The Gazette 1979

GAZETTE

SEPTEMBER1979

refrained from commenting on these matters as, in their

view, none of them was directly relevant in the case. But

these matters are of general importance and should be

examined briefly.

Powers and Functions of the Adoption Board

Mr. Justice Walsh noted that "the essential feature of

the system established by the

Adoption Act 1952

was the

fact that no adoption was possible without consent". In

his view,

the Adoption Board did not exercise powers of a

judicial nature.

The learned judge continued:

"Thus adoption in our law is essentially a consent or

voluntary arrangement. The Adoption Board is in

effect a ratifying agency and a safeguard. It ensures

that the particular adoption is made in accordance

with the Acts of the Oireachtas and that the prospec-

tive adopters are suitable. It also preserves the

anonymity of the parties to the procedure . . . The

Board has no function to settle disputes as to the

custody of a child. Neither does it have a jurisdiction

to adjudicate upon anything that could be said to be

in controversy or dispute between parties . . . The

Board is simply concerned with what I am satisfied is

the administrative function of seeing that the steps

being taken are not contrary to the adoption legis-

lation, are not inimical to the welfare of the child, and

that everybody concerned has had a full opportunity

of considering the matter carefully".

It is respectfully submitted that this is the correct view of

the powers being exercised by the Board. However, this

view is not binding

and has since been rendered largely

academic by the

Sixth Amendment of the Constitution

(Adoption) Act 1979.

The Adoption of Legitimate Children

It is possible to glean from Mr. Justice Walsh's

judgment some support for the view that "the State may

be justified in taking measures by statute such as the

enactment of adoption legislation, or otherwise, to pro-

tect the rights of the [legitimate] child where there is a

complete abandonment of the parental right and duty".

The learned judge pointed out "that some inalienable

rights are absolutely inalienable while others are relatively

inalienable".

Accordingly it would appear to be still open to the

government to pass legislation providing, in certain cases,

for the adoption of legitimate children but the "constitu-

tionality of legislation to this effect would, however, be

uncertain".

The other members of the Supreme Court

(O'Higgins CJ., Henchy J., Kenny J. and Parke J.) did

not consider this question and the distinction which was

made by the Supreme Court in the

Nicolaou case

between

rights which derive from articles 41 and 42 (which are

inalienable) and those recognised by article 40 (which are

alienable) was accepted without comment.

Mr. Justice Walsh would now appear to be saying that

the former rights may also be alienated in certain cases,

and it will indeed be interesting to see whether this idea is

developed in later cases.

CONCLUSION

G. v. An Bord Uchiála

is an important decision in an

area of law that has been under constant scrutiny since

the early seventies. Its authority is clouded somewhat by

the diverse views of the majority of the members of the

Supreme Court.

The judgments in the case are illustrative of the diffi-

culties that may arise under s. 3 of the 1974 Adoption

Act when there is attempt to apply a "best interests"

criterion in situations where the constitutional rights of

persons other than the child will be adversely affected. It

appears that these difficulties were not conceived of as a

problem when the Bill was being considered by the

Oireachtas.

Much of the focus in the debates was on

other aspects of s. 3,

viz.

the power of the High Court to

award custody of the child to the applicant and the

consent of a ward of court in such proceedings.

It is not easy to resolve the difficulties created by s. 3 of

the 1974 Act. Legislation might be enacted deleting "the

best interests of the child" criterion from a s. 3.

Alternatively the constitution might be amended so as to

remove from the adoption process any consideration of

the rights of the natural mother and her child (or for that

matter, the prospective adoptive parents). In the latter case

a political decision i.e. one which adjusts the balance

between the parties, would have to be taken.

Not much support can be given to the latter course

which would deny the natural mother and child their con-

stitutional rights relating to custody and upbringing.

Apart from the obvious injustice that a constitutional

amendment would work on the natural mother and her

child there are also practical objections to such

amendment. It is submitted, that, unless it is absolutely

necessary, the constitution should not be tampered with.

Furthermore, an amendment removing from the adoption

process any consideration of the rights of the natural

mother and her child would constitute a bad precedent

that might lead to the ultimate atrophy of the constitu-

tional rights of the natural mother and her child.

The inclusion of the "best interests of the child"

criterion in the

Adoption Act 1974

is an attempt by the

law to deal with the dilemma that results from the

collision of parental rights with those of children in

adoption situations. Its presence in our adoption law

creates the type of problems of interpretation that were

encountered in the

G. case

and it is submitted that it

should be deleted altogether from s. 3. This would not, it

is submitted, endanger the welfare of the child in adoption

cases as the courts would be bound to respect the child's

constitutional rights.

It would have the benefit, however,

of clearing up the conceptual morass which has developed

as a result of s. 3, and of paving the way for a better

inquiry into the rights the child of an unmarried mother

has under the Constitution.

FOOTNOTES

1. This matter was adverted to in the Dáil by the Minister for

Justice at the second stage of the

Adoption BUI 1974.

He remarked as

follows:

"It will, of course, be necessary to consider whether rules of

court can be devised to enable such applications to be heard in

such a way as to preserve the anonymity of the parties".

See

Dáil Debates,

vol. 273, col. 482.

"The President of the High Court having regard to the reality of the

issue which had arisen concerning the future of the child and to the

absolute necessity that the identities of those concerned should not be

disclosed, put into operation the procedures set out at the commence-

ment of his Judgment. These procedures, as one would expect from

him, were devised with great care and concern both for the preserva-

tion of this essential secrecy and in the interests of justice"

per

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