The Gazette 1991

GAZETTE

NOVEMBER 1991

"The learned judge referred to the need to adopt a

construction

. . . which would 'lead to the smooth and

harmonious operation of the Constitution'

" [ T j he re is nothing in the

Constitution to indicate that in

cases of apparent alleged

conflict, the rights of a parent

always have to be given

primacy . . ."

Later in the judgment, he stated

that:

" I f however, there is a conflict

between the constitutional

rights of a legitimate child and

the prima facie constitutional

right of its mother to its custody,

I am of the opinion that the

infant's rights, which are to be

determined by regard to what is

required for its welfare, should

prevail, even if its welfare is to be

found in the custody of a

stranger . . ."

It may be noted that there is

nothing in the Constitution to

indicate that children's rights

should be given primacy over

parental rights. However, the

judgment is clearly indicative of the

changing trend in judicial attitude.

The learned judge was seeking to

circumvent the absolutist support

for parental rights present in

Articles 41 and 42.

This trend was further endorsed in

Tormey -v- The Attorney General

and

Murray -v- the

Attorney

General,

two judgments handed

down in 1985. The Tormey case did

not concern any question of the

rights of the family, but Henchy J.

handed down interesting dicta on

the wisdom of a literal mode of

constitutional interpretation in the

case. The learned judge referred to

the need to adopt a construction of

the Constitution which would

" l ead to the smoo th and

harmonious operation of the

Constitution",

and to avoid a

strict construction which would

" a l l ow the imper f ec t i on or

inadequacy of words used to defeat

or prevent any of the fundamental

purposes of the Courts."

Murray -v- the A.G.

the plaintiffs

were imprisoned married persons

who asserted that their right to

procreate was protected by Article

41 of the Constitution.

Counsel for the plaintiffs relied on

the terminology of "inalienable"

and "imprescriptible" employed in

Article 41 to endorse his clients'

submissions. Costello J. replied:

"[Plarticular reliance is placed

upon Article 41, for it is said that

there is a hierarchy of

constitutionally protected rights

and this right shows how high in

the scale of values the rights

claimed in this case should be

placed."

His Lordship stated that the

success of the plaintiffs' argument

did not depend upon "establishing

that the right to beget children is

protected by Article 41 rather than

Article 40."

In what is a revealing dictum as to

judicial perspective of the purpose

of the fundamental rights Articles,

his Lordship said that "inalienable"

and "imprescriptible" are words

used to describe the family's rights

and neither of those adjectives was

used to describe other personal

rights in the Constitution. The

Constitution, his Lordship added,

does not confer on citizens human

rights, but in effect recognised

these rights as "antecedent to all

positive law." His Lordship pointed

out that although no reference is

made in Article 41 to any restrictive

power over the inalienable and

imprescriptible rights of the family

to integrity as a unit group, it is

obvious that the State

can

validly

restrict these rights for example,

when its laws allow a man to be

barred from the family home. His

Lordship continued:

" [ l ]n construing the Constitu-

tion, the Courts should bear in

mind that the document is a

political one as well as a legal

one and whilst not ignoring the

express text of the Constitution,

a purposive approach to inter-

pretation which would look at

the whole text of the Constitu-

tion and identify its purpose and

objectives in protecting human

rights is frequently a desirable

one."

Costello J. recognised the spirit of

Articles 41 and 42 in his judgment.

The learned judge furthered the

judicial quest to reconcile the

absolutism of the Articles to real

life situations. The enactment of

the Articles had brought about a

pro parental tendency on the part

of the judiciary. In the seventies the

judiciary had begun to reject

this approach. By 1985, the

nemesis of literal interpretation

had arrived. The climax of this

evolving judicial approach occurred

K.C. and A.C. -v- An Bord

Uchtála.

In this case, a natural mother

placed her child in foster care a

week after the birth. The child was

placed for adoption subsequently.

The natural parents married and

applied pursuant to the Legitimacy

Act, 1931 to have the infant's birth

re-registered. The mother refused

to consent to the adoption order

being made and the adoptive

parents sought to dispense with

her consent as is their legal

entitlement.

The natural parents

sought custody of the child. Lynch

J. put a stay on the re-registration

would make the child non-eligible

for adoption. The adoptive couple

sought to dispense wi th the

mother's consent to the adoption

under section 3 of the Adoption

Act, 1974. The learned High Court

judge did not dispense with the

mother's consent because in the

case of a legitimated child, both the

father's and mother's consent to

the initial placement with the

adoptive couple is necessary and

the father had not consented. The

issue then became a custody issue

on the basis of section 3 of the

Guardianship of Infants Act, 1964.

As noted above, this section states

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