The Gazette 1991

GAZETTE

NOVEMBER 1991

of the common good " 4 1 should supply the place of the parents. How did the Court reconcile the forfeiture of parental rights with the content of Articles 41 and 42? Counsel arguing against the cons t i t u t i ona l i ty of the Bill submitted that the provisions of the Bill relating to adoption: (a) represented an attack upon the constitution and authority of the family to which the child belonged: (b) represented a fundamental attack upon the authority of that family unit, eliminating as it must, the authority of the family and its members over the child; (c) effectively extinguished the child's right to belong to his particular family unit, which right, it was submi t t ed, was inalienable and impre- scriptible; (d) extinguished other rights the child possesses as a member of his family, namely the right to the society of the other members of the family unit and the right to be educated by the family group to which he belongs. These rights, it was submitted, were inalienable and imprescriptible; (e) extinguished the parents' inalienable right to educate and have custody of their children. Counsel for the Attorney General, arguing for the constitutionality of the Bill, submitted that: (a) Article 42.5 which allowed the State, in exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, to endeavour to supply the place of the parents by appropriate means, was reflected in the Bill.

(b) The State has the duty and right to protect and to vindicate the rights of a child who by reason of its parents' failure has lost, and is likely permanently to .lose, not only its rights as identified in Articles 41 and 42 of the Constitution, but also other personal rights which derive from the Cons t i t u t i on. Adoption, it was submitted, , was the method necessary to afford that protection and vindication. The Court held that Article 42.5 of the Constitution is not confined in its application to the duty of parents to provide education for their children. The Article extends to the parental duty to cater for the other personal rights of the child. The Court also held that under Article 40.3, the State is obliged to vindicate the personal rights of the child in so far as same is practicable. On the question of the "inalienable" and "imprescriptible" rights possessed by the family under Article 42, Finlay C.J. ruled as follows: the submission that the nature of the family as a unit group possessing inalienable and imprescriptible rights, makes it constitutionally impermissible for a statute to restore to any member of an individual family constitutional rights of which he had been deprived by a method which disturbs or alters the constitution of that family if that method is necessary to achieve that purpose. The guarantees afforded to the institution of the family by the Constitution with the consequent benefit to the children of a family should not be construed so that upon the failure of that benefit it cannot be replaced where the circumstances demand it, by incorporation of the child into an alternative family." 42 " T h e Court rejects

of the parents lay in the obliga- tion upon the State to have due regard for " t he natural and impre- scriptible rights of the child." 43 Thus, the Court upheld the constitutionality of the Bill. It is clear upon reading the judgment that the words 'inalienable' and 'imprescriptible' no longer proved to be as unassailable as they once were. In effect, one cannot reconcile the dicta of the Supreme Court in Re Doyle 44 (which was cited to the Court during the case but which was not alluded to in the judgment) with that of the 1988 Court deciding the constitutionality of the Adoption Bill. In Re Doyle, the follpwing dicta emerged: " I t seems . . . to this court that the makers of the Constitution by the provisions of Article 42 and particularly by ss 1 and ss 2 of this Article deliberately preserved the common law principle and have put it beyond the reach of ordinary legislation." 45 "The upholding of the Adoption Bill 1987 as constitutional is further evidence that judicial interpretation now balances the parental rights against the child's rights in the context of Articles 41 and 42." The common law principle being referred to was that a parent could not deprive himself of his rights to custody of his child unless by gross misconduct. In effect, the judiciary began with a literal interpretation of the natural law terminology present in the Articles. Thus a judicial tendency towards the supremacy of parental rights developed. As time passed, attempts were made to reconcile parental and child's rights resulting sometimes in a pro- parental decision {Re.; J) 46 and sometimes in a pro-child decision (P.W. -v- A.W.). 47 Eventually, the "overwhelming interests" test came about (G. -v- An Bord

The Court held that the only limitation upon supplying the place

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