399 / 406
GAZETTE
JULY/AUGUST1985
could be construed as meaning simply
that the balance of welfare as defined in
Section 2 of the Act of 1964 must be the
sole criterion for the determination by the
Court of the issue as to the custody of the
child. A child over two years of age, as
this infant is, in the dominant or general
custody of persons other than its parents
and continuing in such custody against
the wishes of its parents, cannot be said to
enjoy the right of education by its family
and parents granted by Article 42.1 of the
Constitution.
It was held further that Section 3 of the
Act of 1964 must be construed as
involving a constitutional presumption
that the welfare of the child which is
defined in Section 2 of the Act in terms
identical to those contained in Article
42.1 is to be found within the family
unless the Court is satisfied on the
evidence that there are compelling
reasons why this can not be achieved or
unless the Court is satisfied that the
evidence establishes an exceptional case
where the parents have failed to provide
education for the child and continue to
fail to provide education for the child for
moral or physical reasons.
The Court, allowing the appeal of the
parents, remitted the case to the High
Court to be further considered either on
the evidence as it existed or on such
further evidence as it may consider
material in accordance with the test of
compelling reasons why the welfare of the
child can not be secured to it in the family
unit and by the parents.
The Court dismissed the appeal of the
adopting parents against the order
refusing them relief under Section 3 of the
Act of 1974 which was not pursued by
them. The order restricting the re-regis-
tration of the birth of the child must be set
aside.
M. C. and M. C. -v- K. C. and A. C. and An
Bord Uchtala and An tArd Calraitheóir -
Supreme Court (per Finlay C.J., Griffin,
Hederman, McCarthy, O'Hanlon J.J.
concurring), 27 March, 1985 - unreported.
Damien McHugh
Copies of judgments in the above
cases are available on request from
the Society's Library. The photo-
copying rate is lOp per page.
xxviii