163 / 300
the employers. The Association was a non-incorporated
body which was brought under the scheme but under
no circumstances were they employers.
Council's chance
Even if the Association negotiated terms with the
union and agreed on them as the law stood the decision
could be over-ridden. On that ground alone it seemed
to him that the Council had an excellent chance of
succeeding when the action came for hearing.
On the second point there was an arguable case that
a County Council was not engaged in trade or industry.
On both grounds there was no trade dispute between
the union and the County Council but between the
union and the Association.
[Tipperary S.R. County Manager and another v.
Amalgamated Union of Engineering Workers; Kenny J.;
unreported; 20 May 1974.]
Part of Adoption Act preventing adoption of wife's
illegitimate child ruled unconstitutional.
A section of the Adoption Act, 1952, preventing a
young Dublin couple from adopting the wife's illegiti-
mate son, was held to be unconstitutional.
In a reserved judgment,
Mr. Justice Pringle
held that
the particular sub-section clearly had imposed disabili-
ties and had made a discrimination of the grounds of
religious profession or belief and, therefore, was invalid.
The section impugned is section 12 (2) which states :
" The applicant, or applicants, shall be of the same
religion as the child and his parents, or, if the child is
illegitimate, his mother".
The couple, whose names were not disclosed, and
who were married three years after the child was born
in 1967, are of different religions, the husband being a
Catholic and an Irish citizen, the wife, a member of
the Church of England.
The child was born in England, baptised in the
Church of England but is being brought up a Catholic
in Dublin. He is due to receive his first Holy Communion
later this month.
During the hearing of the action last week it was
stated that the child had been reared by the couple
since their marriage and that the husband was not the
father.
After the court had given its decision, the husband
said : "We are happy with the decision. We were deter-
mined to have the boy legally adopted since the Adop-
tion Board rejected our applications on religious
grounds.
The Judge also made an order, declaring the decision
of the Adoption Board, rejecting the couple's applica-
tion to have the child adopted, to be invalid.
Mr.
Justice
Pringle
held that the provisions of the
particular section of the Act, were clearly, on their
face, in contravention of Article 44 (2) (3) of the
Constitution for the reasons advanced by the plaintiff's
counsel. If this was not so, he held that the plaintiffs
had discharged the onus of rebutting the presumption
of their constitutionality.
The Judge said he could not accept the submission
of counsel for the Adoption Board and the Attorney
General that the legislature, in conferring the right oi
legal adoption, was entitled to provide reasonable re-
strictions.
"I do not agree that the restriction imposed was
3
reasonable one and, even if it were, it could not be
valid if it infringed the Constitution, as I am satisfied
it did."
Decision on Costs
After
Mr.
T.
K. Liston,
S.C., for defendants had
asked that the costs be not granted against the Adop-
tion Board, the Judge said he would not grant
costs
against them because he considered they had acted
properly in the matter and had made the only order
they could make in the circumstances. He awarded
the costs against the Attorney General.
When the decision was announced,
Mr.
T.
J*
Conolly,
S.C., for the plaintiffs, said he wished to thank
the press for having complied with the court's request
not to publish the names and addresses of his clients-
The Judge, endorsing this, expressed the hope that they
would continue to exercise their discretion in this
regard.
With Mr. Conolly were Mr. Donal Barrington, S.C->
and Mrs. Mary Robinson.
Note—Decision removes anomaly in Irish law
Judge Pringle's decision in the Adoption Act
case, removes an anomaly from Irish law, the
subject of much comment and criticism since the passing
of the Adoption Act in 1952. The Act provided that
an adoption order should not be made unless the
persons applying for the order were of the same religi°
n
as the child and his parents, or, in the case of an
illigitimate child, of his mother.
This meant that Protestant parents legally could not
adopt the child of Catholic parents, or the illegitimate
child of a Catholic mother. Similarly, Catholic parent*
could not adopt legally the child of Protestant parents»
or the illegitimate child of a Protestant mother.
The Act said that parents of mixed religion legally
could adopt a child, provided each of the spouses was
a member of one of a number of named religions-'
Church of Ireland, Presbyterian, Methodist, Quaker*»
Baptists or Plymouth Brethern.
This specifically excluded the case where one of the
parents was Catholic and seemed to conflict with the
constitutional guarantee of no discrimination on the
grounds of religious profession, belief, or status (Article
44) and also of the guarantees of equality before the
law and the protection, given in favour of the personal
rights of the citizen.
The Act also seemed to discriminate against th
e
child, who might be denied a good home and up*
bringing and against the parents of a mixed marriage»
who could not enjoy the privilege open to other parent*
of being able to apply for an adoption order under
the Act.
Judge Pringles' decision introduces a more liberal note
into the legal situation of parents of mixed marriage*
It does not appear that any amending legislation i
s
necessary as a result of the decision. It means merely
that the offending provisions of Section 12 of the Act
go by the board.
[J. McG. and W. McG. v. Adoption Board and
Attorney-General; Pringle J.; unreported; 13 MaV
1974.]
162