The Gazette 1979

GAZETTE

SEPTEMBER1979

refrained from commenting on these matters as, in their view, none of them was directly relevant in the case. But these matters are of general importance and should be examined briefly. 38 Powers and Functions of the Adoption Board Mr. Justice Walsh noted that "the essential feature of the system established by the Adoption Act 1952 was the fact that no adoption was possible without consent". In his view, the Adoption Board did not exercise powers of a judicial nature. The learned judge continued: "Thus adoption in our law is essentially a consent or voluntary arrangement. The Adoption Board is in effect a ratifying agency and a safeguard. It ensures that the particular adoption is made in accordance with the Acts of the Oireachtas and that the prospec- tive adopters are suitable. It also preserves the anonymity of the parties to the procedure . . . The Board has no function to settle disputes as to the custody of a child. Neither does it have a jurisdiction to adjudicate upon anything that could be said to be in controversy or dispute between parties . . . The Board is simply concerned with what I am satisfied is the administrative function of seeing that the steps being taken are not contrary to the adoption legis- lation, are not inimical to the welfare of the child, and that everybody concerned has had a full opportunity of considering the matter carefully". 39 It is respectfully submitted that this is the correct view of the powers being exercised by the Board. However, this view is not binding 40 and has since been rendered largely academic by the Sixth Amendment of the Constitution (Adoption) Act 1979. 41 The Adoption of Legitimate Children It is possible to glean from Mr. Justice Walsh's judgment some support for the view that "the State may be justified in taking measures by statute such as the enactment of adoption legislation, or otherwise, to pro- tect the rights of the [legitimate] child where there is a complete abandonment of the parental right and duty". The learned judge pointed out "that some inalienable rights are absolutely inalienable while others are relatively inalienable". 43 Accordingly it would appear to be still open to the government to pass legislation providing, in certain cases, for the adoption of legitimate children but the "constitu- tionality of legislation to this effect would, however, be uncertain". 44 The other members of the Supreme Court (O'Higgins CJ., Henchy J., Kenny J. and Parke J.) did not consider this question and the distinction which was made by the Supreme Court in the Nicolaou case between rights which derive from articles 41 and 42 (which are inalienable) and those recognised by article 40 (which are alienable) was accepted without comment. Mr. Justice Walsh would now appear to be saying that the former rights may also be alienated in certain cases, and it will indeed be interesting to see whether this idea is developed in later cases. 43 CONCLUSION G. v. An Bord Uchiála is an important decision in an area of law that has been under constant scrutiny since the early seventies. Its authority is clouded somewhat by

the diverse views of the majority of the members of the Supreme Court. The judgments in the case are illustrative of the diffi- culties that may arise under s. 3 of the 1974 Adoption Act when there is attempt to apply a "best interests" criterion in situations where the constitutional rights of persons other than the child will be adversely affected. It appears that these difficulties were not conceived of as a problem when the Bill was being considered by the Oireachtas. 46 Much of the focus in the debates was on other aspects of s. 3, viz. the power of the High Court to award custody of the child to the applicant and the consent of a ward of court in such proceedings. It is not easy to resolve the difficulties created by s. 3 of the 1974 Act. Legislation might be enacted deleting "the best interests of the child" criterion from a s. 3. Alternatively the constitution might be amended so as to remove from the adoption process any consideration of the rights of the natural mother and her child (or for that matter, the prospective adoptive parents). In the latter case a political decision i.e. one which adjusts the balance between the parties, would have to be taken. 46 " Not much support can be given to the latter course which would deny the natural mother and child their con- stitutional rights relating to custody and upbringing. Apart from the obvious injustice that a constitutional amendment would work on the natural mother and her child there are also practical objections to such amendment. It is submitted, that, unless it is absolutely necessary, the constitution should not be tampered with. Furthermore, an amendment removing from the adoption process any consideration of the rights of the natural mother and her child would constitute a bad precedent that might lead to the ultimate atrophy of the constitu- tional rights of the natural mother and her child. 47 The inclusion of the "best interests of the child" criterion in the Adoption Act 1974 is an attempt by the law to deal with the dilemma that results from the collision of parental rights with those of children in adoption situations. Its presence in our adoption law creates the type of problems of interpretation that were encountered in the G. case and it is submitted that it should be deleted altogether from s. 3. This would not, it is submitted, endanger the welfare of the child in adoption cases as the courts would be bound to respect the child's constitutional rights. 48 It would have the benefit, however, of clearing up the conceptual morass which has developed as a result of s. 3, and of paving the way for a better inquiry into the rights the child of an unmarried mother has under the Constitution. 49 FOOTNOTES 1. This matter was adverted to in the Dáil by the Minister for Justice at the second stage of the Adoption BUI 1974. He remarked as follows: "It will, of course, be necessary to consider whether rules of court can be devised to enable such applications to be heard in such a way as to preserve the anonymity of the parties". See Dáil Debates, vol. 273, col. 482. "The President of the High Court having regard to the reality of the issue which had arisen concerning the future of the child and to the absolute necessity that the identities of those concerned should not be disclosed, put into operation the procedures set out at the commence- ment of his Judgment. These procedures, as one would expect from him, were devised with great care and concern both for the preserva- tion of this essential secrecy and in the interests of justice" per 207