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GAZETTE
NOVEMBER 1978
birth of the child had been registered
with the name of the second-named
prosecutor as her admitted father.
After the birth of the child she was
transferred to a children's home in
County Dublin pending a decision
about her f u t u r e. The two
prosecutors, who were still on
friendly terms, decided that it was in
the best interests of the child that she
should travel to Nigeria and there
enter the home of the second
prosecutor's parents who had been
informed of her birth, and had
expressed a willingness to offer her a
home with them until her father had
established his own home in Nigeria.
The Court was informed that the
father's parents in Nigeria were in
comfortable material circumstances.
In December, 1977 the first
named prosecutor applied to the
Department of Foreign Affairs for a
passport for the child setting out the
information appropriate including the
purpose of obtaining the passport
and the purpose for which she
wanted her daughter to travel to
Nigeria. In January 1978 she
received a letter stating that in the
circumstances the Department was
unable to accord passport facilities to
the child.
Per Finlay P.:
"It is quite clear
and was not contested before me that
the reason why the Minister for
Foreign Affairs was not in a position
to accord passport facilities to the
prosecutors' daughter was not an
exercise by him of any discretion but
rather the fact that to do so would be
the aiding and abetting by him of a
breach of provisions of the Adoption
Act 1952".
The prosecutors' application was
one to make absolute a conditional
order of Certiorari, directed against
the respondents, quashing the
decision to refuse the passport. The
constitutionality of Section 40,
together with Section 3 of the
Adoption Act 1952 was put in issue.
Section 3 — the definition section —
traced the relationship to an
illegitimate child through the mother
only and "parent" did not include the
natural father of an illegitimate child.
Section 40 provided: "(1) No
person shall remove out of the State a
child under seven years of age who is
an Irish citizen or cause or permit
such removal.
(2) Sub-section (1) shall not apply
to the removal of an illegitimate child
under one year of age by or with the
approval of the mother, or if the
mother is dead, of a relative for the
purpose of residing with the mother
or a relative outside the state.
(3) Sub-section (1) shall not apply
to the removal of a child (not being
an illegitimate child under one year of
age) by or with the approval of a
parent, guardian or relative of the
child . . . "
The High Court (Finlay P.)
summarised the differences in
treatment of an illegitimate and a
legitimate child in these Sections, as
follows:—
(a) In all cases the consent or
approval required in respect of an
illegitimate child must be either that
of the mother, of a guardian or of a
relative of the mother and the consent
or approval of the father or any
relative of the father was irrelevant.
(b) A further restriction being the
purpose of the movement of the child
out of the State was imposed in
relation to an illegitimate child up to
one year of age which was not
applied at all in relation to a
legitimate child, and that purpose
was confined to residence with the
mother or with a relative of the
mother and was not applicable to
residence with the father or any
relative of the father.
Held
(per Finlay P.):
(1) that the provisions of the
Sections were not unconstitutional
and therefore, did not constitute an
invidious and unfair discrimination
against an illegitimate child. There
was a difference of moral capacity
and social function between an
illegitimate and a legitimate child. Per
Finlay P.: "A legitimate child is part
of a family unit, the rights and, in a
sense, the duties of the family being
specially provided for in the
Constitution". State (Nicolau) v. An
Bord Uchtala [19661 I.R. 567 and
O'Brien v. Keogh [19721 I.R. 144
approved.
(2) That one of the personal rights
not enumerated but arising from the
christian and democratic nature of
the State was the right to free
movement within the State. Per
Finlay P.: "A citizen has subject to
the obvious conditions which may be
required by public order and the
common good of the State the right
to a passport permitting him or her to
avail of such facilities as international
agreements existing at any given time
afforded to the holder of such a
passport". Ryan v. Attorney-General
[19651 I.R. 294 applied.
(3) That in die case of a child, this
personal right was exercisable not by
its own choice which it was incapable
of forming but by the choice of its
parent, parents or legally recognised
guardian subject always to the
jurisdiction of the Courts by
appropriate proceedings to deny that
choice in the dominant interest of the
welfare of the child.
(4) That because the Adoption Act
1952 failed to defend and vindicate
the personal right of the child to
travel in the manner as defined,
Section 40 (2) and the words in
Section 40 (3) "not being illegitimate
child under the age of one year" were
unconstitutional.
(5) That in the instant case, it was
clear that there was an important and
vital advantage to the welfare of this
child that it should be permitted to
travel to Nigeria in order to become
part of a family unit in that country
as soon as possible. The conditional
order or certiorari was therefore
made absolute and the cause shown
was set aside.
State (K.M. and R.D.) v. Minister for
Foreign Affairs, M. Burke Passport
Officer and the Attorney General —
High Court (per Finlay P.) —
Unreported — 29 May, 1978.
Summaries of judgments were
prepared by John Kearney, Michael
Staines, E. Rory O'Connor andJoseph
Mannix.