Graham Kenny: Nicolaou – a ghost of judgments past

Graham Kenny: Nicolaou – a ghost of judgments past

Graham Kenny

Eversheds Sutherland partner Graham Kenny recalls a dark part of Irish legal history brought to light in a recent Supreme Court case.

Last month, a seven-judge Supreme Court unanimously held that the current law that denied John O’Meara a widow’s contributory pension was unconstitutional.

Mr O’Meara had been in a relationship for 20 years and had three children before his partner developed breast cancer and died in 2021. When he applied for the pension he was denied on the basis that he did not satisfy the definition of a widower or a civil partner.

The legislation will now be sent back to the Oireachtas for review.

One of the fascinating features of this case lies buried within its lengthy judgments. While the court was unanimous, it was split 5-2 on the rationale for its decision. The majority, lead by Chief Justice O’Donnell, based their decision on Article 40.1 which is an equality guarantee for all citizens.

However the minority judgments of Justices Hogan and Woulfe relied upon Article 41, relating to the constitutional protection of the family. In particular, they attempted to overrule a previous Supreme Court decision known as Nicolaou.

A distraught ghost of Ireland’s Catholic past lurks within their pages. The anodyne analysis of the judgment’s text belies the tragedy of a forgotten family that our laws did not protect.

In the 1950s, Leon Nicolaou, a Cypriot immigrant, lived in London and ran a small coffee shop. A young Kathleen Donnelly travelled from Ireland and soon took up a job in the cafe as a waitress. Leon was 20 years Kathleen’s senior but the pair soon became romantically involved.

In time, Kathleen returned home to Ireland only to discover that she was pregnant. This was considered a scandalous event and so Leon offered to remedy matters by marrying her. Kathleen’s parents approved of the marriage on the condition that Leon become a Catholic. The marriage was therefore delayed to allow for this conversion.

Events overtook the couple, however, when in February 1960 Kathleen gave birth to a baby girl, Mary Carmel, in a north London hospital.

In complete distress, Kathleen and her new baby returned to Ireland and were admitted to St Patrick’s Mother and Baby Home which had a reputation for exceptional harshness. The nuns at St Pat’s sent more than 250 children to the US from the 1940s to the 1970s.

Kathleen gave Mary Carmel up for adoption to the nuns and quietly returned to her native Galway.

That would have been an end to the story, but Leon arrived unannounced to Kathleen’s front door. When he was informed what had occurred, he immediately instructed solicitors to challenge the adoption.

Kathleen became so upset that she was admitted to Ballinasloe Mental Hospital and stopped all contact with Leon. But in time the romantic embers between the two were rekindled and they embarked on writing voluminous love letters to each other. Neither knew that these letters would later serve as evidence in a Supreme Court case.

Two young barristers, John Cassidy and Donal Barrington, agreed to take a case for Leon and attempt to stop the adoption, but they suffered a humiliating defeat at the hands of a hostile three-judge High Court.

Undeterred, Leon’s legal team appealed. In November 1965, the case opened before the Supreme Court at a time when the heating system in the courtroom had broken down and members of the judiciary sat with blankets wrapped around themselves.

What followed was one of the most debated and controversial decisions ever to come from the Irish Supreme Court. Delivering the judgment on behalf of the Court, Justice Walsh noted that an “illegitimate child may be begotten” by a number of means including “rape, by callous seduction or by an act of casual commerce”.

In considering these instances, the court ruled that the “family” under Article 41 of Constitution was strictly confined to a married couple and did not extend to an unmarried parent. It further held that a natural father was not necessarily entitled to be heard prior to the making of an adoption order. The decision meant that Leon had finally lost his daughter forever.

Interestingly by 1996, Leon’s former barrister Donal Barrington had himself ascended to the Supreme Court bench and once again had to consider the Nicolaou decision in the case of WO’R v EH. Like the O’Meara case this week, the occasion offered the court the opportunity to overrule the Nicolaou decision completely. Justice Barrington took the opportunity to describe the reasoning of Nicolaou as “fundamentally flawed”. No other judge on the court agreed, however, and Justice Barrington dissented alone.

Nicolaou is a dark decision of its time that has remained hidden in plain sight for almost 60 years. Last month, two judges of the Supreme Court took the bold step of attempting to overrule it and extend the meaning of the “family” within the Constitution. As they were in the minority, the Nicolaou decision remains the law in Ireland and only married couples can claim special protection.

In the face of the upcoming referendum on the meaning of the family in the Irish Constitution, Nicolaou’s story is a salutary tale that should not be forgotten.

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