The Gazette 1978

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.