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GAZETTE

SEPTEMBER 1986

Recent

Irish

Cases

Edited by

Gary Byrne, Solicitor

EMPLOYMENT

Power of Minister to determine grading

structures in the Civil Service - Power to

recognise Staff Associations • Judicial

Review of such powers.

The Plaintiffs in this action were officers

of a Staff Association, The Inspector of

Taxes' Association (I.T.A.) which was

formed in 1980 to represent Inspectors of

Taxes (Technical) who had been commis-

sioned by the Minister for Finance or were

awaiting such commissions.

Another Staff Association, The Associa-

tion of Inspectors of Taxes (A.I.T.) existed

to represent Inspectors of Taxes since prior

to 1952. Initially, membership of the

A.I.T. had been confined to Inspectors of

Taxes (Technical) but

following the

appointment of non-technical Inspectors to

the grade of Inspector of Taxes (Technical)

in 1960, the A.I.T. had represented both

technical and non-technical inspectors.

The A.I.T. had been recognised by the

Minister for Finance as a staff association

entitled to take part in the operation of the

Civil Service Conciliation and Arbitration

Scheme (The C & A Scheme) in 1952. The

I.T.A. sought similar recognition on its

formation in 1980. The application for

recognition was refused for two related

reasons:

(a) because it was a settled policy of the

C & A Scheme that no grade of civil

servant could be represented by two

staff associations at the same time, and

(b) because no staff association which did

not admit to membership all the

members of the grade which it sought

to represent could obtain recognition.

The Plaintiffs did not challenge the

propriety of these general policy considera-

tions. Instead, they claimed that Inspectors

of Taxes (Technical) were, in fact, a

separate grade and the Minister should

have recognised them as such and,

therefore, considered their application for

recognition of that grade.

The Court considered that three issues

arose on the Appeal. The first was whether

the Court had the power to create or

identify a grade in the Civil Service for the

purposes of the C & A Scheme? The Court

referred to Section 16 of the Civil Service

Regulation Act, 1956, which gave the

Minister the statutory power of making

and determining all levels of classification

and sub-classification including grading of

every description. It considered that it

would be quite inconsistent with these

statutory responsibilities if the Minister's

overall powers were subject to Court

decisions on what constitutes a grade

within the Civil Service.

The second question was whether the

refusal of the Minister to recognise or

classify Inspectors of Taxes (Technical) as

a separate individual grade was subject to

review by the Courts? The Court noted that

the decision to classify or refuse to classify

particular persons as a separate grade was

an administrative act capable of affecting

the remuneration and career prospects of

Civil Servants. It considered that the Court

had a right to intervene in that decision if it

could be established that the Minister had

acted in a manner which was considered to

be "arbitrary, capricious, partial

or

manifestly u n f a i r ", i.e., if the decision had

suffered from one of the frailties referred

to in the Supreme Court's decision in

O'Brien

-v-

Bord na Mono

[1983] I.R. 255.

The Court held that in the instant case it

did not.

The third question was whether the

Plaintiffs had established grounds for

judicial review of the decision?

The Court's response to this question was

in the negative. It noted that the Minister's

decision to refuse to recognise the I.T.A.

was not taken until his representatives had

examined the situation in the various

categories of Inspectors in 1980 and had

considered the work they did and the

material

factors

which

might

be

appropriate if a re-grading of them had

been deemed necessary. Thus, it concluded

that the implied application for a re-

grading had been fairly considered.

The Appeal failed.

Inspector of Taxes' Association and Others

-v-

The Minister

for

Public

Services,

Ireland and the A ttorney General,

Supreme

Court (per Finlay C.J. nem. diss.),

II

November 1983 —

unreported.

Declan Madden

ADOPTION

Application

by adoptive

parents

to

dispense with the consent of the natural

mother to the making of an Adoption

Order - Counter application by the mother

claiming custody of her child.

The mother was born in 1963 and was

unmarried when her son was born on 11

February 1984. The mother was living at

home and when her parents learned of her

situation they were upset

but

also

sympathetic and supportive. They left to

their daughter the decision as to whether

she should keep her baby and did not

coerce her in any way. While attending for

ante-natal care the mother was put in touch

with a social worker who discussed her

problems with her. Later, the mother went

on her own initiative to an adoption agency

with a view to arranging adoption. After

the child was born the mother signed the

form of consent td placement for adoption,

which she fully understood. The child was

then placed with the adoptive parents in

April 1984 and had been with them since.

ix

On 20 August 1984, the final consent was

signed by the mother but not without

further lengthy discussions with the social

workers. On 24 August 1984, the mother

telephoned the social worker to say that she

had changed her mind and withdrew her

consent. She followed this with a letter.

The adoptive parents then

instituted

proceedings and these were countered by

the mother's application for custody. The

case came on for hearing in February 1985

when the child had been with the adoptive

parents for almost a year.

There was a conflict of opinion between

the psychiatrists called by the parties. The

Doctor for the adoptive parents said she

was favourably impressed by the adoptive

couple and the home that they had

provided for the child. She said the baby

had definitely bonded to these people and

that this had taken place in the first six

months of the baby's life, and if broken the

child may be marked for life both

physically and psychologically. However,

the Doctor for the mother was unable to

concur with this prognosis where the child

was removed from one caring environment

to another. He stated there was no reason

to suppose the child would not bond with

its own mother. Although he accepted that

there would be an initial period of stress he

was of the firm view that there would be no

long term ill effects.

The Court held:

1. That the mother had freely consented

to placing her child for adoption in the

full knowledge of the consequences.

2. That the mother later withdrew her

consent to the adoption before an

Adoption Order was made.

3. That the provisions of Section 3 of the

Adoption Act, 1974, applied and the

Judge had to decide what was "in the

best interests of the child".

In conclusion, the Judge said it was very

hard to resist the claims of the natural

mother. The adoptive parents appeared to

be as good a choice as one could make

when placing a child for adoption but he

felt that a baby and growing child would

always be better off with its natural mother

if she is a devoted and concerned parent

and can provide in a reasonable manner for

the physical and emotional needs of the

child. The Court accepted that if too long a

period elapsed before the return of the

child was sought the bonds of attachment

might be incapable of being broken

without lasting damage but here fell the

point of no return had not yet been

reached. The Court acted on the view

expressed by the mother's Doctor and

awarded custody of the child to the mother

and ordered the transfer of the child to her

custody to be effected with the least

possible delay.

R.C. & P C. -v- An Bord Uchlala and St.

Louis Adoption Society and M.M.

-v-

R.C.

and P.C. and An Bord Uchtala — High

Court (per O'Hanlon

J.), 8

February

1985 —

unreported.

Muriel Walls