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GAZETTE
SEPTEMBER 1979
and 16 of the Guardianship of
Infants Act 1964, namely, whether
the Plaintiff had abandoned or
deserted the child so that the Court
should refuse to enforce her right to
custody and, if so, whether the Court
should exercise its discretion and
decline to make an Order for return
of custody of the child to the Plain-
tiff; and, whether the Plaintiff had
abandoned or deserted the child or
allowed her Jo be brought up by
another person at that person's
expense to such an extent that she
was unmindful of her duties as a
parent and, if so, whether she was
now a fit person to have custody of
the child.
The Supreme Court in
G. v. An
Bord Uchtála and Ors.
(19/12/78,
unreported) had decided that the
mother of an illegitimate child has an
alienable constitutional right to its
custody. Following the reasoning of
the Court in that case, Finlay P.
decided that a valid alienation by the
Plaintiff of her constitutional right to
custody of the child could be effected
only by means of a fully informed
and free decision by the Plaintiff.
Held
(per Finlay P.):
(1) That following the standards
laid down by the Supreme Court in
G. v. An Bord Uchtala and Ors.
(19/12/78, unreported), the events of
December
1977 constituted an
agreement by the Plaintiff to place
her child for adoption within the
meaning of Section 3 of the Adoption
Act 1974.
(2) That such agreement was an
agreement
capable
of
mutual
rescission and that the events of April
1978 constituted a rescission of that
agreement, so that the Plaintiff was
not then a person who "has agreed to
place her child for adoption" within
the meaning of Section 3 of the said
Act of 1974.
(3) That the events of 2 May 1978
constituted an agreement by the
Plaintiff to place her child for adop-
tion within the meaning of Section 3
of the said Act of 1974.
(4) That on the evidence before
him it was in the best interests of the
child that she be given the oppor-
tunity of being adopted by the pro-
spective adoptive parents and that
therefore an Order under Section 3 of
the said Act of 1974 should be made
dispensing with the Plaintiffs consent
to adoption.
(5) That the Plaintiff had deserted
(but not abandoned) her child; but
that she was on the balance of prob-
abilities a fit person to have custody
of the child, that is to say, that there
was nothing in her make-up which
would prevent her from being capable
of caring for the child.
(6) As to whether the Court should
refuse to make an order for return of
the child to the Plaintiff in the event
of the child not being the subject of a
final Adoption Order made in favour
of the proposed adoptive parents,
that he would not feel bound in such
circumstances to refuse to make such
an order.
On the basis of the foregoing, the
Court made an Order pursuant to
Section 3 of the Adoption Act 1974
giving custody of the child to the pro-
spective adoptive parents for a period
of six months and authorising the
Adoption Board to dispense with the
consent of the Plaintiff to the making
of an Adoption Order in favour of the
prospective adoptive parents during
that period of six months; and a
Declaration as between the Plaintiff
and the Eastern Health Board that, in
the event that the Adoption Board
does not within the said period of six
months make an Adoption Order in
favour of the prospective parents,
there were not in the absence of a
change of circumstances any grounds
for refusing to return custody of her
child to the Plaintiff.
S. v. Eastern Health Board and Ors.
— High Court (per Finlay P.) — 28
February 1979 — Unreported.
LANDLORD AND TENANT
Liability for Repair — Application of
Section 55 of the Landlord & Tenant
Act 1931.
Certain premises at Mountmellick,
Co. Laois, were held under a lease
dated the 16 September 1946 which
contained a covenant on the lessors'
part requiring them to "keep the
roof, walls and the exterior part of
the said premises in good condition
and repair", and a covenant on the
lessee's part to "keep the interior of
the said premises in good condition
and repair". The premises were old
having been built some 150 years
ago, were T-shaped and had been
used both as an office and (in the
front portion of the premises) as a
dwelling. The Plaintiff and her
husband resided in the upper storey
of the front portion which was used
as a residential flat and the remainder
of the building was used by the
Plaintiff's husband, with her
permission, for his professional
practice. No part of the premises was
sub-let.
The Court rejected the proposition
that'the landlord was not liable for
any damages arising from defects
which existed prior to the service by
the tenant of a notice of alleged de-
fects. Neither
Hewitt v. Rowlands
(1924) L.T. 757 nor a passage in
para. 722 of
McGregor on Damages
(13th Edition) has authority for the
proposition that the Plaintiff was not
entitled to damages based on the
estimated cost of repair.
It had been argued that Section 55
of the Landlord & Tenant Act 1931
(which deals with damages for breach
of tenants Covenants to repair and
the limitations on the quantum of
such damages) did not apply because
the premises did not comply with the
conditions contained in the definition
of tenement in the 1931 Act because
they were not "in the occupation"
of the Plaintiff. See
McManus v.
Electricity Supply Board
[1941] I.R.
371.
Held
(per Costello J.) that the
Plaintiffs occupation was sufficient to
bring her within Section 55 and she
was entitled to claim that she was "in
occupation" of the premises.
Hazel Fetherstonhaugh
v.
Henry
Victor Smith and Stephen Smith -
unreported High Court (Costello
J.)
12 February 1979.
Rent Review Clause — Requirement
to serve Notice — Whether time of
the essence of the Contract.
A Lease of the upper portion of a
shop in Dublin provided as follows:
"The said yearly rent has been
charged between the parties as a
fair yearly rent for the demised
premises at the respective
dates
mentioned in paragraph 1 hereof
but the Landlord shall have the
right at the end of the sixth,