State (M.) v Attorney General

• Jurisdiction: Ireland
• Judgment Date: 01 January 1979
• Date: 01 January 1979
• Docket Number: [1978 No. 50 SS.]
• Court: High Court

The State (M) v. The Attorney General

The State (at the Prosecution of K.M. and R.D.)

and

The Minister for Foreign Affairs, Marie Burke and The Attorney General

[1978 No. 50 SS.]

High Court

Constitution - Statute - Validity - Personal rights - Right to travel - Illegitimate child - Application for passport refused - Statutory prohibition invalid - Adoption Act, 1952 (No. 25), s. 40 - Constitution of Ireland, 1937, Article 40.

Section 40, sub-s. 1, of the Adoption Act, 1952, states that nobody shall remove out of the State a child under seven years of age who is an Irish citizen, or cause or permit such removal. Sub-section 2 of the section states that sub-s. 1 shall not apply to the removal of an illegitimate child under one year of age with the approval of the child's mother for the purpose of residing with the mother outside the State.

The first prosecutor was an unmarried woman and a citizen of Ireland who had given birth in Ireland to a female child in October, 1977. The birth of the child was registered in the name of the second prosecutor, the father of the child, who was a Nigerian national and a resident in Ireland. The prosecutors did not intend to marry each other. Due to the inability of the first prosecutor to support and care for her child and the fact that the child had inherited her father's dark skin and racial characteristics, the prosecutors decided that it would be in the best interests of their child if she were to go to Nigeria where the second prosecutor's parents were willing to provide a home for her. An application by the first prosecutor, on behalf of her child, for a passport enabling the child to travel to Nigeria for the said purpose was refused by the first respondent in January, 1978. The prosecutors obtained in the High Court a conditional order of certiorari quashing the record of such refusal, unless cause were shown to the contrary. On application by the prosecutors for an order absolute, notwithstanding the cause shown by the respondents, it was

Held by Finlay P., in disallowing the cause shown and making an order absolute, 1, that the disparate treatment of the legitimate and the illegitimate child in s. 40 of the Act of 1952 did not constitute an infringement of the provisions of Article 40, s. 1, of the Constitution concerning equality before the law.

O'Brien v. KeoghIR [1972] I.R. 144 considered.

2. That, subject to public order and the common good, every citizen has a right to avail of the existing facilities for the purpose of travelling outside the State, and that such right is one of the personal rights of the citizen within the meaning of Article 40, s. 3, of the Constitution.

3. That the provisions of sub-s. 2 and the words in parenthesis in sub-s. 3 of s. 40 of the Act of 1952 were an infringement of that personal right and, accordingly, should be declared invalid having regard to the provisions of the Constitution.

4. That where the exercise of that right by, or on behalf of, an infant affects its welfare adversely, the Courts may intervene in appropriate proceedings to protect the welfare of the infant.

Cases mentioned in this report:—

¹ McGee v. The Attorney GeneralIR [1974] I.R. 284.

² The State (Healy) v. DonoghueIR [1976] I.R. 325.

³ In re M.IR [1946] I.R. 334.

⁴ The State (Nicolaou) v. An Bord UchtálaIR [1966] I.R. 567.

⁵ O'Brien v. KeoghIR [1972] I.R. 144.

⁶ Ryan v. The Attorney GeneralIR [1965] I.R. 294.

⁷ Kent v. DullesUNK (1958) 357 U.S. 116.

⁸ Labine v. VincentUNK (1971) 401 U.S. 532.

⁹ Stanley v. IllinoisUNK (1972) 405 U.S. 645.

Certiorari.

On the 2nd February, 1978, the prosecutors obtained in the High Court (Doyle J.) a conditional order of certiorari to quash, unless cause were shown to the contrary, the record of the decision of the first respondent to refuse the request of the first prosecutor for passport facilities for her daughter. Cause was shown by the respondents on the 24th February, 1978. The facts have been summarised in the head-note and they appear in the judgment of Finlay P., infra.

Article 15, s. 4, of the Constitution of Ireland, 1937, provides:—

"1 The Oireachtas shall not enact any law which is in any respect repugnant to this Constitution or any provision thereof.

2 Every law enacted by the Oireachtas which is in any respect repugnant to this Constitution or to any provision thereof, shall, but to the extent only of such repugnancy, be invalid."

Article 34, s. 3, of the Constitution states that the jurisdiction of the High Court shall extend to the question of the validity of any law having regard to the provisions of the Constitution.

Article 40, ss. 1 and 3, of the Constitution provides:—

"1. All citizens shall, as human persons, be held equal before the law.

This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function."

"3. 1 The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

2 The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen."

The prosecutors' application for an order absolute, notwithstanding the cause shown, was heard by Finlay P. on the 9th May, 1978.

Cur. adv. vult.

Finlay P.

This is an application to make absolute, notwithstanding cause shown, a conditional order of certiorari which was granted by the High Court on the 2nd February, 1978. The order directed the first and second respondents to send before the Court, for the purpose of being quashed, the record of the decision of the first respondent to refuse the request of the first prosecutor for a passport for her infant daughter. The Attorney General has been added as a notice party to the proceedings by reason of the fact that the grounds on which the conditional order was granted involved (inter alia) an assertion that certain provisions of the Adoption Act, 1952, were repugnant to the Constitution.

The respondents have shown cause, but they have not contested any of the facts which are set out in the affidavit of the first prosecutor and which are the facts upon which the application is based. Those facts are that the first prosecutor is an Irish citizen who is aged 22 years and is unmarried. On the 22nd October, 1977, she gave birth to a baby girl. The first prosecutor states in her affidavit that the second prosecutor is the father of her child. It is not at present the intention of the first prosecutor to marry the second prosecutor. The second prosecutor is a Nigerian national who has been residing in Ireland since November, 1975, and is following a course of studies. It is stated to be his intention to...