Jh, an Infant [1985] Ir 375

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I agreed with the judgment of Re JH, an infant [1985] IR 375 [1] when I first read the cases and my opinion on the specific case is unchanged even after reading an article by W.R. Duncan[2]. However W.R Duncan does detail some valid points about the case and the precedent that it may or may not have implied. In this essay I am going to evaluate and discuss Mr. Chief Justice Finlay’s judgment in the Supreme Court with regards to W.R. Duncan article. Analysis

The J.H. case concerned a baby who had been placed into an adoption process by her then unmarried mother shortly after birth. The mother of this child subsequently married the biological father and wanted to halt an adoption process and have the child returned into the biological family unit. Finlay C.J raised a number of fundamental rights of the Constitution that needed to be addressed in relation to the case namely, Article 42.1 of the Constitution the right of the family possessing inalienable and imperceptible rights, antecedent and superior to all positive law and Article 42.5 of the Constitution the right of the state to supply the place of the parents where the parents for physical or moral reasons fail in their duties[3]. The case also raised the issue of Section 2 and 3 of the Guardianship Of Infant’s Act 1964 which I will also discuss in regards to the case [4]. Finlay CJ. dictum in the case has created the “compelling reasons” test what has been generally accepted as the authoritative statement of the law[5]. Firstly I am going to deal with the issue of Article 42.1 of the Constitution. I do agree with W.R. Duncan’s observation that Finlay C.J has highlighted and even created “… clear constitutional discrimination between the rights of marital and non-marital children” [6]. Was this the best or even right thing for him to do? Ireland being a catholic country and with numerous references to God found within the Constitution I can believe that Finlay C.J was...
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