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GAZETTE
JANUARY/FEBRUARY 1983
FAMILY LAW
English father of English child
entitled to rely on provisions of
Irish Constitution to oppose
English adoption.
Application was made to the High
Court by the Plaintiffs (into whose
care a child had been placed by
Juvenile Court in Kettering) for an
Order returning the child to their care
in England as the child had been
unlawfully removed from the
jurisdiction of the English Courts by
its father.
The parents of the child were
married and domiciled in England,
and the child was born in England.
The mother was agreeable to it being
adopted but the father was not. The
Court was satisfied that if the child
was returned to the Plaintiffs in
England it would be adopted, a
development not permissible under
Irish law.
In the ordinary course of events,
the Court having regard to the order
of the English Court would have
ordered the return of the child to the
Plaintiffs. However, Art. 41.1 of the
Constitution guarantees and protects
the rights of the family "as the natural
primary and fundamental unit group
of Society, and as a moral institution
possessing inalienable and impre-
scriptible rights antecedent and
superior to all positive law." These
rights are so recognised by the
Constitution and the Courts in this
jurisdiction, but not by the law or the
Courts in England. TTiese rights are
— as stated by Walsh J. in
McGee v.
A.G.
[1974] I.R. 284 -"part of what is
generally called the natural law", and
the natural law is of universal applica-
tion and applies to all human persons,
be they citizens of this State or not.
In these circumstances the Court
Held:
(1) That the father of the child is
entitled to rely upon Art. 41 for
the purpose of enforcing his
rights as father, and that the fact
that he is not a citizen of this
country cannot prevent him
from relying on the constitution-
al protections given by Art. 41.
{"•.) That an order be refused at this
stage for. return of the child to
the Plain/tiffs.
(3) That as the child also has natural
rights which must be protected
and vindicated, it would be
necessary to have a full plenary
hearing to ascertain whether the
child's rights are being protected
before any final order could be
made in this case.
Northampton
County Council v.
A.B.F. and M.B.F.,
(High Court)
(per Hamilton J.,) — 2 November,
1981 — unreported.
George J. Gill
LICENSING
In determining whether a holder
of a Restaurant Certificate is
entitled to a renewal of his
Certificate evidence should be
available from the ofiicer in
charge of the Licensing area as to
the bona fide use of the premises
as a Restaurant supplying sub-
stantial meals to the public
during the previous licensing
session.
Patrick Walsh applied to the
District Justice for the Bray District
Court Area for a renewal of a
Certificate under Section 12 of the
Intoxicating Liquor Act of 1927 in
respect of buildings at Leopardstown
Race Course in County Dublin. He
applied as Nominee of the Leopards-
town Club Limited. The District
Justice stated a case to the High Court
for opinion. In Paragraph 4 of the case
submitted it was shown that evidence
was given for the Applicant that:—
1. There are four separate restaurant
areas with extensive and well
equipped kitchens and 18 bars
within the race course premises.
2. One of the bars is open the year
round during permitted hours.
3. There were 26 race meetings
during the year and persons
attending could and many did have
substantial meals in the restaurant
from about 12 noon to 7 p.m. on
those occasions.
4. Numerous dinners and diilner
dances were held during the year
for particular organisations and
substantial meals were served;
some of these functions were
private and some were public to the
extent that a member of the public
could attend on payment of the
admission price.
5. House dances or discos were held
on 4 nights of every week which
were open to any member of the
public on payment of £3.00
admission. The £3.00 included the
price of a set meal which was
available for patrons if they
required it. A patron could order a
meal from an a la carte menu, in
which case an allowance would be
made towards the menu price of
the meal but this did not happen
during the year. The a la carte
menu was also available from
8 p.m. to 11 p.m. on these nights
but sales were negligible and may
be disregarded.
6. Special exemption orders under
Section 5 of the Intoxicating
Liquor Act 1927 as amended by
Section 12 of the 1962 Act were
granted in respect of all the house
dances and discos and most of the
other functions mentioned.
Other occasional functions such
as childrens Christmas parties and
parties for orphanages were held
during the year; these were private
functions and where a meal was
served the nature of the meal and
the price were agreed beforehand.
8. An effort was made to promote a
luncheon business during the year
but this was abandoned.
9. Save on the occasions aforesaid the
restaurants were not open.
The Intoxicating Liquor Act of
1927 provides at Section 12 (1) as
follows:—
"Where on the occasion of any appli-
cation for a Certificate for a new On
Licence or a Certificate for the
transfer or renewal of the On Licence,
the Applicant requests the Court to
certify that the premises in respect of
which the Certificate is sought are a
restaurant for the purposes of this
Act, the Court, if satisfied after
hearing the officer in charge of the
Garda Siochana for the Licensing
area that such premises are structur-
ally adapted and bona fide and mainly
used as a restaurant, refreshment
house or other place for supplying
substantial meals to the public, shall
grant to such applicant a Certificate
(in this section referred to as a
Restaurant Certificate) certifying that
such premises are a Restaurant for the
purposes of this Act."
The District Justice had difficulty
in deciding the Application and stated
a case for the opinion of the High
Court posing the f o l l owi ng
questions:—
1. "On an Application under Section
12 of the Intoxicating Liquor Act
1927, if the officer in charge of the
Garda Siochana for the Licensing
Area says he has no objection must
the Court grant the Applicant?
2. Is the supply of substantial meals
at private dinners, public dances or
discos properly taken into account
in deciding whether a restaurant
business is carried on for the
purposes of Section 12 of the 1927
Act.
3. Is the supply of substantial meals
to race goers on race days properly
taken into account in deciding
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