Supreme Court term 2006/07: The Baby Ann adoption case

As has been kindly noted, this blog was dormant for several months. Before that, I wrote a bit about law. I'm studying for the Bar, so that was somewhat natural I suppose. Anyway, I propose to continue that trend by, over the course of a few articles, summarising some important Irish judgments handed down in the last six months or so. I will focus to begin with on the Supreme Court.

On November 13th, the Supreme Court unanimously reversed the High Court in N v Health Service Executive, referred to in the press as the 'Baby A' case. As readers may recall, a young couple had placed their child for adoption, but later (having married) decided that they wished to revoke their consent, as the law entitled them to do. The prospective adopters, who had custody of the child, brought legal proceedings, in order to have the High Court override the natural parents' decision. The High Court had granted them such an order, but this was overturned on appeal. Hardiman J held, reiterating what had been said in Re J. H. an Infant [1985] IR 375, that "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." Hardiman J's judgment also contained an interesting passage on notions of "children's rights" and a '"child-centred" approach to such matters:

"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."

Fennelly J said the following about the marital family, which is explicitly protected by Article 41 of the Constitution:

"The Byrnes constitute with Ann a family. This is no mere constitutional
shibboleth. Article 41 speaks of the rights of the family being “antecedent and superior to all positive law.” In my view, that is no more than the statement of the simple facts of life. People of opposite sexes meet, marry, procreate and raise children. Prevailing trends towards the recognition of non-marital and even same-sex relationships are invoked from time to time with a view to expanding the legal definition of the family. None of that arises in the present case. Even if it should become necessary to recognise the family relationships of the increasing number of couples who raise children outside marriage, such a development would be based in most cases on the natural blood bond. It would in no way undermine, but would tend to emphasise the centrality of the mutual rights and obligations of the natural parents and their children. One does not have to seek far to find that courts widely separated in time and place have accepted the need to recognise and give weight to what has been variously characterised as the blood, or natural or biological link between parent and child." (emphasis added)

Then, in a passage that probably summed up the entire case, and the view of the Supreme Court, Fennelly J said:

"The entire adoption process is postulated on the possibility that the mother of a child may withdraw her consent at any time up to the making of the adoption order. It is, naturally, a complex, sensitive process. It engages the deepest human motions. The law recognises in a very considered way that a mother may withdraw from the process. This recognises her natural right to the custody of her child and the Constitution protects that right. Therefore, the courts must consider these cases with great care. The implications of deciding in favour of the Doyles are potentially serious for the entire adoption process. Naturally, a child will be placed for adoption with suitable and carefully chosen parents. In the nature of things, bonds of atachment will be established over weeks and months. On the other hand, only the final adoption order terminates the rights of the natural mother. If the existence of established bonds is a sufficient reason for refusing to return a child to his or her natural parents, the rights of the natural mother may be undermined. This is, everyone will agree, fraught with difficulty for all concerned. It is impossible to ignore the enormous trauma involved. No decision of the court will satisfy everybody. Any decision will cause hurt. This is why it is imperative to adhere to clearly established principle. Uncertainty of jurisprudence may cause greater trauma. Clarity should enable problems or conflicts to be resolved quickly. In this case, there is a primordial constitutional principle that a child’s welfare is best served in the heart of its natural family. It is well-established and widely known. There must be compelling reasons to rebut that presumption. I do not believe that there was sufficient evidence to rebut the presumption in this case." (emphasis added)

McGuinness J, in what was one of her last judgments on the Court, said she remained "remain[ed] uncertain and apprehensive about the effects of a transfer of Ann’s custody, and about her future in general." She felt bound to conclude, however, that "the medical and other evidence before the High Court judge met the heavy burden of establishing that there were compelling reasons that her welfare could not be achieved in the custody and care of her natural parents." It is clear that McGuinness J was not entirely happy with the outcome she felt bound to reach:

"In his judgment, Geoghegan J. refers to the fact that in “some quarters” the decision taken by the Supreme Court in In Re J. has been subjected to criticism. The learned judge rightly expresses the view that unless and until the Constitution itself is amended there is no justification for that criticism. I am in agreement with this view. The judgment of this court, as expressed by Finlay C.J., reflects the unequivocal wording of Articles 41 and 42 of the Constitution, as does the judgment of the court in In re The Adoption Bill 1987 (already cited). It would be disingenuous not to admit that I am one of the “quarters” who have voiced criticism of the position of the child in the Constitution. I did so publicly in the report of the Kilkenny Incest Inquiry in 1993. The present case must, however, be decided under the Constitution and the law as it now stands.With reluctance and some regret I would allow this appeal."

The Chief Justice gave a brief concurring judgment, in which he set out the order to be made by the Court, and Geoghegan J, as with Fennelly and Hardiman JJ, gave a detailed discussion of the law and seemed in little doubt as to the correct resolution of the case.

OK Go - Here it goes again; and, Labour's missteps

That's the name of a song with a rather cool video. It's also the thought of politics watchers, as today the election was called for May 24th.

"In the weeks ahead I pledge to give the Irish people the campaign they deserve: a campaign of issues and policies, not insults and attacks," said the Taoiseach."I am more interested in attacking problems than attacking people."

"Today marks the beginning of the end of ten years of Fianna Fáil/PD broken promises and complacency," said Enda Kenny. "The people of Ireland know that this Government won't do in 15 years what they haven't done in the last 10."

The Examiner notes that the P.D.'s were the first party to launch their election manifesto:

"The Progressive Democrats were the first party out of the traps in erecting election posters and also launching a manifesto which contained seven key pledges.Tánaiste Michael McDowell and his party vowed to abolish stamp duty for first-time house buyers, ensure patients were admitted to accident and emergency services within six hours and increase the number of Gardaí from 14,000 to 16,000."

Pat Rabbitte's response was to accuse the P.D.'s of "promoting selfishness". That is surely a mistake, for two reasons: Firstly, the electorate are well disposed to targeted tax cuts, and Labour has indeed only recently announced a cut in the lower tax rate to 18%, as well as popular stamp duty reform proposals - so ridiculing McDowell for pushing the tax-cutting agenda will not help establish Rabbitte's own bona fides on the subject with floating voters. Secondly, it will only give McDowell and the Government grounds for saying Rabbitte is not genuine in his conversion to tax cuts, and would drop them at the first sight of economic storm clouds.

Then Rabbitte "backed his colleague Ruairí Quinn's warning to the Taoiseach not to use the peace process for electoral gain by addressing peers and MPs at Westminster in the House of Commons and Lords during the campaign." Another mistake, surely: Whatever the public thinks of the healthcare system, public transport or any of the contentious issues, it credits Ahern with having overseen the birth and (eventually) the full implementation of the Good Friday agreement on his watch. The public won't begrudge him the chance to make history at Westminster and Labour won't do themselves any good to be sniping from the sidelines. It looks like Labour has made the first two mistakes of the campaign. After their poor showing in Friday's Irish Times opinion poll (both untimely, after Rabbitte's strong convention speech), Rabbitte and co. could do without any more.

Other (presidential) elections

Another election campaign is underway, in addition to our general election - but it isn't scehduled to take place for 18 months. I refer to the U.S. presidential election. For anyone interested in keeping up with the polls over there, just Google "election 2008" and click the first result.

Nearer to home, France's presidential decider is now between Nicolas Sarkozy, the former Interior Minister and Segolene Royal of the Socialist party; for news, see here. Sarkozy seems on track for victory as matters stand. It will be interesting to see what impact Ms. Royal's debate with defeated third candidate Francois Bayrou, scheduled for Saturday, will have on the voters. Bayrou has criticised each remaining candidate since he was eliminated in the first round; as regards Royal, he opposes her extension of the 35 hour week. More useful coverage is available from CNN and the Financial Times.

Poll suggests opposition on course to win election

The general election has yet to be called, but the electioneering is approaching full speed. Tomorrow's Irish Times/mrbi opinion poll (previewed here) represents a major boost for the (sometimes fragile) morale of Fine Gael. Conversely, Fianna Fail will be worried. The Irish Election blog notes: "The poll was conducted over last Monday and Tuesday from a representative sample of 1,000 voters at 100 sampling points across the country and in particular after the parties had all published the key economic aspects of their manifestos. Tomorrow’s Irish Times will have greater details on the adjustments made to the polling data so keep an eye open as this poll has been moved towards FG due to these adjustments."

The outline findings are that FF is on 34% (-3), Fine Gael 31 (+5), Labour 10 (-1), Greens 6 (-2), Progressive Democrats 3 (+2), Sinn Fein 10 (+1), Independents 6 (-2). RTE's website notes that: "These figures have been adjusted by the polling company, TNS/mrbi, to take account of the fact that opinion polls usually put Fianna Fáil too high, and Fine Gael too low, in comparison to their actual election vote." Be that as it may, there's no doubt that "the trend is unmistakeably toward Fine Gael and away from Fianna Fáil." On the figures presented in this poll, Fine Gael would stage a major recovery from its (admittedly dismal) 2002 result; it would almost certainly make Enda Kenny Taoiseach and Pat Rabbitte Tanaiste. Recent polls had suggested a competitive election, but this poll is the first to put the FG-Labour alternative (on 41% - 47% if the Greens are included) in a position to form a stable government, or at least come very close to doing so.

It is instructive to recall that, in the 2002 election, Fine Gael's vote share fell from 27.9% to 22.5% and its Dail seat count went from 54 to 31. Meanwhile, Fianna Fail in 2002 went from 39.3% to 41.5% and from 77 seats to 81. On the showing in tomorrow's poll, FG would in all likelihood return to its 1997-2002 strength (54 seats), or probably even make further gains. FF, which last time out won 48.8% seats on the basis 41.5% of first preferences would lose in the region of 20 seats. Bertie Ahern's career would meet the fate ordained for all politicians by Enoch Powell; Mayo would have the top two positions in government (provided Pat Rabbitte survives as Labour party leader after a disappointing 10% showing).

It's all to play for.

Update (Sat., 12.05 a.m.): The second part of the Irish Times/mrbi poll asked respondents whether they would prefer the current government, the possible Rainbow alternative. The findings: FF/PDs 35% (-7), FG/Labour and possibly the Greens 36% (+5); 14% answered they preferred neither; 15% did not know who they preferred.

Back again

It's been a while since I posted here, so I expect that those few that used occasionally drop by this corner of the Internet have probably forgotten about it. What harm. I intend to write fairly regularly, at least between now and the general election. Not all of my posts will be about the election - as before I intend to write about legal matters too, and who knows what else. If you're reading this site for the first time, or have been here before, I hope you find something of interest. And, as the ad says, have a nice day.