The Gazette 1979

GAZETTE

SEPTEMBER 1979

or deserted the child or unless she has failed to establish to the Court that she is a fit and proper person to have custody of the child or unless the over- whelming interests of the welfare of the child require that it should not be restored to her custody 15 but that subject to the approval of the Adoption Board it should be left in the custody of the prospective adopters" ( italics supplied). Applying this construction of Section 3 to the facts the learned President held that: 1. (a) the plaintiff had not abandoned or deserted her child. (b) the plaintiff was a fit and proper person to have custody of the child. 2. the welfare of the child did not in any sense over- whelmingly require that she should remain in the custody of the applicants for adoption. 3. the child should be returned to the plaintifT. THE SUPREME COURT DECISION The Supreme Court (O'Higgins C J . , Walsh, Henchy, Kenny and Parke JJ.) delivered judgments on 19 December 1978 and, by a majority of three to two, dis- missed the appeal of the notice parties. The sole issue to be decided was whether "in pursuance of s. 3(2) of the Adoption Act 1974, the Adoption Board should be authorised to dispense with the consent of the mother in the making of an adoption order in favour of the couple . . . to whom the child was given for adoption". 16 The Chief Justice and Mr. Justice Parke delivered dis- senting judgments and it is proposed to examine these judgments first before examining those of the majority of the Court. The Chief Justice was of the opinion that the President had applied the wrong test when deciding that the plain- tiff should have custody of the child. In his view section 3 could not apply "if the constitutional rights 17 of the mother continued to exist because legislation could not affect or prevail over these rights". The Chief Justice continued "Accordingly, the section could only be operative in circumstances in which the agreed placing of the child for adoption constituted a consensual abandon- ment of constitutional rights and an acceptance by the mother of the provisions of the Adoption Acts in so far as her rights were concerned". It should be stated parenthetically that this would also appear to be the view of other members of the Supreme Court. It will be recalled that the President, being of the opinion that the constitutional rights of the mother con- tinued in existence after her clear and definite agreement to place for adoption, construed s. 3 so that the Court could not intervene inter alia, unless the "overwhelming interests of the welfare of the child requireld] that it should not be restored to her custody". The learned President had dealt with the welfare of the infant, having regard to the circumstances of each of the parties, but, in the view of the Chief Justice and of the other members of the Court, he had not considered "the one question which larose] under section 3, namely, what was "in the best interests of the child".

In the opinion of the Chief Justice the plaintiff agreed to the placing of her child for adoption with full know- ledge of the consequences, one of which was the loss of her constitutional rights. In his opinion the President should not have taken into consideration the mother's constitutional rights and should have had regard only, to the child's age, its relationship with the plaintiff and the probable home circumstances which the plaintiff could arrange. The Chief Justice noted that the making of an order "in the best interests of the child" involved con- siderations such as, the circumstances of the mother, her reasons for refusing or withdrawing her consent and the prospects of the child's future when affected by the order. The learned judge commented that "[i]n suggesting matters to be considered [he was] doing no more than that and many other matters which [he had] not adverted to [might] have to be considered in assessing "the best interests of the child". 18 The Supreme Court as a court of appeal, he remarked, could not perform this task and accordingly, the Chief Justice, "with very much regret" concluded that the case should be remitted to the High Court to have the issue under s. 3 determined in accordance with what was in the best interests of the child". 19 Mr. Justice Parke agreed with the Chief Justice that the case should be remitted to the High Court to have (it is presumed) 20 the issue of what was in the best interests of the child decided without having regard to the constitu- tional rights of the mother. In his view that "fundamental question" was "the ascertainment of the rights of the mother in respect of her illegitimate child". 21 He determined that the mother's rights were "among the Personal Rights which the State guarantees in its law to defend and vindicate under article 40.3.1 of the Constitution". 22 He was satisfied that "the mother waived or abandoned her [constitutional] rights so as to leave the matter to be decided under section 3 unless by so doing she infringed or injured the constitutional rights of her child". 23 The learned judge also considered the rights of the child and he was of the opinion that the child had personal rights which were recognised under article 40 of the Constitution. 24 A majority of the members of the Supreme Court, viz, Walsh, Henchy and Kenny JJ., affirmed the order of the High Court, but for different reasons. Mr. Justice Henchy agreed with the Chief Justice and Mr. Justice Parke that the President of the High Court, because of the incorrect view he took of the law, "did not in terms make any finding as to where the best interests of the child Hay 1" but he differed from them on the dis- position of the case. In his view there was nothing in the transcript of evidence which was available to the Supreme Court which would permit a finding adverse to the mother on that issue. In his opinion the mother of an illegitimate child had no constitutional rights in relation to her child. However, he stated that the rights of the child under article 42 of the Constitution were available equally to legitimate and illegitimate children. He remarked that "the mother's rights in regard to the child, although deriving from the ties of nature, are given a constitutional footing only to the extent that they are founded on the constitutionally 205