The Gazette 1979

SEPTEMBER 1979

GAZETTE

12. Per Finlay P. at pp. 21 and 22 of his judgment. 13. Per Finlay P. at p. 26. 14. Per Finlay P. at pp. 26, 27. 15. The President was "clearly satisfied . . . that the welfare of [the] child [did] not in any sense overwhelmingly require that she should remain in the custody of her present custodians and not be returned to the custody of her mother" (p. 30). One commentator has noted that the courts will award custody "only in exceptional cases" to third parties over married persons but that custody awards in favour of third parties "have been far less exceptional in the case of unmarried parents". See W. R. Duncan, "Supporting the Institution of Marriage in Ireland" (a paper which was presented at the Third World Conference of the International Society on Family Law in Uppsala, Sweden, on 6 June 1979). 16. Per Henchy J. at p. 1 of his written judgment. 17. "[T]he plaintiff is a mother and as such she has rights which derive from the fact of motherhood and from nature itself. These rights are among her personal rights as a human being which the State is bound under article 40.3.1 of the Constitution to respect and defend and vindicate" per O'Higgins CJ. at p. 8. See pp. 7-9. 18. Per O'Higgins CJ at p. 15. 19. It should be noted that the Chief Justice was of the opinion that Mr. Justice Finlay might have come to the same conclusion had he used the test of what was "in the best interests of the child". However, Mr. Justice Finlay had at p. 29 of his judgment indicated that "li]f the issue in this case was analogous to that arising where contending parties who have separated are each seeking the custody of a child of a marriage then I would be forced to the conclusion that the welfare of the child would be marginally better fitted by remaining with her present custodians in the event of their obtaining an Adoption Order concerning her than it would be by being returned to the custody of her mother and into the family home consisting of her grandmother, her grandfather and her aunt". 20. The judgment of Parke J. is unclear at p. 6 where he remarks that "there is no decision at first instance on the point". 24. "The child, of course, has personal rights, which are recognised by article 40 of the Constitution to life, to be fed, to be protected, reared and educated in a proper way, but in my view a child has no constitutional right to have these obligations discharged by his or her natural parent, and that if there are other persons able and willing to satisfy such requirements, then a child's constitutional rights are sufficiently defended and vindicated", per Parke J. at p. 5 of his judgment. See also O'Higgins CJ. at pp. 9 and 10. "In relation to illegitimate children and certain others the State has by the Adoption Acts endeavoured to discharge [the] obligation to defend and vindicate their natural rights in its laws", per O'Higgins CJ. at p. 11 of his judgment. Since the decision of Gavan Duffy P. in In re M., an Irtfant 11946] I.R. 334 it is clear that the illegitimate child possesses the same "natural and imprescriptible rights" that are recognised as reposing in legitimate children under Article 42 of the Constitution. This was re- asserted on a number of occasions by members of the Supreme Court acting either in a judicial or extra-judicial capacity. For examples of the former, see the judgments of Walsh J. in State (Nicolaou) v. An Bord Uchtála [ 1966] I.R. 567 at 642 and of Henchy J. in the G. case at p. 11. The Chief Justice remarked recently at a public lecture that there is no concept of Jilius nullius in Irish law — the illegitimate child being possessed of the fundamental rights of children under the 1937 Constitution. Remarks made at a lecture delivered by Professor Spiros Semitis on "The Rights of the Child in European Countries" at St. Patrick's, Drumcondra, 15th November, 1979. 25. In The State (Nicolaou) v. An Bord Uchtála [1966] I.R. 567 Mr. Justice Walsh observed (at p. 644) that the mother's right to the custody and care of her child was given constitutional protection by article 40.3 of the Constitution. The President of the High Court followed the decision and, accordingly, held that the plaintiff had a "constitutional right to the custody and to the control of the upbringing of her daughter". Mr. Justice Henchy and Mr. Justice Kenny did not share this view, stating that they were not part of the ratio decidendi of the case (as in that case the alleged rights of the father of an illegitimate child were in issue). In Mr. Kenny's opinion the mother of an illegitimate child had a statutory right under the Guardianship of Infants Act 1964 to the custody of her child but not a constitutional one." 26. Per Henchy J. at p. 16 of his judgment. The Chief Justice and 21. Per Parke J. at p. 1 of his judgment. 22. Per Parke J. at p. 2 of his judgment. 23. Per Parke J. at pp. 4 and 5 of his judgment.

O'Higgins CJ. at p. 5 of his judgment. "I thoroughly approve of the practice adopted by [the President] of hearing the applicant in the absence of the adopting parents, whose counsel are present and hearing them in the absence of the applicant but in the presence of counsel" per Kenny J. at p. 4 of his judgement. 2. The adoption society made available to the Court their file of cor- respondence and documents, and with the permission of the President, took no further part in the proceedings. 3. The aspiring adoptive parents had had the custody of the child for the previous nine months. 4. Section 6 (4) of the Guardianship of Infants 1964 provides as follows: "The mother of an illegitimate infant shall be the guardian of the infant". Section 10 provides as follows: "(1) Every guardian under this Act shall be a guardian of the person and of the estate of the infant unless, in the case of a guardian appointed by deed, will or order of the court, the terms of his appointment otherwise provide. (2) Subject to the terms of any such deed, will or order, a guardian under this Act— (a) as guardian of the person, shall, as against every person not being, jointly with him, a guardian of the person, be entitled to the custody of the infant and shall be entitled to take pro- ceedings for the restoration of his custody of the infant against any persons who wrongfully takes away or detains the infant and for the recovery, for the benefit of the infant, of damages for any injury to or trespass against the person of the infant; . . . " Section 14 provides as follows: "Where a parent of an infant applies to the court for an order for the production of the infant and the court is of opinion that that parent has abandoned or deserted the infant or that he has other- wise so conducted himself that the court should refuse to enforce his right to the custody of the infant, the court may in its discretion decline to make the order". Section 16 provides as follows: "Where a parent has— (a) abandoned or deserted an infant, or (b) allowed an infant to be brought up by another person at that person's expense, or to be provided with assistance by a health authority under section 55 of the Health Act, 1953, for such a length of time and under such circumstances as to satisfy the court that the parent was unmindful of his parental duties, the court shall not make an order for the delivery of the infant to the parent unless the parent has satisfied the court that he is a fit person to have custody of the infant". Section 3 provides as follows: "Where in any proceedings before any court the custody, guardianship or upbringing of an infant . . . is in question, the court shall regard the welfare of the infant as the first and para- mount consideration". Section 2, inter alia, defines "welfare" "in relation to an infant, as comprising the religious and moral, intellectual, physical and social welfare of the infant". 5. Per Finlky P. at pp. 18 and 19 of his judgment. 6. A. Shatter, Family Law in the Republic of Ireland, 162-182, 170. However, in the opinion of the present writer such a proposal would involve the exercise of judicial powers and would be in violation of the Constitution. See the argument of Walsh J. in G. v. An Bord Uchtála where he remarked that "adoption in our law is essentially a consent or voluntary arrangement" (27). See Margaret L. Egginton and Richard E. Hibbs, "Termination of Parental Rights in Adoption Cases: Focusing on the Child" (1975-76) 14 Univ. of Louisville Journal of Family Law 547 in which the authors demonstrate how certain states in the United States have given courts the power to dispense with the consent of a parentis) in the . best interests of the child. 7. [ 1966] I.R. 567, 644. See M. Staines, "The Concept of "The Family', under the Irish Constitution" (1976) 11 Irish Jurist 22. 8. In the Supreme Court Henchy J. expressly reserved his opinion on this question. The right of bodily integrity was first recognised in Ryan v. Attorney General 119651 I.R. 294, 313. 11. Section 10 of the 1964 Act read in conjunction with s. 6 (4) which provides that "]t]he mother of an illegitimate infant shall be guardian of the infant". 208 9. Per Finlay P. at p. 21 of his judgment. 10. Sections 14 and 16 of the 1964 Act.