M v an Bord Uchtála

JurisdictionIreland
Judgment Date01 January 1975
Date01 January 1975
Docket Number[1973. No. 2036 P.]
CourtHigh Court
M. v. An Bord Uchtála
M. and M.
Plaintiffs
and
An Bord Uchtála and The Attorney General
Defendants.
[1973. No. 2036 P.]

High Court

Constitution - Statute - Validity - Adoption - Discrimination on ground of religious profession - Adoption Act, 1952 (No. 25), s. 12 - Constitution of Ireland, 1937, Article 44.

Section 12, sub-s. 1, of the Adoption Act, 1952, provided that an adoption order should not be made unless the conditions of the section in regard to religion were fulfilled; sub-s. 2 of the section provided that the applicants for an adoption order should be of the same religion as the child and its parents or, if the child was illegitimate, its mother; and sub-s. 5 of the section provided that a child's religion should be taken to be that in which the child was being reared.

The second plaintiff gave birth to a child out of wedlock. Three years later she married the first plaintiff, who was not the father of the child, and thereafter the child lived with the plaintiffs. When the child was nearly six years old, the plaintiffs applied to the defendant Adoption Board for an order authorising them to adopt the child. The first plaintiff was a Roman Catholic and the second plaintiff was a member of the Church of England. At the date of the application the child was being brought up as a Roman Catholic. The defendants refused to make an adoption order because the conditions of sub-s. 2 of s. 12 of the Act of 1952 had not been fulfilled. The plaintiffs brought an action in the High Court in which they claimed a declaration that s. 12 of the Act of 1952 and the defendants' decision were invalid because they were a contravention of the prohibition of discrimination on the ground of religious profession or belief contained in the Constitution of Ireland.

Held by Pringle J. that the terms of sub-s. 2 of s. 12 of the Act of 1952 imposed a disability and made a discrimination on the ground of religious profession or belief in contravention of the provisions of Article 44, s. 2, sub-s. 3, of the Constitution and, therefore, were invalid having regard to the provisions of the Constitution.

Quinn's Supermarket v. The Attorney General [1972] I.R. 1 applied.

Plenary Summons.

The plaintiffs' action was tried by Pringle J. on the 6th and 7th May, 1974.

Section 12 of the Adoption Act, 1952, provided as follows:—

"(1) An adoption order shall not be made unless the conditions of this section in regard to religion are fulfilled.

(2) The applicant or applicants shall be of the same religion as the child and his parents or, if the child is illegitimate, his mother.

(3) The Board may, having regard to the special circumstances of a particular case, make an adoption order although the persons referred to in sub-section (2) are not all of the same religion, provided that each of them is a member of one of the following religious denominations, namely, the Church of Ireland, the Presbyterian Church in Ireland, the Methodist Church in Ireland, the Religious Society of Friends in Ireland, the Baptist Union of Ireland and the Brethren, commonly known as the Plymouth Brethren.

(4) The religion of a parent who is dead shall be taken to be the religion at the time of death.

(5) A child's religion shall be taken to be that in which he is being brought up.

(6) The Board shall have discretion to dispense with the condition as to the religion of a parent if unable to ascertain it."

Section 6 of the Adoption Act, 1964, provided:—

"6. Section 12 of the Principal Act shall be construed and have effect as if the Salvation Army were included in the religious denominations specified in subsection (3) of that section."

Section 12 of the Act of 1952 and s. 6 of the Act of 1964 were repealed on the 29th July, 1974, by s. 13 of the Adoption Act, 1974: but see s. 4 of the Act of 1974.

Cur. adv. vult.

Pringle J.

The plaintiffs, who are husband and wife, seek a declaration that the provisions of s. 12 of the Adoption Act, 1952, as amended by s. 6 of the Adoption Act, 1964, are repugnant to the Constitution of Ireland, 1937,

and are invalid and of no effect. The plaintiffs also claim a declaration that the decision and order of the first defendant dated the 1st May, 1973, in relation to the application of the plaintiffs for an...

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