The Gazette 1991

GAZETTE

NOVEMBER 1991

that the child's welfare is to be the

paramount consideration in any

dispute concerning the child. There

was evidence that the child was

"clearly bonded"

to the adoptive

parents having been in their

custody for two years. Lynch J.

gave custody to the adoptive

couple subject to access by the

natural parents. On appeal, the only

question to be decided was

whether the parents or the adopt-

ive couple should have custody of

the child. The Chief Justice

delivered the judgment of the

Court. His lordship said:

"The child, being the child of

married parents, and now

legitimated, had rights under the

Constitution as a member of a

family. These were:

1. (a) to belong to a unit group

possessing inalienable and

imprescriptible

rights

antecedent and superior

to all positive law (Article

41.1)

(b) to protection by the State

of the family to which it

belonged (Article 41.2).

(c) to be educated by the

family and to be provided

by its parents with reli-

gious, moral, intellectual,

physical and social educa-

tion (Article 42.1).

2. The State could have

implemented the role of the

parents in providing for the

child's educational rights

under Article 42 only in

exceptional circumstances

(Article 42.5).

3. The 1964 Act must, if

possible, be interpreted

consistently

w i th

the

Constitution."

So where, as here, there was a

custody conflict between the

Article 41/Article 42 family and a

third party, section 3 must be

construed as " i nvo l v i ng a

constitutional presumption that the

welfare of the child which is

defined in section 2 of the Ac t . . .

is to be found within the family

unless the Court is satisfied on the

evidence that there are compelling

Parental duty to cater for

personal rights of child

In 1988, the Supreme Court

decided the case in

Re Article 26

of the Constitution

and the

. . the Supreme Court decided that the Constitutional

right

of a child to have his welfare accommodated

would be

satisfied in his parents custody un/ess "compelling

reasons"

were established.

. .

reasons why this cannot be

achieved, or unless the Court is

satisfied t hat the evidence

established an exceptional case

where the parents have failed to

provide education for their child for

moral or physical reasons."

Thus

the "compelling reasons" test was

created. In addition to the

exceptional case, where, if the

parents failed to educate their child,

they would lose custody of the

child, the parents would also lose

custody of the child if "compelling

reasons" were presented to the

Court as to why the child's welfare

did not lie in the parents'

custody.

The Supreme Court did not

enunciate an example of a

"compelling reason".

The analogy between the

reasoning of Finlay P. in

G. -v- An

Bord Uchtála

and the Supreme

Court in the above case is clear.

Finlay P found that the constitu-

tional right of a child to have his

welfare accommodated would be

satisfied in the mother's custody

unless

the

" ove rwhe lmi ng

interests" of the child demanded

otherwise. In the

K.C.

case, the

Supreme Court (Finlay C.J. giving

the judgment of the Court), decided

that the constitutional right of a

child to have his welfare accommo-

dated would be satisfied in his

parents' custody unless "compell-

ing reasons" were established as to

why this was not the case, or

unless an "exceptional" case under

Article 42.5 existed. Thus, the

parents' rights over their child

under Articles 41 and 42 were

balanced against the child's rights

to protection of his welfare.

Adoption Bill (No. 2)

1987.

The

Bill provided for involuntary

adoption in restricted circum-

stances. The Bill pertained to the

adoption of legitimate children,

legitimated children and those

children born out of wedlock. The

reason as to why the Bill was

referred to the Supreme Court lay

in the uncertain validity of providing

for the adoption of legitimate

children. The Dail expressed the

fears of its 1951 predecessors who

had debated the 1952 Adoption

Act. The protection afforded by

Articles 41 and 42 to married

parents threatened the validity of

any legislation providing for the

adoption of legitimate children

where the parents of these children

were still alive.

Stringent conditions are laid down

in the Act as to when the legitimate

child becomes eligible for adoption.

In e f f ec t, the Court, before

authorising the Adoption Board to

make an order concerning a

legitimate child, must be satisfied

that:

1. The parents have failed in their

duty for physical or moral

reasons for a continuous period

of not less than twelve months

immediately preceding the time

of the making of the

application.

2. Such a failure will continue

without interruption until the

child attains 18 years of

age.

3. Such failure is an abandonment

on the part of the parents of all

parental rights towards their

child, and by reason of the

failure, the State "as guardian

375