The Gazette 1979

GAZETTE

SEPTEMBER 1979

guaranteed rights of the child". 23 Mr. Justice Henchy observed that, if contrary to his opinion, it could be held that the mother of an illegitimate child has a constitutional right to the custody of her child, a consent to the placement of a child for adoption could never in itself amount to "an extinguishment of that right, for it amounts to no more than a consent by the mother to putting her rights in temporary abeyance". 26 Mr. Justice Henchy stated that it was "difficult to see how s. 3 could be operated to defeat the mother's unfor- feited and abandoned constitutional rights, when the test is what is in the best interests of the child rather than the effectuation of the child's constitutional rights, which rights may be satisfied whether the adoption order is made or not". 27 In his view, "[t]he objective to be attained is not simply the effectuation of the rights of either mother or child, but the attainment of a result which will be in the best interests of the child, by either granting or not granting to the mother a power to veto the adoption". 28 He stated later: "A judge hearing an application under s. 3 is not necessarily concerned with the resolution of con- flicting rights, legal or constitutional". 29 He noted that the question to be resolved was "not whether an adoption order should be made in favour of the adopters . . . but whether it would be in the best interests of the child to dispense with the mother's consent". He observed that it was for "the adopters to show that it would be in the best interests of the child" to dispense with the mother's consent, and they had failed to do this. Mr. Justice Kenny was of the opinion that the best interests of the child would be better served by refusing to dispense with the mother's consent. The learned judge referred to the natural tie that exists between mother and child: "The blood link between the applicant and the child means that an instinctive understanding will exist between them which will not be there if the child remains with the adopting parents. A child's parent is the best person to bring it up as the affinity between them leads to a love which cannot exist between adopting parents and the child". 30 It is submitted that the views of Justice Kenny are not well supported by the facts. No reason is advanced for the view that the love a child has for its natural parents cannot exist betweeen adopting parents and a child. It is also submitted that the blood link between a natural mother and her child does not automatically produce an instinctive understanding between them. This fact is high- lighted by Goldstein, Freud and Solnit in Beyond the Best Interests of the Child. "Biological parents are credited with an invariable, instinctively based positive tie to the child, although this is frequently belied by evidence to the contrary in cases of infanticide, infant-battering, child neglect, abuse and abandonment". 31 It should be noted that the law relating to custody of children in the United States of America has, in recent years, undergone comprehensive restatement, the "best interests of the child" criterion replacing the concept of "parental rights". 32

In the United States, the presumption in favour of parents over third persons has been displaced by section 402 of the Uniform Marriage and Divorce Act. In the opinion of one writer 32 "[tlhis change is the result of research which has indicated that, as far as children are concerned, psychological rather than biological parenthood is what counts". 33 Mr. Justice Walsh was of the opinion that the appeal should be dismissed. The learned judge was satisfied that on the evidence the decision of the High Court not to authorise the Adoption Board to dispense with the consent of the mother was correct. But the manner in which the learned judge arrived at this conclusion, based largely on the facts of the case, is interesting as it differs funda- mentally from the manner in which the other members of the majority arrived at their decisions. Mr. Justice Walsh was of the opinion (along with O'Higgins CJ. and Parke J.), that the mother of an illegitimate child had "an alien- able constitutional right to its custody" 34 and other alien- able personal rights that are guaranteed protection under article 40.3 of the Constitution. 33 So far as the constitu- tional rights of the mother were concerned, Mr Justice Walsh was of the opinion that the findings of the President "[did] not indicate that she had surrendered or abandoned her constitutional rights by a fully informed, free and willing surrender and abandonment of these rights, or at all, nor did the President so find". The learned judge continued: "Before anybody may be said to have surrendered or abandoned his constitutional rights it must be shown that he is aware of what the rights are and what he is doing. Secondly, the action taken must be such as could reasonably lead to the clear and unambiguous inference that such was the intention of the person who is alleged to have either surrendered or abandoned the constitutional rights" (p. 47). The learned judge concluded that the facts of the present case did not support a finding that the mother's constitu- tional rights were validly surrendered or abandoned. 36 In his opinion the question of "the best interests of the child" only fell to be considered when the mother had sur- rendered or abandoned her rights. 36 * However, he opined that on the evidence in the case the learned President would be justified in holding that the best interests of the child would not have required him to authorise the Board to dispense with the mother's consent. Mr. Justice Walsh's view of "the best interests" of the child was in line with that of Mr. Justice Henchy and Mr. Justice Kenny, being of the opinion that "the rights of the child [were] not in any way exposed to danger and much less likely to be damaged by being brought up in the manner contemplated and planned by the mother". He was of the opinion that the mother [had] not in any way sur- rendered or abandoned her own constitutional rights to both the guardianship and the custody of her child" and that the position of the applicants for adoption was not "comparable with that of the natural mother of the child". 37 Finally, Mr. Justice Walsh carried out "a detailed analysis of the duties and obligations of the Adoption Board and the manner in which it discharges its functions" and of the categories of persons who may be adopted. The other members of the Court expressly

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