The Gazette 1979

GAZETTE

SEPTEMBER 1979

The balance to which Mr. Justice Finlay referred is struck in the provisions of the Guardianship of Infants Act 1964 10 which empowers the High Court to make an order for the production of an infant and to have regard to the conduct of the parent when deciding whether or not to make an order. The learned President said of the provisions 11 setting out the powers and duties of guardians that they "would appear to be no more than a statutory expression and declaration of the constitutional rights of the mother of an illegitimate child to its custody and to the control of its upbringing". 12 The learned President placed particular emphasis on the safeguards created in the Adoption Acts to prevent the mother of an illegitimate child from surrendering her con- stitutional rights by placing it for adoption without "full knowledge, complete understanding and mature judgment". Section 3 of the Adoption Act 1974 Counsel representing the notice parties (i.e. the applicants for adoption) contended that once the mother of an illegitimate child had agreed to the placing of that child for adoption then, upon an application being made by the prospective adopters to the High Court pursuant to section 3, the only issue to be decided by the High Court was the welfare of the child. "In other words that if upon such application it appears to the High Court, disregarding the reasons which the mother may give for her refusal to give her consent or the reasons which may surround her original consent to placement, that on balance the welfare of the child would be better served by remain- ing with the prospective adopters that the Court should make an order under the section at least leaving the child in the custody of the prospective adopters for such period as will enable the Adoption Board to reach a conclusion as to whether or not to make an adoption order". 13 Mr. Justice Finlay rejected this interpretation in favour of that which was advanced on behalf of the plaintiff, viz, that "having regard to the constitutional rights of the mother of an illegitimate child; to the provisions of the Guardianship of Infants Act 1964 and in par- ticular to sections 14 and 16 thereof the Court should not exercise its discretion to make an order under Section 3 unless either the refusal of the mother to consent to adoption is unreasonable or the welfare of the child overwhelmingly demands the making of an order under Section 3 in the sense that to restore it to the custody of its mother would deprive it of the reasonable possibility of securing and preserving its bodily integrity and its opportunity to be reared and educated with due regard to its welfare". 14 The learned President was satisfied that to put the first construction on s. 3 would be by reason of the agreement of the natural mother to the placement of her illegitimate child for adoption, to uphold the constitutional rights of the child to the total or virtual exclusion of the constitu- tional rights of its mother. Accordingly, he held that "the Court should not intervene unless the mother has capriciously and irresponsibly refused or withdrawn her consent or by her conduct, abandoned

3. The consent of a ward of court shall not be dispensed with by virtue of a High Court order under this section except with the sanction of the Court. The learned President noted that "[t]his section clearly extensively enlarged the possibility of the making of an Adoption Order notwithstanding the absence of consent on the part of the mother of an illegitimate child". 3 He continued: "Up to its enactment an Adoption Order could only be made by the Board in the absence of such consent if the mother was rendered incapable by incapacity of giving or refusing her consent or could not be found" [see s. 14 (2) of the Adoption Act 1952]. "A new jurisdiction was now conferred upon the High Court entitling it, notwithstanding the active opposition of the mother or her failure to make up her mind or to communicate or deal with the problem arising, to dis- pense with her consent thus not, it should be emphasised, making itself an Adoption Order but permitting the Adoption Board to consider the entire matter in the absence of such consent." 3 However, it has been pointed out by Mr. Alan Shatter in Family Law in the Republic of Ireland that section 3 of the 1974 Act does nothing to solve 1 "the problem of the child who is placed in an orphanage or fosterage for all or most of its infancy but whose mother will not permit it to be. placed for adoption, the whereabouts of the mother being known". The author submits that "if a person unreasonably refuses to agree to the placing of a child for adoption, the [Adoption] Board should be empowered to dispense with the require- ment of that person's consent to the making of an adoption order, if it is for the child's welfare that it be adopted". 6 Constitutional rights The learned President approved of the statement of Walsh J., in The State (Nicolaou) v. An Bord Uchtála 1 that the natural personal rights of the mother of an illegitimate child do not come within the ambit of articles 41 and 42 of the Constitution. Mr. Justice Walsh had stated in that case, in relation to the mother of an illegitimate child that "lh]er natural personal right to the custody and care of her child, and such other natural, personal rights as she may have, (and this court does not in this case find it necessary to pronounce upon the extent of such rights) fall to be protected under article 40, section 3 and are not affected by article 41 or 42 of the Constitution. Following that decision Mr. Justice Finlay held that the plaintiff had a "constitutional right to the custody and to the control of the upbringing of her daughter". He was also of the opinion that the illegitimate child had "a con- stitutional right . . . to bodily integrity" and also an unenumerated right to an opportunity to be reared with due regard to her welfare, religious, moral, intellectual, physical and social." The learned President pointed out that "[t]he defence and vindication of these interrelated but not necessarily conflicting rights may, in many instances, require the law to strike a balance between them, but it cannot as a general proposition be satis- fied by the upholding of one set of rights to the total or virtual exclusion of the other". 9 2 0 4