The Gazette 1991

NOVEMBER 1991

GAZETTE

Parental duty to cater for personal rights of child In 1988, the Supreme Court decided the case in Re Article 26 of the Constitution and the

that the child's welfare is to be the paramount consideration in any dispute concerning the child. There was evidence that the child was "clearly bonded" 35 to the adoptive parents having been in their custody for two years. Lynch J. gave custody to the adoptive couple subject to access by the natural parents. On appeal, the only question to be decided was whether the parents or the adopt- ive couple should have custody of the child. The Chief Justice delivered the judgment of the Court. His lordship said: "The child, being the child of married parents, and now legitimated, had rights under the Constitution as a member of a family. These were: 1. (a) to belong to a unit group possessing inalienable and imprescriptible rights antecedent and superior to all positive law (Article 41.1) (b) to protection by the State of the family to which it belonged (Article 41.2). (c) to be educated by the family and to be provided by its parents with reli- gious, moral, intellectual, physical and social educa- tion (Article 42.1). 2. The State could have implemented the role of the parents in providing for the child's educational rights under Article 42 only in exceptional circumstances (Article 42.5). 3. The 1964 Act must, if possible, be interpreted consistently w i th the Constitution." So where, as here, there was a custody conflict between the Article 41/Article 42 family and a third party, section 3 must be construed as " i nvo l v i ng a constitutional presumption that the

welfare of the child which is defined in section 2 of the Ac t . . . is to be found within the family unless the Court is satisfied on the evidence that there are compelling

. . the Supreme Court decided that the Constitutional of a child to have his welfare accommodated satisfied in his parents custody un/ess "compelling would be

right

reasons"

were established.

. .

reasons why this cannot be achieved, or unless the Court is satisfied t hat the evidence established an exceptional case where the parents have failed to provide education for their child for moral or physical reasons." 36 Thus the "compelling reasons" test was created. In addition to the exceptional case, where, if the parents failed to educate their child, they would lose custody of the child, the parents would also lose custody of the child if "compelling reasons" were presented to the Court as to why the child's welfare did not lie in the parents' custody. The Supreme Court did not enunciate an example of a "compelling reason". 37 The analogy between the reasoning of Finlay P. in G. -v- An Bord Uchtála 38 and the Supreme Court in the above case is clear. Finlay P found that the constitu- tional right of a child to have his welfare accommodated would be satisfied in the mother's custody unless the " ove rwhe lmi ng interests" of the child demanded otherwise. In the K.C. case, the Supreme Court (Finlay C.J. giving the judgment of the Court), decided that the constitutional right of a child to have his welfare accommo- dated would be satisfied in his parents' custody unless "compell- ing reasons" were established as to why this was not the case, or unless an "exceptional" case under Article 42.5 existed. Thus, the parents' rights over their child under Articles 41 and 42 were balanced against the child's rights to protection of his welfare.

Adoption Bill (No. 2) 1987. 39 The Bill provided for involuntary adoption in restricted circum- stances. The Bill pertained to the adoption of legitimate children, legitimated children and those children born out of wedlock. The reason as to why the Bill was referred to the Supreme Court lay in the uncertain validity of providing for the adoption of legitimate children. The Dail expressed the fears of its 1951 predecessors who had debated the 1952 Adoption Act. The protection afforded by Articles 41 and 42 to married parents threatened the validity of any legislation providing for the adoption of legitimate children where the parents of these children were still alive. 40 Stringent conditions are laid down in the Act as to when the legitimate child becomes eligible for adoption. In e f f ec t, the Court, before authorising the Adoption Board to make an order concerning a legitimate child, must be satisfied that: 1. The parents have failed in their duty for physical or moral reasons for a continuous period of not less than twelve months immediately preceding the time of the making of the application. 2. Such a failure will continue without interruption until the child attains 18 years of age. 3. Such failure is an abandonment on the part of the parents of all parental rights towards their child, and by reason of the failure, the State "as guardian 375