The Gazette 1986

SEPTEMBER 1986

GAZETTE

would be quite inconsistent with these statutory responsibilities if the Minister's overall powers were subject to Court decisions on what constitutes a grade within the Civil Service. The second question was whether the refusal of the Minister to recognise or classify Inspectors of Taxes (Technical) as a separate individual grade was subject to review by the Courts? The Court noted that the decision to classify or refuse to classify particular persons as a separate grade was an administrative act capable of affecting the remuneration and career prospects of Civil Servants. It considered that the Court had a right to intervene in that decision if it could be established that the Minister had acted in a manner which was considered to be "arbitrary, capricious, partial or manifestly u n f a i r ", i.e., if the decision had suffered from one of the frailties referred to in the Supreme Court's decision in O'Brien -v- Bord na Mono [1983] I.R. 255. The Court held that in the instant case it did not. The third question was whether the Plaintiffs had established grounds for judicial review of the decision? The Court's response to this question was in the negative. It noted that the Minister's decision to refuse to recognise the I.T.A. was not taken until his representatives had examined the situation in the various categories of Inspectors in 1980 and had considered the work they did and the material factors which might be appropriate if a re-grading of them had been deemed necessary. Thus, it concluded that the implied application for a re- grading had been fairly considered. The Appeal failed. Inspector of Taxes' Association and Others -v- The Minister for Public Services, Ireland and the A ttorney General, Supreme Court (per Finlay C.J. nem. diss.), II November 1983 — unreported. Declan Madden by adoptive to dispense with the consent of the natural mother to the making of an Adoption Order - Counter application by the mother claiming custody of her child. The mother was born in 1963 and was unmarried when her son was born on 11 February 1984. The mother was living at home and when her parents learned of her situation they were upset but also sympathetic and supportive. They left to their daughter the decision as to whether she should keep her baby and did not coerce her in any way. While attending for ante-natal care the mother was put in touch with a social worker who discussed her problems with her. Later, the mother went on her own initiative to an adoption agency with a view to arranging adoption. After the child was born the mother signed the form of consent td placement for adoption, which she fully understood. The child was then placed with the adoptive parents in April 1984 and had been with them since. ix parents ADOPTION Application

On 20 August 1984, the final consent was signed by the mother but not without further lengthy discussions with the social workers. On 24 August 1984, the mother telephoned the social worker to say that she had changed her mind and withdrew her consent. She followed this with a letter. The adoptive parents then instituted proceedings and these were countered by the mother's application for custody. The case came on for hearing in February 1985 when the child had been with the adoptive parents for almost a year. There was a conflict of opinion between the psychiatrists called by the parties. The Doctor for the adoptive parents said she was favourably impressed by the adoptive couple and the home that they had provided for the child. She said the baby had definitely bonded to these people and that this had taken place in the first six months of the baby's life, and if broken the child may be marked for life both physically and psychologically. However, the Doctor for the mother was unable to concur with this prognosis where the child was removed from one caring environment to another. He stated there was no reason to suppose the child would not bond with its own mother. Although he accepted that there would be an initial period of stress he was of the firm view that there would be no long term ill effects. The Court held: 1. That the mother had freely consented to placing her child for adoption in the full knowledge of the consequences. 2. That the mother later withdrew her consent to the adoption before an Adoption Order was made. 3. That the provisions of Section 3 of the Adoption Act, 1974, applied and the Judge had to decide what was "in the best interests of the child". In conclusion, the Judge said it was very hard to resist the claims of the natural mother. The adoptive parents appeared to be as good a choice as one could make when placing a child for adoption but he felt that a baby and growing child would always be better off with its natural mother if she is a devoted and concerned parent and can provide in a reasonable manner for the physical and emotional needs of the child. The Court accepted that if too long a period elapsed before the return of the child was sought the bonds of attachment might be incapable of being broken without lasting damage but here fell the point of no return had not yet been reached. The Court acted on the view expressed by the mother's Doctor and awarded custody of the child to the mother and ordered the transfer of the child to her custody to be effected with the least possible delay. R.C. & P C. -v- An Bord Uchlala and St. Louis Adoption Society and M.M. -v- R.C. and P.C. and An Bord Uchtala — High Court (per O'Hanlon J.), 8 February 1985 — unreported. Muriel Walls

Recent Irish Cases

Edited by Gary Byrne, Solicitor

EMPLOYMENT Power of Minister to determine grading structures in the Civil Service - Power to recognise Staff Associations • Judicial Review of such powers. The Plaintiffs in this action were officers of a Staff Association, The Inspector of Taxes' Association (I.T.A.) which was formed in 1980 to represent Inspectors of Taxes (Technical) who had been commis- sioned by the Minister for Finance or were awaiting such commissions. Another Staff Association, The Associa- tion of Inspectors of Taxes (A.I.T.) existed to represent Inspectors of Taxes since prior to 1952. Initially, membership of the A.I.T. had been confined to Inspectors of Taxes (Technical) but following the appointment of non-technical Inspectors to the grade of Inspector of Taxes (Technical) in 1960, the A.I.T. had represented both technical and non-technical inspectors. The A.I.T. had been recognised by the Minister for Finance as a staff association entitled to take part in the operation of the Civil Service Conciliation and Arbitration Scheme (The C & A Scheme) in 1952. The I.T.A. sought similar recognition on its formation in 1980. The application for recognition was refused for two related reasons: (a) because it was a settled policy of the C & A Scheme that no grade of civil servant could be represented by two staff associations at the same time, and (b) because no staff association which did not admit to membership all the members of the grade which it sought to represent could obtain recognition. The Plaintiffs did not challenge the propriety of these general policy considera- tions. Instead, they claimed that Inspectors of Taxes (Technical) were, in fact, a separate grade and the Minister should have recognised them as such and, therefore, considered their application for recognition of that grade. The Court considered that three issues arose on the Appeal. The first was whether the Court had the power to create or identify a grade in the Civil Service for the purposes of the C & A Scheme? The Court referred to Section 16 of the Civil Service Regulation Act, 1956, which gave the Minister the statutory power of making and determining all levels of classification and sub-classification including grading of every description. It considered that it