1. This is a consultative case stated and signed by His Honour Judge Patrick Moran pursuant to the provisions of s. 16 of the Courts of Justice Act, 1947, submitting to this Court certain questions of law which the learned judge is satisfied are necessary for the determination by him of an appeal brought to the Circuit Court against the order of Judge John P. Clifford of the District Court, District Court Area of Cork City, District No. 19 made on the 3rd November, 1993, refusing the applicant guardianship of his children, V.H. and W.H., pursuant to s. 6A of the Guardianship of Infants Act, 1964.

2. The facts proved or admitted before the learned trial judge as necessary for the determination of the issues of law involved are set forth in the case stated and are as follows:-

3. The learned Circuit Court Judge has submitted for the determination the Supreme Court the following questions:-

4. As the case stated, and the questions raised thereby for determination by this Court, arose out of proceedings before the Circuit Court on the hearing of an appeal from the District Court, where the natural father sought an order, pursuant to the provisions of s. 6A of the Guardianship of Infants Act, 1964, as inserted by s. 12 of the Status of Children Act, 1987, it is desirable to set forth the statutory provisions relevant to the determination of such application.

5. The aforesaid sub-section was amended by s. 11 of the Status of Children Act, 1987, by the substitution therefor of:-

6. By virtue of the provisions of s. 12 of the Status of Children Act, 1987, s. 6 of the Act of 1964 was further amended by the insertion after s. 5 of the following section –

7. Prior to the enactment of the Status of Children Act, 1987, the natural father of an illegitimate infant was not a guardian of the infant though the mother was, by virtue of the provisions of s. 6, sub-s. 4 of the Act of 1964, recognised as the guardian of the infant, and in that capacity enjoyed the rights of a guardian as set forth in the Act of 1964.

8. The only right which the natural father had in regard to the infant was to make an application pursuant to the provisions of s. 11, sub-s. 4 of the Act of 1964 regarding the custody of the infant and the right of access thereto, and for the purposes of s. 11 of the Act of 1964 references to the father or parent of an infant were to be construed as including the natural father. All other rights in respect of the infant were vested in the mother as guardian of the infant and the natural father had no right to apply to be appointed guardian of the infant or to be so appointed.

9. The natural father’s rights were extended by the provisions of ss. 12 and 13 of the Status of Children Act, 1987, and the natural mother’s sole right to guardianship was restricted by s. 11 of the Status of Children Act, 1987.

10. The natural father’s rights under the Act of 1964 as amended consist of:-

11. The court, in the consideration of applications made by the natural father in the exercise of such rights, must, as in all proceedings before the court where the custody, guardianship or upbringing of an infant is in question, regard the welfare of the infant as the first and paramount consideration.

12. Because of the particular circumstances of this case, as outlined in the case stated, and in particular the application of the natural mother of the infants and her husband for an adoption order in respect of the infants, it is necessary to refer to a number of the provisions of the Adoption Acts, 1952 to 1991.

13. The power of the notice party to dispense with such consent is confined to cases where the notice party is satisfied that the parent, guardian or person in charge so concerned is incapable by reason of mental infirmity of giving consent or cannot be found.

14. The effect of an adoption order, if made, is dealt with in s. 24 of the Adoption Act, 1952, which provides that:-

15. In the facts of the present case, the combined effect of these statutory provisions is:-

16. The circumstances in this care are rather unusual. It appears from the findings set forth in the case stated that the natural father, the applicant herein, and the respondent had enjoyed a relationship between 1981 and June, 1992; that during this period two children were born, namely a daughter V. who was born on the 31st May, 1982, and a son, W. who was born on the 2nd July, 1991; that the parties resided together as a family for six years prior to April, 1992; that they separated in or about the month of April, 1992; that the respondent married J.H. on the 25th June, 1993; that it is she and her husband who have applied for the adoption of the two children; that the applicant enjoys a reasonable relationship with the respondent and her husband, who do not seek to deprive him of access to the children and he, on his part, does not seek custody of the children; that pursuant to an application made to the District Court on the 3rd November, 1993, he was granted liberal access to the children and has continued to exercise his right in that regard, which right the respondent and her husband wish to have continued.

17. There is no suggestion that this exercise by him of his right of access to the children was not of benefit to the children.

18. The real purpose of the applicant’s application for guardianship is to prevent any alteration in the existing arrangements because he wishes to maintain his ties and relationships with his infant children.

19. It is submitted by Mr. Rogers on behalf of the applicant that having regard to the particular circumstances of this case that he has a right to be appointed guardian, being a fit person to be appointed guardian, and that there are no circumstances involving the welfare of the children which require that he should not be so appointed.

20. The effect and interpretation of s. 6A of the Act of 1964 on a natural father’s rights in this regard was considered by this Court in the case of J.K. v. V.W. [1990] 2 I.R. 437.

21. In this case, the learned trial judge, Barron J. stated his view of the interpretation of s. 6A as follows:-

22. He had further stated that:-

23. The learned trial judge then submitted the following questions of law for the determination of the Supreme Court:-

24. In delivering his judgment, with which Walsh, Griffin and Hederman JJ, agreed, Finlay C.J. stated at pp. 446 and 447 of the report that:-

25. From a consideration of this judgment, it appears that the following principles were established thereby:-

26. In spite of the decision of this Court in J.K. v. V.W. [1990] 2 I.R. 437 and the principles enunciated therein, Mr. Rogers, on behalf of the applicant, contends and submits that:-

27. In the course of delivering the judgment of the Court in that case Walsh J. stated at pp. 642 and 643:-

28. Mr. Rogers submitted that the applicant has rights in regard to the children arising from the nature of the relationship which he had enjoyed with them and the respondent, a relationship which he described as in the nature of a de facto family.

29. The statutory changes which have been affected since the enactment of the Act of 1964, were set forth and considered by this Court in the case of J.K. v. V. W. [1990] 2 I.R. 437 and regard was had to the effect of such statutory changes in the decision of the Court and the majority of the Court held that neither the provisions of such enactments nor the Constitution gave to the natural father the right to be appointed guardian of the infants in this case.

30. In view of the decision of this Court in J.K. v. V. W. [1990] 2 I.R. 437 I do not consider it necessary for the purpose of answering the questions posed in the case stated, which is the function of this Court, to refer to or purport to deal in any way with the decision of this Court in the case of The State (Nicolaou) v. An Bord Uchtála [1966] I.R. 567 other than to state that the view of the Court that it had not been established that the father of an illegitimate child has any natural right, as distinct from legal rights to either the custody of that child would appear to be reinforced by the statement made by Finlay C.J. in the course of his judgment in J.K. v. V. W. where he stated that ‘no constitutional right to guardianship in the father exists’.

31. It is important to emphasise that the applicant has no right per se to be appointed guardian of the children. He has the right to apply to the Court to be appointed guardian, the right to have such application considered and adjudicated upon by the Court in the context of and subject to the requirement that the welfare of the children be the first and paramount consideration in the determination of such application. The Oireachtas, in granting to a natural father the right to apply to the Court for an order appointing him guardian of the infants, obviously envisaged circumstances in which the Court would grant such application, if the welfare of the infants so required.

32. In the course of his judgment in G. v. An Bord Uchtála [1980] I.R. 32, Walsh J., dealing with the provisions of s. 3 of the Act of 1964 stated at p. 76:-

33. In this case, the natural father has no constitutional right to be appointed guardian of his infant children. Such rights as he has in this regard are granted by statute viz., the right to apply to be appointed guardian and in the consideration of such application, the welfare of the children is to be the superior consideration.

34. Mr. Rogers, on behalf of the applicant, submitted that the rights and concerns referred to by Finlay C.J. in the course of his judgment in J.K v. V.W. [1990] 2 I.R. 437 as arising from the blood link between the father and the child and described as varying greatly depending on the circumstances of each individual case were constitutional rights and that in the situation where the children were, as appears to be the situation in this case, born as a result of a stable and established relationship and nurtured at the commencement of their lives by their father and mother in a situation bearing nearly all the characteristics of a constitutionally protected family, the rights would be very extensive indeed.

35. I do not accept Mr. Rogers’ submission that the rights and concerns referred to in the said judgment constituted constitutional rights in the natural father. They are matters to be taken into account in determining the welfare of the children when the natural father avails of his statutory right to apply to the court for guardianship or custody of the children or access thereto.

36. The responsibility for determining what is required by the welfare of the children is a matter for the learned trial judge.

37. In this case, the learned Circuit Court Judge had, prior to stating the case, made no finding with regard to the question whether the welfare of the children would best be served by the continuance of the existing arrangements whereby the children were in the custody of the respondent, the applicant had access to them and they had the benefit of the society and protection of both parents, or by the making of an adoption order which would alter such arrangements.

38. It is understandable that he did not do so but it is difficult, if not impossible, to determine the rights of a natural father, which are subordinate to the requirements of the welfare of the children, in regard to his application to be appointed their guardian in the absence of such a finding.

39. The application by the applicant for appointment as guardian of the children in this case is not linked to an application for custody of the children, as was the situation in J.K. v. V. W. [1990] 2 I.R. 437, and to that extent differs therefrom. He has no wish or intention to seek to alter the present custodial arrangements with regard to the children, who are with the respondent, but wishes to enjoy the right to access to the said children which would be affected by the making of an adoption order. He wishes to be appointed guardian of the children because if he were so appointed, an adoption order could not be made without his consent.

40. Before considering his wishes in this regard, the Court must first consider whether the welfare of the children would be to an important extent better if an adoption order were made in respect of them than by a continuance of the existing arrangement.

41. In the consideration of this matter, the learned trial judge is entitled to take account of all of the relevant circumstances pertaining to the welfare of the children.

42. He is entitled to take into account the circumstances which have existed since the date of birth of the children, the fact that they were born as a result of a stable relationship that existed between the applicant and the respondent, the fact that the children in their early years enjoyed the benefit of such relationship, the fact that despite the separation and the respondent’s subsequent marriage, the applicant has enjoyed with her consent and by order of the District Court access to the children, the relationship which the applicant has with the children, the benefits which have accrued to the children therefrom and the effect that the termination of such relationship would have on them and on their welfare. The welfare of the children may require that they continue to enjoy the society and protection of the applicant which they have enjoyed since their birth or may require that their welfare would be better served by the making of the adoption order sought by the respondent and her husband.

43. In either event the question of adoption is a crucial factor in determining this issue and the teamed trial judge is not only entitled but obliged to have regard thereto.

44. The Court will answer the questions submitted to the Court for determination as follows:-

45. On hearing an application by a natural father to be appointed guardian under s. 6A of the Guardianship of Infants Act, 1964, is it proper for the Court to take into account a specific pending application for adoption of the children of the natural parents by the natural mother’s husband when deciding whether or not to appoint the natural father as a guardian of the children, in particular, in circumstances where the natural father is not seeking to change the custodial status of the children?

46. The Courts first and paramount consideration is the welfare of the child (ss. 2 and 3 of the Guardianship of Infants Act, 1964). All factors relevant to the child’s welfare should be before the Court for consideration. In an application by a natural father to be appointed guardian under s. 6A of the Guardianship of Infants Act, 1964, it is proper for the Court to take into account the factor of a specific pending application for adoption of the children of the natural parents by the natural mother’s husband when deciding whether or not to appoint the natural father as guardian to his children. The fact that the natural father was not seeking at that time to change the custodial status of the children is a matter for the trial judge to consider in all the circumstances of the case. The trial judge must, however, make his own decision based on his own independent assessment of the whole case as presented to him and should not regard his decision as merely a means of predetermining the outcome of the adoption proceedings.

47. If the answer to question No. 1 is in the affirmative, is it proper for the court to take into account the natural father’s intention to oppose the adoption application?

48. It is proper for the court to take into account the natural father’s intention to oppose the adoption. That is a factor relevant to the welfare of the children. The trial judge must, however, make his own decision based on his own independent assessment of the whole case as presented to him and should not regard his decision as merely a means of predetermining the outcome of the adoption proceedings in favour of any party.

49. If the answer to question 1 is in the affirmative is it proper for the court to have regard to this specific adoption application pending?

50. The issue is the welfare of the particular children, not children in a general sense, and thus the specific circumstances of the pending adoption proceedings are relevant to the welfare of the children.

51. What are the character and extent of the rights of interest or concern of a natural father (referred to by the Supreme Court in the decision in J.K. v. V.W. [1990] 2 I.R. 437) and when do same arise in the context of a guardianship application and are such matters within the sole discretion of the trial judge?

52. The rights of interest or concern in the context of the guardianship application arise on the making of the application. However, the basic issue for the trial judge is the welfare of the children. In so determining, consideration must be given to all relevant factors. The blood link between the natural father and the children will be one of the many factors for the judge to consider, and the weight it will be given will depend on the circumstances as a whole. Thus, the link, if it is only a blood link in the absence of other factors beneficial to the children, and in the presence of factors negative to the children’s welfare, is of small weight and would not be a determining factor. But where the children are born as a result of a stable and established relationship and nurtured at the commencement of life by father and mother in a de facto family as opposed to a constitutional family, then the natural father, on application to the Court under s. 6A of the Guardianship of Infants Act, 1964, has extensive rights of interest and concern. However, they are subordinate to the paramount concern of the court which is the welfare of the children.

53. Is the concept of de facto family ties as referred to in the European Court of Human Rights decision of Keegan v. Ireland (1994) 18 EHRR 342 afforded recognition under the Constitution and what rights, if any, accrued to the applicant arising from same?

54. The decision of the European Court is not part of the domestic law of Ireland. The family referred to in Articles 41 and 42 of the Constitution is the family based on marriage. The concept of a “de facto” family is unknown to the Irish Constitution. The Irish Supreme Court, however, in its decision in J.K. v. V. W. [1990] 2 I.R. 437 recognised the existence of “de facto families” and also the fact that a natural father who lived in such a family might have extensive rights of interest and concern of the kind referred to in the reply to the previous question.

55. Is a natural father’s right to apply for guardianship and/or access, or an order for access already made, extinguished on the making of an adoption order?

56. It is clear from s. 24 of the Adoption Act, 1952, and from the Status of Children Act, 1987, that an adopted person is from the date of the adoption to be regarded as the child of the adopters and not the child of anyone else. A natural consequence of such a law is that the right to apply is extinguished on the making of the adoption order.

57. If the answer to question No. 6 is in the negative, does the Adoption Board have the right to direct that an access order already made be vacated before making an adoption order?

58. The answer to question No. 6 being in the affirmative, this question does not arise to be considered.

59. I agree with the judgment delivered by Hamilton C.J.

60. The consultative case stated has been set out in full in the judgment of the Chief Justice. The function of the Supreme Court is to accept the facts and to answer the questions of law submitted.

61. This is not a case where there is an application to have a statute declared invalid under the Constitution. The action is neither in the appropriate form, nor is the Attorney General joined. Rather, it is a consultation on the law as it now exists.

62. The rights of interest or concern of a natural father were referred to in J.K. v. V W. [1990] 2 I.R. 437 by Finlay C.J. at p. 447:-

63. It is unnecessary to analyse the rights and interests in general of a natural father. The question raised in this case relates to the guardianship application. Therefore, any reference to other rights or interests that might exist would be extraneous.

64. Counsel referred to Keegan v. Ireland (1994) 18 EHRR 342. The concept of de facto family ties as referred to in Keegan v. Ireland are not afforded explicit recognition under the Constitution. The basic difference between that case and J.K. v. V.W. [1990] 2 I.R. 437 arises from the wording of the Constitution which founds a family on marriage whereas Article 8 of the European Convention on Human Rights does not so define a family.

65. The jurisprudence of the Irish courts has been that the constitutional family is the family based on marriage. While the Constitution does not define “the family”, the wording of Article 41 is clear. The construction placed on it by the courts may be epitomised by the words of Walsh J. in The State (Nicolaou) v. An Bord Uchtála [1966] I.R. 567 where he stated at p. 643 that it was:-

66. The effect of the Constitution grounding the family for the purposes of Article 41 on marriage was to exclude natural fathers from that institution.

67. The kernel issue, in this case, is the welfare of the children. That is the paramount consideration for the Court. The rights of interest and concern of the applicant are directly in proportion to the circumstances that exist in the case between the applicant and the children. The greater the beneficial contact for the children there has been, the more important it is to the welfare of the children and so the higher the rights of interest and concern of the applicant. Thus, variable degrees of interest and concern of the father arise on the making of the guardianship application.

68. The natural father’s right to apply for guardianship is currently stated in s. 6A of the Guardianship of Infants Act, 1964. The rights of interest or concern of the natural father arise on the initiation of the application process. It is essential that the law protects his right to apply within appropriate time so that all his rights may be exercised.

69. There is no issue in this case of delay in the procedure. There has been no prejudice to the applicant. He has not been barred de jure or de facto from developing his bond with the children. The parties agree that access shall continue for the children to the applicant. Thus, there is no question that he is not getting a hearing of the issues at the appropriate time.

70. The basic issue for the trial judge is the welfare of the children. In so determining, consideration must be given to all relevant factors. The blood link will be one of many factors for the judge to consider, and the weight it will be given will depend on the circumstances as a whole. Thus, the link, if it is only of blood with the absence of other factors beneficial to the children, or in the presence of factors negative to the children’s welfare, is of small weight and would not be a determining factor. But, where the children are born as a result of a stable and established relationship and nurtured at the commencement of life by father and mother in a de facto family as opposed to a constitutional family, then the natural father on application to the court under s. 6A of the Guardianship of Infants Act, 1964, has extensive rights of interest or concern. However, they are subordinate to the paramount concern of the court which is the welfare of the child.

71. The issues in this case are determined by the trial judge with the welfare of the child as the paramount consideration. A natural father’s rights arising on application to court on foot of constitutional procedures are proportionate to the circumstances of the case. It is assumed that the procedures provided by statute will be conducted in accordance with the principles of constitutional justice: East Donegal Co-Operative v. Attorney General [1970] I.R. 317.

72. It is not for this Court to legislate, that is a matter for the Oireachtas. In so doing, it is open to that body to consider the European Convention on Human Rights and cases arising thereunder insofar as they are not inconsistent with the Constitution. In the circumstances of this case, there is no issue of any deprivation of any constitutional right of the applicant.

73. It is clear that procedures must provide adequate protection for the welfare of the child. This includes an appropriate process to enable a natural father to make application for guardianship at a time within which the scales concerning the child’s welfare have not been tilted inevitably in another’s favour. There is no such issue in this case.

74. In light of the above, I agree with the answers given by the Chief Justice to the questions posed by the Circuit Court Judge.

75. The applicant is the father, and the respondent the mother, of two children born out of wedlock. The elder child is a girl and is now aged 14. The younger child is a boy and is now aged 5.

76. The applicant and the respondent are no longer living together and the mother is now married to another man.

77. Despite their difficult situation, however, the respondent and applicant remain on good terms. The applicant does not object to the respondent having custody of the children and the respondent does not object to the applicant having liberal access.

78. Judges who have seen the anger and heartbreak which this kind of situation can give rise to cannot but admire the good will and common sense shown by both parties and the way they have co-operated in the best interests of the children.

79. Unfortunately, the situation is threatened by the understandable desire of the respondent to have the two children adopted by herself and her husband.

80. The respondent and her husband applied for adoption of the two children in July, 1993. The applicant responded by applying in the District Court to be appointed guardian of the infant children pursuant to the provisions of s. 6A of the Guardianship of Infants Act, 1964, as inserted by s. 12 of the Status of Children Act, 1987. The applicant’s application to be appointed a guardian was refused in the District Court but he was granted liberal access.

81. The respondent and her husband are happy that he should have this access and the applicant has exercised it.

82. The respondent and her husband wish, however, to proceed with the application for adoption. The applicant has accordingly appealed against the order refusing to appoint him a guardian because, if he is appointed a guardian, his consent to the making of an adoption order will be required under s. 14 of the Adoption Act, 1952. The applicant’s appeal is now pending before the learned Circuit Court Judge and the learned judge has stated a case to this Court seeking guidance as to the factors he should take into consideration in exercising his discretions under s. 6A of the Guardianship of Infants Act, 1964.

83. The problem is complicated by the policy of the notice party. On the 22nd December, 1993, the Registrar of the notice party wrote to the solicitor for the applicant pointing out that the making of an adoption order terminates all existing parental rights and duties in relation to the child given in adoption and transfers these absolutely and permanently to the adopters, so that the child becomes as one born to them in lawful wedlock. He pointed out that an adoption order could not be made subject to conditions; that the notice party had no power to limit the effects of an adoption order, and that it “cannot incorporate a right to access into same”. He concluded by writing:-

84. On the 11th November, 1994, the Registrar again wrote to the applicant’s solicitor stating:-

85. However by a letter dated the 27th March, 1996, a different Registrar wrote to the applicant’s solicitor seeking to correct the impression conveyed by the letters of the earlier Registrar and stating: “I wish to clarify that the Board does not seek to set aside access orders which have been made on consent in consideration of the making of an adoption order. In such circumstances the Board has made adoption orders in the past where there was agreement between the parties.”

86. The notice party’s second or corrected opinion is clearly a humane one. Unfortunately it is difficult to reconcile with the express wording of the Adoption Act, 1952, s. 24 of which provides as follows:-

87. Mr. Rogers, for the applicant, submits therefore that the effect of the making of an adoption order would be to wipe out all rights of the applicant in respect of these children. Miss Clissman, for the respondent, does not accept this, arguing that the natural father is not referred to in section 24. This argument, however, is not convincing. There is no necessity to refer to the natural father in s. 24 because he is excluded from the category of “parent” by s. 3 of the Act which provides that “parent” does not include the natural father of an illegitimate child.

88. This brings Miss Clissman to her second submission which is that the natural father, as such, is not recognised as having any right in respect of his child under the Irish Constitution and that the only rights he has got are the right to make such applications as are accorded to him by statute law. She relies on The State (Nicolaou) v. An Bord Uchtála [1966] I.R. 567. Mr. Rogers seeks to distinguish the present case from that case because of the fact that for many years the applicant and the respondent together with their children constituted a de facto family of the kind recognised by the European Court of Human Rights in Keegan v. Ireland (1994) 18 EHRR 342. His problem is that that judgment, however instructive it may be to read, is not part of the domestic law of Ireland and not binding on the Irish courts. He accordingly submits that the time has come to look again at the reasoning in The State (Nicolaou) v. An Bord Uchtála.

89. A question arose in argument as to whether the provisions of s. 16, sub-s. 4 of the Adoption Act, 1952, might contain the solution to Mr. Rogers’ problem. Section 16, sub-s. 4 provides as follows:-

90. It is now the received wisdom of the courts that no final order is ever made in custody proceedings as all orders may have to be revised if the circumstances of the parties change. There is also a formal problem that an application under s. 6A of the Guardianship of Infants Act, 1964, is concerned not with the question of custody but with the question of guardianship. I note, however, that the order granting the applicant access to the children was made under s. 11 of the Guardianship of Infants Act, 1964, and these proceedings could be classified as custody proceedings. However, the real problem is that s. 16, sub-s. 4 of the Adoption Act, 1952, cannot be construed as referring to ongoing custody proceedings. It must refer to proceedings which terminate with the granting of custody to one of the parties. Otherwise it would simply forbid the making of an adoption order if custody proceedings existed, and would not merely provide that no order was to be made “. . . until the proceedings have been disposed of’.

91. I agree with Mr. Rogers’ submissions that the time has come to reconsider the reasoning in The State (Nicolaou) v. An Bord Uchtála I.R. [1966] 567. I do so not only because I think the reasoning in that case is fundamentally flawed, but also because I do not think it is possible to develop a coherent code of rights in relation to non-marital children and their parents while that reasoning stands.

92. Before proceeding further I should, however, state that I was one of the counsel who acted for the prosecutor, Mr. Nicolaou, in that case.

93. I should also like to state that there was never at any time any conflict between the parties as to the facts of the case. The application was for certiorari and the Adoption Board showed cause against the conditional order by notice. This was in accordance with O. 84, r. 47 of the Rules of the Superior Courts, 1962, which provided as follows:-

94. Counsel for the respondent might still have served notice to cross-examine the prosecutor or his deponents but, no doubt for very good reason, they did not do so. The comments made in the judgments of the Divisional Court on the prosecutor were made of a man who had been neither contradicted in evidence nor cross-examined. One judge even expressed reservations as to whether the prosecutor was the father of the child in respect of whom the proceedings were brought, which allegation he accepted only for the purposes of the argument. This was despite the fact that the mother had sworn that the prosecutor was the father of the child; the prosecutor had sworn that he was the father of the child; the child’s birth had been registered within days of her birth and showed the prosecutor as the father; the subsequent conduct of the parties was explicable only in the context that the prosecutor was the father; there was no evidence to the contrary; and the deponents had not been cross-examined.

95. He then went on to add:-

96. Teevan J. therefore had a clear view of the alleged injustice at the theoretical level, but could not accept the undisputed evidence which was before him. This was in no way inconsistent with the more elaborate version of the facts set out in the judgment of Walsh J. in the Supreme Court (see pp. 630-633 of the report). The part of the judgment of the Supreme Court which is most open to criticism is that which begins at p. 639 of the report and contains the following passages:-

97. Walsh J. continued at page 641:-

98. I find this reasoning inadequate. The Adoption Act, 1952, does expressly exclude the natural father from the category of “parent”. Under these circumstances it is hardly sufficient to say to him that he is not excluded; he merely fails to come within the category of persons who are included. This was particularly relevant to The State (Nicolaou) v. An Bord Uchtála [1966] I.R. 567 where the evidence showed that the category of persons included was not wide enough to catch the prosecutor whom the Court accepted to be a concerned and caring parent. Moreover, once the Court had accepted that the prosecutor was a concerned and caring parent it was not logical to justify his exclusion by a reference to natural fathers who had no interest in the welfare of their children. This was to fall into the logical trap warned against in the opening paragraph of the passage quoted by treating equally persons who were in different situations, and amounted therefore to unfair discrimination.

99. The logical flaw in the argument can more easily be seen if one reduces it to a syllogism:-

100. With regard to the prosecutor’s delay in bringing his proceedings the Supreme Court had the following comment to make (see page 639 of the report):-

101. This being so, the prosecutor’s sole protection against his daughter being given in adoption was the letter from his solicitor to the Adoption Board dated the 7th October, 1960, informing them of the prosecutor’s opposition to adoption. On the 17th October, 1960, the Adoption Board had acknowledged receipt of this letter and had stated that “the matter has been noted”. Under these circumstances, for the Adoption Board to have given his child in adoption without further reference to him was quite extraordinary and merited an adjective somewhat stronger than the word “impolitic” used by the Supreme Court to describe it (see p. 639 of the report).

102. But if this is so, would not one expect the Constitution to provide a remedy for the “cruel injustice” which Teevan J. was able to envisage, if only on a hypothetical basis, in his judgment in The State (Nicolaou) v. An Bord Uchtála [1966] I.R. 567?

103. The second important development in our case law which I would wish to refer to is East Donegal Co-Operative v. Attorney General [1970] I.R. 317. In particular, I should like to refer to the famous passage in which Walsh J., giving the judgment of the Supreme Court, states that the presumption of constitutionality of an Act of the Oireachtas carries with it the necessary implication that all proceedings, procedures, discretions and adjudications which were permitted and prescribed by the Act were intended by the Oireachtas to be conducted in accordance with the principles of constitutional justice and not otherwise.

104. Again it is difficult to believe that a modern court, in the light of the principles set out in that case, would regard the decision of the Adoption Board to give Nicolaou’s child in adoption without reference to him as merely “impolitic”.

105. But both suggestions which I have made could be wrong if the natural father has no rights. It therefore becomes necessary to analyse the problem more thoroughly.

106. Article 42 of the Constitution is an extension of Article 41 and refers to parents and children within a family context. It refers to the inalienable rights and duties of parents and to the imprescriptible rights of the child. In other words it refers to a relationship between three people which carries with it reciprocal rights and duties which the positive law is enjoined to respect. The rights of the child are clearly predominant. They alone are described as being imprescriptible, but the parents also have rights. The positive law has accordingly prescribed (in s. 3 of the Guardianship of Infants Act, 1964) that a court, in deciding any question concerning custody or guardianship of an infant shall regard the welfare of the infant “as the first and paramount consideration”. The clear implication of this phrase is that the welfare of the infant is to be the most important consideration, but also that it is not the only consideration. Otherwise the statute would not choose the adjective “first”. The welfare of the infant, while paramount, has to be reconciled so far as practicable with the rights of both parents.

107. Article 42 of the Constitution is concerned primarily with the relative rights and duties of parents and children, though it also defines the role of the State in the event of the parents failing in their duties to their children.

108. Article 41, by contrast, is concerned with the family as a group or institution and with its rights vis-à-vis other groups or institutions in society.

109. Article 41 and Article 42 both refer to the family based on marriage. But Article 42 is helpful in describing the relationship between parent and child.

110. One cannot derive them from positive law because what the positive law gives the positive law can take away. Moreover, at common law an illegitimate child was nullius filius and was regarded as a charge on the parish. To have held otherwise would have threatened the system of primogeniture and the whole system of feudal landholding. As pointed out by Gavan Duffy P. in In re M, an infant [1946] I.R. 334, the common law judges were, at a later stage, driven to the expedient of justifying the natural mother’s right to the custody of her child by reference to the fact that she was under a statutory duty to maintain it. Other judges refer to the “blood tie” between mother and child or to the bonds of nature between them. Finally the courts of equity were prepared to listen to anyone – be he or she natural parent or not – who could offer anything touching the welfare of the child.

111. None of the matters referred to in the previous paragraph amounts, in itself, to a proper approach to this problem under the Irish Constitution because they all proceed on the approach of severing the relationship between parent and child. The Irish Constitution, by contrast, stresses the relationship between parent and child and derives from that relationship a system of moral rights and duties which the law is enjoined to respect.

112. These reciprocal rights and duties may derive from the blood tie between parents and child but they are not the same thing as that blood tie. Rather do they amount to a moral code based upon it. It appears to me that they can be referred to as natural rights or duties or constitutional rights and duties and that, in the context of Articles 41 and 42, the two terms are indistinguishable. In so far as Kenny J. suggests the contrary in G. v. An Bord Uchtála [1980] I.R. 32 at p. 97, I respectfully disagree with him.

113. The relationship between natural parents and their child can be compared with that existing between married parents and their children under Article 42 of the Constitution but the group does not form a unit group or institution within the meaning of Article 41. The relationship will give rise to reciprocal duties and rights but the manner in which these will, or can, be expressed will vary greatly with the circumstances. On the one hand the parents may be living together in what could be described as a de facto family. On the other hand the circumstances attending the child’s conception or birth may be so horrific as to make it undesirable, or unthinkable, that the parents should live together.

114. As Kenny J. has pointed out, illegitimate children are not mentioned in the Constitution. Yet the case law acknowledges that they have the same rights as other children. These rights must include, where practicable, the right to the society and support of their parents. These rights are determined by analogy to Article 42 and are captured by the general provisions of Article 40, s. 3 which places justice above the law. Likewise a natural mother who has honoured her obligation to her child will normally have a right to its custody and to its care. No one doubts that a natural father has the duty to support his child and, I suggest, that a natural father who has observed his duties towards his child has, so far as practicable, some rights in relation to it, if only the right to carry out these duties. To say that the child has rights protected by Article 40, s. 3 and that the mother, who has stood by the child, has rights under Article 40, s. 3 but that the father, who has stood by the child has no rights under Article 40, s. 3 is illogical, denies the relationship of parent and child and may, upon occasion, work a cruel injustice.

115. In these circumstances I would accept the dictum of Finlay C.J. in J.K. v. V. W. [1990] 2 I.R. 437 at p. 447 where he says:-

116. As the rights of the child would be the same in all the circumstances discussed by the learned Chief Justice in the passage quoted, I can only assume that the variation in the strength of the rights of which the Chief Justice speaks refers to variations in the rights of the father.

117. I am reinforced in this opinion by the provisions of s. 13 of the Status of Children Act, 1987. This inserts a new sub-section into s. 11 of the Guardianship of Infants Act, 1964. The new sub-section, (to be known as sub-s. 4) reads as follows:-

118. While I have arrived at my conclusions by a route somewhat different to that followed by the Chief Justice I agree with all of the answers which he has given to the questions posed by the learned Circuit Court Judge.

119. As the history of this matter has been set out in the judgments already delivered it is unnecessary for me to repeat it. Instead I would gratefully adopt the recital by the Chief Justice in his judgment of the material facts and the legislation relevant to the issues before this Court. I am in agreement too with the answers proposed by the Chief Justice to the questions raised by the consultative case to advise herein, but in deference to the argument presented to the Court I feel I should express my own views thereon.

120. The submission by counsel on behalf of the applicant in his argument before this Court reduced the substantive issue to a net point which could be encapsulated in the question following:-

121. Counsel for the applicant, Mr. Rogers, contended that a natural father did have such a right. In making that argument he recognised that it ran counter to the decision of the Supreme Court in The State (Nicolaou) v. An Bord Uchtála [1966] I.R. 567. In that case it was held by the Supreme Court – as had been found by each of the three judges of the Divisional Court – that the fact that the consent of the natural father (unlike that of the natural mother) to an order for adoption was not required by the Adoption Act, 1952, or that he had no opportunity of being heard in relation to the making of an adoption order, did not constitute an infringement of his constitutional rights.

122. It was pointed out on behalf of the applicant that social and moral attitudes have altered significantly in the thirty years since The State (Nicolaou) v. An Bord Uchtála [1966] I.R. 567 was decided. No doubt that is so. For better or for worse, it is clearly the fact that long term relationships having many of the characteristics of a family based on marriage have become commonplace. Relationships which would have been the cause of grave embarrassment a generation ago are now widely accepted. In relation to changing circumstances it may be also noted that there have been medical and scientific changes which may likewise affect, and certainly complicate, any analysis of the relationship between a child and the male and female whose genes it inherits. The question of the rights of a natural father has heretofore involved the acceptance of the fact that the natural (or illegitimate) fathers may comprise a range of males extending from having and caring fathers participating in an enduring relationship with the mother and children, to the psychopathic rapist whose only purpose was to do violence and bring humiliation to the mother. In more recent times one has to recognise a category of biological parenthood within which the male contributes sperm which is provided by means of artificial insemination in a female recipient unknown to the donor. This must be the case by which can be tested the basic proposition whether the mere donation of sperm confers on the donor any natural or constitutional right over any child that may subsequently be identified as having been conceived as a result of such a procedure. In my view that cold and clinical scenario would do much to strengthen the view expressed in The State (Nicolaou) v. An Bord Uchtála [1966] I.R. 567 that the mere fact of fatherhood does not give rise to natural or constitutional rights.

123. Scientific advances may pose even greater problems in relation to the rights of mothers. If it is possible - as I understand it to be – to transplant a fertilised ovum in a woman who in due course gives birth to a child, who is the mother for the purposes of Article 40 of the Constitution? The woman who provided the ovum or the woman who gave birth to the child?

124. These very questions illustrate the fundamental distinction between the line which may have to be drawn between the provision of the genetic material on which life depends and the nurturing of the being, not merely from the time of birth, but from the moment of conception.

125. The applicant placed some reliance on the majority decision of this Court in J.K v. V.W. [1990] 2 I.R. 437. That case had many features in common with the present one. It was an application for guardianship by the natural father of an infant and one of the respondents was the natural mother. Whilst the parents had not married, they had a relationship which endured for some two years. Furthermore, the pregnancy of the mother

126. Later in the case stated he expanded that test in the following terms:-

127. He then posed for the determination of the Supreme Court the question:-

128. The then Chief Justice, Finlay C.J., delivering a judgment in which Walsh, Griffin and Hederman JJ. concurred, held that the opinion expressed by the learned trial judge in the case stated as to the manner in which s. 6A should be construed was not correct in law. Finlay C.J. explained (at pp. 446 and 447):-

129. The then Chief Justice went on to say expressly:-

130. What the majority judgment unquestionably held was that s. 6A aforesaid created merely a right to apply for guardianship: it did not presume its existence.

131. However, Finlay C.J. having rejected the contention that a natural father had a constitutional or natural right to the guardianship of his child commented as follows:-

132. Clearly the word “rights” as used in that quotation from the then Chief Justice do not refer to any constitutional right or any natural right recognised by the Constitution. The learned judge had expressly negatived the existence of any such right. It seems to me that he was identifying what might be described as a “right” deriving from the involvement of the father with his child and that a right or interest which would be coextensive with the involvement with, and above all the benefit which it conferred on, the child. Where an application is made by a person, other than a parent, to be appointed guardian of a child, the judge to whom the application is made would necessarily and properly consider the circumstances in which the application was made; the familiarity of the applicant with the child; the frequency of their meetings; and the reaction of each to the other. Clearly in a case where the applicant had custody, for whatever reason, of the child and provided generously and successfully for its material, moral and social welfare, these are factors which the court would take into account. Not only that; it could be said on behalf of the applicant that he had the “right” to have these matters taken into account on the basis that the court owed a duty to him so to do.

133. The nature and the status of the rights of parents – even married parents – seeking custody of their child as against third parties was very fully considered by the House of Lords in J. v. C. [1970] AC 668. In that case the married Spanish parents sought custody of their son who had been left with English foster parents from four days after his birth for the greater part of his young life. When he was five years of age his parents sought custody of him and the foster parents responded by having him made a ward of court in England. Unfortunately, another five years were to elapse before the issue was fully heard in the High Court. Whilst the Spanish parents had experienced serious financial problems and there were difficulties arising from the health of both the child and its true mother, these problems had been resolved before the matter came on for hearing by the English court. It was recognised at that stage that the Spanish parents were in a position to provide adequately for the welfare of the child. The argument in the Chancery Division was virtually identical with that presented to this Court. That argument was summarised by Lord Guest in his speech (at p. 692) in the following terms:-

134. That argument was rejected in the High Court and again in the Court of Appeal. What the speeches in the House of Lords demonstrated was the evolution away from the “rights” of the parents and towards the welfare of the child. The common law position had been identified by Knight Bruce V.C. in In re Fynn (1848) 2 De G. & Sm. 457 where he said (at page 474):-

135. The principle upon which the Chancery courts acted was summarised by Lord Cranworth in Hope v. Hope (1854) 4 De G.M. & G. 328 (at p. 344) in the following terms:-

136. What is described as “the more enlightened view” appears to have found its expression - though not without some qualifications – in the judgment of the Irish Court of Appeal in In re O’Hara [1900] 2 I.R. 232. At pp. 239 and 240 of that report FitzGibbon L.J. summarised his views as follows:-

137. In his speech in J. v. C. [1970] AC 668 Lord MacDermott reviewed the foregoing among other cases and passed to the U.K. Guardianship of Infants Act, 1925, s. 1, which imposed upon every court dealing with matters touching upon infants the obligation to have “regard to the welfare of the infant as the first and paramount consideration” and expressly provided that the court should not “take into consideration whether from any other point of view the claim of the father, or any right of common law possessed by the father, in respect of such custody, upbringing, administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father”. Like FitzGibbon L.J. before him, Lord MacDermott at the conclusion of his speech summarised his conclusions in numbered paragraphs as follows:-

138. I will quote also a passage from the speech of Lord Guest in J. v. C. [1970] AC 668 both for the principle which it enunciates and the terminology in which that principle is expressed. I quote from p. 697 as follows:-

139. Lord Donovan demoted still further the “rights” of the natural parent. He expressed his views at p. 727 in the following terms:-

140. In those circumstances the House of Lords rejected the appeal and upheld the decision of the judge of the High Court in exercising his discretion to refuse custody of the child to his true parents. In reaching their conclusion the House of Lords designated the alleged right of the natural parents to custody as a word encased in inverted commas and at best as one of the many factors to which the court would properly have regard in determining where the best interest of the infant lay in an issue with regard to its custody or guardianship.

141. Clearly these English cases have little direct application to any right which is elevated to constitutional status by Bunreacht na hÉireann. The value of those judgments, as I see it, is the distinction which they have drawn between the rights of parties applying to be appointed as guardian and the factors which must be taken into account by the judge hearing the application. It does seem to me that in fact a similar distinction was made by Finlay C.J. in J.K v. V.W. [1990] 2 I.R, 437 when he chose the word “factors” rather than the word “rights” to describe the totality of the matters to be reviewed in a guardianship case. He summarised the position in the final paragraphs of his judgment (at p. 447) as follows:-

142. I do not think it is necessary to reach a final conclusion as to whether there is some residual right in a father in equity to custody of or guardianship over his child. That right, if it does exist, and deriving solely from the biological relationship between the father and the son is unlikely to be a factor of serious significance in determining whether an order for guardianship should be granted or withheld. On the other hand fatherhood, in conjunction with a long standing and active commitment to the welfare of the child is a factor to which the trial judge would be bound to give serious consideration and indeed might well be of decisive importance.

143. However, the factors to be considered by a judge hearing an application by a natural father (or any other person) to be appointed guardian of an infant child may be very extensive indeed. They will extend to any matter which could impinge upon the present or future welfare of the infant concerned.

144. In my view the legal principles applicable to the general issue debated before this Court may be summarised as follows:-

145. As I have already indicated, I believe that in these circumstances the particular questions posed by the learned judge of the Circuit Court should be answered in the manner suggested by the Chief Justice.