The Gazette 1991

NOVEMBER 1991

GAZETTE

3 of the Guardianship of Infants Act, 1964, the child's welfare was better served with them. Section 3 of the 1964 Act states that where in any proceedings before any court, the custody, guardianship or upbringing of an infant, or the administration of any property belonging to or held in trust for an infant, or the application of the income thereof, is in question, the Court, in deciding that question, shall regard the welfare of the infant as the first and paramount consideration. A divisional High Court held that the child should be returned to the parents. Teevan J. and Henchy J. observed that if section 3 purported to diminish parental control over children, then the question of its constitutionality would arise. The Court did not think that the child's welfare would not be served in the parents' custody. However, the case makes abundantly clear the difficulty in reconciling the equitable para- mountcy of the child principle expressed in section 3 of the 1964 Act and the parents' rights over their child enunciated in Articles 41 and 42. Balancing rights of parant to child It is this writer's submission that the tide of judicial thought began to turn towards balancing the rights of parent to child in 1979. 19 In G. -v- An Bord Uchtála 20 the consti- tutional right of an unwed mother to the custody of her child was analysed. The Supreme Court held that the mother relinquished this right at placement of the child for adoption and not at the later stage of the signing by the mother of the consent to the making of the adoption order. 21 Finlay P. (as he then was), however, in the High Court, held that the right was relinquished only at the signing of the consent to adoption. His lord-

ship reasoned that the mother's constitutional right to custody of her child demanded that her placed child be returned to her unless the "overwhelming interests" of her child demanded that the child remain with the adopters, or unless the mother's refusal to consent to the adoption was capricious or irresponsible. The judgment is important from the point of Articles 41 and 42 because Finlay P. was prepared to balance the mother's constitutional rights, albeit under Article 40.3, against the child's. The mother's right would not be satisifed if the "overwhelming interests" of the child demanded d i f f e r en t l y. This reasoning, encompassing a " b a l a n c i n g" approach towards constitutional rights, wou ld be employed eventually in the context of Articles 41 and 42. In 1980. RW. -v- A.W. & Ors 22 was decided. The case involved an attempt to reconcile the conflict between parental rights and the child's welfare. In RW. -v- A.W. a husband and w i fe had four children. Upon the birth of the fourth child, the mother permitted her husband's sister to look after the child as she had bouts of mental illness, for which hospitalisation was necessary. The arrangement began as a temporary one but be- came permanent, due to the mother's incapacity to fend for her child. Two years after the place- ment, the parents separated and the mother obtained custody of the three elder children. The aunt had custody of the youngest and the mother sought custody of this child. Ellis J. refused the mother custody. The child had been integrated into her aunt's home, and evidence was heard as to the detrimental effect any change in custody would have on the child. The learned judge noted that:

Articles 41 and 42 were further cemented into Irish jurisprudence in Re O'Brien decided three years after the Tilson case. The facts of the case were that a father sought custody of his child. The child had been in the custody of its grand- mother for two years. His mother had died and the father had be- come a patient in a sanatorium. When he left the sanatorium he remarried and sought custody. Counsel for the respondent argued that the welfare of the child de- manded that she be left with her grandmother. O'Byrne J. in the Supreme Court, replied as follows:- "These considerations are quite independent of the constitu- tional provisions which seem to me to be of paramount im- portance in this case" 16 "This seems to contemplate and require that the children should be members of the family and attached to the parental home. The sanctity of the family and enduring existence of parental authority seem to me to be guaranteed by these provisions. Articles 41 and 42 of the Cons t i t u t i on cons t i t u te the fundamental law of this State and must be taken as over-riding any pre-existing law inconsistent therewith". 17 The child was returned to the father. The case, however, clearly shows the conflict between the potential conflict between parental rights and the child's where the parents had not been culpably unmindful of their duties and the child's welfare lay outside parental custody. In Re J.™ decided in 1966 an illegitimate child was placed for adoption. An adoption order was made but was quashed. The parents married and the child was thus legitimated. She was no longer eligible for adoption and the parents sought custody. The adopters argued that under section Referring to Ar t i c le 42.1 he continued:

"It is this writer's submission thought began to turn towards balancing the rights of parent to child in 1979." that the tide of judicial

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