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Judgment
Title:
N & anor -v- Health Service Executive & ors
Neutral Citation:
[2006] IESC 60
Supreme Court Record Number:
273 & 283/06
High Court Record Number:
2006 181 SS
Date of Delivery:
11/13/2006
Court:
Supreme Court
Composition of Court:
Murray C.J., McGuinness J., Hardiman J., Geoghegan J., Fennelly J.
Judgment by:
Hardiman J.
Status:
Approved
Result:
Allow And Set Aside
Judgments by
Link to Judgment
Murray C.J.
McGuinness J.
Hardiman J.
Geoghegan J.
Fennelly J.



- 47 -



THE SUPREME COURT

Murray C.J. 273/06 and 283/06
McGuinness J.
Hardiman J.
Geoghegan J.
Fennelly J.


IN THE MATTER OF THE CONSTITUTION

and

IN THE MATTER OF N.

AN INFANT

Between:

N. and N.

Applicants
and
THE HEALTH SERVICE EXECUTIVE-WESTERN AREA

and G. and G.

Respondents
and

AN BORD UCHTÁLA

Notice Party

JUDGMENT of Mr. Justice Hardiman delivered the 13th day of November, 2006.
[Fictitious names have been ascribed to all parties, and to the child whose custody is in issue, to protect their anonymity].

This is an appeal from the order of the High Court (McMenamin J.) perfected the 7th day of July, 2006, whereby he refused the applicants relief pursuant to Article 40.4.2 of the Constitution.

The order was based on a strikingly detailed and humane judgment of the learned trial judge which is, however, challenged on this Appeal as being in certain important respects mistaken in law.

Article 40.4.2 is our constitutional Habeas Corpus procedure. It is one of the great remedies provided in the Constitution, for the rapid investigation of any complaint that a person is being wrongfully detained. The sub-article provides as follows:
          “Upon complaint being made by or on behalf of any person to the High Court or any judge thereof alleging that such person is being unlawfully detained, the High Court and every judge thereof to whom such complaint is made shall forthwith enquire into the said complaint and may order the person in whose custody such person is detained to produce the body of such person before the High Court on a named day and to certify in writing the grounds of his detention, and the High Court shall, upon the body of such person being produced before that Court and after giving the person in whose custody he is detained an opportunity of justifying the detention, order the release of such person from such detention unless satisfied that he is being detained in accordance with law”.

This procedure is here invoked in respect of a child now aged about two years and four months old, a little girl. The applicants are her natural parents who are now married to each other. The mother became pregnant while she and the father were approaching the end of their third level studies, and the pregnancy confronted them with an acute dilemma. After a great deal of agonising and discussions with social workers, in the period before and after her birth on 7th July, 2004, they placed the child for adoption. The mother signed the necessary consent forms. The child was placed with the prospective adoptive parents in the month of November, 2004. Before an adoption order was made, however, the natural parents changed their minds in relation to adoption. This was not a wholly surprising development: there seem to have been uncertainties on the topic from the beginning. This decision was communicated in writing to the Adoption Board in September of 2005 and was not, I have to say, acted upon very rapidly. The child was still in the custody of the other couple when, in the month of February, 2006, the parents, who had married the previous month, instituted the present Article 40.4.2 proceedings seeking the release of the child from the custody of the prospective adopters.

In one very obvious sense, this case is a tragic one. Its result will of necessity inflict enormous grief and loss on one of the contending couples. The tragedy lies in the fact that neither deserves this fate: both are caring conscientious people, fit and capable in every way to be the guardians of a child. When only one couple can have what both so ardently desire there must of necessity be hardship. Any judge called upon to determine such a case is all too painfully aware of the hardship but a court cannot permit a comparative balancing of the degree of hardship to the adults involved to dictate the result of the case. That result must instead be determined in the manner required by the Constitution and the law. From the terms of Article 40.4.2 itself, quoted above, it will be seen that, once an inquiry under that sub-article has been ordered, as has happened here, the onus lies on the party currently detaining the child, the prospective adoptive parents, to justify their custody of her.

It is, of course, within the experience of those concerned in the adoption process, and of the Courts, that a natural mother may come to the conclusion that adoption is not in the best interest of the child and may withhold her consent to adoption or withdraw a consent already given. Equally, it is clear that in certain circumstances the prospective adopters may be able to apply to the Court to dispense with the natural mother’s consent. Both the placing mother and prospective adoptive parents are routinely put on notice of these possibilities by the Adoption Board and are aware of them. Each, therefore, is specifically aware on entering the adoption process that it may result in a sad parting between the child and the prospective adopters with whom he or she has been placed, or on the other hand in a situation where a mother involuntarily loses the care and custody of her child whom she wishes to nurture personally. In my view, having regard to the grave obligations of a parent, or a person who wishes to assume the position of parent in relation to a particular child, such person must be regarded as accepting these risks of great personal distress on their entry into the adoption process, and of assuming a moral responsibility to act in the child’s interest, even in very fraught and distressing circumstances.

In this particular case the natural parents of the child married each other in January, 2006, thus becoming with the child a constitutional family. This fact significantly altered the legal context of the case: the adoption of a child who is part of the natural and constitutional family can only take place under very restrictive conditions set out in the Adoption Act, 1988, and discussed below. This, in turn, has led the respondents to make arguments of a far reaching, novel, and sometimes tendentious sort which are discussed at length below. It has led them to make very serious allegations against the parents, some of which were not pursued in this Court and none of which are true. It also led the prospective adopters to employ a private detective to conduct surveillance of the natural parents, presumably with a view to finding evidence, if possible, to suggest that the marriage was not a genuine one. If this is so it has to be said immediately that the strategy was a failure: no such evidence was adduced. It must also be noted that, unfortunately, the proposed adoptive mother misrepresented the facts in the High Court by denying the employment of the detective, though she corrected this the next day, before her testimony ended.

I will now set out the constitutional provisions, and certain other materials, which provide the constitutional and legal requirements which permit a court to pronounce on the validity of the prospective adopters justification of their withholding the child from the custody of its parents.

The applicants are the natural parents of the child and are now married to each other. These persons constitute a family within the meaning of Article 41 of the Constitution. The institution of the family is there defined “as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law”. Moreover, by Article 42, this family possesses the status of “the primary and natural educator of the child”, extending to the right and duty to provide religious and moral, intellectual, physical and social education. This plainly involves the proposition that the parents have, and are entitled to have, the custody and society of the child on a day to day basis. These provisions clearly put the applicants in a strong position.

These prerogatives, rights and duties of the parents may in limited circumstances be displaced, on the basis of what is provided in Article 42.5 of the Constitution:
          “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.”.

Accordingly, any resistance to the right of the applicants to the custody of the child for the purpose of rearing her in accordance with their constitutional rights and duties, must find a basis in Article 42.5 as it has been expounded by the Courts in several decisions discussed below. The threshold for such resistance is a high one, and requires that there be established “exceptional” circumstances “where the parents for physical or moral reasons” have been shown to have “failed in their duty towards their children…”. On the authority of the judgment in this Court in
Re J. H. an Infant [1985] IR 375 such intervention may also be justified if it is established that there are compelling reasons why that the welfare of the child cannot be secured in the custody of the parents. In considering whether these criteria have been met, on the authority of the same case, one starts with the constitutional presumption that the welfare of a child is to be found within the family.

I do not regard the constitutional provisions summarised above, or the jurisprudence to which they have given rise, as in any sense constituting an adult centred dispensation or as preferring the interests of marital parents to those of the child. In the case of a child of very tender years, as here, the decisions to be taken and the work to be done, daily and hourly, for the securing of her welfare through nurturing and education, must of necessity be taken and performed by a person or persons other than the child herself. Both according to the natural order, and according to the constitutional order, the rights and duties necessary for those purposes are vested in the child’s parents. Though selflessness and devotion towards children may easily be found in other persons, it is the experience of mankind over millennia that they are very generally found in natural parents, in a form so disinterested that in the event of conflict the interest of the child will usually be preferred. A graphic and ancient example of this may be found in I Kings 3:16-28. This bond is greatly valued by parents and children alike, and by natural siblings in respect of their shared parentage. It is illustrated by the frequently found phenomenon of the mature adult who, separated at birth or in infancy from his or her parents and siblings, feels a strong desire to locate them many years later. It is equally illustrated by the widespread legal recognition given to the family, even in instruments whose social and cultural context is different from, and perhaps more varied than, those of the Constitution of Ireland. I cannot escape the feeling that this factor is insufficiently emphasised in the High Court judgment here. Like Geoghegan J. and Fennelly J., I have been struck by the coincidental reporting, while the judgments in this case were being drafted, of an English case, Re G. (Children) [2006] 4 AER 241. The context of that case is far removed from the facts of the present dispute. But it is most interesting to see that, in a jurisdiction lacking the specific social and cultural context which has led Ireland to protect the rights of the family by express constitutional provision, the interest of a child in being reared in his or her biological family is nonetheless fully acknowledged. I wish specifically to refer to what was said in that case by Lord Nicholls of Birkenhead:
          “In this case, as in all cases concerning the upbringing of children, the Court seeks to identify the course which is in the best interests of the children. Their welfare is the Court’s paramount consideration. In reaching its decision the Court should always have in mind that in the ordinary way the rearing of a child by his or her biological parent can be expected to be in the child’s best interests, both in the short term and also, and importantly, in the longer term. I decry any tendency to diminish the significance of this factor. A child should not be removed from the primary care of his or biological parents without compelling reasons. Where such a reason exists the judge should spell this out explicitly”.

Quite evidently, the Constitution establishes demanding criteria which must be met before the right of the child to be reared and nurtured by his or her parents, and the right of the parents to take and act on the decisions required by the obligation to nurture the child, can be displaced either in relation to a particular issue or in general. In part, the argument on behalf of the proposed adopters in this case invited the Court to review and displace the position of the parents as guardians of the child’s welfare, by adopting less demanding criteria.

In the case of a young child, an approach to its welfare which is sometimes described as “child centred”, in a particular sense, in reality involves acting wholly or partly upon some third parties view of the interests of the child. It is, of course, difficult to criticise an approach denominated “child centred” or to fail to acknowledge imperatives denominated “the rights of the child”. But, especially in dealing with very young children who can express no meaningful views of their own, it is of great importance that terms such as those just mentioned should be thought through, should evoke an intellectual and not merely an emotional response, and that their actual content should be ascertained. A right conferred on or deemed to inhere in a very young child will in practice fall to be exercised by another on his or her behalf. In practice, therefore, though such a right may be ascribed to a child, it will actually empower whoever is in a position to assert it, and not the child himself or herself. The person actually asserting such a right may of course be a parent or guardian, but it might equally be a public authority, a stranger, or indeed the State itself. Thus, in North Western Health Board v. H.W. [2001] 3 IR 622, a public authority sought to assert an alleged right of a child of very tender years in direct opposition to the views of his (concededly very conscientious) parents: the public body sought to compel the subjection of the child to a particular medical test, even though there was no statutory provision for such compulsory testing. Still more strikingly, in The Attorney General v. X and Ors., [1992] IR 1 the Attorney General sued a fourteen year old child and her parents, claiming orders restraining the girl, who was pregnant as a result of a criminal assault, and her parents from interfering with the right to life of the “unborn”, restraining them from leaving the jurisdiction for nine months and restraining them from procuring or arranging an abortion inside or outside the jurisdiction. This relief was refused in the Supreme Court on many grounds one of which (per O’Flaherty J.) was that it constituted “… an unwarranted interference with the authority of the family”.

The X case surprised many who had not realised that by acknowledging a right in “the unborn” (an entity which, like a young child, cannot personally assert the right), the Eight Amendment to the Constitution had opened the door to the assertion of that right against individual citizens, including the mother of the unborn, by unrelated third parties, public authorities or the Attorney General. Indeed, prior to the X case, persons concerned about the dissemination in Ireland of information about abortion services in the United Kingdom had incorporated a limited company, SPUC Ltd., which the Courts recognised as having locus standi to litigate against the providers of such information.

The creation or acknowledgement of an entirely independent right in a person or entity personally incapable of exercising that right may have unintended or undesired legal consequences.

The effect of our constitutional dispensation is that, presumptively, the right to form a view of the child’s welfare and to act on it belongs to the parents. The facts of this case make it unnecessary to consider the difficulties which arise where the parents themselves are in disagreement as to how the welfare of the child may best be secured.

There are certain misapprehensions on which repeated and unchallenged public airings have conferred undeserved currency. One of these relates to the position of children in the Constitution. It would be quite untrue to say that the Constitution puts the rights of parents first and those of children second. It fully acknowledges the “natural and imprescriptible rights” and the human dignity, of children, but equally recognises the inescapable fact that a young child cannot exercise his or her own rights. The Constitution does not prefer parents to children. The preference the Constitution gives is this: it prefers parents to third parties, official or private, priest or social worker, as the enablers and guardians of the child’s rights. This preference has its limitations: parents cannot, for example, ignore the responsibility of educating their child. More fundamentally, the Constitution provides for the wholly exceptional situation where, for physical or moral reasons, parents fail in their duty towards their child. Then, indeed, the State must intervene and endeavour to supply the place of the parents, always with due regard to the rights of the child.

If the prerogatives of the parents in enabling and protecting the rights of the child were to be diluted, the question would immediately arise: to whom and on what conditions are the powers removed from the parents to be transferred? And why?

There is, of course, no doubt that the form and content of our constitutional dispensation in regard to the family and children was significantly influenced by Christian, and specifically Catholic, teaching on those subjects. But that is not to say that the preference for the natural parents as carers for a child is exclusively referable to those sources. In my judgment in North Western Health Board v. H.W. [2001] 3 IR 622 I expressed the view that this preference for the parents as the natural and primary guardians was equally consistent with quite different strands of thought, even a Benthamite one. I reiterate that view here, without repeating what was said in the judgment referred to. A presumptive view the children should be nurtured by their parents is, in my view, itself a child centred one and the alternative view, calling itself “child centred” because it is prepared more easily to dispense with the rights and duties of parents must guard against the possibility that in real individual cases it may become merely a proxy for the views of social workers or other third parties. That is not for a moment to belittle the need for State intervention in the nurturing of children in appropriate cases, but to emphasise that the presumption mandated by our Constitution is a presumption that the welfare of the child is presumptively best secured in his or her natural family.

It is also noteworthy that, in the language of the Constitution, State intervention or provision in the event of a failure in parental duty is in the nature of an “endeavour to supply the place of the parents”. In the specific context of adoption O’Higgins C.J. said in the course of his judgment in G. v. An Bord Uchtála [1980] IR 32:
          “… the State has the added obligation to defend and vindicate in its laws all natural rights of all citizens. In relation to illegitimate children and certain others the State has by the Adoption Acts endeavoured to discharge this obligation. The purpose of these Acts is to give to these children the opportunity of becoming members of a family and to have the status and protection which such membership entails”.

It appears to me to follow from this language that the State has adopted a preference for a familial model in its attempts to secure the welfare of a child in respect of whom the nurturing of his or her natural family is unavailable. But this is a default position: the child has a right to the nurture of his or her natural family where that is possible.


Aspects of the facts of the case.
The facts of this case are set out in the judgment of the learned High Court judge. I do not propose to repeat them here but I wish to draw attention to certain aspects of them. Firstly, the natural parents are healthy intelligent and serious minded young people. They are both qualified in respected disciplines with secure prospects in life. They approached the dilemmas and responsibilities posed by the natural mother’s pregnancy in a notably mature and conscientious way: indeed the social worker who dealt with them found them in some ways unique. This practitioner first met them before the birth, having been introduced by the mother’s maternity unit social worker “so that adoption could be considered”. In an affidavit this practitioner described the events in the immediate aftermath of the birth and after the child had been placed in pre-adoptive foster care and concluded:
          “I felt that the extent to which they made arrangements to see and keep contact with [the child] was unique. I found [the natural father’s] degree of involvement to be unique out of all the birth fathers I have dealt with as a social worker in this situation”.

It is has not at any stage been suggested that the natural parents are in any sense unfit parents and I am satisfied that no such suggestion could properly be made. The parents have, since the placement for adoption, taken all possible and appropriate steps to maintain regular contact with the child as far as that was permitted.

Secondly, there were certain unusual features of the pre-adoption procedures. It transpired that the proposed adopters and in particular the lady, were known to certain of the social workers involved, including the social worker assigned to the natural parents. Considerations of anonymity make it undesirable to say precisely how this came about. There is however evidence that it came to cloud their relationship with this practitioner, and indeed others. There is a distinct change in the tone and content of social work notations about the mother after she manifested an intention to regain custody of the child.

Thirdly, it appears to me to be significant that at the time of the pregnancy and birth both natural parents were students albeit at a very advanced stage of their studies. By the time they sought the return of the child both were in good employment. They had also committed themselves to a permanent relationship with each other; apparently this took place in August 2005.

Fourthly, it is clear from the report of the social worker assigned to them that for long periods the natural parents were in considerable uncertainty in relation to adoption. The report observes that the natural mother had “chosen to breast feed [the child] for the first twenty-four hours. This again would be unique in my experience of mothers placing their child in pre-adoptive foster care”. It was also observed that “From the outset it seemed that [the natural mother] was in two minds as to whether adoption was the right option for them and whether she could cope with the emotional strain of the separation”.

Fifthly, in the course of the adoption process the social worker assigned to the natural parents drew up a document entitled “Adoption Profiles for Matching Panel”. This was done in September, 2004, and extends to some fourteen pages. Apart from the final version there were a number of drafts of the document. In one of these the social worker noted with concern that the principal reason for placing the child for adoption in the natural parents’ mind was that they were unmarried and they felt the child should have two parents. But they also felt that they might continue with their relationship. The social worker interlineated in a draft a sentence “This overriding reservation and contradiction causes me consternation and reservation in supporting them in their decision to place [the child] for adoption despite their consistency of opinions”.

Before the final version of the document was produced this sentence was removed at the suggestion of the natural parents. But it seems to me to suggest, at a minimum, a marked element of fluidity in the natural parents’ rather agonised consideration of what was best to be done. Subsequently, in April, 2005, the social worker described the natural mother as saying that she was questioning her decision to place the child for adoption. The natural father was reported at the same time as “indicating that he had reservations about the adoption”. There was dispute on the evidence as to what precisely was said at this stage and, as indicated, the version just summarised is that of the social worker.

Finally, there is no doubt that subsequent to the natural mother’s request for the return of the child in September, 2005, relations became rather fraught between the natural parents and the social worker. The latter, as the learned trial judge found, was in a somewhat invidious position by reasons of the connection to both couples and this may have resulted in the social worker “expressing in rather stark and emotive terms the effect of the applicants’ decision to reclaim custody of her on the [proposed adopters]”. There was an unresolved conflict of evidence as to whether very melodramatic language indeed was used by the social worker in that connection. What is clear, however, is that the natural parents became concerned that the passage of time was weakening their position. This is a matter of some significance having regard to the nature of the case advanced on behalf of the respondents. The parents felt that after they attempted to regain custody of the child they were being “stalled”, to use a word the mother used in dealing with the Adoption Board. I cannot disagree with her. This was the background to the initiation of the present proceedings.

Submissions of the parties:
As will be clear from the summary of the constitutional position set out above, the applicants’ case is one of powerful simplicity. They are a married couple and the natural parents of the child and therefore presumptively entitled to her care and custody. No adoption order has been made nor, they submit, can one now be made. If this is so, they are the only family in the constitutional sense that the child will ever have. The say that this case is in every way comparable to that of J.H., cited above, and that the unchallenged authorities of that case requires that this dispute be resolved in their favour.

In the proposed adopters’ statement of grounds justifying their detention of the infant, they say:
          “The infant [name deleted] named in the title hereof was lawfully placed in the custody and care of the second and third-named respondents by [named deleted], a registered adoption society. The [natural parents] had authorised the said placement. It is in the best interest of [the child] to remain in the second and third-named respondents custody and care. The applicant and the notice party have abandoned or deserted the infant and/or so conducted themselves so that the Court should in its discretion decline to enforce any right which they may have to the custody of the infant. Further there are compelling reasons why the infant should remain with [the proposed adopters].”

The case for the proposed adopters has been considerably refined in the course of subsequent written and oral submissions. As argued on hearing of this appeal the outline of their case was as follows:
          (1) The constitutional presumption that the welfare of the child was to be found in her natural family was accepted.

          (2) The test for whether that presumption had been rebutted was submitted to be that set out in the judgment of Finlay C.J. in J.H., cited above.

          (3) Specifically it was submitted that there were two separate and distinct methods by which, on the authorities cited, the constitutional presumption could be rebutted that these were:

          (a) The demonstration of compelling reasons why the welfare of the child cannot be secured within the family or

          (b) The demonstration of a failure of parental duty as envisaged by Article 42.5 of the Constitution.


          (4) The meaning of “compelling reasons” why the welfare of the child cannot be secured in the family is to be derived, it was submitted, in light of the judgment in J.H. and in light of a psychological evidence. As it transpired Mr. Gerard Durcan S.C. for the proposed adopters advanced a very particular construction of the term “compelling reasons”, in particular of the adjective.

          (5) The meaning of the term “failure of duty” must be seen in the same context.

          (6) In particular a disruption of attachment can in certain circumstances meet the “compelling reasons” test, as defined in Mr. Durcan’s argument.

          (7) It was submitted that the learned trial judge had ample grounds for coming to the conclusion that he did and that his views on the facts should not be disturbed.

          (8) Sections 3, 14, and 16 of the Guardianship of Infants Act, 1964, are all applicable on the hearing of this Article 40 application. This argument was somewhat nuanced in that it was conceded that s.3 applied subject to the constitutional presumption which was conceded to exist. Mr. Durcan said however that “If we rebut the presumption then s.3 applies in its full bloom, so to speak”.

          (9) It was submitted that the actions of the applicants can and do constitute a failure of duty within the meaning of Article 42.5 of the Constitution.

          (10) There was finally advanced a somewhat stark argument in relation to the form of relief available. It was said that the only form of order which could be granted in these Article 40 proceedings was an order for the immediate transfer of the child to the natural parents. Mr. Durcan S.C. submitted “You cannot make a phased reintroduction order in Article 40 proceedings, even if the evidence establish that such an order would be in the interest of the child”. (Emphasis added).

This last is a significant submission for a number of reasons. Firstly, the natural parents through their respective counsel, Ms. Dervla Browne S.C. for the father and Ms. Mary O’Toole S.C. for the mother, at all times made it clear that, if the return of the child to their custody was ordered, they would observe “best practise” in relation to the mode such return which “in practise meant a phased return”. They were willing to do this whether or not there was a court order in that regard. But, Mr. Durcan on the other hand submitted that it was probable that his clients would not be able to co-operate with such a phased return. But a phased return would be necessary, he submitted, in the interest of the child. Therefore no return should be ordered.

A point abandoned.
Mr. Durcan also, on the hearing of the appeal, in an important respect presented an argument somewhat more limited than that which had found favour with the learned High Court Judge. Section 16 of the Act of 1964 relates to a situation:
          “Where a parent has -

          (a) Abandoned or deserted a child or

          (b) Allowed a child to be brought up by another person at that person’s expense… for such a length of time and under such circumstances as to satisfy the Court that the parent was unmindful of his parental duties,
          the Court shall not make an order for the delivery of the child to the parent unless the parent has satisfied the Court that he is a fit person to have the custody of the child”.

The learned High Court Judge had held that, in the circumstances of this case, abandonment of the child by her natural parents had been established. It is fair to say that he made this finding only after adopting a novel and somewhat technical meaning of the words “abandonment” and “desertion”, a meaning less pejorative than the words bear in their ordinary significance. On the hearing of this appeal, however, Mr. Durcan said that he “was not seriously standing over” those findings. In my view this was an entirely proper concession for Mr. Durcan to make, because there is no permissible meaning of those rather stark words which could possibly be applied, on any view of the evidence, to the conduct of the natural parents in this case. Instead, he placed his principal reliance, on this aspect of the case, on the concept of “conduct” as it appears in s.14 of the Act. This submission will be further discussed below. But it is clear that the respondents’ abandonment of the learned trial judge’s findings that the applicants had abandoned the child is a significant shift in their case as pleaded from the start and as argued, apparently, throughout the 23 day hearing in the High Court. The respondents’ new stance suggests a belated recognition that there was no evidence at all capable of supporting this grave allegation. In my view, it should never have been made.

The allegation of failure in duty to the child is of course also a most serious one to bring against parents and this was persisted in up to the end.

The J.H. test.
A passage in the judgment of Finlay C.J. in the case of In re J.H., cited above, is so central to Mr. Durcan’s argument that it is necessary to quote it extensively. It is as follows:
          “In the case, therefore, of a contest between the parents of a legitimate child - who with the child constitute a family within the meaning of Articles 41 and 42 of the Constitution - and persons other than the parents as to the custody of the child, as this case is, it does not seem to me that s.3 of the Act of 1964 can be construed as meaning simply that the balance of welfare as defined in s.2 of the Act of 1964 must be the sole criterion for the determination by the Court of the issue as to the custody of the child. To put the matter in another way, it does not appear to me that this is a case, as would be the situation in a contest between the parents of a legitimate child as to which of them should have general custody, where the Court could or should determine the matter upon the basis of the preferred custody, having regard to the welfare of the child as defined in s.2 of the Act.


          A child of over two years of age, as this infant is, in the dominant or general custody of persons other than its parents and continuing in such custody against the wishes of its parents, cannot be said to enjoy the right of education by its family and parents granted by Article 42, s.1 of the Constitution. And no additional arrangements, as were indeed put in train in this case by the orders of the High Court for access by its parents to the child or participation by them in the decision-making processes concerning its education, could alter that situation. Furthermore, notwithstanding the presumption of validity which attaches to the Act of 1964 and the absence of a challenge in these proceedings to that validity, the Court cannot, it seems to me, as an organ of the State, supplant the right to education by the family and parents which is conferred on the child by the Constitution unless there is established to the satisfaction of the Court a failure on the part of the parents as defined in Article 42, s.5 and ‘exceptional circumstances’.

          I would, therefore, accept the contention that in this case s.3 of the Act of 1964 must be construed as involving a constitutional presumption that the welfare of the child, which is defined in s.2 of the Act in terms identical to those contained in Article 42, s.1, is to be found within the family, unless the Court is satisfied on the evidence that there are compelling reasons why this cannot be achieved, or unless the Court is satisfied that the evidence established an exceptional case where the parents have failed to provide education for the child and to continue to fail to provide education for the child for moral or physical reasons.”

The last paragraph of the above quotation is that on which Mr. Durcan relies as containing the test for which he contends. He refers to the two preceding paragraphs as setting the context of that test and I have accordingly included them in the citation.

It will however be noted that the J.H. case in its relevant portion was a claim for relief under the Guardianship of Infants Act, 1964. This Section is not directly at issue in the present proceedings. However, though not specifically invoked in the applicant’s proceedings it was not seriously disputed that s.3 applied subject to the constitutional presumption set out in the third paragraph of the above quotation.

By reason of the centrality of the passage, I propose next to set out the third paragraph quoted above with the deletion of material not immediately relevant to the present case. This, I am satisfied, is necessary to deal clearly with a particular and central submission advanced by Mr. Durcan. Thus treated, the paragraph reads as follows:
          “… Section 3 of the Act of 1964 must be construed as involving a constitutional presumption that the welfare of the child… is to be found within the family, unless the Court is satisfied on the evidence that there are compelling reasons why this cannot be achieved…”.

This is the passage relied on by Mr. Durcan as grounding what he consistently called the “compelling reasons” test. The paragraph then continued:
          “… or unless the Court is satisfied that the evidence establishes an exceptional case where the parents have failed to provide education for the child and to continue to provide education for the child for moral or physical reasons”.




“Compelling reasons”.
Throughout his submission, Mr. Durcan referred to the “compelling reasons test”, which he contrasted with the “failure of duty” test. Each was a test which, if met, would mean that the constitutional presumption in favour of the natural family was displaced. Mr. Durcan emphasised that, in his submission, it was sufficient for him to meet either of those tests to have the effect he desired. As his submissions went on it was clear that the term “compelling reasons” as he used it was divorced from the context in which it appeared in the judgment of Chief Justice Finlay and was increasingly used in a different sense to that in which it appeared there. Unfortunately, it came to be used in the same sense in the judgment of the learned trial judge. It is quite clear to me that, in order properly to rely on the authority of the judgment of the former Chief Justice in J.H., the phrase must be used in the context in which Finlay C.J. used it.

Mr. Durcan’s novel usage of the phrase was not accidental. It was based on a very particular, indeed peculiar, construction of the phrase which Mr. Durcan expressed as follows:
          “I say that it is the nature of what may happen that must be ‘compelling’, and not the evidence or the burden of proof. The test is met if what may happen is so compelling as to interfere with the welfare of the child”.
          (Emphasis added)
In my view, there is no support whatever for this construction of the phrase. The word “compelling” is an adjective and the noun it qualifies is “reasons”. Unless the basic norms of the English language are to be ignored for the purposes of making an argument, it follows that it is the reasons which must be compelling. The reasons in question are reasons why the welfare of the child cannot be secured or achieved in the natural family. The phrase “compelling reasons” is a fairly familiar use of language. I would not normally subject a passage in a judicial decision to the sort of minute linguistic analysis which is sometimes appropriate in the construction of a statute. But I feel compelled to do so here in order to illustrate that the ingenious argument advanced by Mr. Durcan, which is quite central to this aspect of his case, is wholly insupportable.

The ordinary meaning of the verb “compel”, according to the Oxford dictionary, is “to urge irresistibly, to constrain, to oblige, to force”. A compelling (or coercive) argument is one which, once its premises are established, leaves no option but to accept the conclusion. The phrase “compelling reasons” is to be understood in the same sense. Mr. Durcan’s argument ignores both the existence of the word “reasons” and the (grammatically and logically) obvious exclusive reference of the word “compelling” to it.










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