The Gazette 1979

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GAZETTE SEPTEMBER 1979
O'Higgins CJ. at p. 5 of his judgment.
"I thoroughly approve of the practice adopted by [the President] of
hearing the applicant in the absence of the adopting parents, whose
counsel are present and hearing them in the absence of the applicant
but in the presence of counsel" per Kenny J. at p. 4 of his judgement.
2. The adoption society made available to the Court their file of cor-
respondence and documents, and with the permission of the President,
took no further part in the proceedings.
3. The aspiring adoptive parents had had the custody of the child
for the previous nine months.
4. Section 6 (4) of the Guardianship of Infants 1964 provides as
follows:
"The mother of an illegitimate infant shall be the guardian of the
infant".
Section 10 provides as follows:
"(1) Every guardian under this Act shall be a guardian of the
person and of the estate of the infant unless, in the case of a
guardian appointed by deed, will or order of the court, the terms
of his appointment otherwise provide.
(2) Subject to the terms of any such deed, will or order, a
guardian under this Act—
(a) as guardian of the person, shall, as against every person not
being, jointly with him, a guardian of the person, be entitled
to the custody of the infant and shall be entitled to take pro-
ceedings for the restoration of his custody of the infant
against any persons who wrongfully takes away or detains
the infant and for the recovery, for the benefit of the infant,
of damages for any injury to or trespass against the person
of the infant; . . . "
Section 14 provides as follows:
"Where a parent of an infant applies to the court for an order for
the production of the infant and the court is of opinion that that
parent has abandoned or deserted the infant or that he has other-
wise so conducted himself that the court should refuse to enforce
his right to the custody of the infant, the court may in its
discretion decline to make the order".
Section 16 provides as follows:
"Where a parent has—
(a) abandoned or deserted an infant, or
(b) allowed an infant to be brought up by another person at that
person's expense, or to be provided with assistance by a
health authority under section 55 of the Health Act, 1953,
for such a length of time and under such circumstances as
to satisfy the court that the parent was unmindful of his
parental duties,
the court shall not make an order for the delivery of the infant to
the parent unless the parent has satisfied the court that he is a fit
person to have custody of the infant".
Section 3 provides as follows:
"Where in any proceedings before any court the custody,
guardianship or upbringing of an infant . . . is in question, the
court shall regard the welfare of the infant as the first and para-
mount consideration".
Section 2, inter alia, defines "welfare" "in relation to an infant, as
comprising the religious and moral, intellectual, physical and social
welfare of the infant".
5. Per Finlky P. at pp. 18 and 19 of his judgment.
6. A. Shatter, Family Law in the Republic of Ireland, 162-182,
170. However, in the opinion of the present writer such a proposal
would involve the exercise of judicial powers and would be in violation
of the Constitution. See the argument of Walsh J. in G. v. An Bord
Uchtála where he remarked that "adoption in our law is essentially a
consent or voluntary arrangement" (27). See Margaret L. Egginton
and Richard E. Hibbs, "Termination of Parental Rights in Adoption
Cases: Focusing on the Child" (1975-76) 14 Univ. of Louisville
Journal of Family Law 547 in which the authors demonstrate how
certain states in the United States have given courts the power to
dispense with the consent of a parentis) in the . best interests of the
child.
7. [ 1966] I.R. 567, 644. See M. Staines, "The Concept of "The
Family', under the Irish Constitution" (1976) 11 Irish Jurist 22.
8. In the Supreme Court Henchy J. expressly reserved his opinion
on this question. The right of bodily integrity was first recognised in
Ryan v. Attorney General 119651 I.R. 294, 313.
9. Per Finlay P. at p. 21 of his judgment.
10. Sections 14 and 16 of the 1964 Act.
11. Section 10 of the 1964 Act read in conjunction with s. 6 (4)
which provides that "]t]he mother of an illegitimate infant shall be
guardian of the infant".
208
12. Per Finlay P. at pp. 21 and 22 of his judgment.
13. Per Finlay P. at p. 26.
14. Per Finlay P. at pp. 26, 27.
15. The President was "clearly satisfied . . . that the welfare of
[the] child [did] not in any sense overwhelmingly require that she
should remain in the custody of her present custodians and not be
returned to the custody of her mother" (p. 30). One commentator has
noted that the courts will award custody "only in exceptional cases" to
third parties over married persons but that custody awards in favour of
third parties "have been far less exceptional in the case of unmarried
parents". See W. R. Duncan, "Supporting the Institution of Marriage
in Ireland" (a paper which was presented at the Third World
Conference of the International Society on Family Law in Uppsala,
Sweden, on 6 June 1979).
16. Per Henchy J. at p. 1 of his written judgment.
17. "[T]he plaintiff is a mother and as such she has rights which
derive from the fact of motherhood and from nature itself. These rights
are among her personal rights as a human being which the State is
bound under article 40.3.1 of the Constitution to respect and defend
and vindicate" per O'Higgins CJ. at p. 8. See pp. 7-9.
18. Per O'Higgins CJ at p. 15.
19. It should be noted that the Chief Justice was of the opinion that
Mr. Justice Finlay might have come to the same conclusion had he
used the test of what was "in the best interests of the child". However,
Mr. Justice Finlay had at p. 29 of his judgment indicated that
"li]f the issue in this case was analogous to that arising where
contending parties who have separated are each seeking the
custody of a child of a marriage then I would be forced to the
conclusion that the welfare of the child would be marginally
better fitted by remaining with her present custodians in the event
of their obtaining an Adoption Order concerning her than it
would be by being returned to the custody of her mother and into
the family home consisting of her grandmother, her grandfather
and her aunt".
20. The judgment of Parke J. is unclear at p. 6 where he remarks
that "there is no decision at first instance on the point".
21. Per Parke J. at p. 1 of his judgment.
22. Per Parke J. at p. 2 of his judgment.
23. Per Parke J. at pp. 4 and 5 of his judgment.
24. "The child, of course, has personal rights, which are recognised
by article 40 of the Constitution to life, to be fed, to be protected,
reared and educated in a proper way, but in my view a child has no
constitutional right to have these obligations discharged by his or her
natural parent, and that if there are other persons able and willing to
satisfy such requirements, then a child's constitutional rights are
sufficiently defended and vindicated", per Parke J. at p. 5 of his
judgment. See also O'Higgins CJ. at pp. 9 and 10. "In relation to
illegitimate children and certain others the State has by the Adoption
Acts endeavoured to discharge [the] obligation to defend and vindicate
their natural rights in its laws", per O'Higgins CJ. at p. 11 of his
judgment.
Since the decision of Gavan Duffy P. in In re M., an Irtfant 11946]
I.R. 334 it is clear that the illegitimate child possesses the same
"natural and imprescriptible rights" that are recognised as reposing in
legitimate children under Article 42 of the Constitution. This was re-
asserted on a number of occasions by members of the Supreme Court
acting either in a judicial or extra-judicial capacity. For examples of
the former, see the judgments of Walsh J. in State (Nicolaou) v. An
Bord Uchtála [ 1966] I.R. 567 at 642 and of Henchy J. in the G. case
at p. 11. The Chief Justice remarked recently at a public lecture that
there is no concept ofJilius nullius in Irish law — the illegitimate child
being possessed of the fundamental rights of children under the 1937
Constitution. Remarks made at a lecture delivered by Professor Spiros
Semitis on "The Rights of the Child in European Countries" at St.
Patrick's, Drumcondra, 15th November, 1979.
25. In The State (Nicolaou) v. An Bord Uchtála [1966] I.R. 567
Mr. Justice Walsh observed (at p. 644) that the mother's right to the
custody and care of her child was given constitutional protection by
article 40.3 of the Constitution. The President of the High Court
followed the decision and, accordingly, held that the plaintiff had a
"constitutional right to the custody and to the control of the
upbringing of her daughter". Mr. Justice Henchy and Mr. Justice
Kenny did not share this view, stating that they were not part of the
ratio decidendi of the case (as in that case the alleged rights of the father
of an illegitimate child were in issue). In Mr. Kenny's opinion the mother
of an illegitimate child had a statutory right under the Guardianship of
Infants Act 1964 to the custody of her child but not a constitutional
one."
26. Per Henchy J. at p. 16 of his judgment. The Chief Justice and