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Mr. Justice Parke took a different view. In the view of the Chief
Justice, "in agreeing so to place her child for adoption in the cir-
cumstances the plaintiff dispensed with her constitutional rights to
insist on the custody of her child and agreed to its custody being
decided in accordance with the statutory provisions of which she was
made fully aware",
per
O'Higgins CJ. at pp. 17 and 18 of his
judgment.
27.
Per
Henchy J. at p. 16. Mr. Justice Finlay clearly would have
regarded the withdrawal by a court of the mother's rights as justified
under s. 3, where the "overwhelming interests of the welfare of the
child require that it not be restored to her custody but that . . . it
should be left in the custody of the prospective adopters".
Per
Finlay
P. at p. 28 of his judgment.
28.
Per
Henchy J. at p. 16.
29.
Per
Henchy J. at p. 20. Mr. Justice Henchy's view appears to
differ fundamentally from that of the President of the High Court who
was of the opinion that the fundamental rights of the mother and her
illegitimate child had to be balanced when deciding to grant or refuse
an order under s. 3 of the
Adoption Act 1974
to dispense with the
consent of the mother.
30.
Per
Kenny J. at pp. 14 and 15. Mr. Justice Henchy quoted the
following statement of Lord Esher M.R. in
Re McGrath
11893] 1 ch.
at p. 148 with approval:
"Prima facie it would not be for the welfare of a child to be taken
away from its natural parent and given over to other people who
have not that natural relation to it. Every wise man would say
that, generally speaking, the best place for a child is with its
parents".
31. Joseph Goldstein, Anna Freud and Albert J. Solnit,
Beyond the
Best Interests of the Child
17 (1973). See also J. O'Reilly, "Custody
Disputes in the Irish Republic: the Uncertain Search for the Child's
Welfare?" (1977) 12 Ir. Jur. 37.
32. William Binchy, "The American Revolution in Family Law"
(1976) 27 N.I.L.Q. 371, 412. See also Frank Bates, " 'Beyond the
Best Interests .. .' in the American Courts" (1978) 8 Family Law 46;
Richard Edelin Crouch, "An Essay on the Critical and Judicial
Reception of 'Beyond the Best Interests of the Child' " (1979) 13
Fam. L.Q. 49.
33. See section 402 of the
Uniform Marriage and Divorse Act.
34.
S. v. Eastern Health Board and Others,
28 February 1979,
unreported, High Court, per Finlay P. at p. 15, reaffirming such a
right.
35. See pages 13-26 of Mr. Justice Walsh's judgment for an
examination of the question of the "natural rights, or human rights"
— the fundamental rights — of the mother and her illegitimate child.
36. Mr. Justice Walsh was much influenced in his decision by the
"isolated position" of the plaintiff and he remarked that the plaintiff*
was a "lonely young girl" who had been rushed into adoption without
being "made aware of the possibilities which exist for aiding persons in
her position or of the several excellent societies which exist for the
purpose of enabling a woman who finds herself in the position she did
to retain her child and at the same time carry on her life as normally as
is possible in the circumstances" (p. 48).
36a. It should be noted that the effect of the placement of a child
for adoption was regarded differently by Mr. Justice Walsh and Mr.
Justice Henchy, the former judge being of the opinion that it could
result in the surrender or abandonment by the mother of her con-
stitutional rights, the latter judge being of the opinion that it could
never amount to an extinguishment of the mother's right of custody
and that it amounted to "no more than a consent by the mother to
putting her rights in temporary abeyance".
37.
Per
Walsh J. at pp. 51 and 52 of his written judgment.
38. If a judge thinks it desirable to give his opinion on some point
that is not necessary for the resolution of the case it will, of course, not
have the binding weight of the decision but it will be important for
judges when that point arises for their decision in future cases. One
commentator has remarked as follows:
"Many protests against arguments found on irrelevant
dicta
have
come from the Bench; on the other hand, it is a mistake to regard
all
dicta
as equally otiose and therefore equally negligible. Much
depends on the source of the
dictum,
the circumstances in which
it was expressed, and the degree of deliberation which
accompanied it".
See
C.
K. Allen,
Law in the Making
261 (7th ed., 1964);
Flower
v.
Ebbw
Vale Iron Steel & Coal Co.
[19321 2 K.B. 132
per
Talbot J.
39.
Per
Walsh J. at pp. 27 and 28 of his written judgment. See also
the speech of the Minister for Justice in the debate on the Adoption Bill
1974 in which he made the following remarks:
"I think that it is well to make the point during the debate of this
Bill that adoption in our law is a voluntary arrangement, which
is, so to speak, ratified by An Bord Uchtála, the effect of the
ratification being that the legal relationship of the chQd to the
other parties is changed. The board's function is not to settle
disputes as to custody but only to ensure that the adoption is in
accordance with the Acts and that the adopters are suitable".
40. See
M.
v.
An Bord Uchtála
11977] I.R. 287,297. O'Higgins CJ.
with whom Griffin and Parke JJ. agreed, did not think it "necessary or
proper for the Court to express any opinion on the submission that cer-
tain provisions of the Adoption Act 1952 are invalid having regard to
the provisions of the Constitution.
41. The Act amended article 37 of the Constitution by the addition
of a second section stating that no lawful adoption taking effect
pursuant to an order of authorisation given by a person or body of
persons lawfully designated to exercise such functions was or shall be
invalid by reason only of the fact that such person or body of persons
was not a judge or a court appointed or established as such under the
Constitution.
42. See M. Staines, "The Concept of 'the Family' under the Irish
Constitution" (1976) 11 Ir. Jur. 223.
43.
Per
Walsh J. at pp. 45 and 46 of his written judgment.
44. W. Binchy, "New Vistas in Irish Family Law" (1976-77) 15
Univ. of Louisville Journal of Family Law 637, 672.
45. The decision in
G. v. An Bord Uchtála
has recently been
followed in a case that came before the High Court. In
S. v. Eastern
Health Board
Mr. Justice Finlay received much assistance from the
judgments of the Supreme Court on the test to be applied when
determining whether the mother of an illegitimate child had agreed to
place her child for adoption within the meaning of s. 3 of the
Adoption
Act 1974
so as to bring the provisions of s. 3 into operation.
46. However, the problem was recognised in a related area. In
reply to an amendment which Senator E. Ryan moved (providing for the
inclusion of the natural father in the list of persons entitled to be heard
by the Adoption Board on an application for an adoption order) the
Minister of Justice (Mr. Cooney) remarked as follows:
"There is a further difficulty. In a situation where a case is
pending before the Adoption Board if the father had a right to
come in to be heard co-equal with the right of the mother we
could have a situation where there could be a conflict of interests
between the father and the mother. If we give him an equal status
the legislation would be in a difficult position. The direction and
emphasis in the legislation is that the good of the child is the para-
mount consideration".
See
Seanad Debates
(1974) vol. 78.
46a. See Vivienne Ulrich, "The Politics of Adoption" (1979) 8 New
Zealand Universities Law Review 235 — an attempt to approach adop-
tion from a child-centred point of view. The authoress' thesis is that
where the interests of the child conflict with the rights of natural or
adoptive parents the child's interests should be preferred. However, it
should be noted that the function of the adoption law is not to provide
for the best interests of the child alone but to balance the interests of the
child and the natural parents.
47. One member of the Supreme Court in the
G. case
opined that
the mother of an illegitimate child had no constitutional rights in
relation to her child. See judgment of Henchy J. at p. 11.
48. Occasions may arise, however, where the recognition and
enforcement of an illegitimate child's constitutional rights
vis-a-vis
its
mother will not conduce to the child's best interests and it will be
imperative that a purposive inquiry into the child's constitutional rights
be made with a view to promoting the welfare of the child in adoption
and other areas of law. The best interests of mental patients are often
served by committal to a mental institution and such committals take
place under the
Mental Treatment Acts.
It has not been suggested that
the exercise of this power is a violation of the patient's right of personal
liberty. However, it should be pointed out that Mr. Justice Walsh in
The People (Attorney General) v. O'Callaghan
11966] I.R. 501
regarded as "quite unsustainable" the proposition put forward by Mr.
Justice Murnaghan (in the High Court) that "the likelihood of personal
danger to [al prisoner" was in itself a ground for refusing bail. See also
Connors
v.
Pearson
11921 ] 2 I.R. 51 which may be cited in support of
the proposition that "there is no power to arrest and detain a person
merely because it is apprehended that he may be in danger at some
time in the future". See R. F. V. Heuston,
Salmond on the Law of
Torts
131 (17th ed., 1977). Nevertheless, the best interests of a child
may still be promoted by the courts where he has no rights at all. One
writer has noted that the wardship jurisdiction of the High Court may
be invoked in certain circumstances where the infant has no enforce-
able legal rights
per se
i.e. where the infant is unborn: "Since [the]
jurisdiction exists in order to protect not so much the strict legal rights
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