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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