The Gazette 1979

GAZETTE

SEPTEMBER 1979

and 16 of the Guardianship of Infants Act 1964, namely, whether the Plaintiff had abandoned or deserted the child so that the Court should refuse to enforce her right to custody and, if so, whether the Court should exercise its discretion and decline to make an Order for return of custody of the child to the Plain- tiff; and, whether the Plaintiff had abandoned or deserted the child or allowed her Jo be brought up by another person at that person's expense to such an extent that she was unmindful of her duties as a parent and, if so, whether she was now a fit person to have custody of the child. The Supreme Court in G. v. An Bord Uchtála and Ors. (19/12/78, unreported) had decided that the mother of an illegitimate child has an alienable constitutional right to its custody. Following the reasoning of the Court in that case, Finlay P. decided that a valid alienation by the Plaintiff of her constitutional right to custody of the child could be effected only by means of a fully informed and free decision by the Plaintiff. Held (per Finlay P.): (1) That following the standards laid down by the Supreme Court in G. v. An Bord Uchtala and Ors. (19/12/78, unreported), the events of December 1977 constituted an agreement by the Plaintiff to place her child for adoption within the meaning of Section 3 of the Adoption Act 1974. (2) That such agreement was an agreement capable of mutual rescission and that the events of April 1978 constituted a rescission of that agreement, so that the Plaintiff was not then a person who "has agreed to place her child for adoption" within the meaning of Section 3 of the said Act of 1974. (3) That the events of 2 May 1978 constituted an agreement by the Plaintiff to place her child for adop- tion within the meaning of Section 3 of the said Act of 1974. (4) That on the evidence before him it was in the best interests of the child that she be given the oppor- tunity of being adopted by the pro- spective adoptive parents and that therefore an Order under Section 3 of the said Act of 1974 should be made dispensing with the Plaintiffs consent to adoption. (5) That the Plaintiff had deserted (but not abandoned) her child; but

used both as an office and (in the front portion of the premises) as a dwelling. The Plaintiff and her husband resided in the upper storey of the front portion which was used as a residential flat and the remainder of the building was used by the Plaintiff's husband, with her permission, for his professional practice. No part of the premises was sub-let. The Court rejected the proposition that'the landlord was not liable for any damages arising from defects which existed prior to the service by the tenant of a notice of alleged de- fects. Neither Hewitt v. Rowlands (1924) L.T. 757 nor a passage in para. 722 of McGregor on Damages (13th Edition) has authority for the proposition that the Plaintiff was not entitled to damages based on the estimated cost of repair. It had been argued that Section 55 of the Landlord & Tenant Act 1931 (which deals with damages for breach of tenants Covenants to repair and the limitations on the quantum of such damages) did not apply because the premises did not comply with the conditions contained in the definition of tenement in the 1931 Act because they were not "in the occupation" of the Plaintiff. See McManus v. Electricity Supply Board [1941] I.R. 371. Held (per Costello J.) that the Plaintiffs occupation was sufficient to bring her within Section 55 and she was entitled to claim that she was "in occupation" of the premises. Hazel Fetherstonhaugh v. Henry Victor Smith and Stephen Smith - unreported High Court (Costello J.) 12 February 1979. Rent Review Clause — Requirement to serve Notice — Whether time of the essence of the Contract. A Lease of the upper portion of a shop in Dublin provided as follows: "The said yearly rent has been charged between the parties as a fair yearly rent for the demised premises at the respective dates mentioned in paragraph 1 hereof but the Landlord shall have the right at the end of the sixth,

that she was on the balance of prob- abilities a fit person to have custody of the child, that is to say, that there was nothing in her make-up which would prevent her from being capable of caring for the child. (6) As to whether the Court should refuse to make an order for return of the child to the Plaintiff in the event of the child not being the subject of a final Adoption Order made in favour of the proposed adoptive parents, that he would not feel bound in such circumstances to refuse to make such an order. On the basis of the foregoing, the Court made an Order pursuant to Section 3 of the Adoption Act 1974 giving custody of the child to the pro- spective adoptive parents for a period of six months and authorising the Adoption Board to dispense with the consent of the Plaintiff to the making of an Adoption Order in favour of the prospective adoptive parents during that period of six months; and a Declaration as between the Plaintiff and the Eastern Health Board that, in the event that the Adoption Board does not within the said period of six months make an Adoption Order in favour of the prospective parents, there were not in the absence of a change of circumstances any grounds for refusing to return custody of her child to the Plaintiff. S. v. Eastern Health Board and Ors. — High Court (per Finlay P.) — 28 February 1979 — Unreported. Liability for Repair — Application of Section 55 of the Landlord & Tenant Act 1931. Certain premises at Mountmellick, Co. Laois, were held under a lease dated the 16 September 1946 which contained a covenant on the lessors' part requiring them to "keep the roof, walls and the exterior part of the said premises in good condition and repair", and a covenant on the lessee's part to "keep the interior of the said premises in good condition and repair". The premises were old having been built some 150 years ago, were T-shaped and had been LANDLORD AND TENANT