The Gazette 1979

SEPTEMBER1979

GAZETTE

Mr. Justice Parke took a different view. In the view of the Chief Justice, "in agreeing so to place her child for adoption in the cir- cumstances the plaintiff dispensed with her constitutional rights to insist on the custody of her child and agreed to its custody being decided in accordance with the statutory provisions of which she was made fully aware", per O'Higgins CJ. at pp. 17 and 18 of his judgment. 27. Per Henchy J. at p. 16. Mr. Justice Finlay clearly would have regarded the withdrawal by a court of the mother's rights as justified under s. 3, where the "overwhelming interests of the welfare of the child require that it not be restored to her custody but that . . . it should be left in the custody of the prospective adopters". Per Finlay P. at p. 28 of his judgment. 28. Per Henchy J. at p. 16. 29. Per Henchy J. at p. 20. Mr. Justice Henchy's view appears to differ fundamentally from that of the President of the High Court who was of the opinion that the fundamental rights of the mother and her illegitimate child had to be balanced when deciding to grant or refuse an order under s. 3 of the Adoption Act 1974 to dispense with the consent of the mother. 30. Per Kenny J. at pp. 14 and 15. Mr. Justice Henchy quoted the following statement of Lord Esher M.R. in Re McGrath 11893] 1 ch. at p. 148 with approval: "Prima facie it would not be for the welfare of a child to be taken away from its natural parent and given over to other people who have not that natural relation to it. Every wise man would say that, generally speaking, the best place for a child is with its parents". 31. Joseph Goldstein, Anna Freud and Albert J. Solnit, Beyond the Best Interests of the Child 17 (1973). See also J. O'Reilly, "Custody Disputes in the Irish Republic: the Uncertain Search for the Child's Welfare?" (1977) 12 Ir. Jur. 37. 32. William Binchy, "The American Revolution in Family Law" (1976) 27 N.I.L.Q. 371, 412. See also Frank Bates, " 'Beyond the Best Interests .. .' in the American Courts" (1978) 8 Family Law 46; Richard Edelin Crouch, "An Essay on the Critical and Judicial Reception of 'Beyond the Best Interests of the Child' " (1979) 13 Fam. L.Q. 49. 33. See section 402 of the Uniform Marriage and Divorse Act. 34. S. v. Eastern Health Board and Others, 28 February 1979, unreported, High Court, per Finlay P. at p. 15, reaffirming such a right. 35. See pages 13-26 of Mr. Justice Walsh's judgment for an examination of the question of the "natural rights, or human rights" — the fundamental rights — of the mother and her illegitimate child. 36. Mr. Justice Walsh was much influenced in his decision by the "isolated position" of the plaintiff and he remarked that the plaintiff* was a "lonely young girl" who had been rushed into adoption without being "made aware of the possibilities which exist for aiding persons in her position or of the several excellent societies which exist for the purpose of enabling a woman who finds herself in the position she did to retain her child and at the same time carry on her life as normally as is possible in the circumstances" (p. 48). 36a. It should be noted that the effect of the placement of a child for adoption was regarded differently by Mr. Justice Walsh and Mr. Justice Henchy, the former judge being of the opinion that it could result in the surrender or abandonment by the mother of her con- stitutional rights, the latter judge being of the opinion that it could never amount to an extinguishment of the mother's right of custody and that it amounted to "no more than a consent by the mother to putting her rights in temporary abeyance". 37. Per Walsh J. at pp. 51 and 52 of his written judgment. 38. If a judge thinks it desirable to give his opinion on some point that is not necessary for the resolution of the case it will, of course, not have the binding weight of the decision but it will be important for judges when that point arises for their decision in future cases. One commentator has remarked as follows: "Many protests against arguments found on irrelevant dicta have come from the Bench; on the other hand, it is a mistake to regard all dicta as equally otiose and therefore equally negligible. Much depends on the source of the dictum, the circumstances in which it was expressed, and the degree of deliberation which accompanied it". See C. K. Allen, Law in the Making 261 (7th ed., 1964); Flower v. Ebbw Vale Iron Steel & Coal Co. [19321 2 K.B. 132 per Talbot J. 39. Per Walsh J. at pp. 27 and 28 of his written judgment. See also the speech of the Minister for Justice in the debate on the Adoption Bill 1974 in which he made the following remarks: "I think that it is well to make the point during the debate of this

Bill that adoption in our law is a voluntary arrangement, which is, so to speak, ratified by An Bord Uchtála, the effect of the ratification being that the legal relationship of the chQd to the other parties is changed. The board's function is not to settle disputes as to custody but only to ensure that the adoption is in accordance with the Acts and that the adopters are suitable". 40. See M. v. An Bord Uchtála 11977] I.R. 287,297. O'Higgins CJ. with whom Griffin and Parke JJ. agreed, did not think it "necessary or proper for the Court to express any opinion on the submission that cer- tain provisions of the Adoption Act 1952 are invalid having regard to the provisions of the Constitution. 41. The Act amended article 37 of the Constitution by the addition of a second section stating that no lawful adoption taking effect pursuant to an order of authorisation given by a person or body of persons lawfully designated to exercise such functions was or shall be invalid by reason only of the fact that such person or body of persons was not a judge or a court appointed or established as such under the Constitution. 42. See M. Staines, "The Concept of 'the Family' under the Irish Constitution" (1976) 11 Ir. Jur. 223. 43. Per Walsh J. at pp. 45 and 46 of his written judgment. 44. W. Binchy, "New Vistas in Irish Family Law" (1976-77) 15 Univ. of Louisville Journal of Family Law 637, 672. 45. The decision in G. v. An Bord Uchtála has recently been followed in a case that came before the High Court. In S. v. Eastern Health Board Mr. Justice Finlay received much assistance from the judgments of the Supreme Court on the test to be applied when determining whether the mother of an illegitimate child had agreed to place her child for adoption within the meaning of s. 3 of the Adoption Act 1974 so as to bring the provisions of s. 3 into operation. 46. However, the problem was recognised in a related area. In reply to an amendment which Senator E. Ryan moved (providing for the inclusion of the natural father in the list of persons entitled to be heard by the Adoption Board on an application for an adoption order) the Minister of Justice (Mr. Cooney) remarked as follows: "There is a further difficulty. In a situation where a case is pending before the Adoption Board if the father had a right to come in to be heard co-equal with the right of the mother we could have a situation where there could be a conflict of interests between the father and the mother. If we give him an equal status the legislation would be in a difficult position. The direction and emphasis in the legislation is that the good of the child is the para- mount consideration". See Seanad Debates (1974) vol. 78. 46a. See Vivienne Ulrich, "The Politics of Adoption" (1979) 8 New Zealand Universities Law Review 235 — an attempt to approach adop- tion from a child-centred point of view. The authoress' thesis is that where the interests of the child conflict with the rights of natural or adoptive parents the child's interests should be preferred. However, it should be noted that the function of the adoption law is not to provide for the best interests of the child alone but to balance the interests of the child and the natural parents. 47. One member of the Supreme Court in the G. case opined that the mother of an illegitimate child had no constitutional rights in relation to her child. See judgment of Henchy J. at p. 11. 48. Occasions may arise, however, where the recognition and enforcement of an illegitimate child's constitutional rights vis-a-vis its mother will not conduce to the child's best interests and it will be imperative that a purposive inquiry into the child's constitutional rights be made with a view to promoting the welfare of the child in adoption and other areas of law. The best interests of mental patients are often served by committal to a mental institution and such committals take place under the Mental Treatment Acts. It has not been suggested that the exercise of this power is a violation of the patient's right of personal liberty. However, it should be pointed out that Mr. Justice Walsh in The People (Attorney General) v. O'Callaghan 11966] I.R. 501 regarded as "quite unsustainable" the proposition put forward by Mr. Justice Murnaghan (in the High Court) that "the likelihood of personal danger to [al prisoner" was in itself a ground for refusing bail. See also Connors v. Pearson 11921 ] 2 I.R. 51 which may be cited in support of the proposition that "there is no power to arrest and detain a person merely because it is apprehended that he may be in danger at some time in the future". See R. F. V. Heuston, Salmond on the Law of Torts 131 (17th ed., 1977). Nevertheless, the best interests of a child may still be promoted by the courts where he has no rights at all. One writer has noted that the wardship jurisdiction of the High Court may be invoked in certain circumstances where the infant has no enforce- able legal rights per se i.e. where the infant is unborn: "Since [the] jurisdiction exists in order to protect not so much the strict legal rights [Concluded on page 221] 209