The Gazette 1991

GAZETTE

NOVEMBER 1991

of the common good "

4 1

should supply the place of the

parents.

How did the Court reconcile the

forfeiture of parental rights with the

content of Articles 41 and 42?

Counsel arguing against the

cons t i t u t i ona l i ty of the Bill

submitted that the provisions of the

Bill relating to adoption:

(a) represented an attack upon the

constitution and authority of

the family to which the child

belonged:

(b) represented a fundamental

attack upon the authority of

that family unit, eliminating as

it must, the authority of the

family and its members over

the child;

(c) effectively extinguished the

child's right to belong to his

particular family unit, which

right, it was submi t t ed,

was inalienable and impre-

scriptible;

(d) extinguished other rights the

child possesses as a member

of his family, namely the right

to the society of the other

members of the family unit and

the right to be educated by the

family group to which he

belongs. These rights, it was

submitted, were inalienable

and imprescriptible;

(e) extinguished the parents'

inalienable right to educate and

have custody of their children.

Counsel for the Attorney General,

arguing for the constitutionality of

the Bill, submitted that:

(a) Article 42.5 which allowed the

State, in exceptional cases,

where the parents for physical

or moral reasons fail in their

duty towards their children, to

endeavour to supply the place

of the parents by appropriate

means, was reflected in the Bill.

(b) The State has the duty and

right to protect and to vindicate

the rights of a child who by

reason of its parents' failure

has lost, and is likely

permanently to .lose, not only

its rights as identified in

Articles 41 and 42 of the

Constitution, but also other

personal rights which derive

from

the

Cons t i t u t i on.

Adoption, it was submitted,

, was the method necessary to

afford that protection and

vindication.

The Court held that Article 42.5 of

the Constitution is not confined in

its application to the duty of

parents to provide education for

their children. The Article extends

to the parental duty to cater for the

other personal rights of the child.

The Court also held that under

Article 40.3, the State is obliged to

vindicate the personal rights of the

child in so far as same is

practicable. On the question of the

"inalienable" and "imprescriptible"

rights possessed by the family

under Article 42, Finlay C.J. ruled

as follows:

" T h e

Court rejects

the

submission that the nature of

the family as a unit group

possessing inalienable and

imprescriptible rights, makes it

constitutionally impermissible

for a statute to restore to any

member of an individual family

constitutional rights of which he

had been deprived by a method

which disturbs or alters the

constitution of that family if that

method is necessary to achieve

that purpose. The guarantees

afforded to the institution of the

family by the Constitution with

the consequent benefit to the

children of a family should not be

construed so that upon the

failure of that benefit it cannot

be replaced

where

the

circumstances demand it, by

incorporation of the child into an

alternative family."

The Court held that the only

limitation upon supplying the place

of the parents lay in the obliga-

tion upon the State to have due

regard for " t he natural and impre-

scriptible rights of the child."

Thus, the Court upheld the

constitutionality of the Bill. It is

clear upon reading the judgment

that the words 'inalienable' and

'imprescriptible' no longer proved

to be as unassailable as they once

were.

In effect, one cannot reconcile the

dicta of the Supreme Court in

Doyle

(which was cited to the

Court during the case but which

was not alluded to in the judgment)

with that of the 1988 Court

deciding the constitutionality of the

Adoption Bill. In

Re Doyle,

the

follpwing dicta emerged:

" I t seems . . . to this court that

the makers of the Constitution

by the provisions of Article 42

and particularly by ss 1 and ss

2 of this Article deliberately

preserved the common law

principle and have put it beyond

the

reach

ordinary

legislation."

"The upholding of the

Adoption Bill 1987 as

constitutional

is further

evidence that judicial

interpretation

now balances

the parental rights against the

child's rights in the context of

Articles 41 and 42."

The common law principle being

referred to was that a parent could

not deprive himself of his rights to

custody of his child unless by gross

misconduct. In effect, the judiciary

began with a literal interpretation of

the natural law terminology present

in the Articles. Thus a judicial

tendency towards the supremacy

of parental rights developed. As

time passed, attempts were made

to reconcile parental and child's

rights resulting sometimes in a pro-

parental decision

{Re.;

and

sometimes in a pro-child decision

(P.W. -v- A.W.).

Eventually, the

"overwhelming interests" test

came about (G.

-v- An Bord

376