The Gazette 1983

GAZETTE

JANUARY/FEBRUARY 1983

FAMILY LAW English father of English child entitled to rely on provisions of Irish Constitution to oppose English adoption. Application was made to the High Court by the Plaintiffs (into whose care a child had been placed by Juvenile Court in Kettering) for an Order returning the child to their care in England as the child had been unlawfully removed from the jurisdiction of the English Courts by its father. The parents of the child were married and domiciled in England, and the child was born in England. The mother was agreeable to it being adopted but the father was not. The Court was satisfied that if the child was returned to the Plaintiffs in England it would be adopted, a development not permissible under Irish law. In the ordinary course of events, the Court having regard to the order of the English Court would have ordered the return of the child to the Plaintiffs. However, Art. 41.1 of the Constitution guarantees and protects the rights of the family "as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and impre- scriptible rights antecedent and superior to all positive law." These rights are so recognised by the Constitution and the Courts in this jurisdiction, but not by the law or the Courts in England. TTiese rights are — as stated by Walsh J. in McGee v. A.G. [1974] I.R. 284 -"part of what is generally called the natural law", and the natural law is of universal applica- tion and applies to all human persons, be they citizens of this State or not. In these circumstances the Court Held: (1) That the father of the child is entitled to rely upon Art. 41 for the purpose of enforcing his rights as father, and that the fact that he is not a citizen of this country cannot prevent him from relying on the constitution- al protections given by Art. 41. {"•.) That an order be refused at this stage for. return of the child to the Plain/tiffs. (3) That as the child also has natural rights which must be protected and vindicated, it would be necessary to have a full plenary hearing to ascertain whether the child's rights are being protected before any final order could be made in this case.

8 p.m. to 11 p.m. on these nights but sales were negligible and may be disregarded. 6. Special exemption orders under Section 5 of the Intoxicating Liquor Act 1927 as amended by Section 12 of the 1962 Act were granted in respect of all the house dances and discos and most of the other functions mentioned. Other occasional functions such as childrens Christmas parties and parties for orphanages were held during the year; these were private functions and where a meal was served the nature of the meal and the price were agreed beforehand. 8. An effort was made to promote a luncheon business during the year but this was abandoned. 9. Save on the occasions aforesaid the restaurants were not open. The Intoxicating Liquor Act of 1927 provides at Section 12 (1) as follows:— "Where on the occasion of any appli- cation for a Certificate for a new On Licence or a Certificate for the transfer or renewal of the On Licence, the Applicant requests the Court to certify that the premises in respect of which the Certificate is sought are a restaurant for the purposes of this Act, the Court, if satisfied after hearing the officer in charge of the Garda Siochana for the Licensing area that such premises are structur- ally adapted and bona fide and mainly used as a restaurant, refreshment house or other place for supplying substantial meals to the public, shall grant to such applicant a Certificate (in this section referred to as a Restaurant Certificate) certifying that such premises are a Restaurant for the purposes of this Act." The District Justice had difficulty in deciding the Application and stated a case for the opinion of the High Court posing the f o l l owi ng questions:— 1. "On an Application under Section 12 of the Intoxicating Liquor Act 1927, if the officer in charge of the Garda Siochana for the Licensing Area says he has no objection must the Court grant the Applicant? 2. Is the supply of substantial meals at private dinners, public dances or discos properly taken into account in deciding whether a restaurant business is carried on for the purposes of Section 12 of the 1927 Act. 3. Is the supply of substantial meals to race goers on race days properly taken into account in deciding

Northampton County Council v. A.B.F. and M.B.F., (High Court) (per Hamilton J.,) — 2 November, 1981 — unreported. George J. Gill LICENSING In determining whether a holder of a Restaurant Certificate is entitled to a renewal of his Certificate evidence should be available from the ofiicer in charge of the Licensing area as to the bona fide use of the premises as a Restaurant supplying sub- stantial meals to the public during the previous licensing session. Patrick Walsh applied to the District Justice for the Bray District Court Area for a renewal of a Certificate under Section 12 of the Intoxicating Liquor Act of 1927 in respect of buildings at Leopardstown Race Course in County Dublin. He applied as Nominee of the Leopards- town Club Limited. The District Justice stated a case to the High Court for opinion. In Paragraph 4 of the case submitted it was shown that evidence was given for the Applicant that:— 1. There are four separate restaurant areas with extensive and well equipped kitchens and 18 bars within the race course premises. 2. One of the bars is open the year round during permitted hours. 3. There were 26 race meetings during the year and persons attending could and many did have substantial meals in the restaurant from about 12 noon to 7 p.m. on those occasions. 4. Numerous dinners and diilner dances were held during the year for particular organisations and substantial meals were served; some of these functions were private and some were public to the extent that a member of the public could attend on payment of the admission price. 5. House dances or discos were held on 4 nights of every week which were open to any member of the public on payment of £3.00 admission. The £3.00 included the price of a set meal which was available for patrons if they required it. A patron could order a meal from an a la carte menu, in which case an allowance would be made towards the menu price of the meal but this did not happen during the year. The a la carte menu was also available from

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