The Gazette 1991

GAZETTE

NOVEMBER 1991

" [ T j he re is nothing in the Constitution to indicate that in cases of apparent alleged conflict, the rights of a parent always have to be given primacy . . ." 23 Later in the judgment, he stated that: " I f however, there is a conflict between the constitutional rights of a legitimate child and the prima facie constitutional right of its mother to its custody, I am of the opinion that the infant's rights, which are to be determined by regard to what is required for its welfare, should prevail, even if its welfare is to be found in the custody of a stranger . . ." 24 It may be noted that there is nothing in the Constitution to indicate that children's rights should be given primacy over parental rights. However, the judgment is clearly indicative of the changing trend in judicial attitude. The learned judge was seeking to circumvent the absolutist support for parental rights present in Articles 41 and 42. This trend was further endorsed in Tormey -v- The Attorney General 25 and Murray -v- the Attorney General, 26 two judgments handed down in 1985. The Tormey case did not concern any question of the rights of the family, but Henchy J. handed down interesting dicta on the wisdom of a literal mode of constitutional interpretation in the case. The learned judge referred to the need to adopt a construction of the Constitution which would " l ead to the smoo th and harmonious operation of the Constitution", 27 and to avoid a strict construction which would " a l l ow the imper f ec t i on or inadequacy of words used to defeat or prevent any of the fundamental purposes of the Courts." 28 In Murray -v- the A.G. the plaintiffs were imprisoned married persons who asserted that their right to procreate was protected by Article 41 of the Constitution. 29

"The learned judge referred to the need to adopt a construction . . . which would 'lead to the smooth and harmonious operation of the Constitution' "

the whole text of the Constitu- tion and identify its purpose and objectives in protecting human rights is frequently a desirable one." 32 Costello J. recognised the spirit of Articles 41 and 42 in his judgment. The learned judge furthered the judicial quest to reconcile the absolutism of the Articles to real life situations. The enactment of the Articles had brought about a pro parental tendency on the part of the judiciary. In the seventies the judiciary had begun to reject this approach. By 1985, the nemesis of literal interpretation had arrived. The climax of this evolving judicial approach occurred in K.C. and A.C. -v- An Bord Uchtála. 33 In this case, a natural mother placed her child in foster care a week after the birth. The child was placed for adoption subsequently. The natural parents married and applied pursuant to the Legitimacy Act, 1931 to have the infant's birth re-registered. The mother refused to consent to the adoption order being made and the adoptive parents sought to dispense with her consent as is their legal entitlement. 34 The natural parents sought custody of the child. Lynch J. put a stay on the re-registration would make the child non-eligible for adoption. The adoptive couple sought to dispense wi th the mother's consent to the adoption under section 3 of the Adoption Act, 1974. The learned High Court judge did not dispense with the mother's consent because in the case of a legitimated child, both the father's and mother's consent to the initial placement with the adoptive couple is necessary and the father had not consented. The issue then became a custody issue on the basis of section 3 of the Guardianship of Infants Act, 1964. As noted above, this section states

Counsel for the plaintiffs relied on the terminology of "inalienable" and "imprescriptible" employed in Article 41 to endorse his clients' submissions. Costello J. replied: "[Plarticular reliance is placed upon Article 41, for it is said that there is a hierarchy of constitutionally protected rights and this right shows how high in the scale of values the rights claimed in this case should be placed." 30 His Lordship stated that the success of the plaintiffs' argument did not depend upon "establishing that the right to beget children is protected by Article 41 rather than Article 40." 31 In what is a revealing dictum as to judicial perspective of the purpose of the fundamental rights Articles, his Lordship said that "inalienable" and "imprescriptible" are words used to describe the family's rights and neither of those adjectives was used to describe other personal rights in the Constitution. The Constitution, his Lordship added, does not confer on citizens human rights, but in effect recognised these rights as "antecedent to all positive law." His Lordship pointed out that although no reference is made in Article 41 to any restrictive power over the inalienable and imprescriptible rights of the family to integrity as a unit group, it is obvious that the State can validly restrict these rights for example, when its laws allow a man to be barred from the family home. His Lordship continued: " [ l ]n construing the Constitu- tion, the Courts should bear in mind that the document is a political one as well as a legal one and whilst not ignoring the express text of the Constitution, a purposive approach to inter- pretation which would look at

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