The Gazette 1991

GAZETTE

NOVEMBER 1991

Articles 41 and 42 were further

cemented into Irish jurisprudence in

Re O'Brien

decided three years

after the Tilson case. The facts of

the case were that a father sought

custody of his child. The child had

been in the custody of its grand-

mother for two years. His mother

had died and the father had be-

come a patient in a sanatorium.

When he left the sanatorium he

remarried and sought custody.

Counsel for the respondent argued

that the welfare of the child de-

manded that she be left with her

grandmother. O'Byrne J. in the

Supreme Court, replied as follows:-

"These considerations are quite

independent of the constitu-

tional provisions which seem to

me to be of paramount im-

portance in this case"

Referring to Ar t i c le 42.1 he

continued:

"This seems to contemplate and

require that the children should

be members of the family and

attached to the parental home.

The sanctity of the family and

enduring existence of parental

authority seem to me to be

guaranteed by these provisions.

Articles 41 and 42 of the

Cons t i t u t i on cons t i t u te the

fundamental law of this State

and must be taken as over-riding

any pre-existing law inconsistent

therewith".

The child was returned to the

father. The case, however, clearly

shows the conflict between the

potential conflict between parental

rights and the child's where the

parents had

not

been culpably

unmindful of their duties and the

child's welfare lay outside parental

custody.

Re J.™

decided in 1966 an

illegitimate child was placed for

adoption. An adoption order was

made but was quashed. The

parents married and the child was

thus legitimated. She was no

longer eligible for adoption and the

parents sought custody. The

adopters argued that under section

3 of the Guardianship of Infants

Act, 1964, the child's welfare was

better served with them. Section 3

of the 1964 Act states that where

in any proceedings before any

court, the custody, guardianship or

upbringing of an infant, or the

administration of any property

belonging to or held in trust for an

infant, or the application of the

income thereof, is in question, the

Court, in deciding that question,

shall regard the welfare of the

infant as the first and paramount

consideration. A divisional High

Court held that the child should be

returned to the parents. Teevan J.

and Henchy J. observed that if

section 3 purported to diminish

parental control over children, then

the question of its constitutionality

would arise. The Court did not think

that the child's welfare would not

be served in the parents' custody.

However, the case

makes

abundantly clear the difficulty in

reconciling the equitable para-

mountcy of the child principle

expressed in section 3 of the 1964

Act and the parents' rights over

their child enunciated in Articles 41

and 42.

Balancing rights of parant to

child

It is this writer's submission that

the tide of judicial thought began to

turn towards balancing the rights of

parent to child in 1979.

G. -v-

An Bord Uchtála

the consti-

tutional right of an unwed mother

to the custody of her child was

analysed.

The Supreme Court held that the

mother relinquished this right at

placement of the child for adoption

and not at the later stage of the

signing by the mother of the

consent to the making of the

adoption order.

Finlay P. (as he

then was), however, in the High

Court, held that the right was

relinquished only at the signing of

the consent to adoption. His lord-

ship reasoned that the mother's

constitutional right to custody of

her child demanded that her placed

child be returned to her unless the

"overwhelming interests" of her

child demanded that the child

remain with the adopters, or unless

the mother's refusal to consent to

the adoption was capricious or

irresponsible. The judgment is

important from the point of Articles

41 and 42 because Finlay P. was

prepared to balance the mother's

constitutional rights, albeit under

Article 40.3, against the child's.

The mother's right would not be

satisifed if the "overwhelming

interests" of the child demanded

d i f f e r en t l y.

This

reasoning,

encompassing a " b a l a n c i n g"

approach towards constitutional

rights, wou ld be employed

eventually in the context of Articles

41 and 42.

In 1980.

RW. -v- A.W. & Ors

was decided. The case involved an

attempt to reconcile the conflict

between parental rights and the

child's welfare. In

RW. -v- A.W.

husband and w i fe had four

children. Upon the birth of the

fourth child, the mother permitted

her husband's sister to look after

the child as she had bouts of mental

illness, for which hospitalisation

was necessary. The arrangement

began as a temporary one but be-

came permanent, due to the

mother's incapacity to fend for her

child. Two years after the place-

ment, the parents separated and the

mother obtained custody of the

three elder children. The aunt had

custody of the youngest and the

mother sought custody of this child.

Ellis J. refused the mother custody.

The child had been integrated into

her aunt's home, and evidence was

heard as to the detrimental effect

any change in custody would have

on the child. The learned judge

noted that:

"It is this writer's submission

that the tide of judicial

thought

began to turn towards balancing the rights of parent to child

in 1979."

373