the facts of the case, is interesting as it differs funda-

mentally from the manner in which the other members of

the majority arrived at their decisions. Mr. Justice Walsh

was of the opinion (along with O'Higgins CJ. and Parke

J.), that the mother of an illegitimate child had "an alien-

able constitutional right to its custody"

and other alien-

able personal rights that are guaranteed protection under

article 40.3 of the Constitution.

So far as the constitu-

tional rights of the mother were concerned, Mr Justice

Walsh was of the opinion that the findings of the

President "[did] not indicate that she had surrendered or

abandoned her constitutional rights by a fully informed,

free and willing surrender and abandonment of these

rights, or at all, nor did the President so find". The

learned judge continued:

"Before anybody may be said to have surrendered or

abandoned his constitutional rights it must be shown

that he is aware of what the rights are and what he is

doing. Secondly, the action taken must be such as

could reasonably lead to the clear and unambiguous

inference that such was the intention of the person

who is alleged to have either surrendered or

abandoned the constitutional rights" (p. 47).

The learned judge concluded that the facts of the present

case did not support a finding that the mother's constitu-

tional rights were validly surrendered or abandoned.

In his opinion the question of "the best interests of the

child" only fell to be considered when the mother had sur-

rendered or abandoned her rights.

* However, he opined

that on the evidence in the case the learned President

would be justified in holding that the best interests of the

child would not have required him to authorise the Board

to dispense with the mother's consent. Mr. Justice

Walsh's view of "the best interests" of the child was in

line with that of Mr. Justice Henchy and Mr. Justice

Kenny, being of the opinion that "the rights of the child

[were] not in any way exposed to danger and much less

likely to be damaged by being brought up in the manner

contemplated and planned by the mother". He was of the

opinion that the mother [had] not in any way sur-

rendered or abandoned her own constitutional rights to

both the guardianship and the custody of her child" and

that the position of the applicants for adoption was not

"comparable with that of the natural mother of the

child".

Finally, Mr. Justice Walsh carried out "a detailed

analysis of the duties and obligations of the Adoption

Board and the manner in which it discharges its

functions" and of the categories of persons who may be

adopted. The other members of the Court expressly

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