Re Art.26 and the Adoption (No. 2) Bill 1987

JurisdictionIreland
CourtSupreme Court
Judgment Date01 January 1989
Neutral Citation1988 WJSC-SC 826
Date01 January 1989
Docket Number[S.C. No. 225 of 1988]

1988 WJSC-SC 826

THE SUPREME COURT

Finlay C.J.

Walsh J.

Henchy J.

Griffin J.

Hederman J.

225/88
In re ADOPTION (NO 2) BILL 1987
IN THE MATTER OF ARTICLE 26 OF THE CONSTITUTION

AND

IN THE MATTER OF THE ADOPTION (NO. 2) BILL 1987

Citations:

ADOPTION (NO2) BILL 1987 S3

ADOPTION (NO2) BILL 1987 S3(1)

ADOPTION (NO2) BILL 1987 S2(1)

CRIMINAL LAW (JURISDICTION) BILL 1975, IN RE 1977 IR 129

EAST DONEGAL CO-OP V AG 1970 IR 317

CONSTITUTION ART 41.1.1

CONSTITUTION ART 41.1.2

CONSTITUTION ART 42.1

CONSTITUTION ART 42.3.2

CONSTITUTION ART 42.5

CONSTITUTION ART 40.3

CONSTITUTION ART 43

CONSTITUTION ART 44

ADOPTION (NO2) BILL 1987 S3(1)(a)

ADOPTION (NO2) BILL 1987 S3(2)(a)

ADOPTION (NO2) BILL 1987 S3(3)

ADOPTION (NO2) BILL 1987 S3(2)

ADOPTION (NO2) BILL 1987 S4

ADOPTION (NO2) BILL 1987 S5

ADOPTION (NO2) BILL 1987 S1

ADOPTION (NO2) BILL 1987 S2

ADOPTION (NO2) BILL 1987 S6

ADOPTION (NO2) BILL 1987 S7

ADOPTION (NO2) BILL 1987 S8

ADOPTION (NO2) BILL 1987 S9

ADOPTION (NO2) BILL 1987 S3(1)(d)

ADOPTION (NO2) BILL 1987 S3(2)(a)

ADOPTION (NO2) BILL 1987 S3

Synopsis:

ADOPTION

Consent

Irrelevance - Parents - Duties - Failure - State's obligation to supply place of defaulting parents - Procedure by application to High Court for order authorising Adoption Board to make adoption order - Conditions precedent to exercise of High Court jurisdiction - Whether proposed Bill repugnant to the Constitution - ~See~ Constitution, legislation - (225/88 - Supreme Court - 26/7/88)[1989] IR 656 [1989] ILRM 266

|Adoption (No. 2) Bill, 1987|

INFANTS

Adoption

Consent - Irrelevance - Parental duties - Failure - State's obligation to supply place of defaulting parents - Procedure by application to the High Court - Conditions precedent to exercise of High Court's discretion - Whether Bill repugnant to the Constitution - ~See~ Constitution, legislation - (225/88 - Supreme Court - 26/7/88)[1989] IR 656 [1989] ILRM 266

|Adoption (No. 2) Bill, 1987|

CONSTITUTION

Legislation

Bill - Repugnancy - Adoption - Reference to Supreme Court - Children under 18 years old - Failure of parents" duty to child - Adoption without consent of parents or guardians - Pursuant to Article 26 of the Constitution, the President of Ireland referred the Adoption (No. 2) Bill, 1987, to the Supreme Court for a decision on the question whether the Bill, or any specified provision or provisions of the Bill, is or are repugnant to the Constitution or to any provision thereof - The subject of the Bill is the adoption of children under the age of 18 years without the consent of their parents or guardians, whether or not the children are born within or without wedlock and whether or not one or more parents survive - Section 3 of the Bill provides for an application being made to the High Court by a Health Board, or by applicants for adoption, for an order authorising the Adoption Board to make an order for the adoption of a child by the applicants - Sub-section 1 of s. 3 of the Bill provides that, in order to be able to make an authorisation order, the High Court must be satisfied (a) that the parents of the child have failed in their duty to the child, for physical or moral reasons, over a continuous period of not less than 12 months immediately preceding the time of the making of the application, (b) that the child is in the custody of and has a home with the applicants, and was in such custody and has had such home for a continuous period of not less than 12 months immediately preceding that time, (c) that the failure of the parents constitutes an abandonment by them of all parental rights, whether under the Constitution or otherwise, in respect of the child, (d) that by reason of such failure the State, as guardian of the common good, should supply the place of the parents, (e) that the adoption of the child by the applicants is an appropriate means by which to supply the place of the parents and (f) that, having had due regard to the rights (whether under the Constitution or otherwise) of the persons concerned, including the natural and imprescriptible rights of the child, it would be in the best interest of the child to make the order - Sub-s. 2 of s. 3 provides that, before making an authorisation order, the court shall, so far as possible, give due consideration to the wishes of the child, having regard to his age and understanding - Sub-section 5 provides that applications under s. 3 shall be heard otherwise then in public - Held that the Court, in giving its decision, would apply the presumption of constitutionality stated in ~The Criminal Law (Jurisdiction) Bill, 1975~ [1977] I.R. 129 and the principles stated in ~East Donegal Co-Operative v. The Attorney General~ [1970] I.R. 317 - Held that the Bill is not repugnant to the Constitution or to any provision thereof - Constitution of Ireland, 1937, Articles 26, 40, 41, 42 - Adoption (No. 2) Bill, 1987 - (225/88 - Supreme Court - 26/7/88)[1989] IR 656 [1989] ILRM 266

|Adoption (No. 2) Bill, 1987|

1

DECISION OF THE COURT pronounced pursuant to Article 26 of the Constitution on the 26th day of July 1988

2

The President pursuant to Article 26 of the Constitution referred the Adoption (No. 2) Bill 1987 to the Court for a decision on the question as to whether that Bill is repugnant to the Constitution or to any provision thereof. The purpose of the Bill appears from the long title which is in the following terms:

"An Act to provide in exceptional cases, where the parents for physical or moral reasons have failed in their duty towards their children, for the supplying, by the adoption of the children, of the place of the parents and for that purpose and other purposes to amend and extend the Adoption Acts, 1952to 1976."

3

The Bill provides for the adoption under certain circumstances of any child, whether born in wedlock or not, and whether one or both parents survive or not. It also provides for adoption of children without the consent of their parents or guardian.

4

The procedure contained in the Bill is for the Adoption Board to make an adoption order in respect of any child in a case where upon application to the High Court the Board is authorised so to do.

5

Section 3 of the Bill provides for the application to the High Court and for the matters which must be established to its satisfaction before an authorising order can be made. It is this Section which is particularly relevant to the determination of the question before the Court and it is in the following terms:

6

2 "3 (1) Where persons in whose favour the Board has made a declaration under section 2(1) (referred to subsequently in this subsection as "the applicants") request the health board in whose functional area they ordinarily reside to apply to the Court for an order under this section -

7

(a) if the health board considers it proper to do so and an application therefor in accordance with paragraph (b) of this subsection has not been made by the applicants, the health board may apply to the Court for the order, and

8

(b) if, within the period of 3 months from the day on which the request was given to the health board, the health board either -

9

(i) by notice in writing given to the applicants, declines to accede to the request, or

10

(ii) does not give the applicants a notice under sub-paragraph (i) of this paragraph in relation to the request but does not make an application for the order under paragraph (a), the applicants may apply to the Court for the order,

11

and if an application under paragraph (a) or (b) of this subsection is made and it is shown to the satisfaction of the Court -

12

(I) that -

13

a (A) for a continuous period of not less than 12 months immediately preceding the time of the making of the application, the parents of the child to whom the declaration under section 2(1) relates, for physical or moral reasons, have failed in their duty towards the child,

14

b (B) it is likely that such failure will continue without interruption until the child attains the age of 18 years,

15

c (C) such failure constitutes an abandonment on the part of the parents of all parental rights, whether under the Constitution or otherwise, with respect to the child, and

16

d (D) by reason of such failure, the State, as guardian of the common good, should supply the place of the parents,

17

(II) that the child -

18

a (A) at the time of the making of the application, is in the custody of and has a home with the applicants, and

19

b (B) for a continuous period of not less than 12 months immediately preceding that time, has been in the custody of and has had a home with the applicants,

20

and

21

(III) that the adoption of the child by the applicants is an appropriate means by which to supply the place of the parents,

22

the Court may, if it so thinks fit and is satisfied, having had due regard for the rights, whether under the Constitution or otherwise, of the persons concerned (including the natural and imprescriptible rights of the child), that it would be in the best interests of the child to do so, make an order authorising the Board to make an adoption order in relation to the child in favour of the applicants.

23

(2) Before making an order under subsection (1), the Court shall, in so far as is practicable, give due consideration, having regard to his age and understanding, to the wishes of the child concerned.

24

(3) The Court may, of its own motion or on application to it in that behalf, make an order adding such other persons as it thinks fit as parties to proceedings under subsection (1), and may, in the case of a person added as a party to any such proceedings under this section, make such order as it considers just in respect of -

25

(a) the payment of any costs in relation to the proceedings that are incurred by the person and are not paid by another party to the proceedings if legal aid in respect of...

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