The Gazette 1985

GAZETTE

JULY/AUGUST1985

could be construed as meaning simply that the balance of welfare as defined in Section 2 of the Act of 1964 must be the sole criterion for the determination by the Court of the issue as to the custody of the child. A child over two years of age, as this infant is, in the dominant or general custody of persons other than its parents and continuing in such custody against the wishes of its parents, cannot be said to enjoy the right of education by its family and parents granted by Article 42.1 of the Constitution. It was held further that Section 3 of the Act of 1964 must be construed as involving a constitutional presumption that the welfare of the child which is defined in Section 2 of the Act in terms identical to those contained in Article 42.1 is to be found within the family unless the Court is satisfied on the evidence that there are compelling reasons why this can not be achieved or unless the Court is satisfied that the evidence establishes an exceptional case where the parents have failed to provide education for the child and continue to fail to provide education for the child for moral or physical reasons. The Court, allowing the appeal of the parents, remitted the case to the High Court to be further considered either on the evidence as it existed or on such further evidence as it may consider material in accordance with the test of compelling reasons why the welfare of the child can not be secured to it in the family unit and by the parents. The Court dismissed the appeal of the adopting parents against the order refusing them relief under Section 3 of the Act of 1974 which was not pursued by them. The order restricting the re-regis- tration of the birth of the child must be set aside. M. C. and M. C. -v- K. C. and A. C. and An Bord Uchtala and An tArd Calraitheóir - Supreme Court (per Finlay C.J., Griffin, Hederman, McCarthy, O'Hanlon J.J. concurring), 27 March, 1985 - unreported. Damien McHugh

Copies of judgments in the above cases are available on request from the Society's Library. The photo- copying rate is lOp per page.

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