Finlay C.J.

26th July 1988

The President of Ireland 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, 1952 to 1976."

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.

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 do to.

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:—

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"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 —

1. (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

2. (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 —

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

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

   3. the applicants may apply to the Court for the order,

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

1. (I) that —

   1. (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,

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

   3. (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

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

2. (II) that the child —

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

   2. (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,

and

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

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.

1. (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.

2. (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 —

   1. (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 them under any scheme operated by or on behalf of the State for the provision of legal aid has been refused, or

   2. (b) the payment by the person of any costs in relation to the proceedings that are incurred by any other party to the proceedings.

3. (4) The health board concerned shall be joined as a party to proceedings under subsection (1)(b).

4. (5) Proceedings under this section shall be heard otherwise than in public.

5. (6) The functions conferred on a health board by section 2 (1) and subsection (1) of this section shall be functions of the chief executive officer and any deputy chief executive officer of the board.

6. (7) A request to a health board under subsection (1) may be given to the board by handing it, or sending it by prepaid post, to an officer of the board at premises of the board and the request shall be deemed, for the purposes of paragraph (b) of that subsection, to be given to the board on the day on which it is so handed or posted."

The Court in considering this bill applies the presumption of constitutionality laid down by it in its decision under Article 26 in  In re Criminal Law (Jurisdiction) Bill, 1975  [1977] I.R. 129.

It is also satisfied that it must apply to the consideration of the Bill the principles laid down by it in  East Donegal Co-Operative Livestock Mart Limited v. Attorney General  [1970] I.R. 317:—

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1. (1) That it must be presumed that all proceedings, procedures, discretions and adjudications permitted or prescribed by the bill are intended to be conducted in accordance with the principles of constitutional justice, and

2. (2) That as between two or more reasonable constructions of the terms of the bill the construction that is in accordance with the provisions of the Constitution would prevail over any construction that is not in accordance with such provisions.

Counsel assigned by the Court to present an argument have submitted that the major purpose of the bill, namely, the enabling of the legal adoption of children born in wedlock one or both of whose parents survive, is repugnant to the Constitution. They did not submit that any particular provision of the bill was repugnant since they contend that there could be no constitutional method of achieving its objective.

In the written submissions supplied to the Court prior to the bearing, they set out the grounds upon which they allege the bill was repugnant to the Constitution in the following form:—

"(a) The adoption order contemplated by the bill represents an attack upon the constitution and authority of the family to which the child belonged. The adoption order alters the constitution of that family for all time. It also represents 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. Additionally, the family as a group are denied their right to progress and exist as a family unit and are denied the right to the intimacy and privacy of their life as a family group. These rights of the family which are infringed by the legislative proposals are rights which are both inalienable and imprescriptible; they cannot be transferred or surrendered.

(b) The contemplated adoption will have the effect of extinguishing the child's right, as a member of the family unit, to belong to that particular family unit; such a right it is submitted is also inalienable and imprescriptible.

(c) The contemplated order further extinguishes other rights the child possesses qua member of the 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 is submitted are both inalienable and imprescriptible.

(d) Finally, the proposed legislation if enacted would extinguish the parents' inalienable right to educate and have custody of their children."

In the course of the oral submissions counsel added, in a sense, to these specific grounds a submission that members of an individual family, other than the parents or the child to be adopted, had rights which were interfered with by the adoption.

The provisions of the Constitution particularly relevant to the issues before the court are as follows:—

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Article 41, s. 1, sub-section 1

"The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law."

Article 41, s. 1, sub-section 2

"The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State."

Article 42, section 1

"The State acknowledges that the primary and natural educator of the child is the Family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children."

Article 42, s. 3, sub-section 2

"The State shall, however, as guardian of the common good, require in view of actual conditions that the children receive a certain minimum education, moral, intellectual and social."

Article 42, section 5

"In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child."

Article 40, s. 3, sub-section 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."

Article 40, s. 3, sub-section 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 rights of a child who is a member of a family are not confined to those identified in Articles 41 and 42 but are also rights referred to in Articles 40, 43 and 44.

The terms of Article 42, s. 5 are reflected both in the long title to the bill and in many of the provisions of section 3. Counsel for the Attorney General placed considerable but not exclusive reliance on that section as justifying the proposals in the bill. In addition they submit that the State had 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

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41 and 42 of the Constitution, but also other personal rights which, though unenumerated, derive from the Constitution. It has been submitted that in some circumstances adoption would be the method necessary to afford that protection and vindication.

Article 42, s. 5 of the Constitution should not, in the view of the Court, be construed as being confined, in its reference to the duty of parents towards their children, to the duty of providing education for them. In the exceptional cases envisaged by that section where a failure in duty has occurred, the State by appropriate means shall endeavour to supply the place of the parents. This must necessarily involve supplying not only the parental duty to educate but also the parental duty to cater for the other personal rights of the child.

Article 42, s. 5, does not in any way mean that the children whose parents have failed in their duty to them become the children of the State or that they are to be disposed of as such.

The State would, in any event, by virtue of Article 40, s. 3 of the Constitution be obliged, as far as practicable, to vindicate the personal rights of the child whose parents have failed in their duty to it.

The Court rejects 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 has 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 their 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.

The Court accepts the submission made on behalf of the Attorney General that the right and duty of the State to intervene upon the failure of parents to discharge their duty to a child can be considered under both Article 42, s. 5 and Article 40, section 3. By the express provisions of Article 42, s. 5, the State in endeavouring to supply the place of the parents is obliged to have due regard for the natural and imprescriptible rights of the child. Any action by the State pursuant to Article 40, s. 3 endeavouring to vindicate the personal rights of the child, would, the Court is satisfied, be subject to a similar limitation. It is, therefore, necessary, in the light of the conclusions already set out, to examine the bill and, in particular, s. 3 thereof in accordance with the principles of construction set out at the commencement of this judgment so as to ascertain whether these provisions display a due regard for the natural and imprescriptible rights of the child.

It is necessary to consider whether, having regard to the matters which must under s. 3 be established to the satisfaction of the High Court before it can even consider the making of an order authorising adoption, the bill could be construed as a constitutionally prohibited attack on the institution of the family.

In s. 3 the provisions of sub-clause I (A) to II (B) inclusive provide a series of matters which seriatim must be established to the satisfaction of the court. They

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are not merely matters to be taken into consideration by the court in exercising a general discretion but are framed in the much more stringent form of being absolutely essential proofs requiring separately to be established. Failure in any one of these proofs absolutely prohibits the making of an authorising order, no matter how strong might be the evidence available of its desirability from the point of view of the interests of the child.

Sub-clause (I) (A)

The first essential here provided is that for not less than twelve months the sole parent or each of the parents for physical or moral reasons have failed in their duty towards the child. The most important element in this provision is the concept of failure which must be construed as being total in character. No mere inadequacy of standard in the discharge of the parental duty would, in the opinion of the Court, suffice to establish this proof. Furthermore, the failure must arise for physical or moral reasons. This does not mean that the failure must necessarily in every case be blameworthy, but it does mean that a failure due to externally originating circumstances such as poverty would not constitute a failure within the meaning of the sub-clause.

Sub-clause (I) (B)

It is possible that the issue as to whether this proof has been established will in many cases be a particularly difficult issue to resolve. The courts are, however, accustomed to the task of making, on the basis of probabilities, predictions, on evidence adduced, as to the course of future events.

The importance of the sub-clause, however, is that it indicates a particular regard to the position of the child in the family into which it was born. Unless there is excluded the likelihood that before the child reaches the age of eighteen years the parent or parents or either of them will resume the discharge of their duty towards it the order sought cannot be made.

Sub-clause (I) (C)

The concept of abandonment of parental rights falls to be considered after it has been established that a failure of parental duty for physical or moral reasons has continued for more than twelve months and is likely to continue until the child attains eighteen years of age. The sub-clause clearly envisages that there might be cases where such a failure was established but an abandonment of rights was not proved. An abandonment could be established by evidence of the conduct of the parent or parents concerned which would in certain cases include statements made by them and/or the nature and type of the failure in duty which had been established. A mere statement by a parent or parents that they wished to abandon a child would not necessarily constitute proof in any particular case of the fact of abandonment but may do so. Failure of parental duty established under sub-clause (I) (A) and (B) is not of itself evidence of abandonment. The necessity for the proof of abandonment indicates a special regard for the constitutionally protected parental rights.

Sub-clause (I) (D)

This provision raises for determination by the Court two separate issues. The first is as to whether the place of the parents requires to be supplied. An example

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of a case where such might not appear to be so would be of a sixteen year old child who was found to have sufficient maturity not to require the replacement of its parents' duty to him or her. Secondly, even if it appeared to the court that the place of the parents required to be supplied, an issue might then arise as to whether it would be appropriate for the State to supply their place. For example, again, a case might occur in which there was evidence of persons suitable and available to act in loco parentis to a child which would make the intervention of the State unnecessary and, therefore, inappropriate.

Sub-clause (II) (A) and (B)

These sub-clauses would appear to be designed to give to the court an opportunity to ascertain from evidence how successful the custody and care involved in a possible adoption might be. In particular, it would appear to afford to the health authority who are necessary parties to an application under this section, an opportunity to ascertain the true position and thus assist the court. It is of some importance that the combination of the provisions of these sub-clauses with the provisions of sub-clause (I) (A) make it necessary for persons to be qualified to apply to the High Court for an order under s. 3 that they will have de factosupplied the place of the parents, at least for the period of twelve months in which the parents have failed to discharge their duty.

Sub-clause (III)

It is of importance to emphasise that not until each of the matters above outlined has been successfully established to the court does the court come to consider whether adoption is an appropriate means to supply the place of the parents. Even if it does the remaining provisions of this sub-clause oblige the court specifically to have due regard to the rights, whether under the Constitution or otherwise, of the persons concerned, including the natural and imprescriptible rights of the child.

The "persons concerned" in this context must be construed as meaning all persons who in the opinion of the High Court judge have an interest in or are likely to be affected by the application. The obligation to have due regard to the rights of the "persons concerned" is, however, firmly enjoined in the context of ascertaining the best interests of the child. The ascertainment of the best interests of the child would as a consequence of the terms of this sub-clause and indeed from the necessity for the courts to act in accordance with and in support of the Constitution, necessarily be adjudged against the background of its constitutional rights. The phrase "best interests of the child" could not, therefore, be construed so as to be ascertained on some simple material test, but would necessarily involve proper consideration of all the consequences, from the point of view of the child, of bringing it by adoption out of the family into which it was born and into an alternative family.

The importance of this provision concerning the best interests of the child is that it indicates that although all the matters provided earlier by the section as necessary to be established and considered by the judge before he could contemplate authorising adoption have been established and considered, there is vested

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in him a residual and final discretion to refuse to make the order if he is not satisfied that it would be in the best interests of the child to do so.

Section 3, sub-section 2

The final obligation of the court provided by this sub-section before it makes an authorising order is to give due consideration, having regard to its age and understanding, to the wishes of the child as far as that is practicable.

Section 4

This section lays down in a fixed and concrete manner procedures to ensure that the court will, when it is at all possible, have heard the parents in relation to an application before it for the authorising of the adoption of a child.

Section 5

This section provides for the costs of parties to the application in a manner which guarantees not only a free but a meaningful right of access by them to the courts.

The bill contains nine sections, and the effect of the sections other than those already dealt with in this judgment may thus be summarised.

Section 1

Section 1 contains definitions for the purpose of the bill.

Section 2

Section 2 provides for the procedures of the Adoption Board leading to an application pursuant to s. 3 being made by applicants to the High Court and dealing with a case in which the High Court has made an authorising order.

Section 6

Section 6 provides an amendment of the existing adoption law so as to make the definition of a child, for the purpose of adoption, a person who is under the age of 18 years and contains a special provision in respect of persons under the age of 21 years as respects whom an application for an adoption order was made and not yet determined at the time of the commencement of the Act.

Section 7

Section 7 contains certain consequential adaptations of the Adoption Act, 1952.

Section 8

Section 8 contains an amendment to the First Schedule of the Adoption Act, 1952, which is not concerned with the other purposes of this bill, and

Section 9

Section 9 is the short title, citation and construction section.

No submission was made to the Court during the course of the argument that any of the provisions of any of these sections is repugnant to the Constitution or contributed to what was alleged to be the repugnancy of the bill in general to the Constitution. The Court notwithstanding the absence of any challenge to these sections has considered them and is not satisfied that any of them is repugnant to the Constitution or to any provision thereof.

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Conclusion

The decision of the Court, therefore, is that the Adoption (No. 2) Bill, 1987, is not repugnant to the Constitution or to any provision thereof.

I certify this to be the judgment and decision of the Court.

[Reporter's note: The bill became law as the Adoption Act, 1988, (No. 30), on the 26th July, 1988, on the pronouncement of the Supreme Court decision affirming the constitutionality of the bill.]