Children
Cases
P.O’T. v Child and Family Agency
2015 684 JR
High Court
15 February 2016
unreported
[2016] IEHC 101
Mr. Justice Richard Humphreys
February 15, 2016
JUDGMENT
1. On 19th October, 2011, the complainant in this case alleged that the applicant had committed acts of child sexual abuse against her in the 1970s and 1980s, when she was between the ages of 6 and 16 years of age. She made this allegation by way of complaint to Garda authorities. On 13th August, 2012, a subsequent complaint was made to the H.S.E. as the predecessor of the Child and Family Agency by the complainant’s mother.
2. The H.S.E. took more than a year to investigate this complaint, and appears to have notified no-one about it, even though it would seem that the applicant was involved with the G.A.A. in the coaching of young people during this period.
3. On 6th June, 2013, the applicant’s solicitor responded to a request for consent to take up his medical records, which was of some significance in investigating the factual background because his medical condition at the time of the alleged incidents was of relevance to an assessment of the veracity of the complaint. By letter dated 6th June, 2013, solicitors on his behalf refused to disclose his medical records, stating that “ our client has already provided details of the dates concerned and confirms that he received this medical treatment at Navan Hospital and care of his GP, Dr. Coleman who is no longer in practice. Mr. Scannell performed surgery on our client. ”
4. On 2nd September, 2013, the H.S.E. made, what is described as a “ final determination ” to the effect that it took the view that the applicant had committed child abuse, was a current threat to children and that third parties should be informed. Following this, the applicant was told that if the matter was not appealed, or if an appeal was made and was unsuccessful, third parties would be informed.
5. I am told that the applicant voluntarily ceased to carry out coaching of young people during the last two years, which would suggest that his decision was only taken after this determination by the H.S.E.
6. On 7th October, 2013, the applicant indicated that he would be appealing the determination.
7. The H.S.E. continued to seek responses from the applicant by letters dated 21st August and 19th September, 2014, which the applicant says is inconsistent with their having made a decision in 2013.
8. These letters were one part of significant correspondence that ensued over more than a two year period following the 2013 decision, culminating in a letter from the applicant dated 16th November, 2015, stating that he was seeking disclosure of certain material from the agency, failing which he would apply for judicial review as well as certiorari of the initial findings. The material sought included an unredacted version of the statement of complaint. The version furnished to date is heavily redacted in certain parts.
9. The chairperson of the appeal panel replied by letter dated 20th November, 2015, indicating that the applicant had not set out the relevance of the disclosure sought, and also that he had engaged with the appeal process and that seeking relief was premature at that point.
Application for leave
10. Mr. Damien Colgan S.C. (with Ms. Irene Sands B.L.) now applies on behalf of the applicant for leave to seek judicial review in respect of this process. Following a direction that the application be made on notice, I have also heard from Mr. Feichín Mac Donagh S.C. (with Mr. James Benson B.L.), following initial submissions from Mr. Birmingham, solicitor, for the respondent.
11. As stated in the letter of 16th November, 2015, the applicant seeks an order of mandamus directing the appeal panel to comply with the applicant’s request for “ full disclosure ” in relation to the allegation in issue, and what is described as an order of prohibition preventing it from dealing with the appeal until this issue has been determined, although in reality an order of the type sought is a stay or injunction rather than prohibition. As it is sought on an interlocutory basis only it is not a substantive relief.
12. The applicant also seeks an order of certiorari quashing the original findings in 2013, but this relief is obviously out of time given the three-month time limit that applies. There are not sufficient grounds to extend the time, even if an extension of time had been sought, which it was not.
13. The investigation of allegations of child abuse poses obvious policy and legal questions relating to important but conflicting rights. On the one hand, credible allegations must be examined. On the other hand, the mere making of an allegation is so potentially devastating to the life of the person subject to it that enormous care needs to be adopted in this process.
14. In the present case, the applicant is nearly 3 and a half years on from the making of an allegation against him, and the process remains ongoing. The agency has so far upheld the complaint but taken no particular steps to mitigate any risks involved, if there are any. As against that, the applicant is dissatisfied with the level of natural justice which he has received to date.
15. The Oireachtas has recently enacted the Children First Act 2015 which will impose upon tens of thousands of professionals throughout the State an obligation to report suspicions and allegations to the agency. If the time taken to process the allegation being examined in the present case is anything to go by, one could be forgiven for wondering what level of preparedness and capacity exists within the agency to address the huge increase in reporting that can be expected, and indeed what the impact will be on the High Court which can anticipate a potentially commensurate increase in applications for judicial review.
16. Four questions capable of applying to such future cases appear to arise in particular. Firstly, the amenability of the process to judicial review; secondly the level of natural justice required; thirdly the relevance of discretion and full disclosure to the intervention of the court and any necessary undertakings; and fourthly, the need for the applicant personally to swear the grounding affidavit.
Amenability of the investigative process to judicial review
17. At the level of broad principle, any executive or administrative act, or (save in relation to the Superior Courts) judicial act, and, in certain circumstances, a legislative act (although proceeding by plenary summons is frequently more appropriate), that has legal or even practical effect on the rights of an applicant (whether those rights be legal, constitutional, EU or ECHR in nature) is amenable to judicial review.
18. In relation to child abuse and child neglect investigations there appear to be two critical acts involved; the formation of an opinion that a complaint against an applicant is sustained, and the decision to notify a third party. I would be inclined to the view that, in principle, either or both of these decisions are amenable to certiorari, subject of course to their being sufficient grounds to do so. To that extent I prefer the analysis of O’Malley J. in J.G. v. Child and Family Agency [2015] IEHC 172 (Unreported, High Court, 11th March, 2015) para. 103 and to that of Barrett J. in A. v. Child and Family Agency [2015] IEHC 679 (Unreported, High Court, 4th November, 2015). In particular, the decision to notify third parties can have irreversible effects on the lives of all concerned. It is frequently impossible for a person to resume employment or a position, once that is “temporarily” suspended, as may happen arising from such a notification. Family relationships may be irreversibly sundered on the mere making a third party aware of a complaint, even if it is not ultimately upheld. Clearly enormous care is required in this context, and where possible voluntary mitigation of risk by the person the subject of the complaint rather than third party notification by the agency is a more proportionate response. If third party notification is required, apart from in an emergency, adequate notice (of some days at least) should be given to enable the court to intervene if there are grounds to do so, albeit that the court will, in such situations, normally be required to start from a position of deference to the risk assessment carried out by the agency. Another balancing element in any such intervention, whether on this ground or any other, would be the discretion of the court, to which I will return.
19. To what extent can or should the court intervene, as here, in advance of the formation of an opinion as to whether a complaint is well-founded? In the criminal process, a court can intervene if there is an inevitability of unfairness in the process rather than the mere possibility of unfairness (see the caselaw which I discussed in Nulty v. D.P.P. [2015] IEHC 758 (Unreported, High Court, 27th November, 2015)). However there is no exact analogy with the criminal process because that process is presided over by the judicial branch of government. No such safeguard exists in the case of a child abuse investigation, and previous cases involving denial of natural justice in that context do not of themselves lend confidence to the robustness of the process in legal terms (e.g., P.D.P. v. Board of Management of a Secondary School and H.S.E. [2010] IEHC 189 (Unreported, High Court, 20th May, 2010); A. v. Child and Family Agency). A guide to the correct approach is the judgment of Hedigan J. in M.I. v. H.S.E. [2010] IEHC 159 (Unreported, High Court, 5th May, 2010) para. 6 in which he said, speaking of review during the actual course of the process, by way of prohibition, that while judicial review of the process should be rare, it should be “ limited to points of principle that need to be established” (citing Butler-Sloss L.J. (as she then was) in Regina v. Harrow L.B.C. ex parte D. [1989] 3 W.L.R. 1239). It seems to me that to obtain leave to seek prohibition of a child abuse investigation, the applicant must show some new point of principle regarding a shortcoming in the procedures being applied by the agency in such investigations, as opposed to the mere possibility that the agency will not afford him or her due process within the scope of established procedures which are themselves adequate to ensure natural justice.
20. As further cases are decided on the scope of natural justice in this context, the need to grant leave during the process itself to allow new “ points of principle ” to be teased out should reduce. That does not remove the entitlement of the applicant to challenge the decision ultimately arrived at by way of certiorari.
21. The present case seems to me to come well within this test. The question of what level of disclosure of unredacted documents should be made to a person the subject of a complaint is not the subject of previous authority to which I have been made aware. The suggestion offered that the redaction was justified for data protection reasons seems questionable at best. The suggestion that the applicant should be denied relief because he did not specify why the documents were relevant is unsustainable in the context of this case. Insofar as the redacted statement of complaint is concerned, one might rather ask why is it not relevant? And indeed how is an applicant to know whether the redacted parts are relevant when all he has to go on are blacked out pages?
Level of natural justice required
22. It would be a truism to say that the agency must comply with natural justice in its investigations. Natural justice is not of course a set of absolute requirements, and I have already adverted to the right of the agency to notify third parties without notice to a person against whom an allegation is made if an emergency arises.
23. The procedures being applied by the agency at present appear to be those set out in a document entitled Policy and Procedures: Responding to Allegations of Child Abuse and Neglect published by the agency in 2014 and discussed in J.G.
24. Some features of this document appear to be unsatisfactory in terms of natural justice. The respondent to a complaint is termed throughout as an “ alleged abuser ”. The 2014 document references (e.g., at p. 36) a further document entitled Child Protection and Welfare Practice Handbook (HSE, 2011). At p. 32, that document advises those involved in child protection to “ Accept what the child has to say – false disclosures are very rare ”. It also states, primarily in the context of interviews with children, that “ Questions should be supportive and for the purpose of clarification only .” Whether these or other elements of the process would survive an analysis in terms of natural justice will have to await a future case.
25. The procedures applied by the agency do, however, recognise the need to furnish all documentation to the respondent to a complaint. For that if for no other reason, the present complaint relates to matters that come well within the level of natural justice that arguably must be afforded.
Discretion and undertakings
26. While there is occasionally a perception that the threshold for the grant of leave to seek judicial review is quite low (sometimes said to be so low as to warrant the abolition of the leave process) and consists only a showing of arguability, it is clear from the Supreme Court in G. v. Director of Public Prosecutions [1994] 1 I.R. 374 that there are a number of separate thresholds that must be crossed, even at the leave stage (see also Nulty). The leave filter is, I would respectfully suggest, an important element of the legal process in terms of striking a balance between the right to pursue a complaint to a full hearing and the public interest in not subjecting the machinery of public administration to legal processes that may cause delay and expense or prejudice to third parties or the common good more generally, where there is an insufficient factual or legal basis for the complaint, where the complaint relates to merits rather than legality or where the applicant lacks a sufficient interest, where there is an alternative remedy, where the matter is either premature or moot or has been delayed, or where there exist strong countervailing legal considerations, such as a want of disclosure, a lack of good faith, a failure to comply with legal requirements, or other factors. If leave is to be granted, the court still has a role in ensuring that the statement of grounds is focused and does not include an excessive number of grounds, and may be called on to strike a balance between competing interests in terms of the grant or otherwise of a stay. All of these protections and checks and balances would be lost if the leave requirement were to be abolished. Indeed, if anything, there is a case for strengthening that requirement so that in a case where leave is on notice, a threshold of substantial rather than arguable grounds would apply.
27. Of particular relevance in the context of judicial review of child abuse and neglect investigations is the duty of full disclosure and the court’s discretion to refuse relief. The disclosure requirement applies to any ex parte application. The discretion to refuse relief is frequently encountered after a full hearing, but as a matter of first principles it must be even more relevant to the leave application, because to put a respondent through a full trial and then refuse relief as a matter of discretion would seem to be a much less satisfactory process than to apply the discretion at the leave stage.
28. Article 42A of the Constitution is also relevant in this context, and in my view imposes an autonomous duty on the court to uphold the natural and imprescriptible rights of the child independently of any positions adopted by the parties (see e.g., Sivsivadze v. Minister for Justice and Equality [2015] IESC 53).
29. In order to properly balance the interests involved, and to have regard to Article 42A of the Constitution, a high level of disclosure and an exacting level of scrutiny of the conduct of the applicant in terms of the discretion of the court are appropriate.
30. Mr. Colgan contends that all of this is irrelevant because the complaint is “ historical ”. However that is a distortion of the nature of child abuse. Given the nature of the disorder that motivates child abusers, it has been sufficiently well established that even distantly historical allegations of child abuse may be a significant indicator of possible ongoing or future abuse, even decades later.
31. The net practical effect of the foregoing is that any stay granted on the process of child abuse and neglect investigation should be on specific terms which take those issues into account. Even in the absence of a formal stay, the order granting leave is a discretionary order and consequently is, in principle, capable of being made subject to terms, given that the intervention of the court is bound to cause delay in finalising the matter. Furthermore it should be emphasised that the grant of leave does not in any way inhibit the agency from proposing any action by way of notification of third parties that it may consider appropriate, or from actually carrying out such notification in case of emergency. The term I would have considered appropriate here and possibly in similar cases would be that the applicant undertake to furnish the agency on request with details of his contact with children, consent to this being verified, and undertake to take such steps to mitigate any risk that may be required by the agency from time to time pending the determination of the proceedings.
32. In the present case there was a distinct lack of co-operation from the applicant with the inquiry. He failed to consent to the release of his medical records. The reasons advanced for the failure to sign a consent to access his medical records are spurious and unconvincing. Furthermore he failed to arrange for his wife to give evidence to the inquiry. I do not believe that in the context of seeking prohibition, he can simply hide behind her non-cooperation without taking any steps to have her evidence made available.
33. However the agency in the present case does not appear to require such an undertaking at present, presumably because it accepts that the applicant is not now in contact with young people via the G.A.A. On that basis, I would not insist on such an undertaking in this case but I would in principle consider it appropriate in future similar cases.
The need for an applicant personally to swear the grounding affidavit
34. The applicant in this case did not swear the grounding affidavit himself. He did not set out on oath his own full version of events, still less the extent of his unsupervised access to children at all material times since the matters complained of, or the precise date on which he ceased to engage in the coaching of children, and his current level of unsupervised access to children, if any, his reasons for not co-operating in full with the inquiry or his attitude to any inspection or verification of these averments on behalf of the agency if required. More fundamentally, he did not personally verify the statement of grounds. The application for leave is grounded on an affidavit of his solicitor.
35. The Rules of the Superior Courts (Judicial Review) 2011 clearly require pleadings in judicial review to be verified by an affidavit of the parties personally. Form No. 14 in Appendix T, as required by O. 84r. 20(2)(b), requires that the affidavit begins: “ I, AD., [applicant]* [respondent]* in these proceedings, make oath and say as follows … ” (obviously with the inapplicable word marked with an asterisk to be deleted as appropriate).
36. The other effect of an affidavit being sworn by a solicitor rather than an applicant is that it therefore constitutes hearsay. A court at the leave stage is not bound to admit hearsay evidence and, in the absence of consent, acquiescence or lawful exception, is not entitled to do so at the full hearing. For examples of the difficulties this can create see Dunne v. D.P.P. [2002] IEHC 27 (Unreported, High Court, 23rd March, 2011) per Kearns P., O’Leary v Minister for Transport [1999] IEHC 49 (Unreported, High Court 26th November, 1999) per Kelly J (as he then was). A claim of prejudice is classically a matter that is hearsay in the mouth of anyone else and can only be made by the applicant personally.
37. Leaving aside the special cases where a party is a corporate entity including a corporation sole, or an office-holder where it is not possible or appropriate for this requirement to be literally enforced, a court faced with an application for leave grounded on an affidavit sworn by the applicant’s solicitor, rather than by the applicant personally, would, where a personal affidavit is in fact necessary, be entitled to refuse relief, or to adjourn the application pending the swearing of the necessary affidavit, or to grant leave premised on or subject to the filing of that affidavit in due course. However in the present case, I have already canvassed this question with Mr. Colgan, who informs me that the applicant is not putting in any further affidavits. He refers to what he says are his client’s rights. However, no-one is forcing the applicant to bring the present application for leave to seek judicial review. That is a voluntary act on his part. If he wishes to engage in that process he must personally come forward to furnish positive evidence necessary to support that application. Mr. Colgan states that there has been no application to strike out the affidavit by the agency, although Mr. Mac Donagh expressly drew attention to the requirement to swear the affidavit personally. This was in the context that he seemed to take the position that he did not wish to get too deeply involved in the leave application as there were matters he would wish to reserve to the full hearing if leave was granted. Mr. Colgan also relied on the historical nature of the allegation, which I have already referred to as being not decisive or even necessarily hugely relevant to the question of ongoing risk to children. And finally he said that to require an applicant to swear a grounding affidavit would set a “ dangerous precedent ”. I would rather consider that the precedent has been well set the other way, and to allow a departure from it would be to create significant dangers and difficulties, not least for the court dealing with the substantive matter if leave were granted.
38. A party is of course entitled, as it were, to throw down a challenge to the court to decide an application on the basis of papers as crafted by that party, and is entitled to resist any invitation by the court to consider supplementing those papers in any way. In this case that invitation has been offered to, and expressly declined on behalf of, the applicant. While a gauntlet can of course be thrown down, a party cannot complain too strongly if it is then taken up by the court. In the present case, I consider that the applicant should have personally sworn the grounding affidavit because:
(i) that is what O. 84 and form No. 14 in Appendix T require;
(ii) the court has an autonomous obligation to uphold the provisions of statutes or statutory instruments (see Art. 34.6.1° of the Constitution) independently of how strongly an objection is pressed by a respondent;
(iii) the respondent has specifically drawn attention to the foregoing elements of O. 84 as inserted by S.I. 691 of 2011;
(iv) the applicant’s solicitor’s affidavit is hearsay in essential respects;
(v) a claim that he has been prejudiced by the alleged lack of natural justice must be made by him and not by someone on his behalf;
(vi) to grant leave on a hearsay affidavit in these circumstances would undermine the integrity of the hearing to be ultimately conducted;
(vii) it is well established that an applicant must “ engage with the facts ” per Hardiman J. in Scully v. D.P.P. [2005] 1 I.R. 242 (at p. 252); perO’Donnell J. in Byrne v D.P.P. [2011] 1 I.R. 346 (at p. 352); to do so he must personally engage in a context such as this;
(viii) the court has an autonomous duty under Article 42A to safeguard the rights of children in the State including children that could potentially be subject to present or future abuse if the complaint is well-founded;
(ix) the upholding of that duty may require disclosure and undertakings that can only be given effect to by the applicant personally;
(x) a respondent must have the right to apply for the cross-examination of a deponent. This right would be significantly curtailed if not set at nought if the relevant witness were to hide behind a paid professional engaged on his behalf, or indeed any other person.
39. Given that the applicant has expressly stated through his lawyers that he is not going to swear an affidavit, the appropriate course in the circumstances is therefore to refuse the application.
Order
40. For the foregoing reasons, I will order:-
(i) that the application for leave be refused;
(ii) that the order previously made under s. 45 of the Courts (Supplemental Provisions) Act 1961, restraining the publication of information identifying any persons referred to in the proceedings, will continue on a permanent basis.
P.H. and L.H.T. v CFA
(A minor suing through her mother and next friend P.H.) v The Child and Family Agency
2016 113 JR
High Court
25 February 2016
unreported
[2016] IEHC 106
Mr. Justice Richard Humphreys
February 25, 2016
JUDGMENT
1. In November, 2015, social services in England indicated to the first named applicant, who was then pregnant and resident in that jurisdiction, that it was intended to take her (as then unborn) child into care on birth. In the same month, she relocated from England to this country.
2. On 13th January, 2016, the second named applicant was born. On 15th January, 2016, the respondent applied ex parte to the District Court for an emergency care order under s. 13 of the Child Care Act 1991. An eight-day order was made by that court. An issue has arisen as to whether the order dated from the date it was made or when it was implemented, which was not for a further 7 days. On the face of the order it would appear to be the former.
3. On the 22nd January, 2016 the second named applicant was removed by Gardaí under the order and delivered into the custody of the respondent.
4. On 28th January, 2016 an application for an interim care order under s. 17 of the 1991 Act was made to Judge Browne by the agency. The learned judge made an “interim” care order without having been apparently able to hear complete evidence on that date.
5. On 2nd February, 2016 following a more full hearing the care order was extended for 29 days until 1st March, 2016. The applicants submit that this further order is invalid because there is an absence of compliance with statutory prerequisites under s. 3 of the Child Care Act, 1991 and because a s. 17 order can only be made when a s. 18 application has been or is about to be made which was not the case. Furthermore it is submitted that the reasons given were insufficient and there were errors on the face of the order.
6. While it is not stated in the order, I am told and accept that the learned judge nominated 1st March, 2016 as the date for the matter to be re-listed. Mr. Paul Anthony McDermott S.C. who appears (with Ms. Sarah McKechnie B.L.) for the respondent did not seriously dispute that this direction was given. This is the current order in force as of today’s date.
7. Mr. McDermott suggested that unless restrained by intervention of the District Court, the first named applicant might move on to some third country. However, there is no evidence that the first named applicant is in a position to move on to a third country, let alone has a contingency plan to do so. In the absence of any such evidence or indication, it is not especially helpful for the agency to proffer such scenarios.
8. The scene then shifted to the High Court. On the applicants’ motion, McDermott J. directed an inquiry under Article 40 of the Constitution on 10th February, 2016. On that date, the respondent put before the court a document entitled “Certificate of Detention” in answer to the inquiry, relying on the order of 2nd February, 2016. That is the current certificate in the Art. 40 proceedings and there has been no application to any court for leave to vary, amend or supplement it.
9. On 12th February, 2016 the substantive Art. 40 application was refused by O’Regan J. I am told by Mr. McDermott that the learned judge suggested (although this was not part of her ex tempore ruling) that the agency should go back to the District Court to clarify when the 29 days ran from, because there could be an ambiguity as to whether it ran from 28th January or 2nd February, 2016. As it was explained to me, it was not immediately apparent how to interpret this suggested comment, because there is no ambiguity apparent on the face of the order. The order clearly specifies that the 29 days runs from 2nd February, 2016. Oddly enough, the agency denied in the hearing before me that there was any such ambiguity, and did not seek to stand over the suggestion of ambiguity as such. The applicants state in supplementary written submissions that “ The Applicants do not believe that the position/issue regarding time can be read into the Orders as they are presented, and are somewhat confused by the logic. ” Thus the curious position arises that neither side appears to be adopting the suggestion that there is an ambiguity in the existing order which inferentially could warrant some form of application to the District Court whether under the slip rule or otherwise. However, despite its denial of any infirmity or even ambiguity in the order in question, the agency appears to be relying on this suggested comment as a basis for what it did next.
10. Before coming to that, the first named applicant’s next step following refusal of relief under Art. 40 was to file notice of appeal to the Court of Appeal on 15th January, 2016. Ms. Berenice McKeever B.L. (with Mr. Fergal Kavanagh S.C.) for the applicants says that on that date she sought without success to contact the respondent’s lawyers, and then went into court (Irvine, Hogan and McDermott JJ.) to mention the matter, at which point it was put into the directions list on 18th February, 2016.
11. The respondent’s next move, apparently inspired by the comment of O’Regan J., was that on 16th February, 2016 despite the ongoing existence of a care order, for which a further hearing date of 1st March 2016 had already been fixed by the District Court, notice of an application for a further care order, returnable for 25th February, 2016 was served by Mr. Padhraic Harris of Padhraic Harris & Co., Solicitors, Galway, solicitors for the agency, on the first named applicant personally (and a copy sent to solicitors acting on her behalf informing them that their client had been served directly). This was in the context where the applicants had solicitors previously nominated and acting in the District Court.
12. Mr. McDermott submits that this further application has nothing to do with the Art. 40 proceedings. I would reject that suggestion. It seems to me that in its context, the inference that the further application to the District Court is designed to improve the position of the respondent in the context of the Art. 40 proceedings is virtually irresistible.
13. On 17th February, 2016, the Court of Appeal delivered judgment in McDonagh v. Governor of Mountjoy Prison (No. 2) [2016] IECA 32, in which it was decided that a respondent to an Art. 40 application who wished to supplement or amend his or her certificate must first apply to the High Court for leave to do so (although the reference to application to the High Court was in the context where the appeal was being allowed and the matter remitted to that court).
14. On 18th February, 2016, Ryan P., taking the directions list in the Court of Appeal, was informed of the proposed District Court application by counsel for the agency, and the hearing date of Friday 26th February, 2016, was fixed in the knowledge that the District Court would be dealing with this matter on Thursday 25th February, 2016. Mr. McDermott submits that this shows that the court was happy with the notion that the hearing on the 25th February would go ahead, and that for me to grant relief in this application would be to cut across the Court of Appeal – something which obviously I would not wish to do.
15. Mr. McDermott does accept that the McDonagh decision was not referred to in the discussions before Ryan P.
16. Ms. McKeever gave what might seem to be a slightly different account of proceedings before Ryan P., but the slight difference is significant for present purposes. She stated that she canvassed with Ryan P. the fact that she wanted to restrain the hearing on 25th February and indicated that as he did not (sitting alone) have jurisdiction to do so, she would have to seek a remedy elsewhere; the upshot of that account being that by so seeking a remedy in the present application, the applicants are not doing anything that was not within the contemplation of the Court of Appeal last Thursday. Mr. McDermott says he does not recall any such exchange and says that receipt of the judicial review papers was therefore a surprise.
17. While it would not in any way be my practice or wish to have recourse to the Digital Audio Recording (DAR) in relation to business before an appellate court, the present situation is highly exceptional in that not only am I confronted with a “he said, she said” situation about what happened in the Court of Appeal, but also I do not have any other effective way of ensuring that I do not cut across a course of action that was directed or envisaged by that court, as alleged by Mr. McDermott.
18. In a spirit of deference to that court, I have therefore had recourse to the DAR of the directions hearing, which clearly confirms Ms. McKeever’s account of what she told Ryan P. As appears from the DAR, the question of the court’s jurisdiction to provide the appropriate relief was canvassed and it was suggested that the court did not have such jurisdiction. Following this (and therefore, apparently, in that context), Ryan P. said that the Thursday hearing would go ahead in the District Court and the matter would be back before the Court of Appeal on Friday. Crucially, it was only after that statement that Ms. McKeever said that she “ may have to seek relief elsewhere” . Not only was this not met with firm rejection by Ryan P., it was not met with rejection at all. Indeed the learned President indicated that he understood the situation. There was no demurral even from Mr. McDermott for the agency, who did not comment on this but instead engaged with the court on a separate matter related to written submissions.
19. This sequence of events not only confirms Ms. McKeever’s version over Mr. McDermott’s, but it also blows a hole below the waterline in the central submission made by Mr. McDermott on behalf of the agency to me, namely that to grant leave and a stay in this application would be some sort of slight upon arrangements which had been settled by the Court of Appeal. It is unfortunate, to put it at its most neutral, that no-one on behalf of the agency present in that court was able to give me an accurate account of what happened last Thursday.
20. On 22nd February, 2016 the present application for leave was made to me ex parte seeking reliefs restraining further hearing of the application returnable for the 25th February, 2016. It is submitted by the applicants that because this application falls to be decided prior to the Court of Appeal hearing and prior to the expiry of the existing order and the existing assigned returned date, being 1st March, 2016 that an abuse of process or a denial of an effective remedy applies, or that such application has the effect of requiring the applicants to bring multiple applications for the same relief thereby obstructing the availability of the relief.
21. As will be apparent from the foregoing, on 22nd February 2016 I directed that the application should be made on notice to the agency and have now heard from both sides. I should record that a great deal of information relevant to the proceedings was not included in the meagre papers filed, and I received a quantity of material from the parties including papers in the Art. 40 proceedings and other information from counsel. If the present matter is to proceed to a full hearing it would be necessary to have all of these papers formally put on affidavit.
22. Before dealing with the leave application proper there are a number of issues that require mention.
Alleged infirmity in grounding papers
23. Mr. Ken Smyth, Solicitor, who swore the grounding affidavit in circumstances of some urgency, appears to have accidentally omitted the averment that he did so on behalf of the applicants and with their authority. Those familiar with Professor C. Northcote Parkinson’s Law of Triviality would perhaps not be surprised at the great deal of storm and stress injected by Mr. McDermott into this insignificant point. It is a matter of form only and readily rectified. This drafting slip is not a reason to refuse relief. It can be rectified by the first named applicant swearing a confirmatory affidavit.
Alleged lack of disclosure
24. Mr. McDermott submits that the grounding papers did not disclose material relating to the UK history of the first named applicant, O’Regan J.’s suggestion that the agency revert to the District Court, or the discussion before Ryan P., and that relief should therefore be refused.
25. At its most basic, it is inevitable that some omissions of points of detail can be criticised in virtually any application. The relevance of these omissions, if such they were, is contestable in the present case. The present application is a world away from other cases where really central matters have not been disclosed, such as Agrama v. Minister for Justice and Equality [2016] IEHC 55. In addition, the claim of non-disclosure rings somewhat hollow given the fact that it was Ms. McKeever’s version of what she said to Ryan P. rather than Mr. McDermott’s version that is confirmed by the DAR. Furthermore, Ms. McKeever had not fully completed her application when I curtailed the ex parte hearing and directed that the agency be put on notice. I can find no fault with Ms. McKeever’s presentation of the issues at the ex parte stage. In any event, a party that makes a decision to launch criticisms of this nature against the propriety of the other party’s conduct of the proceedings is thereby putting all of its own conduct firmly on the table for debate and scrutiny, and in that context, even if there was material non-disclosure by the applicants, which I do not for a moment accept, the conduct of the respondent has not been such as to warrant any discretion thereby arising being exercised in its favour. It is to that conduct of the respondent that I must therefore now turn.
Service of motion directly on first named applicant
26. The Law Society of Ireland publication, A Guide to Good Professional Conduct for Solicitors (3rd ed.) (Dublin, 2013) at p. 56 clearly states that “ A solicitor should neither interview nor otherwise communicate with any party on the other side of a matter who, to the solicitor’s knowledge, has retained another solicitor to act in the matter about which the first solicitor wishes to communicate, except with that solicitor’s consent. However, in exceptional circumstances the general rule may not apply.” This clearly must cover correspondence by way of service as well as otherwise, at least where the solicitor accepts such service. Such a situation includes a situation where solicitors have dealt in court with an initial order which is now proposed to be extended by the new notice of application which now falls to be served.
27. The direct communication by Mr. Padhraic Harris of Padhraic Harris & Co., Solicitors, Galway, solicitors for the agency, with the first named applicant by way of service of notice of the currently pending application to the District Court was clearly in breach of this requirement. Knowledge of her having instructed solicitors is demonstrated, if such be in doubt, by those solicitors being copied with the correspondence. The fact that the first named applicant’s solicitors were so corresponded with does not in any way mitigate, still less absolve, this breach. The suggestion offered by Mr. McDermott that earlier difficulties in establishing the first named applicant’s whereabouts justified this course is unacceptable and irrelevant, as she has nominated solicitors subsequent to that point, and it does not in any way constitute the sort of exceptional circumstance which could justify a departure from the agency’s solicitors’ obligation in this respect. While the crudest and most literal reading of the Rules of the District Court 1997, O. 84, in isolation from any other provision, would suggest that any proceedings must be served on a respondent, this is subject to the general rule that service on a solicitor who has accepted service is to be deemed good (O. 41 r. 11). It is also to assume that each application to renew an order is effectively a new initiating document, the equivalent of a new plenary summons each time, which has to be served directly on the party on each occasion. This would be a mischaracterisation of the process.
28. Given that the first named applicant was already represented by solicitors in the District Court proceedings, which were already in being, it was unprofessional, improper and unacceptable for her to have been directly served with papers in relation to the proposed application on 25th February, 2016. Solicitors for the agency, discourteously, made no reply when this was pointed out by the applicants in correspondence. It is unfortunate that it seems to require the intervention of the court to have the respondent own up to the unacceptable and unethical nature of this conduct which can only have had the effect of causing upset and confusion to the first named applicant during a time of enormous stress.
Presence of Mr. Tony Comiskey during access
29. The applicant’s solicitor by letter dated 17th February, 2016 set out a series of complaints in relation to the agency’s handling of this matter. This letter was not replied to. Mr. McDermott’s explanation that the letter was not replied to because the matter had been back in court in the meantime is a lame excuse in the circumstances, which he now acknowledges by having offered a submissive apology on behalf of the agency to the applicants for what he calls the oversight involved. Included in the letter was the allegation that a Mr. Tony Comiskey, a male social worker, remained in the access room while the applicants were having access and commented to the first named applicant as to whether his presence would have the effect of making her feel uncomfortable while breast-feeding. The applicants complained that Mr. Comiskey should not have been present in the room at all, and object to the alleged comments. Mr. McDermott, having initially on 23rd February, 2016, conveyed instructions from his client that this incident never happened, now accepts that Mr. Comiskey was in the room and that a discussion about breast-feeding did happen. He characterises it as the first named applicant being told that if she wanted to breast feed, a female social worker would be organised to supervise. To the extent that there is a dispute about what happened, he accepts that the District Court is the forum to resolve the matter. But it is instructive to note that the agency’s position has moved from one of ignoring the complaint, to bald denial, to now a version of events being given which in principle is not entirely incompatible with aspects of the complaint made.
Alleged instruction not to breast-feed
30. The letter of 17th February, 2016 alleged that the first named applicant was directed not to breast-feed or feed the second named applicant with breast milk on the alleged ground that such breast milk would “ damage ” the infant. The agency’s position appears at least open to debate, in the absence of some medical evidence that mixing breast and bottled milk, or even expressed breast milk, could be harmful in the circumstances, or that it would not be possible to structure breast-feeding in a manner that would not be harmful as alleged.
Alleged direction that the applicant was not to record interactions with the agency
31. The letter of 17th February, 2016 alleges that the agency directed the first named applicant that she was not entitled to record interactions between herself and the agency. That this is clearly an issue for the agency is demonstrated by its inclusion in a purported agreement with the first named applicant which I will address shortly. While I am sure that agency staff do not welcome being recorded, I do not consider it proper for the agency to attempt to direct the first named applicant not to do so. The reality of the situation is that there is a huge imbalance of power as between the first named applicant, a 23-year old young woman alone in a new country and separated from her new-born child, on the one hand, and a State agency that has succeeded in removing that child with the benefit of a number of court orders and has clearly signalled that it intends to consider returning the child to the U.K., whose authorities have already indicated an intention to take that child into care, on the other. That the agency is denying certain of the claims of the first named applicant while, it is said, trying to prevent her from making a record which would support her account, can only rub salt in the wound of her powerlessness in this situation. Permitting persons the subject of the agency’s attentions to record interactions with the agency is the least that can be done as a first step to attempt to redress the imbalance as between parties in such a situation. The agency should cease to object to recording by persons in such situations. The practical importance of this issue is perhaps best illustrated by the analogous fact that, but for having access to a recording in the form of the DAR, the court might have been misled by the confidently presented but tendentious version of events in the Court of Appeal last week as put before it by the agency.
Alleged requirement to sign an agreement with social workers
32. The matter has taken on a further dimension, suggestive of a general linkage with the other issues of direct contact with the first named applicant and a failure to reply to correspondence from her solicitors. The applicants now state as follows in supplementary submissions dated 24th February, 2016: “ Mr. Smyth has just learnt from Ms. H. that instead of a reply being made to Mr. Smyth to his letter, the social workers, instead, required Ms. H. to write out on a piece of paper, at access, that she was in agreement that bottle-feeding was ‘better’ as the baby was being sick due to the mixing of ‘breast and bottle’; that she is willing to have an assessment as she wants to get her daughter back and that she has agreed there will be no recordings of meetings, and required Ms. H. to write this out and sign it at an access; meanwhile directing Ms. H. not to write down the issue regarding Mr. Comiskey being present/the breastfeeding comments.”
33. A copy of this agreement dated 18th February, 2016, which appears to be between the first named applicant and Ms. Avril Mannion on behalf of the agency, has been produced to me. It clearly includes an agreement not to pursue the breast-feeding and recording issues, two matters the subject of the ignored solicitors’ correspondence from the day before. The agency has not given any response to me to the suggestion that there was a direction not to include a complaint about Mr. Comiskey being present, or to the suggestion that she was “ required ” to sign this agreement as opposed to being part of an informed and voluntary process of engagement, taken with the benefit of legal advice.
34. If the latter undenied allegations are correct, it would be an abuse of power to direct the first named applicant to sign an agreement or to be silent as to complaints regarding Mr. Comiskey. Apart from that, the manner of the execution of this agreement behind the back of the first named applicant’s nominated solicitor is clearly a breach of her constitutional right to be legally advised, in circumstances where these issues had already been raised in legal correspondence and were now being effectively shut down in some form of direct agreement with the first named applicant. That breach is particularly acute in the context of an agreement which records her position as essentially one of vulnerability vis a vis the agency, being that “ I want to get my daughter home ”. This is an egregious abuse of power by the agency. In such situations, the signature of such documents or agreements could convey the illusion that the agency is seeking to promote structured co-operation; but in reality there is little in it for the parent involved, with the possible exception of the agreement to an assessment. Accordingly it is to be inferred in such circumstances that it is much more likely that such documents are signed for the benefit and protection of the agency rather than the parent concerned. Even if the “agreement” was not in its contents abusive of the first named applicant, this is a case where she has nominated a solicitor to act. Where a party is legally advised, it is an abuse to ask that party to sign such an agreement, especially one trenching on complaints made in solicitors’ correspondence, without that party’s solicitor being involved. Such a disregard of the rights of the first named applicant should not be without consequences. One immediate such consequence is that she should not be held to the agreement, but there may be others.
Is the effect of the Court of Appeal decision on 18th February, 2016 such as to preclude relief?
35. While he expressly accepts that I have “ complete freedom ” to deal with this application in accordance with the arguable grounds standard as set out in G. v. D.P.P. [1994] 1 I.R. 374, and is “ not suggesting otherwise ” by reason of the fact that Ryan P. set this coming Friday as a hearing date in the knowledge of the proposed District Court hearing this Thursday, Mr. McDermott suggests firstly that this fact should lessen any basis for granting leave if such was to be motivated by a concern for the processes of the Court of Appeal, and secondly that that court “ may be surprised ” in the circumstances if I restrain the District Court hearing. I have already dealt with the second contention. As regards the first, it seems to me as a matter of first principles that I cannot construe the mere fact of the fixing of a hearing date this Friday as a basis to decide on the present leave application one way or the other. Unless (which is not the case) some basis were to exist on which I should refuse leave independently of there being an arguable case, the arguability of the point is the issue which I now have to address.
Application for care order to commence during currency of existing care order
36. It is difficult, if not bordering upon the impossible, to understand why the agency would apply for a care order during the currency of an existing care order, other than out of a concern of the validity of the existing care order. To that extent, it is highly likely, and certainly arguable for leave purposes, that the purpose of the proposed proceedings on 25th February, 2016 is to reinforce or supplement the defence to the appeal in the Art. 40 proceedings, next before the Court of Appeal on 26th February, 2016.
37. The question of supplementing the defence of Art. 40 proceedings in the course of the currency of those proceedings has been raised in a number of cases including my own decisions in Grant v. Governor of Cloverhill Prison [2015] IEHC 768 (High Court, 27th November, 2015) and Knowles v. Governor of Limerick Prison [2016] IEHC 33 (High Court, 25th January, 2016). It most recently came before the Court of Appeal in McDonagh v. Governor of Mountjoy Prison (No. 2) [2016] IECA 32 (Court of Appeal, 17th February, 2016) where that court decided that if a respondent intended to supplement or amend its certification of the grounds of detention, it should first apply for leave to do so from the High Court “ during the currency of the Article 40.4.2 proceedings” (paras. 20 to 21).
38. Given that the Court of Appeal has fixed the 26th February, 2016 for hearing or at least the next processing of this matter, it seems to me that the appropriate way to apply the McDonagh decision in this context is that the agency should not be permitted to take steps to replace the currently live order on which it has relied in its certificate, during the lifetime of that order, without prior leave of an appropriate court. McDonagh suggests that such leave should be sought from the High Court in the first instance, although that is predicated on there being a live proceeding before the High Court, which could only happen if the current appeal were allowed and the matter remitted back, a development which has not as of yet happened. I do not construe the events occurring at the directions hearing last Thursday as amounting to such prior leave, particularly in the light of the somewhat more formal process envisaged by the court in McDonagh. Whether or not the Court of Appeal could simply receive the amended certificate itself and decide an appeal on that basis, a course of action that perhaps I could very respectfully suggest might seem more appropriate in the context of a moving target such as interim care orders which can change regularly (but there are other such contexts, such as committal warrants for remand prisoners), is something that will no doubt be clarified in subsequent jurisprudence of that court.
39. If it wants to supplement its certificate dated 12th February, 2016, the agency should first obtain leave to do so. On the face of the McDonagh decision, and subject to the possible qualification I have referred to, it would seem that the way to get such leave is to accept that the appeal should be allowed and the matter remitted to the High Court for the purpose. That is what happened to the benefit of the State appellants in that case so (unless the jurisprudence is developed further to allow alternative options) it would seem that the State should also have to operate under a corresponding liability to submit to an appeal being allowed and remitted if they are the respondents. Alternatively, the agency can seek to persuade the Court of Appeal to develop its jurisprudence so as to give such leave itself. In the absence of such leave it is at least arguable that it is inappropriate for it to take steps now which can only be intended to supplement its defence of the Art. 40 application. I should clarify of course that in setting out this analysis I am not to be taken as expressing any view on what should happen in the context of the Art. 40 proceedings. Rather, the application made to me requires me to consider whether it arguably amounts to an impermissible attempt to supplement the defence of those proceedings without leave to do so having been obtained. To consider and resolve that argument, it is necessary to analyse what the proper procedure to obtain such leave would appear to be. It is only in that context that I am considering the issue, and I am therefore not attempting to be in any way prescriptive about what should happen in the Art. 40 proceedings.
40. More broadly, and independently of the foregoing, the agency submits that the current order is valid. The District Court has already fixed a hearing date on 1st March, 2016, for a possible extension of that order. The application made to that court is for a further 29 day extension, and not some form of correction of ambiguity under the slip rule as apparently might be thought to have been suggested by O’Regan J. It would be pointless and inappropriate to have two concurrent care orders. Therefore the only effect that the current application could have (in the absence of the existing order being set aside) would be on the expiry of the existing order. Accordingly the respondent is not prejudiced by not being able to move the application prior to 1st March, 2016. If the respondent intends that any new order would commence earlier, then it is arguable that this is legally inappropriate having regard to the existing care order. The lack of clarity as to which is intended is also a reason to restrain the application from proceeding in its current form. The fact that Mr. McDermott has laid so much emphasis on the comment of O’Regan J. as the basis for the proposed application on 25th February, 2016, strongly indicates that the agency wants a new, immediately effective, care order to be made despite there being an ostensibly valid and currently in force care order already in place. While on the one hand claiming that he is simply bringing slightly forward the date on which he moves his application to extend, upon its expiry, the existing interim care order, he suggests on the other hand that the applicants are trying to keep a problem with the order alive, and wonders how the Court of Appeal will react to the “ good news ” that the problem thereby continues in being. The sarcasm is misplaced. These two postures are incompatible. The first presupposes that the existing order is to remain until it expires; the second indicates what I infer is the real reason for the application, the intention to obtain a fresh and immediately effective order. It is arguable that this approach is misconceived in law given the existing ostensibly valid order, even apart from the obvious duty of the respondent to clearly specify what precisely it thinks is doing.
41. The applicants respond in their written submission to the inference that the Court of Appeal will not exactly welcome the “ good news ” that the problem has been “ kept alive ” by saying that this “ by implication, suggests to this Honourable Court a type of implied threat that a Judge of the High Court, charged with vindicating rights and ensuring they are not breached or transgressed by the State, ought not vindicate those rights for fear of some sort of offence of, or reprisal by, the Court of Appeal” . It is not necessary to accept this submission or indeed to be wanting in deference to the Court of Appeal in order to find its sincerity of sentiment somewhat more attractive than the jaded attempt at legal realism proffered by the agency.
Next steps
42. It is an unfortunate feature of the nature of the present proceedings that they will in substance become moot on 1st March, 2016. However, that cannot be an absolute bar as a matter of principle to granting leave where, as here, the applicant has met the threshold of arguable grounds in accordance with G. v. D.P.P. Weighing all of the competing interests involved I consider that no real injustice will be done by granting leave and a stay in the circumstances. The agency will be free to apply for a further interim care order, and the District Court free to decide on it, subject to legal requirements, on the already-assigned date of 1st March, 2016. The Court of Appeal will also (obviously) be free to decide on the appeal, whether on the already-fixed date of this Friday 26th February, 2016, or on any other date as it sees fit, or to give directions in relation to any application for leave, if such is proposed to be made, to allow the Art. 40 certificate to be amended or supplemented (albeit that McDonagh suggests that such applications should first be made to the High Court, the course adopted in that case being to allow the appeal against the Art. 40 decision and remit the matter back to the High Court for further hearing). I do not see how it can be suggested that the Court of Appeal’s freedom of action is impinged upon by the order I am making.
43. I would hope however that in further District Court proceedings, if they occur, there will be a focus on the level of current and prospective threat such as it is to the second named applicant rather than on some of the material which does not properly go to this issue but is relied on by the agency and indeed the English authorities. In particular, the fact that the applicant came to Ireland, sought to lie doggo, attempted to avoid official attention through the use of false names, checked herself out of hospital, may have been in pyjamas when doing so, moved address within Ireland, and so forth, is not so much suggestive of a propensity towards abuse and neglect as it is of a well-founded fear of the results of official attention. Such conduct by the applicant or, more generally, others so situated, is more properly understood as reflective of a wish to be permitted to parent one’s child rather than of an incapacity to do so. That is not to say that there is not other material that does to go the question of such a threat, and it is not to say that the first named applicant should not address some of the realities in this regard and take a more active and engaged approach to dealing with those issues. High-level objections to the extent to which the court can have regard to the best interests of the child will only take her so far. I would like to think that if she demonstrates a willingness to so engage, the agency and (if it comes to it) the English authorities will be capable of responding accordingly.
44. Article 42A of the Constitution, with its emphasis on the rights of the child and the paramountcy of best interests, does not take away from (indeed it enhances) the right of the child to the society of both of its parents, and the presumption that the best interests of the child lie in the child’s enjoying such society. To that extent N. v. H.S.E. [2006] 4 IR 374, a case that dealt with married parents, remains the position post-Art. 42A. Hardiman J. pointed out at p.504 that the natural rights of the child were already protected by the Constitution and that “ [a] presumptive view that children should be nurtured by their parents is, in my view, itself a child centred one”.
45. As concerns unmarried parents, the striking emphasis on non-discrimination introduced by the 31st Amendment (Art. 42A.1 applies to “ all ” children, and Art. 42A.2 acknowledges the rights of children in the context of the need for proportionate state action having regard to parental failures “ regardless of their marital status ”) supports the position such a presumption should apply in favour of the child’s best interests lying with the society of its parents, regardless of their marital status. Such a presumption may be displaced where there are compelling reasons that the welfare of the child cannot possibly be upheld in the society of its parents, or where proportionate state action becomes necessary in the exceptional case of parental failure of sufficient gravity as to trigger Art. 42A.2. However, as the concept of proportionality itself connotes, the greater the impact on the relationship between parent and child, the greater the need for compelling justification for the interference with that relationship.
46. Action cannot be proportionate if it is contrary to the legal, constitutional or ECHR rights of any of the parties. The Constitution itself describes the interference with the relationship between parent and child as “ exceptional ”, and any such interference must not only be lawful and proportionate but must be conducted by public bodies with the utmost integrity, honesty, sympathy and transparency, at the level of objectively demonstrated substance rather than merely officially presentable appearance. Failure to do so in a context as supremely important as the separation of parent and child must be visited with significant consequences.
47. It will be a matter for the District Court to assess these matters on the already-appointed date of 1st March, 2016.
Order
48. For the reasons set out in this judgment I will order:
(i). that there be an order pursuant to s. 45 of the Courts (Supplemental Provisions) Act, 1961 (in substitution for the previous interim order) restraining on a permanent basis the identification of any non-professional persons referred to in the proceedings;
(ii). that leave be granted in accordance with the statement grounding the application for the reliefs at section D on the grounds set out in the statement; the applicants having 14 days to serve an originating notice of motion to be made returnable for 12th April, 2016;
(iii). that the District Court be restrained from entering upon any consideration of an application for a care order or interim care order or renewal of such an order or interim order in respect of the second named applicant until 1st March, 2016;
(iv). that the first named applicant be required to file a further affidavit within 14 days confirmatory of the grounding affidavit of Ken Smyth and in addition exhibiting so far as available the correspondence, documents and material referred to in this judgment not already exhibited including the purported agreement of 18th February, 2016, the papers in the Art. 40 application and the papers for the proposed application on 25th February, 2016 including covering letters to the first named applicant and her solicitors; and
(v). that costs be reserved.
In the matter of S.S. (a minor) Health Service Executive (Southern Area) -v- S.S. (a minor)
[2007] IEHC 189
JUDGMENT of Mr. Justice John MacMenamin delivered the 15th day of June, 2007.
1. At the conclusion of these proceedings on the 10th day of May, 2007 I delivered judgment on two discrete issues of law which had been identified for determination. I indicated that the reasons for that decision would be furnished later. I now do so.
These issues were:
(a) whether the High Court, in its exercise of its inherent jurisdiction can make an order for the long term detention in secure care of minors, where on the evidence such care is required in the interests of the education and welfare of such minor and
(b) if the answer to (a) above is yes, then what procedural safeguards should be put in place for the protection of the rights of such minors and their parents and the needs of the family unit under the Constitution and the European Convention on Human Rights Act, 2003.
It is first necessary to consider the factual context in which these issues fall for determination.
Background
2. S.S., the minor the subject matter of these proceedings, was born in 1991. At the time of the judgment herein he was aged 15 years, but close to his 16th birthday. His deeply troubled childhood and adolescence have left ongoing emotional and psychological scars. Such home or family unit as S.S. ever had have simply disintegrated.
3. S.’s mother (M.S.) and father (S.C.) live apart. The couple themselves had two children, both boys. At no stage has S.’s father played any significant part in his upbringing. His whereabouts are unknown. He is involved in another relationship. The parents by now have been parted for many years. Their relationship was always poor. They never married. As well as his one full brother S. has two half brothers who were born after his father left his mother.
4. The family was always in close contact with the social services. They lived on a halting site. There were concerns about domestic violence. S.’s mother herself was frequently in poor mental health. The parents separated more than once. S. himself at one stage went to live with his grandmother. This had most unfortunate consequences. He became the victim of sexual abuse. He returned home in March 1995. His mother suffered further periods of depression. She suffered harassment from neighbours. From early 1998 onwards all her children attended respite placements once a month.
5. In the year 2000 S’s mother (Ms. S.) began a relationship with a neighbour. That man’s wife found out. She physically assaulted Ms. S. She fled to another city with three of her sons, leaving one of S.’s brothers behind.
6. By 2002, the family were homeless. S.’s mother was unwilling to consider the option of going to a refuge with her children. Over the years care orders had been made in the District Court at various times regarding her sons with S.C. and her other sons, the younger of whom was born in 2003.
7. S. has been involved in excess of 30 moves in his life. As well as the short periods with his mother and grandparents, these include both foster placements and residential care in a number of units run by the H.S.E. Unsurprisingly this unfortunate young person, who has seldom, if ever, never known a settled house or family, has been described as having an “attachment disorder” due to an inability to form any close bond with any carer. He has been in and out of care since he was six years of age.
8. Efforts have been made over the years to place S. with foster parents. On each occasion such placements broke down as the foster parents felt unable to cope with S.’s disruptive behaviour.
The period in the custody of his grandparents had the result identified earlier.
9. When in care, S. consistently engaged in what is termed “challenging behaviour”; acts of violence and intimidation against staff members in the various units in which he was placed. While in the community he threatened members of the public, and acted inappropriately continuously. He inflicted damage to property on numerous occasions.
10. S. suffers from a number of psychological problems. His intelligence is less than normal. He has attention deficit disorder, engages in ‘oppositional behaviour’, including assaults on social workers and other carers. He frequently places his own life at risk. He has a history of cannabis abuse. It is believed that he has also been abusing cocaine.
11. Within the last two years S. was first placed in a high support unit. He absconded from there on numerous occasions, and lived rough in derelict buildings. He was the subject of further predatory sexual abuse from male adults who preyed on him.
12. Between 5th October, 2005 and 12th May, 2006 S. was detained in a Child Care Centre, a unit run under the aegis of the Department of Education and Science. During that period it is acknowledged that he did well. His mood was calmer. He engaged with staff members. In November 2005 while in the centre, consideration was given to placing him in secure care in B, a Secure Care Unit run by the H.S.E.. However the management there concluded that a placement in B could not cater for the specific therapeutic care which S. needs.
13. As he was also charged with criminal offences, he was remanded by the District Court on 26th September, 2006 to a centre run by the Department of Education and Science. He was discharged from there in December, 2006 by order of this Court arising from legal concerns regarding the legality of his detention and the absence of a proper educational or therapeutic rationale for his detention there. The centre caters for boys under 16 years on remand or sentence.
14. Care staff in various units have themselves had deep concerns as to S.’s welfare and as to their ability to take care of him in a way that might ensure he live in the community in safety.
15. A view consistently expressed by his guardian ad litem, and latterly his mother, is that it is necessary for S.’s welfare and protection that he be detained long term in some form of secure unit. This concern, felt by many involved in his care, is enhanced by the fact that when he absconded, he frequently placed himself at serious risk by his own behaviour and at the hands of older and predatory males. No one unit presently in existence appears entirely appropriate to deal with S.’s many difficulties.
The hearing in December, 2006.
16. Judicial review proceedings were instituted in 2005. They were adjourned periodically as a result of the absence of space at any appropriate unit at that time but also because S. was the subject of District Court orders. When the matter came before this Court on 13th December, 2006 on an interlocutory basis, it was necessary yet again to consider the options as to S.’s secure care. Each of these options carried with them substantial objections. None was entirely suitable. Neither the H.S.E. nor his guardian ad litem (representing the interests of the minor) suggested that he should be set at liberty as the risks to his life and safety were simply too high. His mother was of a similar view although not then legally represented. She was represented fully at this hearing.
17. It was accepted that, even with the provision of additional care staff in one support unit named P.L., such option would be a “recipe for disaster” with the inevitability of further absconding and high risk. This was near his home area with which he was familiar.
18. A second possibility was to place S. in the Child and Adolescent Centre in F. But this is a unit for young persons on remand or who have been convicted of criminal offences. In favour of this placement was the fact that S. when on remand had previously done well there. But there was no adequate room to accommodate him in the centre at that time, even if such detention there had been lawful. He had not been convicted of any crime which might result in detention in such a unit.
19. A further possibility was that he be placed in the another centre which caters for boys under 16 years committed on remand or sentence. As a matter of law, such detention would be inappropriate for a young person in the absence of a criminal conviction or sentence. A further complexity in relation to this centre arose from a suggestion that while he had been placed there on a previous occasion he had engaged in drug abuse. There was also a suggestion of sexual abuse by another resident. A psychologist from Scotland was identified to whom S. was prepared to speak about this issue. There was considerable delay before this could be done.
20. The next choice was a secure unit administered by the H.S.E. for young persons at risk but who are not placed there on remand or conviction. Instead, such placements result from orders including the exercise of the inherent jurisdiction of the High Court. The placement committee in B (itself administered by the H.S.E.) concluded that S. ought not to be admitted there. That decision was appealed. At the time the matter came before this court in December 2006 that appeal was pending.
21. At that hearing counsel for the H.S.E. Mr. Felix McEnroy SC frankly stated that, were the court to direct that S. should be placed in B a place would be found for him. However that could only be done in light of the fact that placements were necessary for other young persons, including a young girl from another part of the country, an imminent suicide risk. Resources were not an issue, but finding an appropriate placement presented real difficulties at that time.
22. Two legal issues were in the balance. First, that in the exercise of its inherent discretion this Court must observe the principle that an order for placement of a young person in secure care to protect their life, health or welfare when seriously at risk, can only be made on a short term basis. Different considerations arise if a young person is convicted of an offence who may be sentenced to a specified term of detention in a penal institution as opposed to a secure care unit. Needless to say, the purpose of a detention order by this Court must be protective not punitive. The fact that it is so intended does not detract from concerns that what is at stake is nonetheless a restriction of the constitutional right to liberty. But capacity of the minor to preserve and protect his or her own life and safety when in the community is of importance in this assessment. Thus, what is termed ‘negative liberty’, i.e. absence of constraint, is counter-measured against positive liberty, the ability of S. to take control of his own life in a real way when in the community.
23. A further consideration must be that any period of detention, of whatever duration, must have a rationale; that the purpose and objective of such detention must be educational, therapeutic and for the purpose and objective of protecting the life and welfare of such young person. The means adopted must be proportionate to the ends sought to be achieved, both as to duration, education and therapeutic care.
24. In opting between those various choices (including his right to liberty and none of which it was accepted, could cater fully for S.’s needs) this Court adopted a course of action identified by Costello J. in the case of D.D. v. The Eastern Health Board (Unreported, High Court, 1995) in the circumstance that the H.S.E. did not dispute that it owed a statutory duty to S to provide for his accommodation and welfare and to protect his interests pursuant to s. 3 and s. 4 of the Child Care Act, 1991.
25. The court therefore formulated an order phrased in more general terms, that is that the H.S.E. care for and accommodate S until further order in a secure unit managed by it; that in the interest of his welfare it be authorised so to detain him in a manner and under a regime established in accordance with psychiatric or other medical advice; that the statutory body arrange for the provision of suitable education and therapeutic care either in that unit or elsewhere; that it might fulfil these obligations by arranging for S.’s accommodation in a unit or institution managed by another agency or organisation with the approval of psychiatric or other medical advice; and that the manager of such unit or institution be authorised to detain S. as hereinbefore provided in the case of a unit or institution managed by the H.S.E.
26. In compliance with this direction, S. was thereupon placed in B where, in the succeeding months he made significant progress. The matter was adjourned, subject to constant monitoring and review.
27. Having regard to the decision of the Supreme Court in T.D. and Others v. Minister for Education and Others [2001] 4 I.R. this court did not consider itself in a position to make other mandatory orders against the H.S.E. or any other State organ, if any could have been formulated. This observation is in no way intended as a criticism: the fact is that the resolution of the issues facing S. would be a challenge to any health authority anywhere. But the fact remains that it is the statutory and constitutional duty of the H.S.E. to promote the ‘welfare’ of this child. (See s. 3 and s. 24 of the Children Act, 1997). This involves his psychological and physical well being as well as emotional welfare. There was clearly a difficulty in securing appropriate accommodation for him, if that was to be the order of the court.
Steps taken by the H.S.E.
28. The court should record and recognise that since this hearing in December, 2006 and arising from concerns expressed in this and other cases, the H.S.E. has embarked on a wide ranging review of its procedures on accommodation, detention and care, and has put in place a new procedure and framework to determine and prioritise such placements of young persons at risk as well as re-opening one unit which had ceased operation in 2003. This, taken in conjunction with the creation of the office of Minister for Children has had the effect of significantly reducing complexity in administration and in which responsibility in this area is allocated. These developments will be outlined in two forthcoming judgments in the case of D.K. a minor and W.R. a minor, which should ultimately be read together with this judgment.
The broad positions of the parties
29. At this hearing, conducted on 8th and 9th May, 2007, the case advanced on behalf of the Guardian ad litem (represented by Cormac Corrigan S.C.), and S.’s mother, (for whom Mary Ellen Ring S.C.appeared), was that both under the Constitution and at common law, the H.S.E. was under a duty to provide for the safety education health and welfare of S.S. as a minor, that a facet of that duty owed to him is to uphold and vindicate his personal rights, to provide for his religious moral intellectual physical and social education, and that the defendant owed such obligation to the minor under Articles 3 and 5 of the European Convention on Human Rights (prohibition of inhuman or degrading treatment; right to liberty and security).
30. The Health Service Executive accepted its continuing statutory duty to S. under the Constitution of Ireland; the Child Care Act 1991and under the Convention on Human Rights as effected by ECHRA 2003. In response to the plaintiff’s contention that it provide a place of secure care for S., the H.S.E. objected that there had been a failure to specify the nature of such regime, its location, the period of such detention, or the exceptional circumstances sufficient to invoke the inherent jurisdiction of the High Court.
31 However, the only specific ‘live’ issues were S.’s interests generally, whether S. could or should be detained any longer. If, so, the circumstances of such detention and the duration of such detention fall to be determined.
The various jurisdictions involved
32. A further complicating factor was S.’s involvement with the criminal law. Since 2006 he had been facing criminal charges, remanded from time to time in the District Court. Only during the hearing before this court did it emerge that it was apparently the intention of the learned District Justice who had seisin of the criminal charges to deal with them prior to S. attaining his 16th birthday in May 2007. An application was made in the District Court by those who acted for him in those proceedings to ensure that such charges would be dealt with only after the decision of this Court as to the issues. S. was represented by a different legal adviser in these District Court proceedings. Counsel for the Attorney General had indicated that this is a matter receiving legislative consideration.
S.’s recent detention history
33. In the three years and three months prior to this hearing S.S. has been in various units including a Child and Adolescent Centre, a further unit, P.L., where he was detained until 25th September, 2006, and then, pursuant to the order of the District Court, he was remanded in custody in a centre until 12th December, 2006. During this period, he has never been returned to his family. Quite simply, there is now no family for him to go to. His mother, as well as her own troubles, cannot deal with him and feels the only safe place for him is in some form of care or detention. He has nowhere else to go.
34. These many periods of detention have been determined to be justified on the basis of S.’s own protection, and to ensure he was not exposed to high risk behaviour or exploitation by adults. He has in fact undergone educational and counselling courses. It is accepted that none of these has been sufficient to address sufficiently the problems from which he suffers. The care he has received from management and staff in B is balanced by the difficulty in this case in identifying precisely the form of treatment most appropriate for him. While by no means fruitless, that period of detention has gone as far as it can go in that unit.
35. Throughout his life it seems S.’s other constitutional rights, to liberty, to dignity, to development as a human being, have been almost entirely subsumed by concerns as to the protection of his life and welfare. The unpleasant term ‘warehousing’ is sometimes used regarding persons placed in institutional care. Even this term imparts too strong a sense of permanence and locale to the constant shifts and transience in S.’s life thus far. This observation is made not in any sense of blame but as a simple statement of fact.
36. Against this background the court had to determine what order or orders were in S.’s best interests with regard to the constitutional duties of this Court, its powers in the exercise of its inherent jurisdiction, and with regard to all S.’s constitutional, legal and Convention rights (if the latter should arise).
37. Counsel for the guardian ad litem (appointed to represent S.’s interests) supported by counsel on behalf of S’s mother, submit that in those best interests it is necessary that he now be the subject of further care and detention orders, but on this occasion on a ‘long term’ basis so as to ensure that he will receive psychological psychiatric and therapeutic treatment and care necessary until he attains the age of 18 this year. But can such long term orders be made? Do the interests and rights of this young person coincide in this instance? To deal with these questions it was determined to conduct a hearing on issues outlined.
38. It must be borne in mind that while the general jurisdiction of the High Court is that detention orders can only be made when the life or welfare of the young person is truly at risk, this inherent jurisdiction of the court must be exercised with regard not only to the best interests of a young person, but with all their constitutional rights (including the right to liberty) as a framework.
39. Counsel for the minor who asked that the court try these preliminary issues argued that S. is entitled to have vindicated the rights identified by O’Higgins C.J. in G v. An Bord Uchtála [1980] I.R. 32, including the right of life, to be reared, and the opportunity of realising his or her full potential as a human being. These rights include the right to have appropriate ‘education’ understood in its broad sense. The court should not focus on the issue as to whether a long term order or detention may be made as a purely ‘temporal’ question. Instead, counsel urged that the court should engage in a ‘purposive’ assessment of the needs of the minor. To focus on the length of any detention would be to introduce a “red herring” to the assessment by this court of the needs of the minor and to the principles applicable. Such a focus, it was contended might have the effect of diverting attention from a prime issue in the case that is the provision of appropriate facilities and therapeutic input.
40. It is difficult to reconcile these submissions (that the key issue be now not seen as a purely ‘temporal’ one), with the fact that it was counsel for the guardian ad litem who asked that the very issue of long term detention be addressed in the first place. An issue touching on the duration or term of detention that affects the fundamental right to liberty can never be a red herring. It cannot be ‘parked’ or relegated to a subordinate role in the hierarchy of Constitutional rights by assertion, albeit well motivated.
41. Because of the gravity and constitutional nature of the rights in issue the Attorney General also was invited to appear. Ms. Maire Whelan S.C. represented the Attorney General. The court wishes to express its appreciation of this assistance.
The issues under consideration
42. The first area to be addressed is the nature and range of the jurisdiction of this Court to make such orders for detention having regard to not one, but all the fundamental rights engaged.
The extent of the inherent jurisdiction of the High Court
43. In D.G. v. The Eastern Health Board [1997] 3 IR 511 Hamilton C.J. described the inherent jurisdiction of this Court:
“The jurisdiction of the High Court is such jurisdiction as
(1) is conferred by the Constitution,
(2) maybe imposed by statute, and
(3) is necessary to fulfil the obligations imposed on it to defend and vindicate the personal rights of the citizen.”
He continued:
“Article 40 s. 3 (1) provides that –
The State guarantees in its laws to respect, and, as far as practicable by its laws to defend and vindicate the personal rights of the citizens.”
In the course of his judgment in The People v. S [1982] I.R. 1 Kenny J. stated in relation to Article 40 s.3 that:
“The obligation to implement this guarantee is imposed not on the Oireachtas only but in each branch of the State which exercises the powers of legislating executing and giving judgment on those laws …” (at p. 62)
“It is part of the courts function to vindicate and defend the rights guaranteed by Article 40 s. 3:
“If the courts are under an obligation to defend and vindicate the personal rights of the citizen, it inevitably follows that the courts have the jurisdiction to do all things necessary to vindicate such rights.”
Hamilton C.J. added:-
“As stated by O’Dálaigh C.J. in the course of his judgment in the State (Q) v. Ryan [1965] I.R. 70 at p. 122 of the report:-
‘It was not the intention of the Constitution in guaranteeing the fundamental rights of the citizen that these rights should be set at nought or circumvented. The intention was that rights of substance were being assured to the individual and that the Courts were the custodians of these rights. As a necessary corollary it follows that no one can with impunity set these rights at nought or circumvent them, and that the Courts’ powers in this regard are as ample as the defence of the Constitution requires.’” (Emphasis added)
44. In D.G. the court made an order for the detention of a minor at risk with a view to protecting his constitutional rights. His problems were in many ways similar to S’s in this case.
45. While the issue was not argued in D.G., it is implicit in the judgments of the majority that in exercising such inherent jurisdiction an order for detention was necessary for the vindication of the rights to life, welfare and protection of that child, even where such order involved a temporary abrogation of the right to liberty of such minor. The paramount rights to life and welfare may therefore temporarily outweigh the right to liberty in the circumstance where such important rights cannot always be harmonised. (See judgment of Finlay C.J. in Attorney General v. X [1992] 1 I.R. at p. 57.)
46. In D.G. Hamilton C.J. later outlined balance of the constitutional rights of the minor at issue in invoking the jurisdiction of the High Court:
“In this case, the constitutional rights of the applicant involved are:
1. That set forth in Article 40 of the Constitution that no person shall be deprived of his liberty save in accordance with law, and
2. The unenumerated personal rights as set forth by O’Higgins C.J. in the course of his judgment in G. v. An Bord Uchtála [1980] I.R. 32, where he stated at p. 56-
‘Having been born the child has the right to be fed and to live, to be reared and educated, to have the opportunity of working and of realising his or her full personality and dignity as a human being. These rights of the child, (and others which I have not enumerated) must equally be protected and vindicated by the State …’”
47. The court considered the conflict between the minor’s welfare and educational needs and the right to liberty guaranteed to each citizen under the Constitution. In weighing this constitutional balance the former Chief Justice, having referred to the findings in the judgment of Kelly J. in the High Court, stated that the trial judge had found:
“… The welfare of the applicant took precedence over the right to liberty of the applicant. There is ample evidence to support his (the learned trial judge’s) finding in that regard”.
48. The majority judgment in D.G. drew in turn from a number of authorities identified in a series of High Court judgments dating back to the early 1990s, (cf those identified in the judgment of Denham J. in D.G. at p.532).
49. The general principle underlying each of these judgments is that, if the Superior Courts established under the Constitution find that there is a fundamental constitutional right at risk, they must find a remedy (in this instance pursuant to Article 42.5 of the Constitution) in the absence of an undertaking from the State to observe such right.
50. It may be observed that the rights of the child identified in these authorities, to a degree reflect those contained in the United Nations Convention on the Rights of the Child ratified by Ireland without reservation on 21st September 1992 (see Shannon, Child Law Thompson Round Hall 2005 Ch.12) It may also be observed that the rights outlined in the seminal judgment of O’Higgins C.J. in G v. An Bord Uchtála are ‘positive’ rights as to welfare and development of a child as opposed to negative rights such as an absence of constraint. The exceptional nature of the jurisdiction pursuant to Article 42.5 of the Constitution is for the purpose of vindicating these positive rights exercised in circumstances where an even more fundamental right, that of the right to life itself, is engaged.
How the jurisdiction had been exercised
51. The inherent jurisdiction of the High Court must not be exercised in a peremptory fashion. The respect which the courts afford the State are such that where the State gives an undertaking to remedy a wrong, such as a failure to vindicate a personal right of its citizens, a due opportunity should be afforded to the State to comply with such undertaking. This approach was expressly adopted by Geoghegan J. in F.N. v. The Minister for Education and Others [1995] 1 I.R. 409, where having made certain findings, and identified certain principles regarding the care and welfare of a minor, he afforded the State respondent an opportunity to address the matters raised.
52. By contrast, Costello J. in D.D. v. The Eastern Health Board the High Court Unreported, 3rd May, 1995 was faced with the similar situation as that arising in the instant case of a young person at risk. There, however, the State as respondents had been afforded time to make provision for the minor in question, and had failed to do so. The court therefore made orders to remedy the wrong done.
Limits on jurisdiction
53. It is essential to recollect the observation of Hamilton C.J. in D.G. as to the limits to this jurisdiction as being one:
“… which should be exercised only in extreme and rare occasions when the court is satisfied that it is required, for a short period in the interests of the welfare of the child and there is, at the time no other suitable facility.” (Emphasis added)
He added:
“The exercise of the High Court by its jurisdiction in this regard should not in anyway be used by the respondents in these proceedings to relieve them of their statutory obligations in regard to the applicant and they should continue their efforts to make suitable alternative arrangements consistent with the needs of the applicant and if any such arrangements can be made he should not be detained in a penal institution”.
54. But the delicate balance of rights involved was emphasised in the minority judgments in D.G. Denham J. (dissenting) considered that the detention of a minor on this basis, albeit in a penal institution, and even for the care and welfare of that minor, was “a step too far”. Implicitly, Murphy J. too expressed his concerns as to this jurisdiction.
55. However viewed, specific reference to the time duration by Hamilton C.J. as being “for a short period” can neither be subsumed in the consideration of other factors nor ignored. The re-balance or prioritisation of rights where the State intervenes pursuant to Article 4.25 may only be justified if of short duration. It must truly be in the words of the Article an “exceptional case”. In one sense therefore the issues raised in this case are easily answered. Detention may be for a short period only. This is confirmed by reference to other jurisprudence to which I now turn.
The European Convention of Human Rights
56. The Supreme Court decision in D.G. was followed by D.G. v. Ireland [2002] 35 EHRR 1153 where the European Court of Human Rights determined that the detention ordered was contrary to article 5 of the Convention (right to liberty) by reason –
(a) that it was exercised in a penal institution and
(b) did not constitute educational supervision
The latter finding addressed article 5.4 of the Convention which permitted detention as a short-term measure preliminary to supervised education.
57. Such findings perhaps did not sufficiently advert to steps taken by the learned trial judge (Kelly J. to ensure that these issues of education and welfare were actually addressed while D.G. was in detention. It may be observed that B came into being following the judgment in D.G.
58. It is clear from that authority and others, that to comply with rights under the Convention (and indeed the balance of rights under the Constitution of Ireland) the rationale or justification for an order for detention must be clearly identified, must have a therapeutic or welfare purpose, and be exercised only in circumstances where it is for the minimum duration (see D.G. v. Ireland already cited, and Bouamar v. Belgium Case No. 9106/80 (1988) ECHR). In Bouamar the Court in Strasbourg very clearly stipulates that detention should be for a short period only, but does not preclude its being used as “an interim custody measure … as a preliminary to a regime of supervised education”. (emphasis added) Paragraph 50 of the judgment in Bouamar countenances, but subject to the over-arching right of liberty:
“the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purposes of bringing him before the competent legal authority.
59. The disjunctive phraseology clearly allows for detention for the purpose of educational supervision, without such measure being necessarily for the purpose of bringing a young person before a legal authority.
The balance of rights and rationale
60. The following general observations may be made. First, the powers of the court (subject to other provisions of the Constitution) are as ample as the defence of rights under the Constitution requires. These include the power to exercise this inherent and interim jurisdiction when these fundamental rights of minors are at risk.
61. Second, the rationale of any detention order must be educational or therapeutic rather than punitive in order to vindicate the constitutional rights of the minor. (See D.G.)
62. Third, the inherent jurisdiction to detain a minor is an exceptional one which may only be invoked in circumstances of urgency where it is established that the minor is experiencing or in imminent likelihood that he or she will experience a crisis in their welfare that requires the intervention of this Court to order detention, and only to safeguard life, a serious risk to life or other serious threat to the care, protection and welfare of a minor.
63. Fourth, it is impossible to de-limit the foreseeable circumstances in which may be proper for an applicant to seek to invoke the inherent jurisdiction of the court because the circumstances of this distinct category of case are infinitely variable.
64. Fifth, common examples of where this jurisdiction has been invoked include instances of children attempting suicide, engaging in self-harm and indulging in continuous and highly dangerous behaviour or conduct with serious risks to their life or welfare. In a significant number of cases these children have provisional diagnoses that include conduct and personality disorders that are likely to develop a chronic aspect. Sometimes their life or welfare is placed at risk by others where the criminal law must be brought into consideration.
65. Sixth, the inherent jurisdiction of the High Court does not refer to its general jurisdiction. The special jurisdiction is a part of, or an aspect of, the general jurisdiction of that court. The general jurisdiction of the High Court (subject to the Constitution itself)is unrestricted in nature and unlimited in matters of substantive law, whether civil or criminal, with the exception of limited circumstances where by statute and in unequivocal terms there has been a removal of an area of jurisdiction from the High Court. Constitutional rights and issues are at stake. No such analogous inherent power resides in courts other then the Superior Courts as defined under the Constitution of Ireland, nor is there any other recognised jurisdiction to exercise such power or make orders to the same effect.
66. Seventh, the source of the inherent jurisdiction of the High Court derives from the nature of that court as established under the Constitution. Its inherent jurisdiction is exercisable only as part of the process of the administration of justice. The jurisdiction is procedural in content and is not part of the substantive law of the State.
67. Eighth, the inherent jurisdiction is a flexible process that arises in an ad interim or interlocutory proceedings. That inherent jurisdiction may be invoked by the court not only in relation to parties in proceedings before the court but in relation also to a person, whether a party or not, subject to fair procedure.
68. Finally, but vitally in this context, such power may be exercised only upon the basis of regular review of the balance of rights as an integral part of the procedure itself. These rights must include adequate opportunity for the views of the minor to be made known to the court in the fulfilment of his or her “natural and imprescriptible rights”.
69. The clear statements of Kenny J. in The People v. Shaw, Hamilton C.J. in D v. G and the Supreme Court generally in N v. H.S.E. illustrate the range and depth of the inherent jurisdiction of the court on matters including procedure relating to minors. Once a court is satisfied that the constitutional rights (in this case of a minor) warrant his detention the court may look to the observation of Walsh J. in Meskell v. C.I.E. [1973] I.R. 121, where he observed:
“ … that a right guaranteed by the Constitution can be protected by action or enforced by action even though such an action may not fit into any of the ordinary forms of action in either common law or equity and that the constitutional right carries with it its own right to a remedy for the enforcement of it.”
70. Abstracting the principles from the authorities it is possible also to arrive at the following statements of broad principle as to content or substance.
71. In summary, the capacity and age of the minor, the nature of the place of detention, the extent, quality, and suitability of the educational and welfare facilities available must have a direct bearing on the duration for which this court may order a minor to be detained. The civil jurisdiction engaged may only be exercised on an interim or interlocutory basis, and only, therefore, with regular review by the court. Such process, to be consistent with the rights of a citizen under the Constitution of Ireland, and to accord with Article 5.4 of the European Convention on Human Rights must guarantee that any deprivation of liberty by arrest or detention imports with it a duty upon the State (including this Court) to provide an integral mechanism whereby proceedings can be initiated for the review of the lawfulness of such detention in a speedy manner (see Kolanis v. UK [2005] 1 MHLR 238). It is quite clear that in D.G. v. Ireland the Court of Human Rights rejected any use of detention as a preventive measure. Only countervailing rights, or a rationale such as those involving life or welfare, may justify such jurisdiction, and only on the basis that the right to life and welfare of a minor is to be placed temporarily, and only so long as proportionate and justifiable, in a superior position in the constitutional hierarchy to other fundamental values such as liberty, equality, or bodily integrity. While the function of the State in these circumstances may be to act as in a parental role and while such role may allow for a purposive interpretation of statute law, such an approach may never justify the abrogation or negation of fundamental constitutional rights.
72. Justification for such detention may be found in of the nature of the State as defined in the preamble and the text of the Constitution, and in particular Article 40.3 (protection of life) and considerations of the common good. While the procedure may raise libertarian concerns, it may be responded that considerations of the common good may and should influence how rights are prioritised, albeit temporarily, in the protection of a paramount value such as life. By will of the Oireachtas, it is a power now vested in the District Court pursuant to provisions of Part III of the Children Act, 2001.
Why have inherent jurisdiction powers been invoked?
73. In the past two decades the courts have felt constrained to invoke this exceptional jurisdiction under Article 42.5 of the Constitution because of lacunae in children’s legislation dating back as far as 1908. As pointed out in P.S. v. The Eastern Health Board (High Court, Geoghegan J. 27th July, 1994), even after the enactment of the Child Care Act, 1991 health boards (the predecessors of the H.S.E.) had no powers of civil containment or detention under the legislation then obtaining. Thus, notwithstanding their legal duty to provide for children in need of care and protection, such statutory bodies were powerless under the legislation with respect to children entirely out of control and at risk and who required detention and care in secure setting.
74. It must be re-emphasised that it was only in such exceptional circumstances that the courts felt constrained to invoke the remedy of detention upon the basis of inherent jurisdiction. It should not be allowed evolve into a ‘preferred’ option. The subject requires a legislative framework to remove the potential for over-subjectivity in interpretation and application.
75. The legislature sought to address the lacunae in the Child Care Act 1991 and the Children Act, 2001. Part III of the Children Act, 2001 contained an amendment to the Act of 1991 (s. 23) imposing on health boards (as predecessors of the H.S.E.) a duty to seek a special care order in the District Court where the behaviour of a child or young person was such that it imposed a real and substantial risk to his or her health, safety, development and welfare, and where necessary in the interests of the child that such a course of action be adopted. But this did not affect the interim, inherent jurisdiction of the High Court. Subsequent experience has demonstrated that, perhaps for many reasons, there has been a legislative reluctance to implement all provisions of Part III of the Act of 2001 or to abandon the (perhaps more flexible) approach derived from the exercise of inherent jurisdiction. Indeed the number of such cases in the High Court lists has regrettably grown to approximately twenty per week.
76. The frequent invocation and exercise of ‘exceptional’ constitutional powers, absent principles of application or, any statutory or regulatory framework is undesirable. The fact that those provisions of the Children Act, 2001 vesting analogous statutory powers in the District Court have not been brought into force might, at least for the moment, be seen as itself a policy decision by the legislature itself that this inherent power continue to be operated in these cases. It should not continue indefinitely in the present form. The court again notes that this is a matter under review by the Executive.
77. The absence of statutory framework in this area gives rise to yet further complexity by the frequent simultaneous exercise of jurisdiction by more than one court, (here the High Court in its civil jurisdiction and the District Court in its criminal jurisdiction). In other cases the civil jurisdictions of both the High Court and the District Court have been invoked.
78. This confusion of roles is exemplified by the fact that it was only in the trial of these two identified issues that it emerged that, unbeknownst to the legal representatives of any of the parties, the learned District Judge, dealing with certain criminal charges, (where S.S. was represented by other lawyers) had indicated an intention to engage in a sentencing hearing on such charges facing S.S. on the same day as these matters were being considered by the High Court. This Court therefore delivered its decision at a time prior to the District Court engaging in any such sentencing process.
79. From a broader perspective however, it illustrates the difficult question as to how the dictum of “one family one court” can be best applied where the right of the community to trial of criminal offences must take priority.
80. Clearly, on the basis of established authority, care must be taken to ensure that the invocation of civil jurisdiction does not stand in the way of the constitutional duty mandated upon the courts to exercise their criminal jurisdiction. As McGuinness J. pointed out in the Director of Public Prosecutions (Murphy) v. P.T. [1999] 3 I.R. at 254, the District Court has a general duty to consider and promote the welfare of an accused minor and to balance and harmonise this duty with the constitutional rights which pertain to an accused in a criminal trial. However insofar as there may be conflict between the general welfare rights of a minor, and rights delineated by the Constitution as being relevant to the trial of offences, it is clear the latter must have priority and prevail. That authority also pointed out the desirability that there should be a clear division between (on the one hand) criminal proceedings which decide the guilt or innocence of an accused, and (on the other) child care proceedings which make provision for the general welfare and future care and custody of a child (see also S v. Eastern Health Board The High Court, Unreported, Geoghegan J. 27th July, 1994) where that judge emphasised the same distinctions.
Parameters
81. No precise parameters as to the inherent jurisdiction of the Superior Courts can be fully delineated. The power is as ample as the Constitution requires but always subject to the other provisions of the Constitution, including the separation of powers. The detention of minors may be open to a range of objections: a ‘rationale’ may be “justified” upon a vaguely defined basis of “educational supervision”. Absent those ‘risk factors’ and the paramount values of life and welfare being at stake, detention without due process, or for the purpose of ‘education’ no matter how defined, could not be reconciled with other fundamental rights under the Constitution of Ireland or the Convention on Human Rights and Freedoms. (See Koniarska v. The United Kingdom decision 12th October, 2000 No. 33670/96.)
The rights of parents and constitutional safeguards
82. It is necessary now to focus on the position of the family in these applications and the constitutional safeguards necessary. The specific right of audience of minors will be dealt with in the two forthcoming judgments.
83. In N & Anor. v. The Health Service Executive & Anor. the Supreme Court, Unreported, 13th November, 2006, Hardiman J. observed on the position of married parents and children in the Constitution in the context of Article 42.5:
“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?”
84. In this case, unfortunately, those equally applicable questions, albeit in a different family framework, are answered by the evidence. It has been accepted and urged by S.’s mother that he should be placed in care. S. has not seen his father since 2005. His present whereabouts are unknown. Due to her own circumstances, at no point has S.’s mother objected to his continuation in the care of the H.S.E., or the State, despite its inordinately long duration. M.S., S’s mother, has, however, continued to play a role in his life, albeit a significantly attenuated one.
85. An order to detain a minor in secure care must be seen and interpreted in accordance with the rights, not only of the minor, but also the rights of parents (whether or not a family unit) and other family members. In particular it is necessary to ensure that, where possible, parents play a full role in ensuring that any period of detention is truly therapeutic in effect. The rights of such parents are substantive and should, where practicable, extend to all stages of the decision-making process in child protection cases where either, or both, parent evinces a willingness to play a role and to the extent that is in the best interests of the child.
86. By way of illustration, in Re G. (Care): Challenge to Local Authority’s Decision) [2003] EWHC 551 (Fam Munby J., 24th March, 2003) that judge held that, in accordance with article 8 of the Convention, (interference with family rights) parents should be properly involved in the decision-making process not merely before and during care proceedings, but also after those proceedings had come to an end whilst the local authority was implementing a care order.
87. The European Court of Human Rights also observed in McMichael v. The United Kingdom [1995] 20 EHRR 205 at para 87:
“Whilst article 8 contains no explicit procedural requirements, the decision-making process leading to measures of interference (with family rights) must be fair and such as to afford due respect to the interests safeguarded by article 8 (see Re G. [2003] 2 F.L.R. at p. 49; McMichael v. United Kingdom 2 March, 1995 Times Law Reports at p. 3 of 4; see also Re X Barnet, London Borough Council v. Y and X [2006] 2 F.L.R.)”
88. In Re X (cited above) a report prepared by a local authority expert had emphasised the importance of at least one year consistent containment in therapy before any change was planned, and advised that the child not be returned to the mother’s care for some time. A failure to alert the child’s guardian or the mother to potential difficulties concerning the placement, and the provision of information of a fait accompli that the child had been placed elsewhere after the decision had been made was held not to be in the best interests of the minor, as was a failure on the part of the local authority to include the child’s mother in the decision-making process. Co-operation and information sharing are essential. This philosophy of parental involvement is reflected in Parts II and IV of the Children Act, 2001. These considerations must be subject to ‘bests interests’ criteria however.
89. It is now necessary finally to focus more specifically on the question of safeguards where such detention orders as are made by the High Court.
Safeguards
90. The specific stipulation of the Supreme Court in D.G. is conclusive. Orders of this type should be ‘short term’ or interim. Additionally, even the most basic problem of definition or meaning finally precludes any question of detention of a ‘long term’ nature save in the most unusual circumstance. What does ‘long term’ mean? It has not been defined. Does it entail three to six months, (the general parameters of such orders) or longer? If longer, for how long? These questions have not been answered either because they cannot be answered, or because to consider them would be to beg the question of whether other constitutional rights such as liberty should not also be canvassed.
91. Such fundamental rights cannot be measured in the same way as a ‘piece of string’. What must be determinative is the appropriate and justified short term duration of the secure care. This can be determined only with the interests and rights of the young person in the consideration, and subject to appropriate safeguards of fair procedures and regular review to vindicate such rights. Any categorisation of secure care into “short” and “long” term stays would be necessarily subjective. Circumstances change, and with them perhaps the priority of rights. In consideration of the length of time for which a particular minor should be detained the court must have regard to all relevant and variable factors. The nature, adequacy and frequency of review procedures should ensure that the balancing of rights of all relevant stakeholders continues to be properly met, particularly those of the minors’ parents.
92. As a guide (but not as a conclusive determinant) a court might (in the absence of legislation) require a first review of detention within weeks, thereafter have regard to the time periods provided for in s. 23(b)(4)(a) of the Childcare Act, 1991 relating to the detention by the District Court of children in secure care, and also by analogy have regard to the time limits and procedural safeguards outlined in s. 25 of the Mental Health Act, 2001 relating to the review of involuntary admission of children in need of mental treatment and the constitutional requirement of proper respect for the family unit which require that full account is taken of the views and wishes of parents, the child’s guardian and other interested parties.
93. I accept the submissions made on behalf of the Attorney General that because of the wide scope of the inherent power it may be theoretically possible that, in a highly exceptional case, a court might make orders of predetermined duration which are in effect or result longer than those outlined above. It is difficult to envisage any circumstance, however, where any such order might (absent on-going review) remain lawful. In order to vindicate the correlative right to liberty of a young person there must be in place a regular failsafe process of regular consideration of such detention so as to ensure the continued proper harmonising, or prioritising, of constitutional rights which may conflict. The procedure for vindication of rights requires the application of scrutiny in direct relation to the duration of detention. This may necessitate in an appropriate case that the application of the full range of procedural rights outlined in Re. Haughey [1971] I.R. 217.
94. In Johansen v. Norway [1996] 23 E.H.R.R. 33 at para. 78 the Court of Human Rights observed:
“Taking a child into care should normally be regarded as a temporary measure to be discontinued as soon as circumstances permit and … any measures of implementation of temporary care should be consistent with the ultimate aim of reuniting the natural parent and child. In this regard a fair balance has to be struck between the interests of the child in remaining in public care and those of the parent in being reunited with the child. In carrying out this balancing exercise the court will attach particular importance to the best interests of the child …”
(See also Olsson v. Sweden [1988] 11 E.H.R.R. 259)
95. This general principle, applied so often in our courts established under the Constitution should be both the starting and desired end point of such orders, as to their duration and the procedural safeguards necessary to vindicate the rights of those involved. It must be a matter of true regret that the rationale or aim of reuniting parent and child seems an entirely unattainable aspiration in this case.
96. As there was no longer any rationale for his detention in secure care, S.S. subsequent to this hearing was discharged to a high support unit subject to a very high level of therapeutic and educational care and with provision for psychiatric and psychological supervision.
Health Service Executive v A
[2010] IEHC 360
EXTEMPORE JUDGMENT of Mr. Justice John MacMenamin delivered the 27th day of October, 2010.
Background
1. This judgment arises from an application on notice by the HSE heard on Friday, 22nd October, and Tuesday, 26th October, 2010. The HSE previously made an ex parte application for leave to bring the proceedings. An ex parte application is one where only one side is heard. In this case the notice parties made submissions at the substantive hearing. Thus the views of parties on notice of the proceedings could be taken into account. Consequently, this Court had the opportunity of hearing both sides of the matter. I stated at the conclusion of the hearing that I would deliver a short judgment outlining what happened at the in camera hearing and my conclusions.
2. A. and B. are the parents of six children. Both parents were convicted by the criminal courts of a series of offences, including assaults on their children, as a result of which A., the mother, received a sentence of seven years imprisonment and B., the father, a sentence of fourteen years of which the last eighteen months were suspended.
3. There was very deep public concern as a consequence of what emerged in the case. These concerns related to the care, protection and welfare circumstances of the six children. Questions arose in relation to the manner in which the Health Service Executive had discharged its child care functions in relation to the family. A particular issue was as to why the children had not been taken into care until the year 2004, when the HSE and its predecessor the Western Health Board, had been involved in some aspects of the family situation for a number of years prior to that date. The HSE undertook to initiate an investigation.
4. The final draft of the resulting report was made ready by 21st July, 2010. The applicant considers it is now ready for publication. It had to be considered by a number of parties. This judgment relates to the report of that date. Hereinafter it will be referred to as “the report”. Needless to say, any prior documentation prepared in the course of the inquiry will continue to be governed by terms of strict confidentiality, by rights of privacy, by the law of defamation and also the terms of the orders already made by the criminal courts and now this Court. The report is redacted and does not identify any party.
5. Relying on the inherent discretion of the Court regarding the welfare of minors, the HSE has applied for a permissive order, allowing it to publish the report of the inquiry team. A permissive order is one which allows the steps necessary for publication to be taken. The HSE also sought a wide range of other reliefs for the continued protection of all the children’s identities. The consequence is that the publication of any matter relating to, or identifying any of the children of the A.B. marriage is not permitted. This includes any of the children who are no longer minors. To that end, the Court has granted orders restraining publication in the media of any information whatever which either by itself, or in conjunction with other information, might tend to identify the children, and prohibiting any direct or indirect approach to the children by media representatives. Every necessary step has been taken to preserve the children’s anonymity. The initials in the title of this case have been assigned by the Court. They are not their true names. I do not think it appropriate individually to identify the children in any way.
The issue
6. The question for the determination of this Court was whether; having regard to the Constitutional and ECHR issues engaged, an order allowing publication of the report should be granted. This Court has had no input whatever into the report. A permissive order of the Court, if granted, should in no way be interpreted as an endorsement of any part of the contents or its conclusions. It is not in any form or manner an indemnity. It would be simply an exercise of the inherent jurisdiction of the Court in the public interest. I am satisfied, that in this case, the Court has such jurisdiction. As the application has no precedent in this jurisdiction and raises important legal issues I will deliver a detailed judgment in due course. However, in the light of the urgency of this case, it seems to me appropriate to deliver this brief extempore judgment. It explains briefly the decision and the circumstances.
The decision
7. The decision of the Court is that, on balance, the report should be published. I emphasise that this decision was reached on balance because of the deep concerns which the children have regarding any further publicity. The Guardian Ad Litem who has been appointed to take care of and represent the children’s interests requested that I should meet with the children. We met in a relatively informal way in the absence of lawyers. What they wanted was that their voices be heard. I should place on record that I consider that the children both individually, and collectively, are remarkably brave and resilient. Most importantly, they wished it to be known that they wanted to be able to lead their own lives in a normal way. They wanted their right to privacy respected. One of them said “We just want to be normal kids”. They are very fearful of the publicity involved in any publication. Some are reconciled to this, some are not. Despite all their bravery they are extremely vulnerable.
8. The children requested that a number of their particular concerns be expressed now. Among the questions that they asked were:
“Why are they listening to us now and they didn’t before?”
They asked why they had never been taken seriously. One said:
“I didn’t want this to happen to me. I now feel scared and frightened.”
A particular concern was some of the sensationalised media coverage. One of the children said:
“I prefer that they never took me into care at all. It would be better to live at home than to go through what the media have done. I can’t do it again.”
One of the children wrote a song eloquently describing the human predicament all the children face in a situation not of their own making.
9. It is simply impossible to convey in words their sense of anger, hurt, frustration, betrayal and fear. Obviously there are many causes for this. Each expressed their concerns in different ways. Plainly, much of this was caused by the disturbing events which were the subject matter of the criminal charges. But one simply cannot ignore the extent to which the children themselves now feel that the publication of the report could lead to them having to re-live what they wish to forget. They vividly remember specific sensational headlines from criminal cases and quoted them. Some wished that the report not be published. Others had different views. All of them expressed the wish that the media understand the hurt caused to them by the earlier sensational headlines. The focus of the report is, after all, on the interaction of the HSE with the family. It surely should not be on the children. The children should not be asked, as they put it, to relive the experience. They want it understood that they are normal young people.
10. At the outset of the process of consultation had the children only their own wishes, they would have asked that the report not be published. However, on balance, a number, (but by no means all,) feel that more good than bad can come from the publication – provided that sensationalised coverage does not take place. I make no comment on any of these views. They speak for themselves. The quotations are the children’s own, – in every sense.
11. I am satisfied no pressure was put on the children. While a majority of them were ultimately reconciled to publication the views of those opposing are entitled to equal respect. Two remain resolutely opposed to publication. The question comes down to a balance of rights – such as the right to freedom of expression, the constitutional rights and guarantees due to children generally, including life and bodily integrity; as compared to the rights to privacy, dignity, good name and the strong wishes of those opposed. Unfortunately, wishes and rights are not always reconcilable. A Court must try to strike the balance and prioritise those rights engaged.
12. The welfare of the children must be a paramount concern: all reasonable steps have been taken for their protection. But the subject matter of the report is a matter of public interest in the broadest sense. A number of the A.B. children strongly expressed the hope that the effect of the report might be to ensure that there was no repetition elsewhere of what occurred. I consider this to be decisive – provided, I repeat, that the children are not made to live through the experience again. All the children found it difficult to comprehend why any one would not understand the sheer hurt and emotional stress which some of the coverage caused them. The protections and restraints should be proportionate to the rights engaged.
13. A further reason is that the report was commissioned by the HSE in the fulfilment of its statutory functions under the Child Care Acts. There is a question of public accountability. One additional practical consideration is that it is already known that the report has been commissioned and is in being. A failure to publish, or prohibit publication might be misrepresented as some form of “cover up” using the children as an excuse; that is not the situation. To refuse publication would in any case necessitate a public judgment with consequent publicity. No other countervailing factors have been identified.
14. On balance these factors concerning rights of the public determine the outcome in favour of publication. For these reasons I have granted the permissive order. I understand the report will be published later today.
15. I would like to express my thanks to the guardian ad litem. Her work has been invaluable. I will not name her for obvious reasons. She has recommended a number of continuing steps that the HSE will adopt. All are necessary protective measures to safeguard the children’s well being. The matter will continue to be under court supervision. There will be liberty to apply, if necessary, at short notice.
BB v AA
[2013] IEHC 394
JUDGMENT of Mr. Justice Hogan delivered on the 21st day of August, 2013
1. Where two parents cannot agree a choice of school for their twelve year old son, what, if any, is the role of this Court in the resolution of this dispute? This is the difficult and troubling question on which there is little, if any, contemporary judicial authority. This, however, is the question which is nonetheless presented by this appeal from the decision of the Circuit Court (Her Honour Judge Heneghan) delivered on 25th July, 2013. In that ruling she directed that Conor should be enrolled at a secondary school which I will term School A.
2. The applicant (“Mr. B.”) and respondent (“Ms. A.”) are husband and wife who have now separated and are living apart. They have two children, one of whom, Ciara, is fourteen years of age. It appears that she suffers from a disability and that she is likely to be financially dependent on her parents for some time to come. The other child, who I shall term Conor, is aged twelve years of age and is just about to enter secondary school. The present dispute concerns the choice of school for this young boy and it has arisen in the course of judicial separation proceedings which are pending in the Circuit Court. The parents are joint guardians of this child and while Conor lives with his mother, he has frequent access to his father. Both parents are dedicated to his welfare and seek the very best for him.
3. I should pause at this point to indicate that I have ascribed a fictitious name to the two children in order to protect their anonymity. Nor do I propose in this judgment to identify the location of the places where the parents reside or the identity of the two schools in question which are the subject matter of the dispute.
4. The parties are agreed that Conor is a young boy with very considerable talents. Aptitude tests which have been conducted show that he is ranked in the very highest percentile of scholastic achievements for a child of his age in respect of both reading comprehension and mathematics. Following completion of primary school in June, 2013, Conor had been offered a place in School A. It is common case that this is a perfectly good school with a high level of academic and other achievements. Many of his friends will be attending this school and the public transport links between his home and that school are excellent.
5. The present dispute arose by reason of the fact that shortly after this Conor was also offered a place in School B. School B has an outstanding reputation and is, by common consent, one of the leading schools in the country. Places at this school are highly coveted and are greatly in demand. Unlike School A, School B is, however, a private school and the school fees are considerable. There are also excellent public transport links between School B and Conor’s home. One or two of Conor’s friends are also taking up places at School B.
6. Mr. B. wishes his son to attend School A. He maintains that this is a perfectly good school and he insists that such are the precarious state of the family finances that the family cannot simply afford private education. He is also concerned that if Conor were to attend School B he would of necessity be assorting with children from wealthier backgrounds and that he might feel socially isolated as a result.
7. For her part Ms. A is most anxious that Conor be given the very best opportunity in life and that for this reason the family should not pass up this opportunity. Since the order was first made by the Circuit Court on 25th July last, it seems that School B have indicated that they would be prepared to give the family a 50% discount in respect of the school fees. It also seems that Ms. A.’s parents – who are reasonably well circumstanced – have now indicated that they would be prepared to pay the balance of the school fees. Mr. B counters by noting that these commitments – such as they are – are vague and indefinite and he, furthermore, has an objection in principle to his son’s educational costs being discharged by other family members.
8. It should also be said that, fortunately, the family home is owned outright by the couple. Up to recently Mr. B earned a net salary of some €4,500 per month, but he is now required to pay rent of some €1,100 per month. For her part Ms. A had a monthly income of some €700. Unfortunately, however, Mr. B. has lost his job within the last few weeks, although it seems that his prospects of regaining employment are good.
9. Two other sources of capital should also be mentioned. A few years ago Mr. B.’s brother made a very generous contribution of €30,000 in respect of both Ciara and Conor. These monies are held in trust for their future welfare. A savings fund containing some €16,000 is also due to mature in the next two to three years which will also be available. While Ms. A. has suggested that some of these monies should be made available to discharge Conor’s school fees at School B, Mr. B. objects strongly to the use of this precious capital for this purpose.
10. There is, furthermore, an urgency to this case since the new school term is looming. The appeal was heard before me on 19th August, the original deadline for acceptance of the offer from School B. Given the difficulties inherent in this appeal and the relatively novel issues thereby presented, School B. agreed to extend the time for acceptance until Thursday, August 22nd to enable the preparation of this judgment.
The jurisdiction of the Court
11. The formal jurisdiction of the Court to resolve matters of this kind derives from s. 11(1) of the Guardianship of Infants Act 1964 (“the 1964 Act”) (as amended) which provides that any guardian “may apply to the court for its direction on any question affecting the welfare of the child and the court may make such order as it thinks proper.” Section 3(1) of the 1964 Act then provides that in the resolution of any such question of guardianship, the court “shall regard the welfare of the child as the first and paramount consideration”.
12. How, then, should the Court approach this question and what principles are there to guide it? The first thing to recall is that both Article 41 and Article 42 of the Constitution presuppose a marriage of equals with both parents having an equal claim in respect of the upbringing of their children. Where, as here, both parents have taken a responsible and conscientious attitude to the welfare of their children, both are entitled to have their views weighed fairly and equally by the courts.
13. This was not always so and prior to the adoption of the Constitution in 1937 the common law had always upheld the ultimate right of the father to determine the education of his children in cases of dispute. As Lord O’Hagan L.C. put the matter in In re Meades (1871) L.R. 5 Eq. 98, 103:
“The authority of a father to guide and govern the education of his child is a very sacred thing, bestowed by the Almighty, and to be sustained to the uttermost by human law.”
14. The fact that the rule of paternal supremacy in relation to education and upbringing was considered by an earlier generation of judges to be of divine origin appears, however, to have left the drafters of the Constitution somewhat underwhelmed for they drafted a new constitutional provision which plainly repudiated such thinking in favour of the equality of decision making as between mother and father alike. Article 42.1 of the Constitution accordingly provides:
“The State acknowledges that the primary and natural educator of the child is the Family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children.”
15. The common law rule as to paternal supremacy was, in any event, held to be unconstitutional by the Supreme Court in Re Tilson [1951] I.R. 1. Having set out the terms of Article 42.1, Murnaghan J. then stated ([1951] I.R. 1, 32):
“Where the father and mother of children are alive this article recognises a joint right and duty in them to provide for the religious education of their children. The word ‘parents’ is in the plural and, naturally, should include both father and mother. Common sense and reason lead to the view that the mother is under the duty of educating the children as well as the father; and both must do so according to their means.”
16. It is clear, therefore, that Article 42.1 envisages that both parents would be the joint decision-makers in respect of their children. As I have already indicated, in the present case both parents are deeply committed to the welfare of their children. Both have advanced powerful reasons to justify the diverging conclusions they have reached in respect of their son’s education and their respective reasons are entitled to respect, appreciation and understanding from this Court.
17. Ms. A. contended that her choice of school venue for her son was one of the “inalienable and imprescriptible” rights protected by Article 42.1. She further submitted that the Circuit Court order violated the substance of this right by prescribing that Conor be educated at School A. As it happens, the curial part of the order simply provides for an order that Conor “be enrolled” at School A. I think it implicit in this wording – which, after all, simply referred to enrolment at School A – that the order providing for Conor’s education at School A was not final and that matters could be revisited as occasion might suitably require.
18. That, in any event, is what the Constitution requires in matters of this kind. This was made clear by the Supreme Court in The State (Doyle) v. Minister for Education (December 1955)(this case is very belatedly reported at [1989] ILRM 277). In this case the applicant’s wife had deserted him and he was made unemployed. Being quite destitute and unable to look after his daughter, he consented to the District Court making an order under s. 10 of the Children Act 1941 committed the child to an industrial school. However, as soon as the father’s circumstances improved, he applied to have his daughter restored to his custody. The Minister refused to give his assent to this course of action.
19. The Supreme Court held that s. 10 of the 1941 Act was plainly unconstitutional. As Maguire C.J. explained ([1989] ILRM 277, 280) Article 42:
“appears to us expressly to secure to parents the right to choose the nature of education to be given to their children and the schools at which such education shall be provided and this right must be a continuing right. Parents must be entitled to change and substitute schools as in their judgment they think proper and to hold that a choice once is binding for a period of a child’s education would be to deny such a right.”
20. The Court has, accordingly, no jurisdiction to make a final and indefinite order in respect of Conor’s education in the same manner as happened in Doyle. In order to reflect the express nature of the rights secured by Article 42, any such order must accordingly allow for a change in circumstances and, indeed, a change of heart on the part of one or other parents.
21. Nevertheless, I cannot accept Ms. A.’s contention that this Court is bound by her conscientious choice of School B for the very simple reason that it must also respect the choice of Mr. B. who favours School A. Rather, the Court is placed in the unwelcome position of resolving this dispute simply by reason of the fact that there is an unbridgeable conflict of opinion between conscientious parents.
22. While this is not at all a case where the parents have “failed” in their duty towards their child, nevertheless it seems to me that as this is a case where the judicial branch of the State is obliged to resolve the dispute, then the principles contained in Article 42.5 can nonetheless be applied, if only by analogy:
“…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 to the natural and imprescriptible rights of the child.”
23. In other words, in making this decision, I find myself endeavouring to supply the place of the parents but doing so in a fashion which is proportionate, which intrudes as little as possible into the family decision-making (“…by appropriate means…”), and which is guided by the objective of advancing Conor’s welfare (“…but always with due regard to the natural and imprescriptible rights of the child….”). As Article 42.5 itself acknowledges, decision-making by the State – rather than by parents – in matters of this kind is nearly always unsatisfactory. This is especially so in the present appeal: I do not know the child or his family and have but an imperfect knowledge of their family circumstances. In ideal world a decision maker would endeavour to consult with wider family members and friends and speak to Conor’s former and prospective teachers before arriving at a decision. But if only for reasons of time, this simply has not been possible.
24. I should also say – if by only by way of a coda to the foregoing discussion – that while I am naturally conscious of the result of the referendum last November, the outcome of that process is presently under challenge by referendum petition to this Court and no constitutional change has – to date, at least – been actually effected. In these circumstances I am applying the existing constitutional provisions.
The relevant factors
25. What, then, are the relevant factors? First, there are the views of Conor himself, as he is anxious to attend School B. These are views which must carry considerable weight, even if his views could not in the end be in any sense dispositive.
26. At the hearing of the appeal I inquired of the parties whether I should not interview Conor myself, but neither parent wished me to do so. They both felt that this would have an unsettling effect on him and – for very understandable reasons – they did not wish to have Conor involved in the panapoly of the judicial process. Given that in this respect both parents expressed this wish, this is a view which must be respected by the judicial branch unless it was a case coming within Article 42.5 which would entitle me to interfere with that parental decision. This is obviously not one such case.
27. Second, there is the question of the family’s means. Here I find myself obliged to agree with Mr. B. that as things stand the family simply cannot afford to pay the school fees associated with School B. If Conor is to attend School B, it cannot be at the expense of the family’s otherwise hard-pressed and slender resources.
28. Third, it is difficult to avoid the conclusion that School B. would be the more appropriate school for a boy of Conor’s aptitude, even if he would also do well at School A. He is a bright boy who would be likely to thrive in the more academic environment of School B.
29. It must here be emphasised that this is not to endorse School B at the expense of School A, still less to suggest that private education is in some way more desirable than education in the public system. There are, of course, many – not least educationalists and social reformers – who decry the ranking of schools and the emergence of a small coterie of “elite” schools. Perhaps in an ideal world all schools would (and should) be ranked equally. But in considering what is best for Conor, I have to take the world as I find it and not perhaps as one might wish it to be. Given especially his scholastic aptitude it seems appropriate that he should go to a school that would seem best suited for his talents.
30. Fourth, while I understand and respect Mr. B.’s objections to the suggestion that the school fees should not be discharged by other persons – such as Ms. A.’s parents – given that I am required to consider this matter from the standpoint of the welfare of Conor, this cannot be regarded as an objection which carries considerable weight.
31. Fifth, it is also true that Conor will be mingling with boys from a more privileged and affluent background in School B. One cannot, therefore, exclude the possibility that he may feel (or, more accurately, may be made to feel) to some degree isolated from his peers as a result. This is a matter which has troubled Mr. B. and is one of the reasons that he has voiced concern regarding School B.But I cannot think that this could be a weighty reason for refusing this offer. The school will presumably be aware of these risks – such as they are – and will doubtless seek to counteract them by including him to the greatest possible extent in the life of the school. In any event, Conor’s motivation and evident desire to make the best of his abilities will also doubtless stand him in good stead in this regard.
Conclusions
32. Weighing all these factors I find myself driven to the conclusion that the appeal should be allowed. I will therefore allow Ms. A. to enrol Conor at School B.
33. This, however, is subject to a number of conditions. Specifically, it is expressly predicated on the assumption that School B will waive 50% of its fees and that the balance of these fees will be discharged by Ms. A’s parents. Under no circumstances could Mr. B. be expected to contribute to any additional costs associated with Conor’s attendance at School B. If, moreover, this financial support were not to materialise, then the matter would have to be re-visited.
34. While any disruption of Conor’s education must be avoided if at all possible, this order is not – and cannot be – in the nature of a final order. For all the reasons mentioned by the Supreme Court in Doyle, both parents have the right to apply, within reason, to have the order varied in the light of changing circumstances. I would, however, venture to suggest that it would be very desirable that disputes of this kind might be resolved through mediation rather than the acrimony which is inevitably generated through the judicial process.
35. Nevertheless, coerced as I am to make a decision and to resolve the issue, I must find that Conor’s educational welfare will be best served by attending School B.
Bode v Minister for Justice
[2007] I.E.S.C. 62
Judgment delivered the 20th day of December, 2007 by Denham J.
1. Issue
At issue in this case is the decision of a Minister of the Government made in an administrative scheme, established as an exercise of executive power, to deal with a unique group of foreign nationals. It is submitted, on the one hand, that, inter alia, in this scheme the Constitutional and Convention rights of applicants were required to be considered in accordance with law. On the other hand, it was submitted that neither Constitutional nor Convention rights arose to be considered. Thus the nature of the scheme is at the core of the appeal, and, with it, the nature of any judicial review. Also, at the kernel of the case is the fact that the position of a foreign national, who failed in an application under the scheme, remains the same as it was prior to the application, with all relevant Constitutional and Convention rights yet to be considered. In this, and the related judgments, the term ‘foreign national’ means a national other than an Irish citizen.
At the core of the case is the refusal by the Minister of the second named applicant’s application under the IBC 05 Scheme.
2. Eight Cases
The Minister for Justice, Equality and Law Reform, the respondent/appellant, hereinafter referred to as the ‘the Minister’, has appealed from the judgments of the High Court (Finlay Geoghegan J.) in seven cases where the High Court quashed the decision of the Minister to refuse applications for permission to remain in the State to foreign national parents of Irish born children under a scheme which he had introduced. In the eighth case the Minister is appealing against the order for costs made in the High Court. No submissions have yet been made on this latter case.
3. These related cases are:
(i) Bode v. The Minister, Appeal No. 485/2006
(ii) Oguekwe v. The Minister, Appeal No. 489/2006
(iii) Dimbo v. The Minister, Appeal No. 484/2006
(iv) Fares v. The Minister, Appeal No. 483/2006
(v) Oviawe v. The Minister, Appeal No. 480/2006
(vi) Duman v. The Minister, Appeal No. 482/2006
(vii) Adio v. The Minister, Appeal No. 481/2006
(viii) Edet v. The Minister, Appeal No. 005/2007
The Minister was represented in all the cases by the same counsel. The same affidavit of Maura Hynes, a principal officer in the Department of Justice, Equality and Law Reform, was filed in all cases on behalf of the Minister. Similar written submissions were filed on behalf of the Minister in all cases.
4. The general facts and law relating to the Minister’s decision in the administrative scheme in the seven cases are set out in this judgment. The particular facts, law, and decision of this case are set out herein, and the other seven cases are addressed in separate judgments and orders.
5. In two cases, Oguekwe v. The Minister and Dimbo v. The Minister, there is a second issue relating to the Minister’s decisions on orders of deportation. These matters will be considered and determined in the two relevant judgments.
6. Minister’s IBC 05 Scheme
The Minister made revised arrangements for the consideration of applications for permission to remain in the State, on the basis of parentage of an Irish born child born before the 1st January, 2005. This was called the Irish Born Child 05 Scheme and is referred to as the ‘IBC 05 Scheme’. This scheme was separate from the Minister’s function under legislation, specifically under the Immigration Act, 1999. The scheme was described by Maura Hynes in her affidavit, which explanation was in identical terms in this and the related cases. There was no cross-examination of Maura Hynes. Maura Hynes was the officer in charge of the IBC 05 Scheme unit.
The following is a shortened version of the facts deposed to by Maura Hynes. The State began to experience mass applications for asylum for the first time in its history in the 1990s. Under Irish law a person born in Ireland was an Irish citizen from birth. Reference was made to Fajujonu v. Minister for Justice [1990] 2 IR 151.
The Minister adopted a policy under which he usually granted permission to remain in the State to foreign national parents of Irish born children. Occasionally the Minister did refuse some applications, when he deemed that it was necessitated by the common good. This occurred, for example, when a foreign national parent had been convicted of a criminal offence. The Minister granted leave to remain in the State, on the basis of parentage of an Irish born child, to approximately 10,500 foreign nationals between 1996 and February, 2003.
The judgments in L. and O. v. Minister for Justice, Equality and Law Reform [2003] 1 I.R. 1, were delivered on 23rd January, 2003, when this Court held that a foreign national parent of an Irish born child did not have an automatic entitlement to remain in the State with the child. As a result of that case the Minister reviewed his policy. The Minister decided that the separate procedures for the consideration of residency applications based solely on parentage of an Irish born child should cease with effect from the 19th February, 2003. At that date a total of 11,493 applications, which had been made on this basis, were outstanding.
It was expected that the number births of children of foreign nationals in Ireland would drop significantly. However, this did not happen. The Government proposed an amendment to the Constitution. This was approved by the people in a referendum in 2004.
The effect of the amendment to the Constitution was to exclude from automatic Irish nationality and citizenship a child born to parents neither of whom was entitled to be an Irish citizen at the time of the child’s birth. There were some exceptions. Legislative effect was given to the amendment by the Irish Nationality and Citizenship Act, 2004, which came into force on 1st January, 2005. From that date it was no longer possible for persons to bestow Irish citizenship on their children by arranging for their birth in Ireland. This law reduced the number of applications for asylum and reduced the proportion of asylum seekers who were pregnant at the time of arrival in the State. In this changing situation the Minister considered the 11,000 outstanding cases which it had been decided would be considered individually.
Maura Hynes explained that it was decided that, rather than engaging in a case by case analysis, as a gesture of generosity and solidarity to the persons concerned, a general policy would be adopted of granting those persons permission to remain in the State, provided that they fulfilled certain criteria which were designed to reflect the factors that had given rise to the decision to adopt a generous attitude toward these persons and to protect the public interest.
Criteria were established in formulating the IBC 05 Scheme. The following were described. (a) Criminal activity of an applicant would always be a factor and would weigh against the granting of permission to remain in the State. (b) Persons who had been resident in the State for some time (and especially since the birth of an Irish born child), were a special category due to their connection with the State. (c) To qualify for inclusion in the scheme an applicant should have been continuously resident in the State since the birth of the child. (d) If a parent was not part of the same family unit as the child, or not taking a role in the upbringing of the child, his or her claim to remain in the State on the basis of parentage was weakened. Thus under the IBC 05 Scheme applications might be refused if it appeared that an applicant was not living as part of a family unit with the child or otherwise not taking a role in the child’s upbringing.
Maura Hynes deposed that the purpose of the IBC 05 Scheme was to confer a benefit on persons in the identified special category. It was not established in order to be a means of family reunification. It was decided that it should be made clear to applicants that they should accept as a condition of their application, and of any grant of residency, that such a grant would not confer any legitimate expectation that any other person would be granted permission to remain in the State.
A two year initial permission to remain in the State was to be granted, which might be further extended at the Minister’s discretion. Such a grant was subject to conditions, being: (a) that a person would obey the laws of the State and not become involved in criminal activity; (b) that the person would make every effort to become economically viable in the State by engaging in employment, business, or a profession; (c) that the person would take steps, e.g. training or language courses, to enable him to engage in employment, business or a profession; (d) that the person accepted that the granting of permission to remain did not confer any entitlement or legitimate expectation on any other person, whether related to him or her or not, to enter the State.
With a view to restricting the potential for abuse of the scheme, it was decided that applications should be accepted only from persons, who might come within the scheme, for a limited period of time. The scheme was introduced on the 15th January, 2005, and the closing date for the receipt of applications was the 31st March, 2005.
Maura Hynes deposed that the rationale behind the scheme was a measure of generosity towards the closed category of foreign national parents who were in an anomalous situation, which situation was not going to recur. The scheme was operated as an administrative scheme. The examination of individual applications did not entail any examination of the ‘underlying merits’ of a claim to residency. It did not entail any examination of rights of the Irish citizen child. The scheme simplified the Department’s role of examining the cases. Rather than engaging in a substantive analysis of the legal rights and claims of the Irish citizen child and the foreign national parent, and all countervailing factors, it would enable the disposal of very many cases simply by verifying that the person qualified within the terms of the scheme and had submitted appropriate documentation.
On 14th December, 2004 the Minister announced that the Government had approved his proposals for the Scheme. An advertisement was placed in the national newspapers and the Department’s website on 15th January, 2005, setting out details of the scheme. The closing date for receipt of applications was announced as 31st March, 2005.
7. Operation of the IBC 05 Scheme
A total of 17,917 applications under the scheme were received and processed. A total of 16,693 applicants were given leave to remain under the scheme and 1,119 were refused. (These figures are based on cases completed by 31st January, 2006.)
There were a variety of reasons for refusing and some applicants failed on several criteria, but in those cases only one reason for refusal was cited. The reasons were as follows:-
Reasons for Refusal
Cases
Continuous residence not proven
566
No identity proven
104
Granted refugee status
94
Criminality
78
No role in upbringing of IBC
71
IBC born in 2005
48
Not the parent
38
IBC & parent abroad
34
IBC abroad
33
Applicant abroad
21
Already had status
12
Withdrew
8
Statutory declaration not signed
7
Child not born in Ireland
3
Deceased applicants
2
Each application was considered taking into account the information supplied by the applicant on the form and the supporting documents. All applications received by the closing date were processed.
As a consequence of the IBC 05 Scheme it was submitted, on behalf of the Minister, that very many people obtained permission to remain in the State who would have been very unlikely to have been granted permission under an individual case by case analysis.
A person who applied under the IBC 05 Scheme, but whose application was rejected, was in no worse position than he was before the scheme was introduced. If an application was refused under the IBC 05 Scheme the applicant could still assert his rights and his entitlement to remain in the State.
8. Documents
On 14th December, 2004, the Minister announced, by publication in the national newspapers, revised arrangements for processing claims for permission to remain from parents of Irish born children. The terms of the announcement were:
“Mr Michael McDowell TD, Minister for Justice, Equality and Law Reform, has announced that the Government have today approved his proposals to introduce revised arrangements for the processing of claims for permission to remain in the State from the foreign national parents of Irish born children with effect from early January 2005.
Announcing the new arrangements, the Minister said ‘The Irish Nationality and Citizenship Bill 2004 which will be commenced with effect from 1 January 2005, will enable me to deal with these claims in a decent, pragmatic and common sense way, as I had promised. Each case will be examined thoroughly and I intend to grant residence only to those people who can show that they have been resident in Ireland taking care of their Irish citizen children, have not been involved in criminal activity, and that they are willing to commit themselves to becoming economically viable. They will be given the opportunity to work and to contribute fully to Irish society.’
The onus will be on applicants to show whey they should be granted residence. Applicants will be required to provide adequate proof of their identity, their period of residence in Ireland, and their relationship with the Irish citizen child. Details of the application procedure will be published early in January 2005 and application forms will be made available at that time. Applications must be returned by the end of March. In the meantime, people should prepare themselves by obtaining the necessary evidence of identity, including passports from their countries of origin and birth certificates. People who had previously applied for permission to remain on the basis of their Irish citizen child will be required to submit a new application on the new form.
The Minister added, ‘The foreign national parents of Irish born children born before the enactment and commencement of the new legislation are in a unique position because of the citizenship legislation which has been in place to date. With our new legislation, it will no longer be possible for non-national parents to bestow Irish citizenship on their child solely on the basis of his or her birth on the island of Ireland. From now on, only children of non-national parents who have a genuine prior link to Ireland, evidenced by being resident here legally for three out of the previous four years, will be entitled to Irish citizenship”.
A public notice appeared in the newspapers and on the Department of Justice, Equality and Law Reform’s website on 15th January, 2005. Under a heading stating:- “Revised arrangements for the consideration of applications for permission to remain made by the non-national parents of Irish born children born before 1st January, 2005” it was stated:-
“1. This notice sets out details of the new arrangements which are being introduced with effect from today. Applications from non-national parents of Irish born children born before 1 January 2005 for permission to remain in the State can be made on form IBC/05. This form is now available on our website at www.justice.ie Hard copies of the form will be available with effect from 21st January, 2005 at the Department of Justice, Equality and Law Reform, 13-14 Burgh Quay, Dublin 2, Garda District Headquarters stations outside Dublin and at all Reception and Integration Agency accommodation centres countrywide. Forms will also be distributed to various non-governmental organisations working with immigrants and asylum seekers. Blank forms can be photocopied and applications submitted on photocopied forms.
2. Please note that if you have previously applied for permission to remain based on parentage of an Irish born child and your application was not processed to a conclusion, you must re-apply by completing an application form under this new scheme. If both parents are applying, they must do so on separate forms. Completed applications must be submitted before the end of March, 2005. Applications will be processed as quickly as possible.
3. Your completed application form should be accompanied by the following documents:-
• Original passport/National Identity card (not GNIB card) of the adult applicant
• Original birth certificate for Irish born child
• 2 passport size photographs of the adult applicant (each one signed on back)
• Evidence of continuous residence in the State since the birth of the child (utility bills, lease/rental agreements etc.)
• Letter from your Community Welfare Officer stating the period that you have been in receipt of welfare payments in the State
• If you have been employed in the State, details of that employment, such as tax certificate, letter from employer etc.
Important: All documents must be original documents and copies of documents will not be accepted.
If you are unable to provide any of the above documents, please include a note explaining why this is the case. If you have already sent any of the above documents to the Department please give details.
[The emphasis is added]
4. Each applicant will be required to make a statutory declaration as to their future conduct which must be made in front of and signed by a Notary Public, a Commissioner for Oaths or a Peace Commissioner.
5. Each case will be examined on its merits and successful applicants will be granted permission to remain for an initial period of two years. Applicants will be required to acknowledge that the granting of permission to remain does not give any entitlement to any other person, related or not, to enter the State. This scheme does not make any provision for persons granted permission to be joined by family members from outside the State.
6. Applications will be processed in the order in which they are received. In order to facilitate processing, queries will not be answered over the telephone. All queries should be put in writing and sent to the following address:
Irish Born Child Unit
Department of Justice, Equality and Law Reform
P.O. Box 10003
Dublin 2
15th January 2005”
A reminder notice was published on 18th March, 2005.
The second named applicant obtained an application form. The learned trial judge found that the application form, at section 4, under a heading of “Supporting Documentation”, stated:
“The completed application form must be accompanied by the following original documents (please tick confirming documents included): the relevant heading is ‘Evidence of continuous Residence in the State since the birth of the Irish born child. (utility bills, lease/rental agreements, etc.)’
Under this list there is then a note:
If you are unable to provide any of the above documentation, please include a note explaining why this is the case. If you have already supplied any of the above documents to the Department please give details on the additional sheets provided.
From the copy of Mr Bode’s application form it would appear that he did not tick any of the boxes listed but opposite the relevant one he seems to have added a note, part of which was obliterated in the copy handed in but appears to read ‘see additional … in form …
With the copy of the form exhibited there are only two relevant documents, the document from the Health Services Executive, the first part of which appears to have been completed by Mr. Bode and shows different addresses in Ireland from August, 2002, until March, 2005 and the second part completed by the H.S.E. which confirms weekly welfare claims from the 25th July, 2002, to the 14th August, 2002 and from the 22nd February, 2005, to date. The second document is from the Dún Gibbons Inn and is dated the 8th March, 2005 and confirms that Mr. Bode is then a resident at the Dún Gibbons Inn, Co. Galway and states that he arrived to join his family on the 21st February, 2005 and that his family had been living in the Inn since the 17th June, 2004. The final document of relevance attached to the application form is the birth certificate of the citizen child. She was born on the 13th September, 2004. Mr. Bode is named as her father and his address is given in Nigeria.
However, in the application form in response to the specific question “have you left the State for any reason since the birth of your first Irish born child?” He has ticked the box “No”.
The documents supplied by Mr. Bode on their face are not evidence of continuous residency in the State since the birth of his daughter on the 13th September, 2004. It can also be said that there are inconsistencies between his assertion that he has been so resident and the address given on the birth certificate. He has explained the address in the affidavit grounding this application as being by reason of the fact that his partner had been in Ireland for a short period of time and he was unsure of his status and did not wish to cause him any difficulties with the authorities in Ireland.
Mr. Bode has maintained in the affidavits sworn in these proceedings that he resided in the State since he arrived here in July, 2002. He was not cross-examined on his affidavit.”
9. Parameters of IBC 05 Scheme
The parameters of the IBC 05 Scheme were set out clearly in the documents. The scheme was a revised set of administrative arrangements. It related to applications for permission to remain in the State from foreign national parents of Irish born children born before 1st January, 2005, in certain circumstances. The applicant had to complete an application form. There was a requirement that the following documents accompany the application form: (i) Original passport or national identity card of the adult applicant; (ii) original birth certificate of the Irish born child; (iii) two passport photos of the adult applicant; (iv) evidence of continuous residence in the State since the birth of the child (utility bills, lease/rent agreements etc.); (v) letter from a Welfare Officer stating the period the applicant had been in receipt of welfare payments in the State; (vi) details of any employment. Also, each applicant had to make a statutory declaration as to their future conduct. The matters taken into account in the scheme were stated in paragraph 6 above. The scheme was introduced on the 15th January, 2005 and the closing date for the receipt of applications was the 31st March, 2005.
10. Parties
In this case Deborah Olarantimi Bode (a minor suing by her father and next friend Folajimi Bode), Folajimi Bode and Caroline Ola-Bode are the applicants/respondents, hereinafter referred to as the first, second and/or third named applicant individually, or collectively as ‘the applicants’. The Minister is the respondent/appellant. The Human Rights Commission was given leave to participate as amicus curiae on the appeal by order of 23rd day of March, 2007, and is referred to hereinafter as ‘the Commission’. The Attorney General was joined as a Notice Party.
11. Particular Facts
Particular facts relevant to this case include the following. Deborah Bode, who was born in the State on 13th September, 2004, is an Irish citizen and has resided in the State continuously since her birth.
Her mother, Caroline Ola-Bode, the third named applicant, has been resident in the State since June, 2004. She is a national of Nigeria. On 10th October, 2005 she was granted permission to remain in the State on her IBC 05 Scheme application.
Folajimi Bode, the second named applicant, is the father of Deborah Bode, is also a national of Nigeria, and made an application under the IBC 05 Scheme.
12. Application
The second named applicant filled in an application form, dated 5th March, 2005, and sent it in. This was described by the learned High Court judge, and is set out in paragraph 8 above.
13. Decision of the Minister
The decision of the Minister was conveyed to the second named applicant by letter dated 21st November, 2005, in the following terms:-
“Dear Folajimi Bode,
I am directed by the Minister for Justice, Equality and Law Reform to refer to your application for permission to remain in the State under the revised arrangements announced by the Minister on 15 January 2005 for the processing of applications from the non-national parents of Irish born children born before 1 January 2005.
It is a requirement under the revised arrangements that the applicant has been resident in the State with their Irish born child on a continuous basis since the child’s birth. Evidence of such residence is required. In this case I note that you have not provided sufficient evidence of residency in the State since the birth of your child.
On the basis of the foregoing, I am not satisfied you met the criteria for the granting of permission to remain under the revised arrangements and, accordingly, your application is hereby refused.
Yours sincerely”
It is this decision which the applicants sought to quash, which the High Court has quashed, and which is at the core of this appeal.
14. Leave to apply for Judicial Review for Reliefs
On the 30th January, 2006 the High Court (Finlay Geoghegan J.) gave the applicants leave to apply by way of an application for judicial review for the following reliefs:-
I. An order of certiorari quashing the decision of the Minister, dated the 21st November, 2006, to refuse to grant permission to reside in the State to the second named applicant.
II. A declaration that the Minister’s decision to refuse to grant permission to reside in the State to the second named applicant is unlawful.
III. A declaration that the Minister’s refusal to grant permission to the second named applicant to reside in the State with his daughter and her mother (the first and third named applicants herein) is in breach of the Constitution and the European Convention on Human Rights.
IV. An order of mandamus requiring the Minister to determine the second named applicant’s application for permission to reside in the State by letter (undated) sent in December, 2000.
V. An order of mandamus requiring the Minister to provide the departmental file on the applicant’s case to the applicant.
VI. A declaration, pursuant to section 5(1) of the European Convention on Human Rights Act, 2003, that the rule of law as set out in O’Keefe v An Bord Pleanala [1993] 1 IR 39, insofar as it governs the scope of judicial review in respect of decisions concerning fundamental rights protected by the Constitution and the European Convention on Human Rights, is incompatible with the European Convention on Human Rights.
15. Grounds for Judicial Review
The applicants’ grounds for review were amended and the amended grounds of the application were:-
(1) The refusal to grant residency to the second named applicant is a breach of the constitutional and legal rights of the applicants. In particular, it is in breach of the applicants’ family rights as protected by Articles 40 and 41 of the Constitution, and article 8 of the European Convention on Human Rights Act, 2003.
(2) The refusal to grant residency to the second named applicant is disproportionate in circumstances where thousands of foreign national parents have been granted residency in the State in the past 12 months.
(3) No grave or substantial reason exists for the refusal to grant residency to the second named applicant such that the refusal is in violation of the Constitutional rights of the first named applicant and/or the third named applicant. Further, the Minister has given no reasons as to why a grave and substantial reason could exist requiring his refusal to permit the second named applicant to continue reside in the State with the first and third named applicants.
(4) The reason given by the Minister for the refusal to grant residency to the second named applicant is irrational, arbitrary and/or unreasonable.
(5) Further to (4), the reason given by the Minister for the refusal to grant residency to the second named applicant is not “in accordance with law” by reason of which it is in breach of article 8(2) of the European Convention on Human Rights, and is in breach of the Minister’s duties under the European Convention on Human Rights Act, 2003.
(6) Further, the reason given by the Minister for the decision to refuse to grant the second named applicant residency does not fall within article 8(2) of the European Convention on Human Rights.
(7) The refusal to grant residency to the second named applicant constitutes unlawful discrimination against the first named applicant, in breach of her constitutional rights and in violation of article 14 of the European Convention on Human Rights. The applicants are being unlawfully discriminated against on the ground that the second named applicant has not provided sufficient evidence that he resided continuously in the State. They are thereby being deprived of the opportunity to reside in the State together. There is no reasonable or objective reason for the said discrimination, such that it is unlawful, and in violation of article 14 of the European Convention on Human Rights.
(8) The sole reason for the Minister’s decision to refuse to grant residency to the second applicant is not a proper, or sufficient, reason for denying the first named applicant, an Irish citizen child, the company of her father in the State. It fails to properly weigh the constitutional rights of the Irish citizen child. The reason is arbitrary and has no legislative basis, such that it is ultra vires.
(9) The Minister has unlawfully fettered his discretion.
(10) The Minister has relied on the terms of an administrative scheme devised by him for which there was no statutory basis. Such scheme is unlawful by reason of it containing requirements that are contrary to article 8 of the European Convention on Human Rights and of inter alia being discriminatory, arbitrary, disproportionate, irrational and/or ultra vires.
(11) The Minister took into account considerations and/or failed to take into account relevant considerations in his decision to refuse to grant residency to the third named applicant.
(12) The Minister acted in breach of the applicants’ right to constitutional and natural justice and to fair procedures.
(13) The applicants’ fundamental human rights are affected by the Minister’s refusal to grant residency to the second named applicant, such that the applicants are entitled to adversarial proceedings before an independent body competent to review the reasons for the decision and the relevant evidence. The only forum for review that is open to the applicants is judicial review before this Honourable Court to confining itself to the so-called “O’Keefe test” in reviewing the applicants’ case and the Minister’s decision, such a review is inadequate and contrary to the rights guaranteed by the European Convention on Human Rights. Further, insofar as this Honourable Court feels bound by the so-called “O’Keefe test”, such is incompatible with the European Convention on Human Rights and, if appropriate, the applicants seek a declaration of incompatibility pursuant to section 5(1) of the European Convention on Human Rights Act, 2003.
16. Grounds of Opposition
The Minister filed twenty two grounds of opposition. In essence it was stated that:-
1. The Ministerial scheme entitled IBC 05 was formed and introduced to deal with the significant problems the Government was encountering in the course of formation and administration of Immigration policy in that post the Supreme Court decision in “L & O v. Minister for Justice” individual consideration was required to be given to applications for leave to remain in the State, received from foreign national parents of Irish born children. The numbers of such applicants were substantial, details were set out specifically in the principal affidavit. The Government determined to introduce an administrative scheme to permit foreign national parents fulfilling certain criteria to avail of the IBC 05 Scheme.
2. At all material times the Ministerial scheme was one in which the Minister would have absolute discretion. The conditions of the scheme were clearly delineated and such terms and conditions were more particularly set out in the principal affidavit. It was at all times publicised and made clear that failure to comply with any of the criteria rendered a foreign national parent of an Irish born child ineligible under the scheme.
3. At no time did refusal under IBC 05 mean, nor does it mean, that Irish born children are not entitled to consideration of their constitutional rights and/or their rights under article 8 of the European Convention on Human Rights, before any attempt is made to deport their foreign national parents, nor does a refusal under the IBC 05 Scheme mean that parents of Irish born children are not entitled to consideration of such Constitutional Rights as they may have and such rights under article 8 of the European Convention on Human Rights before an attempt is made to make a deportation order in respect of them.
There was a traverse of the grounds for the judicial review. In addition:-
• The Minister submitted that the application was premature in that the rights which the applicants assert are rights which will duly and properly be afforded in the context of any consideration pursuant to section 3 of the Immigration Act, 1999, as amended, in respect of the second named applicant.
• The Minister submitted that the standard and scope of review as applied by this Honourable Court is compatible with the European Convention on Human Rights and is sufficient to ensure that such rights are guaranteed to the applicants pursuant to the European Convention on Human Rights.
• The Minister submitted that the applicants are not, in the context of the within application, entitled to adversarial proceedings before an independent body competent to review the reasons for the decision and the relevant evidence.
17. The High Court Order
The High Court granted an order of certiorari, on consent, quashing the deportation order dated the 7th February, 2005, relating to the second named applicant.
The High Court granted an order of certiorari quashing the decision of the Minister dated 21st November, 2005, refusing the application of the second named applicant under the IBC 05 Scheme, and ordered that the application be remitted for consideration and determination by the Minister in accordance with law.
The High Court also granted an order of certiorari quashing the decision of the 21st November, 2005 on a separate ground of a breach of fair procedures
18. The High Court Judgment
18.1 IBC 05 Scheme
The learned High Court judge held, in relation to the generality of the scheme:-
“Considering each of the above documents I have concluded in accordance with their plain meaning the revised arrangements (which became known as the IBC/05 Scheme) established by the [Minister] on 15th January, 2005 were, as the title of the notice of that date states, “Revised arrangements for the consideration of application(s) for permission to remain (in the State)”. Further, the persons to whom they were addressed were non-national parents of Irish born children born before 1st January, 2005. Such parents were invited or permitted to apply for permission to remain in the State based upon the parentage of their Irish born child. The [Minister] by the announcement committed himself to consider and determine applications for permission to remain in the State from parents of Irish born children born before the 1st January, 2005 made on form IBC/05.
There is nothing in any of the documents which expressly, or by implication states that the revised arrangements do not apply to a person who was not continuously resident in the State with his or her Irish born child since the date of birth in the sense of precluding such persons from making an application on IBC/05.
The revised arrangements announced were essentially a revised procedure for the making and processing or considering applications to remain in the State from parents of Irish born children born before 1st January, 2005.
Insofar as reliance is placed on the IBC/05 Form and the questions asked in relation to continuous residency at para. 3(e) the details sought do not imply automatic exclusion from consideration if a person had left the State since the date of the birth of their child, rather that the length of absence and reason for absence may be relevant.”
The learned trial judge referred to the multiple grounds and submissions of the parties. It was noted that the primary submission was that the decisions of the Minister were invalid or unlawful in that they were taken in breach of personal or fundamental rights of the citizen children guaranteed and protected by the Constitution and the European Convention on Human Rights, and that there were submissions alleging breach of rights of foreign national parents. The learned trial judge proposed to consider the following grounds:-
“1. The taking of a decision to refuse a parent residency for failure to meet a requirement of continuous residency without considering the rights, including welfare, of the citizen child is in breach of the citizen child’s rights under Article 40.3 and 41 of the Constitution.
2. The taking of a decision to refuse a parent residency for failure to meet a requirement of continuous residency without considering the rights of the child to respect for his/her private and family life is in breach of the State’s obligations under article 8 of the European Convention on Human Rights and consequently in breach of the [Minister’s] obligations under s.3 of the European Convention on Human Rights Act 2003.
3. The requirement of continuous residency as a criteria for the granting of permission to remain in the State is in breach of the citizen child’s rights under article 14, when considered in conjunction with article 8 of the European Convention on Human Rights and consequently in breach of the [Minister’s] obligation under s.3 of the Act of 2003.”
In a lengthy and learned judgment the High Court then considered Constitutional and Convention rights of the applicants.
As to the criteria of review the learned High Court judge held:-
“Insofar as the applicants allege that the [Minister] in either the establishment or implementation of the IBC/05 Scheme acted in breach of the constitutional rights of the citizen children or contrary to his obligations under s. 3 of the Act of 2003, then such dispute is to be determined by the Courts and in such proceedings the challenged decision or implementation is subject to review by the courts.”
The learned High Court judge, having addressed the rights of the applicants, including those of a citizen child, concluded:-
“For the reasons set out above I have reached the following conclusions.
1. The decision taken by the [Minister] on the application on IBC/05 of the second named applicant as communicated in the letter of 21st November, 2005 is unlawful as it was taken in breach of the first named applicant’s rights under Article 40.3 of the Constitution.
2. The decision of the [Minister] on the application under IBC/05 of the second named applicant communicated in the letter of 21st November, 2005 is unlawful as it is in breach of the [Minister’s] obligations under s. 3(1) of the European Convention on Human Rights Act, 2003.”
The High Court, therefore, found it unnecessary to consider the challenge to the law as stated in O’Keefe v. An Bord Pleanala [1993] 1 I.R. 39. The High Court made an order of certiorari quashing the decision of the Minister made on 21st November, 2005, refusing the second named applicant’s application under the IBC 05 Scheme.
18.2 Fair Procedures
The High Court also addressed the claim of the second named applicant that there had been a breach of fair procedures. The complaint was that the second named applicant was not given any notice that the Minister considered the evidence supplied with the application form not to be sufficient evidence of residency in the State since the birth of his child, nor was he given any opportunity of providing further evidence. The High Court stated that the issue was whether the Minister was obliged to give the second named applicant an opportunity of providing further or additional evidence prior to making the decision.
18.3 High Court Judgment on particular facts
In relation to the second named applicant and the issue of continuous residence, and other cases where the issue of continuous residence arose, the learned High Court judge held:-
“Finally, it is clear from the form of letters sent to Mr. Bode and the other parents who were refused by reason of a failure to meet the requirement of continuous residence that their application was processed and considered under the revised arrangement and a determination made that their application should be refused.
In the formal notice of 15th January, 2005 the only indication given of the criteria which would apply in determining applications made is at para. 5:
“Each case will be examined on its merits …”
In the announcement of 14th December, 2004 the [Minister] had stated:
“… each case will be examined thoroughly and I intend to grant residence only to those people who can show that they have been resident in Ireland taking care of their Irish citizen children, have not been involved in criminal activity and that they are willing to commit themselves to becoming economically viable.”
In this judgment, I propose continuing to refer to the revised arrangements introduced by the [Minister] in January, 2005 as the IBC/05 Scheme for the sake of simplicity. However, in doing so, I do not intend to confer any special status on the revised arrangements.”
The High Court found that the documents supplied by the second named applicant did not provide evidence of continuous residency in the State since the birth of his daughter on 13th September, 2004.
The High Court referred to the fact that Maura Hynes in describing the procedure on the IBC 05 Scheme had deposed that where applicants omitted to supply certain documents or information they were informed by letter and given time to reply. A standard form letter for such a situation was exhibited. The High Court endorsed such a procedure as fair, and it held:-
“However, on the facts pertaining to Mr. Bode there is no evidence offered on behalf of the [Minister] that he received the type of letter exhibited by Ms. Hynes. He has averred that he did not receive any such letter. On his application form he had stated that he had not left the State since the birth of his daughter. The documents put in evidence to the court as the supplied supporting documentation evidencing residence in the State from September, 2004 do not do so.
I have concluded that fair procedures did require that he received the type of letter seeking specifically documentation evidencing residency in the State from September, 2004 and giving him an opportunity of producing it within a specified period of time. This is the procedure which the Department recognised as being appropriate. There is no explanation as to why the omission occurred in this case. It is perhaps understandable in the context of so many applications but the omission in my view entitles the applicant to an order of certiorari on this ground as sought.”
18.4 Mandamus and immigration history of second named applicant
As to the application for an order of mandamus, in the circumstances where the High Court had made an order of certiorari of the decision of the Minister, it was determined unnecessary to make an order of mandamus against the Minister in respect of the free standing application for residency. However, the High Court proceeded and considered the matter, and reference was made to the second named applicant’s personal immigration history. It appears that he arrived in the State on the 23rd July, 2002. He applied for asylum on 20th February, 2003. He was notified that the Refugee Applications Commissioner was recommending that he be refused refugee status. He did not appeal this recommendation. On the 14th March, 2003 he was notified that the Minister proposed making a deportation order under s.3 of the Act of 1999. By letter dated 29th May, 2003, his solicitors made representations under s.3 seeking leave to remain. On 23rd November, 2004 the Department of Justice, Equality and Law Reform informed the second named applicant’s solicitors that they would be examining his case under s.5 of the Refugee Act, 1996 and s.3 of the Immigration Act, 1999 and that any information for consideration should be forwarded within fourteen days. By letter dated 21st December, 2004, solicitors acting for the second named applicant informed the Department that the second named applicant had become the father of an Irish born citizen child on 13th September, 2004, reference was made to the recent announcements as to applications for residency for such parents, and a request was made that no decision be made until he had time to make an application. In the intervening time, on 13th December, 2004, a clerical officer and an executive officer had recommended that the Minister sign a deportation order. The Minister considered the matter on the 7th February, 2005, when a deportation order was made. The deportation order appears to have been signed without considering the fact that the second named applicant is the father of an Irish born child. The deportation order was sent to the second named applicant with a letter dated 2nd March, 2005, and required him to be at the Garda National Immigration Bureau on Burgh Quay on 10th March, 2005. By letter dated 23rd March, 2005, solicitors for the second named applicant informed the Department that he had made an application under the IBC 05 Scheme and requested confirmation that no steps be taken to execute the deportation order pending a decision in that scheme. On 11th April, 2005, such confirmation was given. When the second named applicant’s application under the IBC 05 Scheme was refused by letter dated 21st November, 2005, the deportation order was still in existence.
The second named applicant then made an application to the Minister in an undated letter, acknowledged by letter dated 8th December, 2005. In that letter the second named applicant applied for permission to reside in Ireland. He confirmed that he was the father of an Irish born citizen child, that the child’s mother had been granted permission to remain in the State as parent of an Irish citizen child. He made his application on humanitarian grounds and as a parent of an Irish citizen child pursuant to IBC 05 Scheme.
An affidavit was filed on behalf of the Minister in which it was acknowledged that because of the information furnished on the 21st September, 2004 that the second named applicant was a parent of an Irish citizen child born on 13th September, 2004, that:
“It will therefore be necessary to revoke the deportation order and reconsider such representations as the second named applicant may make in respect of an application for leave to remain in the State pursuant to s.3 of the Immigration Act, 1999.”
Because of the granting of the order of certiorari, the High Court held that it was unnecessary to make an order of mandamus against the Minister in respect of the subsequent free standing application for residency.
19. Grounds of Appeal
The Minister appealed against the orders and judgment of the High Court, filing twenty four grounds of appeal. These were as follows:-
“The Scope and Terms of the IBC 05 scheme
1. The learned High Court judge erred in law and in fact in her construction of the “IBC 05 scheme” in so far as she purported to determine as a matter of fact that the IBC 05 Scheme was addressed to all non-national parents of Irish citizen children born before the 1st of January 2005.
2. The learned High Court judge misdirected herself in law and in fact in her construction of the terms of the IBC 05 Scheme and in particular as to whether or not continuous residence in the State since the birth of the Irish citizen child was a requirement of the IBC 05 Scheme.
3. The learned High Court judge was misdirected both in law and in fact in purporting to find that evidence of continuous residence in the State since the birth of the Irish citizen child was not required prior to consideration of an application under IBC 05 in light of the fact that there was no dispute between the Minister and the applicants to the appeal that such a requirement was a term of the IBC 05 Scheme.
4. The learned High Court judge erred in law and in fact in the interpretation which she placed upon the IBC 05 Scheme in holding that it was addressed to all non-national parents of Irish citizen children born before the 1st of January, 2005, whereas on its proper construction it was addressed to all those non-national parents of Irish citizen children, born before the 1st of January 2005 who could satisfy the terms of the scheme.
5. The learned High Court judge erred in law and in fact in holding that the [Minister] was under a duty to treat the application under the IBC 05 Scheme as an application for permission to remain in the State outside the terms of the scheme in circumstances where the second named applicant would not have qualified under the terms of the scheme.
6. The learned High Court judge erred in law and in fact in holding that the Constitutional and/or European Convention rights of the Irish born child were central to the IBC 05 Scheme in circumstances where evidence of the rationale of the scheme as explained in the affidavit of Maura Hynes indicated that the IBC 05 Scheme was adopted by reference to the anomalous position of non-national parents of Irish born children.
Constitutional Rights of the Irish Born Child in the context of the IBC 05 Scheme
7. The learned High Court judge erred in law and in fact in finding that in the establishment and adoption of the scheme in January 2005 the [Minister] was required to have regard to the constitutional rights of the Irish born child including the right to live in the State and to be reared and educated with due regard for its welfare.
8. The learned High Court judge erred in law and in fact in her determination that the [Minister] had acted in breach of the Irish citizen child under Article 40.3 of the Constitution.
9. The learned High Court Judge erred in law in holding that a positive decision in respect of an application pursuant to the IBC 05 Scheme was prima facie a decision which defended and vindicated the personal rights of the citizen child to live in the State and to be reared and educated with due regard for its welfare.
10. The learned High Court judge erred in law or in fact or in the determination of a mixed question of law and fact by failing to give any or any proper or adequate notice to the fact that the refusal of the application by the second named applicant under the IBC 05 Scheme did not alter or affect his status within the State.
The Separation of Powers and the Executive’s Role in the Formation of Policy in respect of the IBC 05 Scheme.
11. The learned High Court judge erred in law in holding that the establishment and implementation of the IBC 05 Scheme by the [Minister] was subject to review by the courts other than to ensure that it was applied properly in accordance with the terms.
12. The learned High Court judge erred in law in failing to accord sufficient recognition to the exclusive responsibility of the executive in the formulation and adoption of the IBC 05 scheme.
13. The learned High Court judge erred in law in the weight which she attached to the Irish born child’s rights to be reared and educated with due regard to its welfare and to have its welfare considered in any decision that might have effect upon it in the context of the [Minister’s] role in forming and implementing the immigration policies in the State.
14. The learned High Court judge erred in law in her construction of section 3 of the European Convention on Human Rights Act, 2003 so as to apply it to executive functions without any limitation in the sphere of the formation and implementation of policy, in accordance with the constitutional separation of powers.
Grounds relating to the European Convention on Human Rights Act 2003
15. The learned High Court judge erred in law in determining that in the establishment and adoption of the IBC 05 Scheme the [Minister] was bound by the provisions of the European Convention on Human Rights Act, 2003.
16. The learned High Court judge erred in law and in fact in holding that the first named applicant had established a private life in the State such as to be entitled to the protection afforded by the European Convention on Human Rights Act, 2003.
17. The learned High Court judge erred in law and/or in fact in particular in holding that the first named applicant’s right to private life in the State derived from her Constitutional right to live in the State.
18. Without prejudice to the foregoing the learned High Court judge erred in law and in fact in holding that the decision to refuse the second named applicant’s application pursuant to the IBC 05 Scheme interfered with, infringed or breached the asserted right to private life in the State of the first named applicant;
19. The learned High Court judge erred in law and in fact in holding that the [Minister] was obliged in considering an application under the IBC 05 Scheme to ensure that a decision to refuse the application in accordance with the terms of the scheme was not disproportionate to the ends sought to be achieved in the interests of the common good.
Grounds relating to the learned High Court Judge’s finding that there was a failure of the Minister to afford the Respondents fairness of procedure
20. The learned High Court judge misdirected herself in law or in fact in holding that the [Minister] had not afforded fair procedures to the second named applicant in the manner in which the [Minister] determined that the second named applicant had not provided adequate evidence of continuous residency in the State.
21. The learned High Court judge misdirected herself in law or in fact in the determination of a mixed question of law and fact by failing to give any or any adequate reasons of law as to why fair procedures required the second named applicant to be informed of the deficiencies in the documentation he had submitted other than by referring to the statements in the affidavit of Maura Hynes at paragraph 33 thereof;
22. The learned High Court judge erred in law in holding that the [Minister] was obliged to inform the second named applicant that the documentary evidence of continuous residence that he had submitted was insufficient to provide evidence of continuous residence in the State in circumstances where the learned High Court judge had held that the documents submitted did not on their face prove continuous residence.
Grounds relating to the learned High Court Judge’s findings in relation to separate and distinct applications for residency in the State
23. The learned High Court judge erred in law and in fact in determining that the [Minister], on receipt of an application for residency or leave to remain in the State from a non-national parent of an Irish born citizen must by a fair and proper inquiry into the circumstances of the citizen child and his/her family consider (sic) determine whether or not respect for and defence of the vindication of the citizen child’s personal rights as guaranteed by Article 40.3 of the Constitution required that the [Minister] should then consider the application for residency.
24. The [Minister] contended that the said finding was otiose in that in light of the learned High Court judge’s order of certiorari of the decision refusing the second named applicant’s application under the IBC 05 scheme, as in the circumstances, there was no necessity to consider the said issue.
20. Submissions
Written and oral submissions were received by the Court in this matter, and the appeal was at hearing over three days.
21. Decision
I would allow the appeal of the Minister. My reasons are as follows.
22. Executive Power
In this case one of the fundamental powers of a State arises for consideration. In every State, of whatever model, the State has the power to control the entry, the residency, and the exit, of foreign nationals. This power is an aspect of the executive power to protect the integrity of the State. It has long been recognised that in Ireland this executive power is exercised by the Minister on behalf of the State. This was described by Costello J. in Pok Sun Shun v. Ireland [1986] I.L.R.M. 593 at 599 as:
“In relation to the permission to remain in the State, it seems to me that the State, through its Ministry for Justice, must have very wide powers in the interest of the common good to control aliens, their entry into the State, their departure and their activities within the State.”
The special role of the State in the control of foreign nationals was described by Gannon J. in Osheku v. Ireland [1986] I.R. 733 at 746. He stated at p.746:-
“That it is in the interests of the common good of a State that it should have control of the entry of aliens, their departure and their activities and duration of stay within the State is and has been recognised universally and from earliest times. There are fundamental rights of the State itself as well as fundamental rights of the individual citizen, and the protection of the former may involve restrictions in circumstances of necessity on the latter. The integrity of the State constituted as it is for the collective body of its citizens within the national territory must be defended and vindicated by the organs of the State and by the citizens so that there may be true social order within the territory and concord maintained with other nations in accordance with the objectives declared in the preamble to the Constitution.”
I would affirm and adopt this description. While steps taken by a State are often restrictive of the movement of foreign nationals, the State may also exercise its powers so as to take actions in a particular situation where it has been determined that the common good is served by giving benefits of residency to a category of foreign nationals – as a gift, in effect. The inherent power of the State includes the power to establish an ex gratia scheme of this nature. Such an arrangement is distinct from circumstances where legal rights of individuals may fall to be considered and determined.
Exercising such power, in light of unique circumstances in Ireland in 2005, in addition to the specific statutory procedures, a special administrative scheme, the IBC 05 Scheme, was introduced by the Minister. The Minister obtained Government approval. It was a generous scheme, for those who came within its criteria. It was an example of the State exercising its discretion to allow specific foreign nationals to reside in Ireland. Yet, the foreign nationals still retained all rights under the formal procedures.
The IBC 05 Scheme was administered by the IBC 05 unit in the Department of Justice, Equality and Law Reform. It was a sui generis scheme. Under this scheme leave to reside was granted on general principles.
The scheme was introduced by the Minister, exercising the executive power of the State, to address in an administrative and generous manner a unique situation which had occurred in relation to a significant number of foreign nationals within the State. However, those who did not succeed on their application under this scheme remained in the same situation as they had been prior to their application. They were still entitled to have the Minister consider the Constitutional and Convention rights of all relevant persons.
The scheme enabled a fast, executive decision, giving a benefit to very many people. However, a negative decision in the IBC 05 Scheme did not affect any substantive claim for permission to remain in the State. In other words, an adverse decision to an applicant under the IBC 05 Scheme left the applicant in no worse position than he or she was prior to the application as no decision had been made on any substantive rights.
23. Decision on IBC 05 Scheme
The terms of the IBC 05 Scheme were set out clearly in the public documents of the scheme and on the application form. One of the requirements was continuous residence within the State since the birth of the Irish born child.
I am satisfied that the High Court erred in holding that there was nothing in the documents which stated that the revised arrangements did not apply to a person not continuously resident in the State with his or her Irish born child since the birth of the child. The public documents clearly stated that continuous residence in the State with the child was a requirement of the scheme.
The High Court then went on to consider whether in fact the second named applicant had provided evidence of continuous residency and found that he had not. The High Court held that he had failed to meet this term of the scheme and I would endorse that finding. The consequence is that the second named applicant’s application did not come within the terms of the IBC 05 Scheme. Thus his application must fail.
The IBC 05 Scheme was a limited scheme, directed to foreign national parents of Irish born citizen children born before 1st January, 2005, who satisfied the terms of the scheme. It was the duty of the Minister to consider each application, to see if it met the criteria of the scheme.
On the face of the documents furnished by the second named applicant, he did not come within the scheme. The public notice stated that the application form should be accompanied by, inter alia:
“Evidence of continuous residence in the State since the birth of the child (utility bills, lease/rental agreements etc.)
Such evidence was not provided. The decision of the Minister was that the second named applicant did not come within the scheme and his application was refused. There is no reason, to interfere with that decision. It was a decision made by the Minister within the terms of the scheme.
The consequence is that the second named applicant is in the same position as he was prior to applying under the IBC 05 Scheme. The merits of his case have not yet been addressed in a judicial or statutory procedure. Substantive rights have not been considered and continue as before. The decision within the IBC 05 Scheme does not lead to his deportation.
The IBC 05 Scheme no longer exists. It was a generous scheme introduced and administered by the Minister and it is concluded and is no longer applicable.
There is no evidence that the scheme was not applied to the second named applicant within its terms, or that any other than the criteria of the scheme were applied. Indeed the evidence is to the contrary. Thus the situation to be considered now is one post the IBC 05 Scheme.
24. Misconceived
The basic premise of the applicants, and of the High Court, that the Constitutional and Convention rights of the applicants were in issue in the IBC 05 Scheme, was misconceived. Thus much of the pleadings, judgment and submissions related to matters not in issue.
The High Court found that the second named applicant had not complied with the requirements of the scheme. However, it then fell into error in its analysis of the IBC 05 Scheme.
I am satisfied that the scheme was an exercise of executive power by the Minister. It did not purport to address, nor did it address, Constitutional or Convention rights. It was a scheme with clear criteria. On the face of the documents the criteria were applied to the second named applicant, and he failed to meet the criteria.
As the IBC 05 Scheme did not address Constitutional or Convention rights applicants who were not successful were left in exactly the same position as they had been prior to their application. There was no interference with any Constitutional or Convention rights. Consequently, it was an error on behalf of the High Court to consider the application of the scheme as an arena for decision making on Constitutional or Convention rights, whether they be; as considered by the High Court: (1) the rights of the child under Articles 40.3 and 41 of the Constitution; (2) Rights under article 8 of the European Convention on Human Rights; or, (3) Rights under article 14 of the Convention; or other rights. It follows, also, that in establishing the criteria for judicial review, the High Court took too expansive an approach. Neither Constitutional nor Convention rights were in issue, at issue was whether or not the Minister acted within the stated parameters of the executive scheme.
Insofar as the issue of rights under the Constitution and the Convention were considered and decisions made on these issues, it was a premature analysis by the High Court. Issues as to the Constitutional and Convention rights of the applicants have yet to be considered by the Minister. Insofar as the review extended into this arena it was in error.
This conclusion as to the Minister’s decision is sufficient to determine the appeal. However, I consider it would be of assistance to refer to the arena where Constitutional or Convention rights may be considered.
25. Section 3 Immigration Act, 1999 – Deportation Order
The fact that the applicant failed on his IBC 05 Scheme application does not mean that Constitutional or Convention rights will not be considered. The IBC 05 Scheme is entirely separate from the Minister’s function under the Immigration Act, 1999, as amended, where a decision may be made as to whether or not a deportation order should be made in respect of a foreign national.
In making a deportation order the Minister must comply with s.3 of the Immigration Act, 1999, as amended. The Minister is required to have regard to a wide range of matters in s.3(6) of the Immigration Act, 1999. This section states:-
“(6) In determining whether to make a deportation order in relation to a person, the Minister shall have regard to—
(a) the age of the person;
(b) the duration of residence in the State of the person;
(c) the family and domestic circumstances of the person;
(d) the nature of the person’s connection with the State, if any;
(e) the employment (including self-employment) record of the person;
(f) the employment (including self-employment) prospects of the person;
(g) the character and conduct of the person both within and (where relevant and ascertainable) outside the State (including any criminal convictions);
(h) humanitarian considerations;
(i) any representations duly made by or on behalf of the person;
(j) the common good; and
(k) considerations of national security and public policy, so far as they appear or are known to the Minister.”
Thus, bearing in mind the case law of this Court, the Minister is required to consider in this context Constitutional and Convention rights of the applicants. This statutory process provides a forum for consideration of the relevant rights. The s.3 process is sufficiently wide ranging for the Minister to exercise his duty to consider Constitutional or Convention rights of the applicants. This has yet to be done in this case as the pre-existing deportation order has been quashed on consent.
26. Unfair Procedures
The learned High Court judge held that there had been unfair procedures. Maura Hynes deposed as to the procedure in the IBC 05 Scheme where applicants omitted to supply certain documents; she stated that they were informed by letter and given time to reply. A draft template letter was exhibited in Maura Hynes’ affidavit. The High Court endorsed such a procedure but held that there was no evidence that the second named applicant received such a letter, and that he averred that he did not receive such a letter. The High Court held that fair procedures did require that he receive such a letter, but that there was an omission in this case. On the basis of that omission the High Court granted an order of certiorari.
The second named applicant had stated on his IBC 05 application form that he had not left the State for any reason since the birth of the child. However, the supporting documentation which he furnished was limited to (a) the statement from the Health Service Executive that he had received welfare payments from 25th July, 2002 to 14th August, 2002, and from 22nd February, 2005 to 8th March, 2005; and, (b) a letter from the hostel stating that he had arrived at that hostel on the 21st February, 2005. The birth certificate of the child, the first named applicant, gave his address at the time of her birth as No. 35, Okesegun Street, Nigeria.
During the proceedings in the High Court it was argued that the second named applicant had provided sufficient evidence of continuous residence. The High Court held that this was not so, and I would uphold that finding.
On the face of the documents the second named applicant did not prove that he came within the scheme. This was a requirement of the scheme. Thus the Minister was entitled to reach the conclusion he did on the documents.
While Maura Hynes averred that a letter was normally sent to an applicant if documents were absent, there was no obligation to do so. The Minister was merely required to consider the application within the ambit of the scheme. There is no general duty on an administrative body to give the opportunity to provide additional material after the closing date for application. The fact that the Minister may have chosen to give a second chance does not make it an obligation. The Minister’s obligation was to consider the application within the requirements of the scheme. Given the nature of the administrative scheme, the factual history presented by the second named applicant, the documents provided, and the fact that the administrative decision does not relate to any Constitutional or Convention rights, but leaves the second named applicant in the same position as he was prior to making the application, there was no breach of fair procedures, and consequently the issue of an order of certiorari does not arise. I reach this decision also because the second named applicant has made submissions relating to the Constitutional and Convention rights of the applicants – which he wishes to be considered by the Minister, and which matters have yet to be addressed, and which would not be addressed in the IBC 05 Scheme. Consequently, there is merit in enabling the second named applicant proceed to address these issues in the appropriate process, i.e. the process under s.3 of the Immigration Act, 1999, as amended.
27. Right to Apply
The High Court found it unnecessary to make an order of mandamus to require the Minister to consider the second named applicant’s stand alone application to remain in the State, per letter dated 6th December, 2005. However, the High Court then went on to consider the Minister’s legal obligation to consider stand alone applications.
This is not now relevant in view of my decision on the nature of the IBC 05 Scheme, and the consequences, and the applicability of the s.3 procedure under the Act of 1999. However, I consider it important to state my opinion, to clarify the consequences of the decision.
The appropriate process within which to consider Constitutional or Convention rights of applicants is on the process under s.3 of the Act of 1999. This is the relevant statutory scheme.
In addition, within the statutory scheme there is provision to revoke a deportation order, see s.3(11) of the Act of 1999, which states:-
“The Minister may by order amend or revoke an order made under this section including an order under this subsection.”
Thus, a person, such as the second named applicant, could notify the Minister of any altered circumstances since the making of a deportation order, such as the birth of an Irish born child. On such notification the Minister would have a duty to consider the new information to determine whether to revoke a deportation order. As the statutory scheme makes this provision for such an application, there is no need to seek a further process for a right to apply. The integrity of the system should be maintained, as long as it protects the rights of the applicants, which it does in this case.
Consequently, it is my view that there is no free standing right of the second named applicant to apply to the Minister. The appropriate procedure is under s.3 of the Act of 1999, as amended, with the potential right to apply under s.3(11) in the future if the need to make such an application should arise.
28. Conclusion
For the reasons given I would allow the appeal.
The application was misconceived. The IBC 05 Scheme was a scheme established by the Minister, exercising executive power, to deal administratively with a unique group of foreign nationals in a generous manner, on general principles. The parameters of the scheme were set out clearly, and included a requirement of continuous residence in the State since the birth of the child. There was no evidence of continuous residence – indeed the evidence was to the contrary. The scheme was administered by the Minister within the terms of the scheme.
At no stage was it intended that within the ambit of the scheme the Minister would consider, or did the Minister consider, Constitutional or Convention rights of the applicants. Thus the terms of the pleadings and of the appeal relating to the Constitutional and Convention rights of the applicants were misconceived and premature. Applicants who were not successful in their application under the IBC 05 Scheme remain in the same position as they had been before their application.
The Oireachtas has established a statutory scheme providing that the Minister, in considering the situation of foreign nationals, shall have regard to a wide range of issues when making a decision under s.3 of the Immigration Act, 1999, as amended. Constitutional and Convention rights are appropriately considered at that stage. If there is a change of circumstances then an application may be made to the Minister to consider further matters under s.3(11) Immigration Act, 1999, as amended.
Consequently, I would allow the appeal and reverse the decision of the High Court. Constitutional and Convention rights of the applicants have yet to be considered by the Minister. Such consideration may arise in the future in the statutory process under s.3 of the Immigration Act, 1999, as amended. If necessary, further matters may be considered at a later date under s.3(11) Immigration Act, 1999, as amended.
Dimbo v Minister for Justice
[2008] I.E.S.C. 26
Denham J
Two Issues
There are two issues before the Court in this case. First, there is an appeal from the determination of the High Court to quash the decision of the Minster under the Irish Born Child Scheme 2005 (IBC 05 Scheme). Secondly, there is an appeal from the judgment of the High Court quashing the decision of the Minister to make a deportation order under s.3 of the Immigration Act, 1999, as amended.
2. First Issue
The first issue in this case is the decision of a Minister of the Government, made in an administrative scheme, established as an exercise of executive power, to deal with a unique group of foreign nationals. It is submitted on the one hand, that, inter alia, in this scheme the Constitutional and Convention rights of applicants were required to be considered in accordance with law. On the other hand, it was submitted that neither Constitutional nor Convention rights arose to be considered. Thus the nature of the scheme is at the core of the appeal, and, with it, the nature of any judicial review. Also, at the kernel of the matter is the fact that the position of a foreign national, who failed in an application under the scheme, remains the same as it was prior to the application, Constitutional and Convention rights remaining yet to be considered. The central issue is the refusal by the Minister of the second and third named applicant’s application under the IBC 05 Scheme. In this, and the related judgments, the term ‘foreign national’ means a national other than an Irish citizen.
3. Eight Cases
The Minister for Justice, Equality and Law Reform, the respondent/appellant, hereinafter referred to as ‘the Minister’, has appealed from the judgments of the High Court (Finlay Geoghegan J.) in seven cases where the High Court quashed the decision of the Minister to refuse applications for permission to remain in the State to foreign national parents of Irish born children under a scheme which he had introduced. In an eighth case the Minister is appealing against the order for costs made in the High Court. No submissions have yet been heard on this latter case. In two cases, this being one of them, the High Court also quashed the decision of the Minister to make a deportation order, under s.3 of the Immigration Act, 1999, as amended, which the Minister has also appealed, and which is the second issue in this judgment.
4. These related cases are:
(i) Bode v. The Minister, Appeal No. 485/2006
(ii) Oguekwe v. The Minister, Appeal No. 489/2006
(iii) Dimbo v. The Minister, Appeal No. 484/2006
(iv) Fares v. The Minister, Appeal No. 483/2006
(v) Oviawe v. The Minister, Appeal No. 480/2006
(vi) Duman v. The Minister, Appeal No. 482/2006
(vii) Adio v. The Minister, Appeal No. 481/2006
(viii) Edet v. The Minister, Appeal No. 005/2007
The Minister was represented in all the cases by the same counsel. The same affidavit of Maura Hynes, a Principal Officer in the Department of Justice, Equality and Law Reform, was filed in all cases on behalf of the Minister. Similar written submissions were filed in all cases.
5. Judgment on the appeals in Bode, Fares, Oviawe, Duman and Adio were delivered by this Court on the 20th December, 2007. The general facts and law relating to this first issue in all eight cases were set out in the Bode judgment. The particular facts, law and decision of this case are set out herein.
6. Parties
George Dimbo (suing by his mother and next friend Ifedinma Dimbo) is the first named applicant/respondent, and is referred to hereinafter as ‘the first named applicant’. Ifedinma Dimbo is the second named applicant/respondent, and is referred to as ‘the second named applicant’ hereinafter. Ethelbert Dimbo is the third named applicant/respondent, and is referred to as ‘the third named applicant’ hereinafter.
7. Particular Facts
The particular matter raised on the first issue in the case relates to the requirement of continuous residence under the IBC 05 Scheme, which issue was considered also in the Bode case.
The first named applicant was born in Ireland on the 6th May, 1996 and is an Irish citizen. His mother is the second named applicant and his father is the third named applicant. The second and third named applicants are married to each other and are nationals of Nigeria.
The second and third named applicants applied under the IBC 05 Scheme. Their applications were refused on the 16th August, 2005, by reason of their failure to establish continuous residency in the State since the birth of the first named applicant. The facts are considered in detail later in the judgment.
8. High Court Proceedings
The applicants brought High Court proceedings to challenge the refusal of the Minister on the 16th August, 2006 of the applications of the second and third named applicants under the IBC 05 Scheme.
9. High Court Held
The High Court held on the 14th November, 2006, that there were significant factual differences between this case and Bode, but that there was no substantive difference in the analysis and conclusions in relation to the alleged breach of the citizen child’s rights under article 40.3 of the Constitution. The learned High Court judge pointed out that in Bode the conclusion in the analysis relating to article 8 of the European Convention on Human Rights, that the citizen child has a private right in the State which demanded respect from the Minister, was based in part on the fact that the child had lived in the State since its birth. The High Court held:-
“The first named applicant herein has not lived continuously in the State since birth. In August, 2005, he was nine years old. As it appears from the facts set out later in August, 2005, he had spent approximately three and a half years in the State. Most recently he had been in the State since February, 2005. He had been attending a school in Co. Meath which he had previously attended when he had been in the State in 2003. On the evidence in these proceedings I am satisfied that the first named applicant had, by August, 2005, re-established a private life in the State which demanded respect from the [Minister]. It is clear that he actively participated in his school and school related activities, in which relationships had been formed in this period”.
The High Court decision was based on the application of Constitutional and Convention rights of the Irish born child:-
“I am also satisfied, on the evidence presented, that the applicant has discharged an onus of establishing that the refusal of his parent’s application under IBC/05 without a consideration of his rights for those reasons set out in the Bode judgment were in breach of Article 8 of the Convention.
Accordingly, prima facie by reason of the conclusions reached in the Bode judgment, the applicants herein are entitled to orders of certiorari quashing the decisions of the [Minister] dated 16th August, 2005 in respect of the second and third named applicants as sought at paragraph 4(c) of the statement of grounds.”
The High Court referred to the untruths sworn by the second named applicant in relation to her time of residency in the State and decided not to exercise its discretion to refuse an order of certiorari on this basis. Contrary to what was sworn in affidavit, the second named applicant admitted that they had left the State in January, 2004, returning with the first named applicant in February, 2005. The High Court held:-
“My reason for so deciding is that, as appears from the Bode judgment, the primary ground upon which I have determined that the decision taken by the [Minister] on those dates under the IBC/05 Scheme were invalid, is by reason of a breach of the first named applicant’s rights guaranteed by Article 40.3 of the Constitution and by reason of a breach of the Minister’s obligations under s. 3 of the European Convention on Human Rights Act of 2003, having regard to the State’s obligations under Article 8 of the Convention in relation to the first named applicant’s right to respect for his private life. Accordingly, notwithstanding the very serious breach by the second named applicant of her obligations to this court and having regard to the apology tendered, it does not appear to me that I should deprive, in particular the first named applicant, of relief in relation to a matter which is of concern to him and which I have determined by reason of a breach of his rights guaranteed by Article 40.3 of the Constitution and Article 8 of the Convention.”
10. Appeal
The Minister has appealed against the judgment and orders of the High Court.
11. Decision on the IBC 05 Scheme decision
I would allow the appeal of the Minister on this issue. My general reasons are set out in the Bode judgment. The particular facts of this case are as follows.
The second named applicant came to the State in 1995 on a student visa and she attended University College Cork. Her son, the first named applicant, was born on the 6th May, 1996. On the 29th September, 1997, she was granted leave to remain in the State on the basis of her citizen child. She and the first named applicant left the State and returned to Nigeria in 1998. She appears to have returned to the State with the child in 2002 and sought to have her earlier residency extended. This was refused.
The third named applicant visited the State while his wife was a student. He then came on a visitor’s visa in early 2003. Thereafter the three applicants lived in the State until January, 2004. The second named applicant admitted that they left the State in January, 2004. They returned in February, 2005.
On their return in 2002 and 2003 applications were made to renew the second named applicant’s right to reside and the third named applicant made an application to reside based on their citizen child. A notice of intention to deport was served in August, 2003.
The fact that the applicants were not continuously resident in the State was not contested. The High Court found that the second named applicant admitted that such was the situation.
The terms of the IBC 05 Scheme were established clearly by the Minister. The scheme included a requirement of continuous residence in the State, with the child. The applicants did not meet that criteria. Therefore the Minister acted within the terms of the scheme in refusing their application.
The appeal was misconceived. The IBC 05 Scheme was an administrative scheme established by the Minister exercising executive power to deal with a unique group of foreign nationals in a generous manner, on general principles. The parameters of the scheme were set out clearly, and included a requirement of continuous residence in the State since the birth of the child. The scheme was administered by the Minister within the terms of the scheme.
At no time was it intended, within the ambit of the scheme, that the Minister would consider, or indeed did the Minister consider, Constitutional or Convention rights of applicants. Thus the grounds of the application and of the appeal relating to Constitutional or Convention rights were misconceived, and premature. Applicants who were unsuccessful in their application under the IBC 05 Scheme were in the same position as they had been prior to the application.
It is manifestly clear on the facts that the applicants do not come within the criteria of the IBC 05 Scheme and that the Minister was entitled to so hold. Consequently, I would allow the appeal of the Minister on this issue. The Constitutional and Convention rights of the applicants remain to be considered.
12. Second Issue, Deportation Order pursuant to S.3 Immigration Act, 1999, as amended
The applicants also challenged two decisions of the Minister made on 1st February, 2006, to affirm deportation orders made in respect of the second and third applicants. The deportation orders were made on the 28th June, 2004. The second and third named applicants sought orders of certiorari quashing the decisions of 1st February, 2006 to affirm the deportation orders. In the proceedings they did not seek orders of certiorari of the deportation orders, though that had been sought in the statement of grounds.
13. Background facts
The background facts are as follows. In the summer of 2005 the second and third named applicants applied for asylum. This was refused, and the applicants did not appeal.
By letter dated 17th October, 2005, it was indicated that the 2004 deportation orders remained in place and that the Minister was then of the view that they should be enforced, but he gave a final opportunity to the applicants to submit written representations as to why the deportation orders should not be effected. Submissions were made on behalf of the second and third applicants and the first applicant by a solicitor then acting for them by letter dated 24th October, 2005. Supporting documentation was also included.
On the 8th November, 2005, an examination was made of the files of the second and third named applicants. A decision was made, first by a Clerical Officer and then by an Executive Officer. Of the second named applicant’s file the conclusion was:-
“Therefore, on the basis of the foregoing, I recommend that the Minister, having also had regard to Section 3(1) of the European Convention on Human Rights Act, 2003 in making his decision affirms the previously issued deportation order in respect of Ms Ifedinma Dimbo dated 28 June, 2004.”
An Assistant Principal considered the file on 11th and 21st November, 2005.
In November, 2005 the first named applicant wrote three letters to the Minister telling of his progress in school, stating his wish to remain in Ireland, and in effect asking the Minister to permit his parents to remain in Ireland.
It appears that the same Assistant Principal considered the first of these letters and formed the view that there was nothing in that letter which would warrant the Minister altering his view to sign the deportation order and the Assistant Principal made the decision to affirm the deportation order. The decision of the official was accepted by both parties as the decision of the Minister.
14. Judicial review challenge to deportation orders
The applicants challenged the decisions to reaffirm the deportation orders.
The principal grounds were:
1. The decision to deport was taken in breach of the first named applicant’s rights as a citizen under Article 40.3 of the Constitution in that
(i) it failed to give due consideration to the facts and factors relating to the personal rights including the right to remain in the State and the welfare rights of the first named applicant; and
(ii) it failed to identify a grave and substantial reason favouring deportation
2. The decision is invalid in that the Minister failed to take into account relevant considerations including the change in the citizenship laws and the IBC 05 Scheme and the positive decisions made thereunder.
3. The decision to deport is in breach of the Minister’s obligations under s.3 of the European Convention on Human Rights Act 2003 as it was not taken in a manner compatible with the State’s obligation under article 8 of the Convention.
Other grounds were advanced, but the High Court considered it unnecessary to consider them.
15. Minister’s decision
At issue was the exercise of discretion by the Minister pursuant to s.3 of the Immigration Act, 1999, as amended.
The decision of the Minister was communicated on the 1st February, 2006. It was stated:-
“The representations have been considered under Section 3(6) of the Immigration Act, 1999, as amended and Section 5 of the Refugee Act, 1996, as amended (Prohibition of Refoulement). The outcome of these considerations is that the Minister’s earlier decision to make a deportation order remains unchanged as there is nothing contained therein, that would cause the Minister to alter his decision. Enclosed is a copy of the deportation order and a copy of the Minister’s further considerations.”
16. High Court judgment on the deportation orders
The High Court held:-
“I have carefully considered each of the above documents and have firstly concluded that the decision taken was in breach of the first named applicant’s rights, in that it failed to give due consideration to the facts and factors relating to the constitutionally protected personal rights of the first named applicant.
Even if one were to consider this only in relation to the personal right of the first named applicant to live in Ireland and not to consider the additional welfare rights, I would reach the same conclusion. In the two examinations on file the only reference to the citizen child is a standard statement in identical form to that in the examination on file in the Oguekwe proceedings that the child is a citizen of Ireland; is not or could never be subject to deportation and that it is presumed that if the Minister agrees to deport the parent that she will preserve the family unit by taking the child with her thereby preserving the child’s right to the care and protection of his family under Article 41 of the Constitution.
Detailed representations had been made as to the child’s schooling. He was by November 2005 nine and a half years old and in fourth class in a Dublin school and demonstrated to be fully participating and achieving.
The first named applicant wrote a letter dated 12th November 2005 directly to the [Minister] requesting that his family not be deported.
There is no factual consideration of the circumstances of a nine year old citizen boy at school in the State, who has a right to live in the State and does not wish to leave the State.
Furthermore, there is no consideration of the factual matters relating to the right of the first named applicant to be educated and reared with due regard to his welfare as I have concluded is necessary to comply with the State’s guarantee of his rights under Article 40.3 of the Constitution.
The documents do not expressly identify any interest in the common good which or grave and substantial reason which is stated to require deportation as required by the decision in A.O. & D.L. v. Minister for Justice 1 I.R. [2003] 1.
However, the examination on file in considering the matters set out at s. 3(6)(j) of the Act of 1999 under the head of the common good states:
‘It is in the interest of the common good to uphold the integrity of the asylum and immigration procedures in the State.’”
The learned High Court judge referred to A.O. & D.L. v. Minister for Justice [2003] 1 I.R. 1, and held that in November, 2005, the IBC 05 Scheme and decisions taken thereunder were part of the immigration procedures in the State, and were directly relevant to the applicants. The learned High Court judge referred to Hardiman J.’s words that ‘the consideration of individual cases should as far as possible be consistent one with the other’.
The High Court concluded that the Minister had failed to have regard to relevant considerations and that accordingly the decision was not taken in a proper manner. It was held:-
“Finally, I have concluded that this decision was also made in breach of the obligations of the [Minister] under s. 3 of the European Convention on Human Rights Act 2003 for the following reasons.
As already concluded the citizen child had a private life in the State in November 2003 which demanded the respect of the [Minister].
Prima facie, the decision to deport the mother (and the father) is an interference with the right of the citizen child to respect for his private life in the State. The result of the deportation is that the child has to leave the State to maintain his family life with his parents, with the consequent interference in his private life in the State.
The prima facie interference does not of course mean that a decision to deport either the father or the mother will necessarily be in breach of Article 8 of the Convention. It does however mean that the applicants have discharged the onus of establishing that the [Minister] was obliged by Article 8 of the Convention to consider and determine the questions set out in the Oguekwe judgment, if this decision is to be justified under Article 8. Those questions were not addressed in the examination on file, nor was there any submission made seeking to justify the decision in accordance with article 8. Accordingly, the decision taken must be considered to be in breach of the citizen child’s right to respect for his private life under Article 8 and the [Minister] to be in breach of s. 3 of the Act of 2003.
I have assumed that as no separate submissions were made in respect of the examination on file and other considerations leading to the decision in respect of the third named applicant, that they were identical to those of the second named applicant and the same conclusions apply.
Having concluded that the process by which the decision was taken was in breach of the first named applicant’s rights and the [Minister’s] constitutional and statutory obligations, it is unnecessary for me to consider any further submissions, including the challenge to the so-called rule of law as determined in O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39.”
The High Court granted orders of certiorari of the decisions communicated to the second and third named applicants by the letters of 1st February, 2006, affirming the deportation orders made in 2004.
17. Grounds of Appeal
The Minister has appealed from the orders of the High Court quashing the deportation orders. The grounds stated in the Notice of Appeal were similar to those filed in Oquekwe and Ors v. Minister for Justice, Equality and Law Reform. However, they are not identical, and the later grounds are case specific.
The initial grounds of appeal related to the IBC 05 Scheme, and are not recited. The grounds filed relating to the deportation orders are:-
… …
24. The learned High Court Judge erred in law or in fact in the weight that she attached to the rights of the Irish citizen child in the context of the [Minister’s] responsibility in the formation, implementation and enforcement of the State’s immigration policies and enforcement of its immigration laws;
25. The learned High Court Judge erred in law or in fact by holding that the [Minister] was required to conduct an inquiry into the family circumstances of a proposed deportee beyond a consideration of the representations, documents and information submitted by the proposed deportee or already in the possession of the [Minister];
26. In particular, the learned High Court Judge erred in law or in fact by holding that the [Minister] was required to inquire into and take into account the educational facilities and other conditions available to the Irish citizen child of a proposed deportee in the country of return in the event that that child was to accompany the proposed deportee;
27. The learned High Court Judge erred in law or in fact in holding that in any case of the proposed deportation of a foreign national parent of an Irish citizen child, the [Minister] must carry out a detailed fact specific consideration of the child in relation to his age, current educational progress, development and opportunities within the State in the context of his family circumstances in the State as well as the educational and other relevant conditions and development opportunities that would be available for him in the country of return;
28. The learned High Court Judge erred in law or in fact in holding that the [Minister] had not adequately considered the facts and circumstances concerning the [applicants] prior to affirming the deportation orders;
29. The learned High Court Judge erred in law or in fact in holding that the [Minister] had not adequately considered the [first named applicant’s] rights prior to making the deportation orders;
30. The learned High Court Judge erred in law or in fact in holding that the [Minister’s] decision to affirm the deportation order in respect of the [second and third named applicants] failed to identify any grave and substantial reason favouring their deportation;
31. Furthermore, the learned High Court Judge erred in law or in fact in failing to consider the Departmental submissions of the 8th November 2005 and 21st November 2005 as a whole;
32. Further or in the alternative, the learned High Court Judge erred in law in holding that the [Minister] or his officers, prior to making or affirming deportation orders, must expressly record a consideration of the following matters set out by the judge at pages 16-17 of her judgment, namely:
1. Whether or not the proposed decision will constitute an interference with the exercise of the applicants’ or other family members’ rights to respect for his or her private and family life.
2. Unless a conclusion is reached that the proposed decision will not constitute interference, as that term has been construed by the European Court of Human Rights, then:
i) Is the proposed decision being taken in accordance with law; and
ii) Does the proposed interference pursue a legitimate aim i.e. one of the matters specified in article 8.2
iii) Is the proposed interference necessary in a democratic society, i.e. is it in pursuit of a pressing social need and proportionate to the legitimate aim being pursued.
Issue of Proportionality
33. The learned High Court Judge erred in law or in fact by holding that the [Minister] was required to carry out a decision-making process under which, prior to making or reaffirming a deportation order, he had to determine that the deportation order was a reasonable and proportionate decision having regard to the personal rights of the Irish citizen child;
34. The learned High Court Judge erred in law in holding that the [Minister] was required to demonstrate that deportation of the [second and third named applicants] was reasonable and proportionate by measuring the grave and substantial reason favouring deportation against the rights of the Irish citizen child;
Grounds of Appeal relating to the Judge’s findings in relation to the decisions to reaffirm the deportation orders in light of the European Convention on Human Rights
35. The learned High Court Judge erred in law or in fact in holding that the [Minister] had failed to consider whether or not the deportation of [the second and third named applicants] would constitute an inference with the applicant’s family life or with the private life of the [first named applicant];
36. The learned High Court Judge erred in law or in fact in holding that prima facie, the decision to reaffirm the deportation orders in respect of the [second and third named applicants] was an interference with the right of the [first named applicant] to respect for his family or private life;
37. The learned High Court Judge erred in law or in fact in holding that the [Minister] had not considered the matters referred to in Article 8(2) of the European Convention on Human Rights either adequately or at all;
Grounds relating to the Learned High Court Judge’s findings of the relevance of the IBC 05 Scheme to the decision whether or not to affirm the deportation orders
38. The learned High Court Judge erred in law or in fact by holding that by introducing the IBC 05 Scheme, the [Minister] bound himself to consider the issue of whether or not to make or affirm deportation orders in respect of the non national parents of Irish citizen children in any way differently from that previously pertaining;
39. The learned High Court Judge erred in law or in fact by characterising the IBC 05 Scheme and decisions taken under them as constituting a part of the immigration procedures in the State in November 2005;
40. The learned High Court Judge erred in law or in fact by holding that the [Minister] was bound to consider whether or not to affirm the deportation orders made against the [second and third named applicants] in a manner consistent with the IBC 05 Scheme as the learned High Court Judge characterised it;
41. The learned High Court Judge erred in law or in fact by limiting or fettering the [Minister’s] discretion in the determination whether or not to make or affirm a deportation order in respect of the non national parent of an Irish citizen child;
42. The learned High Court Judge erred in law or in fact by holding the creation of the IBC 05 Scheme to be material to the [Minister’s] consideration whether or not to affirm the deportation orders in respect of the [second and third named applicants] in circumstances where their applications under the scheme had been refused on the ground that they did not meet the conditions of the scheme;
Grounds relating the to use of untruthful submissions and evidence on the part of the [second named applicant]
43. The learned High Court Judge erred in law and in fact in granting an order of certiorari of the [Minister’s] decisions to refuse the applications under the IBC 05 Scheme notwithstanding that the [second and third named applicants] had provided misleading information in their applications;
44. The learned High Court Judge erred in law and in fact by failing to accord any or any sufficient weight to the obligation on the [second and third named applicants] not to provide untruthful information in their application under the IBC 05 Scheme;
45. The learned High Court Judge erred in law or in fact in failing to accord any or any sufficient weight to the fact that the [second and third named applicants] had provided misleading information to the [Minister] in their submissions as to why they should be permitted to remain in the State;
46. The learned High Court Judge erred in law or in fact or in the exercise of her discretion in granting relief to the [applicants] notwithstanding the misleading information furnished by them and the misleading contents of the grounding affidavit of the [second named applicant].”
These grounds of appeal raise several specific issues: the nature of the consideration required to be made by the Minister of the facts relevant to the rights of the citizen child; the type of consideration to be given to issues relating to the child, including the education of the child in the State and in a prospective other country; the type of inquiry which is required of the Minister; the identification of a reason for the deportation; whether the Minister should record specific considerations prior to making deportation orders; the issue of proportionality; the European Convention on Human Rights; the relevance of the IBC 05 Scheme; and the untruthful submissions and evidence of the second named applicant.
18. Law and the Constitution
The law relevant to this appeal includes the Constitution of Ireland, statutory law, and the European Convention on Human Rights.
18.1 Statutory Law
The relevant statutory law on deportation referable to this case is to be found in s.3 of the Immigration Act, 1999, as amended by s.10 of The Illegal Immigrants (Trafficking) Act 2000, which provides:-
“3.—(1) Subject to the provisions of section 5 (prohibition of refoulement) of the Refugee Act, 1996 , and the subsequent provisions of this section, the Minister may by order (in this Act referred to as “a deportation order”) require any non-national specified in the order to leave the State within such period as may be specified in the order and to remain thereafter out of the State.
… … …
(3) (a) Subject to subsection (5), where the Minister proposes to make a deportation order, he or she shall notify the person concerned in writing of his or her proposal and of the reasons for it and, where necessary and possible, the person shall be given a copy of the notification in a language that he or she understands
(b) A person who has been notified of a proposal under paragraph (a) may, within 15 working days of the sending of the notification, make representations in writing to the Minister and the Minister shall—
(i) before deciding the matter, take into consideration any representations duly made to him or her under this paragraph in relation to the proposal, and
(ii) notify the person in writing of his or her decision and of the reasons for it and, where necessary and possible, the person shall be given a copy of the notification in a language that the person understands.
(4) A notification of a proposal of the Minister under subsection (3) shall include—
(a) a statement that the person concerned may make representations in writing to the Minister within 15 working days of the sending to him or her of the notification,
(b) a statement that the person may leave the State before the Minister decides the matter and shall require the person to so inform the Minister in writing and to furnish the Minister with information concerning his or her arrangements for leaving,
(c) a statement that the person may consent to the making of the deportation order within 15 working days of the sending to him or her of the notification and that the Minister shall thereupon arrange for the removal of the person from the State as soon as practicable, and
(d) any other information which the Minister considers appropriate in the circumstances.
(5) The provisions of subsection (3) shall not apply to—
(a) a person who has consented in writing to the making of a deportation order and the Minister is satisfied that he or she understands the consequences of such consent,
(b) a person to whom paragraph (c), (d) or (e) of subsection (2) applies, or
(c) a person who is outside the State.
(6) In determining whether to make a deportation order in relation to a person, the Minister shall have regard to—
(a) the age of the person;
(b) the duration of residence in the State of the person;
(c) the family and domestic circumstances of the person;
(d) the nature of the person’s connection with the State, if any;
(e) the employment (including self-employment) record of the person;
(f) the employment (including self-employment) prospects of the person;
(g) the character and conduct of the person both within and (where relevant and ascertainable) outside the State (including any criminal convictions);
(h) humanitarian considerations;
(i) any representations duly made by or on behalf of the person;
(j) the common good; and
(k) considerations of national security and public policy,
so far as they appear or are known to the Minister.
(7) A deportation order shall be in the form prescribed or in a form in the like effect.
… … …
(11) The Minister may by order amend or revoke an order made under this section including an order under this subsection.
… … …”
18.2 Constitution
Article 40.3.1 of the Constitution of Ireland provides for the personal rights of citizens, which includes the third named applicant. It states:-
“The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.”
These rights include unspecified personal rights: Ryan v. The Attorney General [1965] IR 294. A non-exhaustive list of such personal rights embraces the right to live in the State, the right to privacy, the right to travel, the right to bodily integrity, the right to freedom from torture or inhuman or degrading treatment, the right to earn a livelihood, and the right of access to the courts.
Also relevant is Article 41 of the Constitution, which protects the family. It provides:-
“1.1 The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.
1.2 The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.”
In addition, while the first named applicant is a citizen to whom all the rights established by the Constitution apply, the second and third named applicants, even though they are foreign nationals, are entitled to protection under the Constitution. As stated by this Court in The Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360 at p.410:-
“… a person who is not entitled to be in the State cannot enjoy Constitutional rights which are co-extensive with the Constitutional rights of citizens and persons lawfully residing in the State. There would, however, be a Constitutional obligation to uphold the human rights of the person affected which are recognised expressly or by implication, by the Constitution, although they are not co-extensive with the citizen’s Constitutional rights.”
18.3 European Convention on Human Rights
Article 8 of the European Convention on Human Rights provides:-
“Right to respect for private and family life.
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The Convention was introduced into domestic law by the European Convention on Human Rights Act, 2003, s.3(1) of which provides:-
“Subject to any statutory provision (other than this Act) or rule of law, every organ of the State shall perform its functions in a manner compatible with the State’s obligations under the Convention provisions.”
This imposes an obligation on the Minster to exercise his discretion in a manner compatible with the Convention provisions.
The Court was referred to cases of the European Court of Human Rights and of Ireland. Reference was made to Cirpaci v Minister for Justice [2005] 2 I.L.R.M. 547 where Fennelly J. pointed out at p.549 that:
“The legitimate interest of the State in the control of immigration frequently conflicts with claims of migrants based on family reunification. This has been recognised for more than 20 years by the European Court of Human Rights.”
In that case a marriage took place in Romania between an Irish citizen wife and a Romanian citizen husband just over three months after the deportation of the husband from the State. The Minister refused to revoke his deportation order so as to enable the parties live together in the State, which decision was upheld by the High Court and this Court.
The competing and conflicting considerations which may arise in such decisions were summarised by Lord Phillips of Worth Matravers M.R. in R (Mahmood) v. Secretary of State for the Home Department [2001] 1 WLR 840. Fennelly J. found them very useful in Cirpaci v. Minister for Justice, as do I. In the summary, at p.861, the judgment of Lord Phillips M.R. states:-
“From these decisions I have drawn the following conclusions as to the approach of the Commission and the European Court of Human Rights to the potential conflict between the respect for family life and the enforcement of immigration controls: (1) A State has a right under international law to control the entry of non-nationals into its territory, subject always to its treaty obligations. (2) Article 8 does not impose on a State any general obligation to respect the choice of residence of a married couple. (3) Removal or exclusion of one family member from a State where other members of the family are lawfully resident will not necessarily infringe art 8 provided that there are no insurmountable obstacles to the family living together in the country of origin of the family member excluded, even where this involves a degree of hardship for some or all members of the family. (4) Article 8 is likely to be violated by the expulsion of a member of a family that has been long established in a State if the circumstances are such that it is not reasonable to expect the other members of the family to follow that member expelled. (5) Knowledge on the part of one spouse at the time of marriage that rights of residence of the other were precarious militates against a finding that an order excluding the latter spouse violates article 8.(6) Whether interference with family rights is justified in the interests of controlling immigration will depend on (i) the facts of the particular case and (ii) the circumstances prevailing in the State whose action is impugned.”
The above summary is addressed primarily to the issue of family reunification, whereas this case is centred on the issue of the Irish born child’s rights, but the principles overlap and are helpful to the analysis.
At all times the State retains the right to control immigration. Thus in Abdulaziz, Cabales and Balkandani v. United Kingdom (1985)7 E.H.R.R. 471 the European Court of Human Rights stated, at p.497, at para 67:-
“Moreover, the Court cannot ignore that the present case is concerned not only with family life but also with immigration and that, as a matter of well established international law and subject to its treaty obligations, a State has the right to control the entry of non-nationals into its territory”
The approach of the European Court of Human Rights (E.H.C.R.) may also be seen in Poku v. United Kingdom (1996) 22 EHRR CD 94, where it was noted at p.97:-
“However, the Commission notes that the State’s obligation to admit to its territory aliens who are relatives of persons resident there will vary according to the circumstances of the case. The Court has held that Article 8 does not impose a general obligation on states to respect the choice of residence of a married couple or to accept the non-national spouse for settlement in that country (Abdulaziz, Cabales and Balkandali (1985) 7 EHRR 471, para 68). The Commission considers that this applies to situations where members of a family, other than spouses, are non-nationals. Whether removal or exclusion of a family member from a Contracting States [sic] is incompatible with the requirements of article 8 will depend on a number of factors: the extent to which family life is effectively ruptured, whether there are insurmountable obstacles in the way of the family living in the country of origin of one or more of them, whether there are factors of immigration control (e.g. history of breaches of immigration law) or considerations of public order (e.g. serious or persistent offences) weighing in favour of exclusion. …”
Having considered the facts of that case, the Commission found that there were no elements concerning respect for family or private life which outweighed the valid considerations relating to the proper enforcement of immigration controls. It concluded that the removal did not disclose a lack of respect for the applicants’ right to family or private life under article 8.
The connection between parent and child was a relevant fact in Berrehals v. The Netherlands (1989) 11 EHRR 322. In that case a Moroccan national was refused permission to reside in the Netherlands after his divorce from his Dutch wife. He and his daughter (who was represented by her mother) applied to the European Court alleging a breach of article 8. The very close ties between father and daughter were noted by the Court, and expulsion of the father threatened to break those ties. It was held that in those circumstances a proper balance was not achieved between the interests of the State, which were limited to ‘the economic well-being of the country’, and respect for family life. It was held the expulsion was not ‘necessary in a democratic society’ and that it was a breach of article 8.
This Court was referred to many other cases of the E.C.H.R., including Boujlifa v. France (2000) 30 EHRR 419 which related to a Moroccan who arrived in France at the age of 5 and whose parents and 8 eight brothers and sisters were lawfully resident in France, but who had been convicted of two criminal offences and on whom an order of deportation was made. The E.C.H.R. reiterated that it was for the contracting states to maintain public order, in particular by exercising their right, as well established in international law and subject to treaty obligations, to control the entry and residence of aliens. To that end they have the power to deport aliens convicted of criminal offences. However, their decisions in this field must, insofar as they may interfere with a right protected under article 8(1), be necessary in a democratic society, that is to say, justified by a pressing social need, and, in particular, proportionate to the legitimate aim pursued. It is a question of striking a fair balance between the relevant interest, namely the applicant’s right to respect for his private and family life, on the one hand, and the prevention of disorder or crime, on the other. The Court held, by six votes to three, that there had been no breach of article 8 of the Convention in the making of the deportation order.
Thus it is a matter of striking a fair balance in each case. In this case the balance sought is between the first, second and third named applicants’ rights to respect for private and family rights, on the one hand, with particular reference to the rights of the Irish born child, and the public policy issues of the State on the other, as being necessary in a democratic society, justified by a pressing social or other public need, and proportionate to the legitimate aim pursued.
19. Decision
I would dismiss the appeal of the Minister on this second issue and affirm the decision of the learned High Court judge granting an order of certiorari of the decisions communicated to the second and third named applicants in the letter of 1st February, 2006, to affirm the deportation order made in 2004.
The High Court stated in Oguekwe:-
“It is not in dispute that the discretion given to [the Minister] by s.3 of the Act of 1999 is further constrained by the obligation to exercise that power, in a manner which is consistent with and not in breach of the constitutionally protected rights of persons affected by the order. It is further not in dispute that the power of the Minister is also constrained by the provisions of s. 3 of the European Convention on Human Rights Act 2003.”
I agree with the learned High Court judge, and would affirm this approach.
The High Court held further in Oguekwe:-
“It is difficult to state in the abstract in clear terms the nature of the consideration which must be given by [the Minister], to the facts relevant to the rights of the citizen child to live in the state and to be educated and reared with due regard for its welfare and have its welfare, including what is in its best interest, taken into account in the decision making. It will always depend to some extent upon the factual circumstances of the citizen child and his parent or parents in the State.”
I would affirm this analysis in Oguekwe. There can be no exclusive list of factors for the Minister to consider. Each case should be determined on its own circumstances, in accordance with the law and the Constitution.
20. Dispute
The real dispute between the parties in this case is as to the nature of the consideration required to be made by the Minister of the facts relevant to the rights of the citizen child. While I would dismiss the appeal of the Minister, my reasons for this decision are somewhat different to those of the learned High Court judge in certain specific areas.
21. Educational Factors
One specific area is the type of consideration required to be given to issues relating to the child including the education of the child in the State and another prospective State. The High Court held in Oguekwe that the consideration should:-
“(i) Be fact specific to the individual child in relation to his age, current educational progress, development and opportunities within the State in the context of his family circumstances in the State; and
(ii) It must include some factual consideration of the educational and other relevant conditions and development opportunities available for the citizen child in the country to which his parents are being deported.”
The High Court continued in Oguekwe:-
“As a matter of common sense, unless the factual matters considered are such as to give the [Minister] an understanding, of what in reality in most cases will be the lesser educational and other development opportunities for the citizen child in the country to which his parents are being deported, how can the [Minister] form a view (as appears to be required by the decision in A.O & D.L. v. Minister for Justice) that having regard to the identified grave and substantial reason and the child’s constitutionally protected personal rights the decision to deport is proportional or reasonable.”
I would affirm the decision that the consideration should be fact specific to the individual child, his or her age, current educational progress, development and opportunities. This consideration relates not only to educational issues but also involves the consideration of the attachment of the child to the community, and other matters referred to in s.3 of the Act of 1999.
The extent of the consideration will depend on the facts of the case, including the age of the child, the length of time he or she has been in the State, and the part, if any, he or she has taken in the community. Thus, his or her education, and development within the State, within the context of his or her family circumstances, may be relevant. If the child has been in the State for many years, and in the school system for several years, and taken part in the community, then these and related facts may be very pertinent. However, if the child is an infant then such considerations will not arise.
However, I respectfully disagree with the learned trial judge, and I believe the High Court erred, in holding that the Minister was required to inquire into and take into account the educational facilities and other conditions available to the Irish born child of a proposed deportee in the country of return, in the event that the child accompany the deportee. I am satisfied that while the Minister should consider in a general fashion the situation in the country where the child’s parent may be deported, it is not necessary to do a specific analysis of the educational and development opportunities that would be available to the child in the country of return. The Minister is not required to inquire in detail into the educational facilities of the country of the deportee. This general approach does not exclude a more detailed analysis in an exceptional case. The decision of the Minister is required to be proportionate and reasonable on the application as a whole, and not on the specific factor of comparative educational systems.
The Minister is required to consider the facts of the situation in a fair manner, and if appropriate, to identify a substantial reason for a deportation order.
22. Decision of Minister
In this case, the decision of the Minister was communicated by letter dated 1st February, 2006. It referred to representations made and then stated:-
“The representations have been considered under Section 3(6) of the Immigration Act, 1999, as amended and Section 5 of the Refugee Act, 1996, as amended (Prohibition of Refoulement). The outcome of these considerations is that the Minister’s earlier decision to make a deportation order remains unchanged as there is nothing contained therein, that would cause the Minster to alter his decision. Enclosed is a copy of the deportation order and a copy of the Minister’s further considerations.”
The High Court held:-
“I have carefully considered each of the above documents and have firstly concluded that the decision taken was in breach of the first named applicant’s rights, in that it failed to give due consideration to the facts and factors relating to the constitutionally protected personal rights of the first named applicant.
Even if one were to consider this only in relation to the personal right of the first named applicant to live in Ireland and not to consider the additional welfare rights, I would reach the same conclusion. In the two examinations on file the only reference to the citizen child is a standard statement in identical form to that in the examination on file in the Oguekwe proceedings that the child is a citizen of Ireland; is not or could never be subject to deportation and that it is presumed that if the Minister agrees to deport the parent that she will preserve the family unit by taking the child with her thereby preserving the child’s right to the care and protection of his family under Article 41 of the Constitution.”
I agree with and would affirm this finding. As the High Court pointed out, detailed submissions had been made on the child’s schooling. The first named applicant himself wrote to the Minister, and there was no reference to the factual matters relevant to the Irish born child’s rights, including his right to be educated and reared in Ireland.
23. Substantial Reason
One of the objections to the validity of the decision to deport was that it fails to identify any ‘grave and substantial’ reason for the deportation. In Oguekwe, the learned High Court judge held that this objection was made out. I agreed in that case, and I agree in this case. The documents do not expressly identify any interest in the common good which was stated to require the deportation of the parents of the Irish born child.
The appropriate test is whether a substantial reason has been identified requiring a deportation order. The term ‘grave’ is tautologous, and while it reflects the serious nature of a ‘substantial’ reason, it is not an additional factor to ‘substantial’, and there is the danger that it could be so construed.
In circumstances such as this the Minister is required to give a substantial reason for the decision to make a deportation order. Thus I would dismiss the appeal on this ground.
24. Format
In Oguekwe, and in this case where the High Court followed the reasoning of that case, the learned High Court judge held that the following questions must be addressed, where it is accepted that applicants enjoy a family and/or private life in the State so as to engage the rights under article 8(1) of the Convention, by the person determining whether or not to make a deportation order under s.3 of the Act of 1999:-
” 1. Whether or not the proposed decision will constitute an interference with the exercise of the applicants’ or other family members’ rights to respect for his or her private and family life.
2. Unless a conclusion is reached that the proposed decision will not constitute an interference, as that term has been construed by the European Court of Human Rights then:
(i) Is the proposed decision being taken in accordance with law; and
(ii) Does the proposed interference pursue a legitimate aim i.e. one of the matters specified in article 8.2
(iii) Is the proposed interference necessary in a democratic society i.e. is it in pursuit of a pressing social need and proportionate to the legitimate aim being pursued.”
I affirm the general approach of the High Court, however, the issues and questions are interrelated. This type of micro specification is not required of the Minister in the decision making process, as long as the general principles are applied to the circumstances of the case. In the exercise of his discretion the Minister is required to consider the Constitutional and Convention rights of the parents and children and to refer specifically to factors he has considered relating to the position of any citizen children. The factors and circumstances will vary from case to case. Such a formal approach with specific questions as required by the High Court is not necessary, for each case will depend on its own relevant facts.
25. Other issues
The other issues on the appeal, that is the issue of proportionality, and The European Convention on Human Rights, were decided in Oguekwe v. Minister for Justice, I have already touched on, and I will refer to in the list of relevant matters.
As to the relevance of the IBC 05 Scheme to the issue of a deportation order, I am satisfied that while it may be noted that a parent has not succeeded under the IBC 05 Scheme, it is not a factor in the deportation process. The IBC 05 Scheme was an entirely separate and discrete process. It was an executive scheme to meet a specific situation. It was not part of the process under s.3 of the Act of 1999.
The learned High Court judge indicated that she would grant relief to the applicants on the IBC 05 Scheme. This decision has been reversed in general in the Bode case and in particular in this judgment.
26. Untruths
The Minister also raised the issue of the untruths by the second named applicant in her affidavit relating to her residency in the State and the exercise of discretion by the High Court. The High Court allowed the reliefs stating:-
“The granting of reliefs by way of judicial review is a matter of discretion. Even where the illegality of a decision is determined it does not follow that the court is bound to grant an order of certiorari. There may be exceptional circumstances in which the court will refuse to exercise its discretion in favour of granting such relief.
The swearing by an applicant of a false affidavit is undoubtedly potentially such an exceptional circumstance. It is an extremely serious matter and one which might well disentitle an applicant to a relief to which he or she might otherwise be entitled. However, I have decided on the facts herein that I should not exercise my discretion to refuse to all three applicants the relief sought, namely the order of certiorari quashing the decisions of the respondent dated 16th August, 2005 in respect of the second and third named applicants.
My reason for so deciding is that, as appears from the Bode judgment, the primary ground upon which I have determined that the decision taken by the respondent on those dates under the IBC/05 Scheme were invalid, is by reason of a breach of the first named applicant’s rights guaranteed by Article 40.3 of the Constitution and by reason of a breach of the respondent’s obligations under s. 3 of the European Convention on Human Rights Act of 2003, having regard to the State’s obligations under Article 8 of the Convention in relation to the first named applicant’s right to respect for his private life. Accordingly, notwithstanding the very serious breach by the second named applicant of her obligations to this court and having regard to the apology tendered, it does not appear to me that I should deprive, in particular the first named applicant, of relief in relation to a matter which is of concern to him and which I have determined by reason of a breach of his rights guaranteed by Article 40.3 of the Constitution and Article 8 of the Convention.”
This ground of appeal is no longer relevant as the appeal of the Minister on the IBC 05 Scheme has been successful on the basis of the nature and application of the scheme, as set out previously in this judgment.
However, while it may be appropriate to enable a judicial review proceed as an exercise of discretion in circumstances where there has been lying and dishonesty, such discretion should, as here, be exercised cautiously. In most circumstances such dishonesty may be fatal to an application. However, if the rights of other parties, such as a citizen child, under the Constitution and the Convention are in issue, then it may be it appropriate on balance to favour the weight of the rights of a child. But any such dishonesty remains a factor in the circumstances as a whole.
27. Decision on Appeal
I would affirm the decision of the High Court as to the orders for deportation. However, my reasons are, as referred to in the above paragraphs, somewhat different to those of the learned High Court judge.
28. Relevant Matters
I set out a non exhaustive list of matters which may assist, and which relate to, the position of an Irish born child whose parents may be considered for a deportation order. Bearing in mind the Constitution, the Convention, the statutory law and the case law, I am satisfied that the following, while not an exhaustive list, includes matters relevant for consideration by the Minister when making a decision as to deportation under s.3 of the Act of 1999 of a parent of an Irish born citizen child.
1. The Minister should consider the circumstances of each case by due inquiry in a fair and proper manner as to the facts and factors affecting the family.
2. Save for exceptional cases, the Minister is not required to inquire into matters other than those which have been sent to him by and on behalf of applicants and which are on the file of the department. The Minister is not required to inquire outside the documents furnished by and on behalf of the applicants, except in exceptional circumstances.
3. In a case, such as this, the relevant factual matrix includes the facts relating to the personal rights, of the Irish born citizen child, and of the family unit.
4. The facts to be considered include those expressly referred to in the relevant statutory scheme, which in this case is the Act of 1999, being:-
(a) the age of the person/s;
(b) the duration of residence in the State of the person/s;
(c) the family and domestic circumstances of the person/s;
(d) the nature of the person’s/persons’ connection with the State (if any);
(e) the employment (including self-employment) record of the person/s;
(f) the employment (including self-employment) prospects of the person/s;
(g) the character and conduct of the person/persons both within and (where relevant and ascertainable) outside the State (including any criminal convictions);
(h) humanitarian considerations;
(i) any representations duly made by or on behalf of the person/persons;
(j) the common good; and
(k) considerations of national security and public policy;
so far as they appear or are known to the Minister.
5. The Minister should consider the potential interference with rights of the applicants. This will include consideration of the nature and history of the family unit.
6. The Minister should consider expressly the Constitutional rights, including the personal rights, of the Irish born child. These rights include the right of the Irish born child to:-
(a) reside in the State,
(b) be reared and educated with due regard to his welfare,
(c) the society, care and company of his parents; and
(d) protection of the family, pursuant to Article 41,
The Minister should deal expressly with the rights of the child in any decision. Specific reference to the position of an Irish born child of a foreign national parent is required in decisions and documents relating to any decision to deport such foreign national parent.
7. The Minister should consider the Convention rights of the applicants, including those of the Irish born child. These rights overlap to some extent, and may be considered together with the Constitutional rights.
8. Neither Constitution nor Convention rights of the applicants are absolute. All rights require to be considered in the context of the factual matrix of the case.
9. The Minister is not obliged to respect the choice of residence of a married couple.
10. The State’s rights require also to be considered. The State has the right to control the entry, presence, and exit of foreign nationals, subject to the Constitution and to international agreements. Thus the State may consider issues of national security, public policy, the integrity of the Immigration Scheme, its consistency and fairness to persons and to the State. Fundamentally, also, the Minister should consider the common good, embracing both statutory and Constitutional principles, and the principles of the Convention in the European context.
11. The Minister should weigh the factors and principles in a fair and just manner to achieve a reasonable and proportionate decision. While the Irish born child has the right to reside in the State, there may be a substantial reason, associated with the common good, for the Minister to make an order to deport a foreign national who is a parent of an Irish born child, even though the necessary consequence is that in order to remain a family unit the Irish born child must leave the State. However, the decision should not be disproportionate to the ends sought to be achieved.
12. The Minister should consider whether in all the circumstances of the case there is a substantial reason associated with the common good which required the deportation of the foreign national parent.
In such circumstances the Minister should take into consideration the personal circumstances of the Irish born child and the foreign national parents including, in this case, whether it would be reasonable to expect family members to follow the third named applicant to Nigeria.
13. The Minister should be satisfied that there is a substantial reason for deporting a foreign national parent, that the deportation is not disproportionate to the ends sought to be achieved, and that the order of deportation is a necessary measure for the purpose of achieving the common good.
14. The Minister should also take into account the common good and policy considerations which would lead to similar decisions in other cases.
15. There should be a substantial reason given for making an order of deportation of a parent of an Irish born child.
15. On judicial review of a decision of the Minister to make an order of deportation, the Court does not exercise and substitute its own discretion. The Court reviews the decision of the Minister to determine whether it is permitted by law, the Constitution, and the Convention.
29. Conclusion
On the first issue, the decision of the Minister made under the IBC 05 Scheme, for the reasons given, I would allow the appeal of the Minister, and reverse the decision of the High Court. The criteria of the IBC 05 Scheme included a requirement of continuous residence and the Minister was acting within the parameters of the Scheme in refusing residence on that basis. The Constitutional and Convention rights of the applicants remained to be considered.
On the second issue, that is the decision of the Minister to make deportation orders under s.3 of the Immigration Act, 1999, as amended, for the reasons given, I would dismiss the appeal. The Minister is required in this process to consider the Constitutional and Convention rights of the applicants. This includes express consideration of, and a reasoned decision on, the rights of the Irish citizen child. This was not done. Thus I would affirm the decision of the High Court granting an order of certiorari of the decisions communicated in the letters of 1st February, 2006, to affirm the deportation orders made in 2004.
MM v GM
[2015] IECA 29
Judgment of Mr. Justice Kelly delivered on the 23rd day of February 2015
Introduction
1. This appeal is brought by GM against an order of Michael White J. made on the 12th December, 2014. Two parts of that order are challenged.
2. The first is that which suspended overnight access being had by the parties’ two young children with GM. The second is that part of the order which directed that no further application was to be made to the High Court in respect of the two children either by way of enforcement or review before the 26th March, 2015.
3. In order to understand how that order came to be made it is necessary to sketch out briefly the background to this litigation.
Litigation
4. MM and GM were married abroad in September, 2006. They have two children. One was born in 2006 and is now nine years of age. The other was born in 2007 and is now seven years of age.
5. MM is now in her 56th year whilst GM is in his 70th.
6. MM was previously married and had two children who are now adults. That marriage ended in divorce in 1990. In the year following her divorce she had another child. MM is a grandmother since one of her daughters of the first marriage has a child.
7. GM was also married before. That marriage ended in divorce. He has one daughter by that marriage who is now in her forties. Thus, neither MM or GM are devoid of experience in rearing children.
8. These proceedings commenced in 2010. MM sought a judicial separation and ancillary relief. GM also instituted proceedings for a declaration of nullity or in the alternative judicial separation and ancillary relief.
9. It is fair to say that since the institution of these proceedings the parties have expended huge amounts of time, effort and money in litigating practically every issue that one could think of in a matrimonial dispute. Practically all of these matters have been dealt with by Michael White J. who has had seisin of the case since March 2012.
10. The original trial before him lasted fourteen days and there have been numerous applications which have been back before him and at least one other judge on many occasions since.
11. In April 2013, Michael White J. delivered a judgment running to some 259 paragraphs excluding the nine schedules appended to it. It dealt comprehensively with the matters in dispute. One of those matters was custody and access for the two young children of the marriage. The judge laid out what he described as a road map for custody and access in respect of those children.
12. The same judge delivered another judgment on the 19th March, 2014, dealing inter alia with custody and access of the children.
13. In the meantime an appeal had been taken to the Supreme Court in respect of a lump sum order which had been made in April 2013. In November, 2013, the Supreme Court directed payment by GM of a lump sum of €1.8 million in two instalments of €1 million and €800,000 respectively pending appeal.
14. The question of custody and access was back before the High Court again in December 2014 and it gave rise to the order which is now under appeal.
This Appeal
15. In preparing for this appeal and judgment, I have had to acquaint myself with what has gone on in the High Court between these parties during the course of this litigation. The parties are conducting a litigation war against each other. They are each, in their respective ways, extremely difficult people and I entirely agree with the High Court judge when he said that the court is “challenged to the very limit to try and deal with them”. In that regard the High Court judge is to be complimented for the extraordinary patience and commitment that he has shown to this case. He has shown great skill in endeavouring to bring some order to the parties’ fractious and fractured relationship. It is clear that throughout, despite all the difficulties with which he was confronted, the judge has endeavoured to ensure that the welfare of the infants is the first and paramount consideration to be borne in mind.
16. The judge has heard a huge amount of evidence, and in particular from MM and GM, an advantage which this Court does not have. In approaching this appeal, I bear in mind the views of the Supreme Court in S. v. S. (Unreported, 21st February, 1992) in dealing with an appeal against a custody order granted in favour of a father by the High Court, where it said:
“Having regard to the decision in Hay v. O’Grady it is clear that the court is bound by the primary findings of fact, which have been made by the learned trial judge upon the oral evidence before him if there is evidence to support such findings. I am also satisfied that having regard to the principles laid down in that decision, this is a case in which in many instances this Court should be particularly careful of reaching a different inference from the facts so found than that which was reached by the trial judge.
Quite clearly, if any question of error in principle has occurred in the findings and decisions of the trial judge concerning the welfare of the children and the vital question as to in whose custody they should be placed, this Court must intervene. Since, however, this Court does not have the opportunity to view and hear the oral evidence of the parents or guardians concerned, it should in my view, in general, be slow to replace the decision of the judge who has had that opportunity.”
The custody/access regime
17. Just as the parties to this litigation contested financial matters, factual matters in relation to the nature of their relationship and the breakdown of that relationship, so they also contested issues concerning the parenting of the two young children. The conflicts and issues as to where the children would reside and whether there would be joint custody were resolved by orders made in the High Court. The result is that MM is the primary custodial parent and the children reside with her in Dublin. The High Court constructed what it described as access orders that were not “too intense”. In that regard, the High Court did not follow certain recommendations which were made by Prof. Sheehan who has been involved in this litigation for a long time and has played an important role in endeavouring to try and facilitate the custody and access regime in respect of the two children. GM does not live in this State and originally Prof. Sheehan was of the view that there should be more than a single visit a month by the children to the city where GM resides. The High Court took the view that that would be too much and instead put in place structured access arrangements which would involve two visits to Dublin every month by GM at which access could be enjoyed and one visit by the children to GM’s residence. That was the judge’s plan, but sadly it has never been realised.
18. One of the difficulties that has manifested itself is a reluctance on the part of MM to tell the children that their parents are separated. The judge has been endeavouring to address that for a very long time and took the view that it had caused what he described as “huge problems for the children and has been very retrograde for their welfare”. It is difficult to understand MM’s attitude on this topic. The children are now of an age where they probably know of the separation.
19. The judge has endeavoured to try and impress on the parties the huge responsibility which they have to their children and in particular MM’s responsibility to facilitate access to the non custodial parent. She appears to have difficulty with this. Both parties have chosen not to listen to the court on occasions in relation to aspects of the welfare of the children.
20. In the plan of the judge, overnight access was to be enjoyed in Belfast by the children on a regular basis with their father. The first time that that was to occur was at the end of October 2014. It is fair to say that in anticipation of that, GM did all that was required of him by the judge including the provision of a nanny who would be present. The judge was impressed with this nanny and this arrangement was approved of by Prof. Sheehan.
21. The evidence given by the nanny was that the children were settling down well on the evening of 30th October 2014, when an engagement took place between MM and the nanny. The judge found that MM’s approach was as he put it “very disrespectful to” the nanny and she was very distressed as a result of that confrontation. The judge described it as entirely unacceptable behaviour on the part of MM to act in the way that she did. The net result of all of this was that the planned overnight access did not take place. Thus, the structure which the judge had attempted to put in place with a view to ensuring that the children’s right of access to their father would be enjoyed sensibly and sensitively was effectively brought to an end. They have not enjoyed overnight access with their father since.
22. It was in these circumstances that the matter came to be dealt with yet again in the High Court in December 2014.
The December 2014 hearing
23. The hearing in the High Court on this occasion was concerned with the question of access by the children to their father. The judge had a great number of affidavits before him and also oral testimony from Prof. Sheehan.
24. At the outset of his evidence, Prof. Sheehan indicated his view, as he put it, “we are actually moving backwards since the date of the attempted first overnight”. He spoke of the necessity of having to “stop the rot”. He told the court that GM was missing the children hugely and was extremely angry with MM whom he saw as alienating the children from him and playing a deliberate role in preventing them from meeting with him on their own. GM refused to speak to MM. The Professor expressed the view that it would be very helpful if both parties would meet directly with him for discussions. He thought that that would make enormous difference to the children and could be what he described as “a real building block in terms of turning the corner”.
25. He also expressed the view that MM was extremely tense, stressed, and agitated. He thought that she was on the verge of cracking up. She was felling “totally overwhelmed by the amount of legal proceedings and the way that that was distracting her from attending to the children”.
26. As to the children the Professor described the elder child as being “really weighed down by the conflict between her parents”. He said that she was regrouping under her mother in the face of the conflict. That did not surprise him, because usually as conflict between parents gets expressed more openly in front of children, the children will regroup under their primary carer. The Professor took the view that the children are terrified, but went on to say in very specific terms that they are not terrified of their father. He said they were “clearly not frightened of father” but were terrified of the conflict and that it (the conflict) had mounted. He then spoke of the responsibility on the parents to do something about the environment between them, so as to reduce the conflict for their children, because it was on the way to becoming an intolerable burden for them. As a result of all of this, the elder child was now saying negative things about GM. The elder child was demonstrating sleeplessness and was missing school. The younger child was also fearful. He actually said to the Professor at the conclusion of a meeting with him, “I want the war to end. I want peace”. That was said spontaneously by the child. It is a poignant commentary on what the unfortunate children have been experiencing.
27. The Professor then suggested to the judge that there would be a moratorium on what he described as “all the current orders for a period of time”. This would provide an opportunity for what he described as a “top priority intervention being the parents talking together with me for a couple of meetings”. He made it clear that he was not suggesting that there should be no access during this moratorium. He was happy once again to facilitate that process, but pointed out there was only so much that a facilitator could do and indeed only so much that a court could do. At the conclusion of this part of his testimony, he told the judge that both parents have a huge amount to offer the children. They were very different types of parents and he thought that things had been going moderately well. The question was of course whether MM had sabotaged the first overnight access that the court had directed.
28. There was a great deal more evidence given to the judge which it is neither necessary or indeed possible to reproduce in this judgment. It is clear however, that particularly as a result of the testimony given to him by Prof. Sheehan, the judge decided to make the two parts of the order which are the subject of this appeal.
29. In making the order under appeal, the judge made it clear that the regime directed by it was to be of short duration and that all access issues will be reviewed by him on the 26th March, 2015.
M.M.
30. The High Court has already adjudicated that MM is to be the custodial parent of the two children. That imposes serious obligations upon her. One of those obligations is to ensure that the right of her two children to have access to their father is respected and given effect to. Overnight access with their father is an important component of their entitlements. That is particularly so having regard to the ages of the two children and the age of their father. Failure on her part to live up this obligation will have serious consequences for the welfare of her children, but may also have legal consequences for her. If she frustrates orders which the court might make concerning access by the children to their father, her own role as the custodial parent may be called into question.
G.M.
31. GM was described by the judge as a very belligerent difficult man. He has a difficult temperament and seems to be unable to communicate civilly with MM. As the judge pointed out, it would be of assistance and in the best interests of the children if the parties were able to communicate about matters affecting the children in a civilised way. As the judge said more than once “the adversarial system in family law courts can bring out the worst in people, but if even half the belligerence displayed by GM is evident in his relationship with MM on dealing with the children, the ongoing issues of custody and access will continue to be fractious and this will inevitably affect the children”.
32. Whilst there is a wretched relationship between GM and MM which is adversely affecting the children, it has to be said that as a father there is nothing to be said against GM not having generous access to his children. The High Court has found that he loves his two children that he is not a threat to them in respect of any court welfare issues and that he is a decent man. He has been financially responsible towards them. He wishes to have contact with his children. It was in the context of this very difficult situation that the trial judge made the order which he did.
The judgment
33. Some particular parts of the High Court judgment are worthy of repetition. The judge said:-
“Now any court in a situation like this where there is what I would call deep issues on the part of both parents which leads to conflicts over access and which leads to a breakdown of access, the court is confronted with how does it approach the situation. Does it invoke the coercive powers of the court by penalising the custodial parent where access does not take place? Does it try to look towards the welfare of the children and see what is in their best interest? I have always had no doubt in my mind that the approach that I have had to take at all times is to act in the best interest of the children and their welfare. I feel in the particular situation that we’re confronted with, the coercive powers of the court provide no or little assistance to the very, very deep deep deep psychological problems which the court now has to confront in terms of the breakdown of Mr. and Mrs. M’s relationship and the children’s.
Now, it should be said that a matter of concern at all times for the court is the age of Mr. M and the time that it has taken to get the distance that we have. The judgment of the court was issued on the 25th April, 2013. The court allowed one year for the overnight access to be bedded in. There were difficulties which the court has outlined in relation to compliance with the court and engagement in the court’s advices and engagement with Prof. Sheehan. We then have had a further delay now and we are eighteen months out from the 25th April, 2013 and I make no apologies for trying to commence the overnight access in October 2014. Both (children) – (one) will be nine on the 9th February, 2015. (The other) is seven and three months. I mean they are both children now, which are – I mean they may be immature for their age, but certainly they are at an age now where they should be actively engaging with their father and should be well in the position to go on overnight access. But that be as it may, we are now in a situation where Prof. Sheehan has no doubt that these children are under very significant distress, that Mrs. M is under very significant distress and the court’s view, although it has not been set out in affidavit, I have no doubt that the absence of any contact with his children is causing Mr. M very significant distress and unfortunately the court has to go backways to forward. I have no other choice in relation to the matter. Mr. Hayden has made submissions to the court that the court does not have discretion to amend its order. That is certainly is not the case. Pursuant to the Guardianship of Infants Act 1964, in relation to any application before it, the court has discretion to try and deal with the issues that it confronts in relation to the welfare of the children.
I was particularly concerned about Prof. Sheehan’s evidence that there should be a moratorium on access. I clarified that with him and he did not in fact mean that as such and in my view to try and bring the situation forward, I have to go back and I am going to have to suspend the overnight access for the foreseeable future. I do not want to in any way curtail the daily access. I am conscious that there may be ongoing difficulties about its fulfilment. I feel that just for the present, the Belfast access should perturb (sic) to one day, or Saturday, until hopefully we try and get it re-established. I feel strongly that there should be a litigation free period where the matter does not come back into court again for the benefit of the children. Obviously there are issues now coming up to Christmas which the court may have to try and deal with, but apart from that situation, I do not want it coming back into the court again.
So, I want to be absolutely clear from the court’s perspective that I am very disappointed that this access has broken down. I am very disappointed that the court’s orders are not being complied with. I am very disappointed that overnight access did not take place. I do feel that there was a window of opportunity on the evening of the 30th October, 2014 and that it was lost. I feel that the children could well have stayed overnight that night and would have enjoyed it. The comments made by (one of the children) to Ms. B on the evening in question would indicate that (the children) feel some displeasure of their mother if they stayed overnight and again I am not blaming Mrs. M that she is consciously alienating the thing, but there is certainly an atmosphere there in relation to that particular issue and there are deep deep-seated issues there which this Court in many ways and I think this Court and Prof. Sheehan are challenged to the very limit to try and deal with them. The only thing I can say to Mr. M in relation to the issue if his belligerence continues, if he is still offensive to Mrs. M there will be consequences in the relationship with his children. I have no doubt about that. I know it is definitely affecting the children. I do not know whether he can change his behaviour or not, but I pointed out very carefully to him in the judgment of the 19th March, 2014 and I can do no more in relation to that and it is clearly having an impact on Mrs. M’s mental health at present, that type of relationship with Mr. M and there is no – the court never orders people to attend a – I don’t anyway – adults to have – I expect them to act responsibly to their children and that if the person who – the facilitator, who is trying his very best to facilitate access is trying to do something that they should follow his recommendations and Prof. Sheehan is quite clear that at tête-à-tête meeting between Mr. M and Mrs. M is something that is very constructive and useful for them.”
34. Later in his judgment the judge said this:
“I think at this point in time that it would not be helpful for Prof. Sheehan to interview the children at present. I think it should be left to his judgement to deal with that particular issue if it is causing them distress. Now I do not think that it is constructive at present that he would engage with them. It may well be that in a few months time that that situation would change. Unfortunately the court cannot avoid ongoing supervision of the issue, but it wants to do it on a basis where there is a period of time given to try and deal with the very difficult problems that have arisen. There is absolutely no benefit to this coming into this Court week in, week out. I absolutely say that with the greatest respect to Mr. M. It is not assisting the situation and it will not bring about a resolution to his satisfaction. I want to reassure Mr. M that as far as the court is concerned, it is very conscious that he is without access. The court believes that it is unfair. The court wants him to have contact. The court wants him to have overnight contact, but the responsibility of the court, and I think he will understand that at the moment, is that the court is now dealing with very distressed children and it would be a dereliction of duty of the court if it did not take that into account in its present reflections.”
Discussion
35. As is clear from those parts of the judgment from which I have quoted the High Court judge was faced with a very difficult situation. The access arrangements which he had attempted to implement had collapsed. The children were extremely distressed as indeed were both parents. The judge was extremely mindful of the entitlement of the children to access including overnight access with their father. However, in the circumstances with which he was confronted, he was of the view that the only thing that he could do in order to provide a period of respite was not to proceed with overnight access for a period of some months. The hope was that the parents would show a greater sense of responsibility than they have to date and agree to meet with Prof. Sheehan so that whatever their differences as between themselves as adults they might respect the entitlements of their children.
36. The judge was also of opinion that a respite in the litigation war would also be beneficial. Hence he made the order under appeal.
Overnight access
37. I am quite satisfied that the judge was entitled to make the order curtailing overnight access. Section 11 of the Guardianship of Infants Act 1964, provides the widest powers to the court to make such order as it thinks proper on questions affecting the welfare of an infant. On the evidence before him, the judge was entitled to take the view that overnight access should be suspended, but just for a few months. The hope was that that would provide a respite period in which GM and MM might reflect on their responsibilities as parents and meet Prof. Sheehan. The evidence before the judge was that the two children were in a distressed condition and any form of forced overnight access would not have been for their benefit.
38. In these circumstances and bearing in mind the disadvantages which an appellate court has – an arid transcript with no viva voce evidence -, I do not believe that this Court ought to intervene and alter in any way the directions given by the judge concerning overnight access.
39. It is clear from the terms of his judgment that the judge is acutely aware of the entitlement of these children to generous access with their father and I have no doubt but that he will give effect to that at the earliest opportunity.
40. Without in any way trespassing upon the jurisdiction of the trial judge when the matter comes before him next month it would seem appropriate that consideration be given to the question of more generous overnight access being granted with GM than was originally contemplated so as to compensate the children for the loss of appropriate access that they have suffered to date.
Restriction
41. Objection is taken to the final part of the order made on the 12th December, 2014. That directed that “no further application is to be made in respect of the children either by way of enforcement or review” before the 26th March, 2015.
42. I have great sympathy and quite understand why the judge decided to make this order. He rightly said that there was no benefit being gleaned by this case, as he put it “coming into this Court week in week out”. He hoped to achieve a period of respite from the litigation war, so that the parents might stand back and realise the damage that was being done to the welfare of their children. He also hoped, as is clear from the transcript, that the exchanges of solicitors’ correspondence which were precursors to such applications might also come to a halt. Indeed he made it clear that both solicitors and counsel have a duty to the court in relation to the welfare of the children. He went so far as to demand compliance with that duty. He spoke about these letters as meaning “absolute and utter nonsense” as far as he was concerned. Immediately after that he made it clear that he wished access to happen and that he wanted to see GM seeing his children.
43. Whilst I understand and indeed sympathise with the position of the trial judge in making this part of the order, I regret to say that I do not believe that it can stand.
44. As I have already pointed out s. 11 of the Guardianship of Infants Act 1964, confers the widest possible powers upon the court when it comes to dealing with the welfare of infants. That is as it must be.
45. If this part of the order is read literally it constitutes a denial of access to the courts on a most important question, namely, infant welfare. Such denial is not in conformity with constitutional norms.
46. A literal reading of the order would be impermissible from a constitutional point of view. Such an interpretation would, to use the words of Ryan J. in Quinn and Others v. Irish Bank Resolution Corporation Limited and Others [2013] IEHC 116,:
“come with heavy legal baggage including, inter alia, interference with . . . rights, access to the courts, . . . and other Constitutional issues.”
47. If the order is to be interpreted in a constitutional way, then it cannot mean what it says. It is not possible to do what it purports to do without offending constitutional norms. That is particularly so in the context of the welfare of children.
48. I have no doubt, but that if an urgent matter pertaining to the welfare of the children arose, no judge would construe the order literally. Rather it would be construed in accordance with constitutional norms and thus would be ignored. Thus, the order really serves no purpose. Well intentioned as it was, this part of the order of the High Court must be set aside and the appeal allowed in respect of it.
Result
49. For the reasons already outlined, I would not interfere with the order made by the High Court in respect of the suspension of overnight access for the short period of time involved between now and the review which will take place on the 26th March, 2015. In so doing, I have no doubt but that on that review, the High Court will be fully cognisant of the children’s clear entitlement to overnight access with their father and the fact that they have been deprived of such for a long period to date.
50. Insofar as the High Court order purports to prohibit applications by way of enforcement or review in respect of the welfare of these infants it should, in my view, be set aside.
Note: A separate concurring judgment was delivered by Hogan J.
Irvine J. agreed with both judgments.
JUDGMENT of Mr. Justice Gerard Hogan delivered on the 23rd day of February 2015
1. I agree with the judgment which has just been delivered by Kelly J. and I gratefully adopt the very helpful statement of facts which he has just set out. This concurring judgment deals only with the question of overnight access.
2. At the outset of this judgment it is only appropriate that I should join with Kelly J. in acknowledging the immense patience and diligence of the trial judge, White J., who has displayed conspicuous fairness and insight in dealing with this most difficult of cases.
3. The essential background to the present appeal is as follows: the father, GM, has been endeavouring to have overnight access to his two children who are now aged 9 and 7 respectively. The children’s mother, MM, is the primary guardian and they reside with her. The formal statutory jurisdiction of the Court to resolve matters of this kind derives from s. 11(1) of the Guardianship of Infants Act 1964 (“the 1964 Act”) (as amended) which provides that any guardian “may apply to the court for its direction on any question affecting the welfare of the child and the court may make such order as it thinks proper.” Section 3(1) of the 1964 Act then provides that in the resolution of any such question of guardianship, the court “shall regard the welfare of the child as the first and paramount consideration”.
4. The jurisdiction contained in the 1964 Act must, of course, be viewed through the prism of Article 41 and 42 of the Constitution. It is clear from the very wording of these provisions that the Constitution presupposes a marriage of equals with both parents having an equal claim in respect of the upbringing of their children. Article 42.1 of the Constitution provides:
“The State acknowledges that the primary and natural educator of the child is the Family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children.”
5. This principle was first comprehensively enunciated by the Supreme Court in Re Tilson [1951] I.R. 1, a case involving a dispute between husband and wife in respect of the religious upbringing of the couples’ children. Having set out the terms of Article 42.1, Murnaghan J. then stated ([1951] I.R. 1, 32):
“Where the father and mother of children are alive this article recognises a joint right and duty in them to provide for the religious education of their children. The word ‘parents’ is in the plural and, naturally, should include both father and mother. Common sense and reason lead to the view that the mother is under the duty of educating the children as well as the father; and both must do so according to their means.”
6. It is clear, therefore, that Article 42.1 envisages that both parents would, in principle, at least, be the joint decision-makers in respect of the upbringing of their children. The corollary, of course, is that the children are entitled to the care, company and support of both parents. They are equally entitled, where at all possible, to have a meaningful relationship with both of their parents.
7. It is a matter of the deepest and most profound regret that the bitter and internecine battle which has been fought relentlessly and in an uncompromising fashion by both parents has so deeply affected the children. It is, regrettably, impossible to avoid the conclusion that the happiness and general welfare of the children has been grievously affected by sustained parental conflict. Viewed objectively, there is doubtless considerable fault on both sides. Judged by the evidence of Professor Sheehan and the findings which were made by White J., it would seem that the father is almost contemptuous of the mother and cannot bring himself to speak a civil word to her. For her part, the mother seems determined to ensure that the children’s access to their father is curtailed to the minimum, probably in the hope that he will remain (or become) a distant and aloof figure in their lives.
8. As Kelly J. has recounted in his judgment, the present application is one which was originally brought by the father with a view to securing overnight access to his children. Although White J. had made an order on 24th October 2014 providing for overnight access at the father’s house in the presence of a nanny on the 30th October 2014 (and on 8th November 2014 and 6th December 2014), this never occurred. As Kelly J. has pointed out, the father took all appropriate steps in this regard and it appears from the evidence of the nanny (which White J. fully accepted) that the children were settled in and comfortable in the father’s house and were looking forward to an overnight stay on the first of these overnight access visits which had been scheduled for 30th October 2014. In his ruling White J. specifically found that the children “could well have stayed overnight that night” and that they “would have enjoyed it.”
9. The mother nevertheless took steps to ensure that this would not occur. She arrived at the father’s house, removed the children and – as White J. found – unfairly berated at some length the nanny who was present to supervise the overnight access visit. While the mother was doubtless understandably anxious for the children and concerned that they might be fretful or nervous about staying overnight in an environment to which they were unaccustomed, nevertheless no objective reason by way of justification of this conduct has been advanced by her. The steps which she took amounted, in effect, to the wrongful frustration of a court order.
10. It is, perhaps, not necessary to consider whether either parent can be said to have “failed” in their duty towards their children within the meaning of Article 42.5, although the wrongful and unilateral frustration of a court order might well be regarded as evidence of such parental failure. As this case, nevertheless, is one where the judicial branch of the State is obliged to resolve the dispute between the parents, then the principles contained in Article 42.5 can nonetheless be applied, if only by analogy:
“…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 to the natural and imprescriptible rights of the child.”
11. In other words, in making this decision regarding overnight access, I find myself endeavouring to supply the place of the parents, as decisions of this kind regarding where the children stayed would, of course, be normally one for the parents alone. The Court must accordingly act in a fashion which is proportionate, which intrudes as little as possible into the family decision-making (“…by appropriate means…”), and which is guided by the objective of advancing the welfare and best interests of the children (“…but always with due regard to the natural and imprescriptible rights of the child….”).
12. As Article 42.5 itself tacitly acknowledges, decision-making by the State – rather than by parents – in matters of this kind is nearly always unsatisfactory. In matters of unavoidable parental conflict, the judicial branch of the State must, in the interests of the affected children, seek to repair and mitigate the damage caused by that conflict, at least to the limited extent that it can reasonably do so. Where it is possible and it is in the best interests of the children to do so, the Court must seek to respect and uphold the substance of the family life which, but for the parental conflict, the children would otherwise have enjoyed.
13. As I have already mentioned, it follows from the very language of Article 42.1 that one of those rights of the children which the judicial branch must uphold when exercising the jurisdiction conferred by Article 42.5 is the right of the children to the care and company of each parent, where this is judged objectively to be in their best interests to have such contact: see, e.g., Re JH [1985] I.R. 375, 394, per Finlay C.J. and N v. Health Service Executive [2006] IESC 60, [2006] 4 IR 470.
14. Overnight access with each of the parents must generally be regarded an integral feature of that right. It is that which conveys the essence of normal family living and is that which tends to separate out the normal, carefree element of family life from the somewhat stilted formality of a supervised access visit. The objection taken by the father that, without at least some, limited overnight access, the children can never really come to know their father or have a meaningful relationship with him is, I think, well taken. There must be a real danger that without such access the father will remain a remote figure, excluded from the lives of the children.
15. Here it must be recalled that Professor Sheehan found that the children had no fears of their father, that he loved them dearly and that he posed no threat to them. These are important findings, as were the facts otherwise, overnight access might well not at all be in the interests of the children. Professor Sheehan acknowledged that there was a danger that, absent such overnight access, the children might otherwise feel alienated from their father. It seems clear from the evidence of Professor Sheehan and the findings of White J. that the children felt not only distressed, but also compromised by the entire conflict. Specifically, they were anxious lest they would suffer their mother’s displeasure if they were to stay overnight with their father.
16. In the four or five months which have followed, there has been no overnight access with the father. This is a long time in the lives of these young children. It is true that in his ruling of 12th December 2014 White J. adjourned – for the most understandable of reasons – the matter to March 26th, 2015. I nevertheless confess to an anxiety that, by reason of the unilateral actions of the mother, the children were being denied the substance of one of aspect of their constitutional entitlements under Article 42.1, namely, the entitlement to the care and company of their father by the total denial of any overnight access, even if such access is quite properly limited and supervised. In the end, however, it is only because of the views of Professor Sheehan (who thought that it was interests of the children that such overnight access be paused briefly) and in deference to the immense knowledge and experience of this case which White J. has acquired, that I have agreed to allow this part of the order (i.e., adjourning the question of overnight access to 26th March 2015) stand.
17. However, like Kelly J., I am confident that at the resumed hearing White J. will uphold the substance of the children’s entitlement to overnight access with their father in a proportionate, regulated and supervised fashion should the evidence establish that it is objectively in their interests that they should have such overnight access.
18. It is for these reasons that I agreed with the judgment of Kelly J. and the order which he proposes.
Irvine J. agreed with the judgment of Hogan J.
Temple Street (Children’s University Hospital Temple Street) v D
[2011] IEHC 1
JUDGMENT of Mr. Justice Hogan delivered on the 12th January, 2011
1. In the early hours of the morning of 27th December, 2010, following a hearing in my house I made an order sanctioning the administration of a blood transfusion to a three month old baby who was desperately ill and who, I was told, urgently required that transfusion within a matter of hours. Although for the reasons I shall now shortly outline, a public hearing of the matter was perforce impossible in the circumstances and even though I also made an order pursuant to s. 27 of the Civil Law (Miscellaneous Provisions) Act 2008 (“the 2008 Act”) prohibiting the publication or broadcast of any matter that would be likely to identify the baby in question, at the conclusion of the hearing, I nonetheless indicated that I proposed to deliver a judgment in open court. The purpose of this judgment, therefore, is not only to give written reasons for my decision , but also to fulfil insofar as it is possible to do so, the requirement of Article 34.1 of the Constitution that justice be administered in public “save in such special and limited cases as may be prescribed by law.” While it was not possible to hold the hearing in open court, the delivery of this judgment will perhaps mitigate the effect of this somewhat by providing a record of what transpired.
2. In line with the order which I made under s. 27 of the 2008 Act, I propose to use random letters to describe the baby (“Baby AB”) and the parents (“CD and EF”) to ensure that his identity is not thereby disclosed.
3. AB was born in September 2010, but his twin sister sadly did not survive. The baby was very unwell by reason of acute bronchiolitis on 25th December, 2010, and his condition deteriorated further during the course of the day. At one point AB stopped breathing and had to be resuscitated. He also had a hypoxemic episode (i.e., a period of low oxygenation), an incident with potentially ominous implications,
4. AB was transferred from another hospital to the plaintiff hospital in the early hours of 26th December. By the early evening of 26th December the situation had become critical. While AB suffers in any event from low haemoglobin, this level was dropping further by reason of his illness and by reason of necessary blood testing that was deemed clinically essential for treatment optimisation. The fact that the haemoglobin was dropping further significantly hindered the capacity of his body to deliver oxygen to his vital organs and to maintain normal neurological functions. In that regard, evidence was given to the effect that AB’s liver was somewhat distended .
5. The usual trigger for a blood transfusion is where the haemoglobin levels drop below 8.0 g/dl. By 9pm on 26th December, it was clear that the haemoglobin level was on a downward spiral and had reached the point where a transfusion was now absolutely necessary. While AB’s parents, CD and EF, were clearly anxious for his welfare and sought the very best medical care, as committed Jehovah Witnesses, they were steadfast in their opposition to this procedure. They had, however, consented to the use of certain blood products earlier that day which had been administered to AB. By this point, however, it was clear that this in itself would not be sufficient and that a transfusion was now necessary.
6. Faced with this objection from the parents, the Hospital resolved that it should then apply to this Court for an order which sanctioned the transfusion. Contact was made with the Duty Registrar who in turn made contact with me shortly after 10pm on 26th December. It was agreed that an emergency hearing would be held in my own house at midnight or as soon thereafter as the parties could assemble.
7. In the event, the hearing commenced shortly before 1am on the morning of 27th December and concluded at about 2.30am. The Hospital was legally represented by solicitors and counsel and the parents appeared in person.
8. At the hearing counsel for the Hospital, Mr. McEnroy S.C., stressed the urgency of the matter and why a transfusion was absolutely necessary in the circumstances. While the parents were present, it was simply not possible in the circumstances for them to be legally represented or to have members of Hospital Liaison Committee of the Jehovah Witnesses present. The treating consultant, Dr. Kevin Carson, who is Clinical Director of Intensive Care at the plaintiff hospital, was sworn and gave evidence detailing the medical history to date. He confirmed that AB’s life was in danger . He specifically confirmed in answer to a direct question from me that there were no medical alternatives to a transfusion and that the issue had to be dealt with immediately within a matter of hours.
9. As already indicated, the parents, CD and EF, were also present. They said that it had not been possible to obtain professional representation given the time constraints. They are the parents of a large family and it appears that this Court has also sanctioned a blood transfusion in respect of another child of theirs, so that they were to some extent familiar with the issues which would arise in such an application. While they wanted the best for their child and were delighted with the quality of the medical care which he had received, they explained that given the tenets of their religious faith they could not possibly consent to a blood transfusion. They also said that they understood their religious objections would be overridden by this Court and they seemed resigned to this fact.
10. There is no doubt as to the sincerity of the religious beliefs of the parents. They struck me as wholesome and upright parents who were most anxious for the welfare of their child, yet steadfast in their own religious beliefs. An abhorrence of the administration of a blood transfusion is integral to those beliefs. Mr. McEnroy S.C. for the Hospital very fairly acknowledged that it would be unreasonable to ask the parents to compromise their strongly held religious beliefs and it was for this reason that this application was thus made.
11. At the conclusion of the hearing I indicated that I would grant the orders sought and deliver my reasons in open court.
12. Before addressing the questions dealing with religious freedom and the welfare of AB, I propose first to address the reasons why it was not possible to have the hearing in open court, together with the circumstances in which I came to make an order under s. 27 of the 2008 Act.
Section 45 of the Courts (Supplemental Provisions) Act 1961 – hearing otherwise the in public
13. While Article 34.1 of the Constitution requires that justice “shall be administered in public”, save “in such special and limited cases as may be prescribed by law”, one such exception is provided by s. 45(1) of the Courts (Supplemental Provisions) Act 1961 (“the 1961 Act”) which provides that:-
“45.—(1) Justice may be administered otherwise than in public in any of the following cases:
(a) applications of an urgent nature for relief by way of habeas corpus, bail, prohibition or injunction;
(b) matrimonial causes and matters;
(c) lunacy and minor matters;
(d) proceedings involving the disclosure of a secret manufacturing process.”
14. This application was undoubtedly urgent and relief by way of injunction was sought, so that the matter came within s. 45(1)(a) of the 1961 Act. Since the issue concerned a minor, it also came within s. 45(1)(c). Given the time constraints, the time of year and the fact that the application had to be heard in the early hours of the morning, I concluded that the most practicable venue for the hearing was in my own private residence. In passing, I should also add that a further consideration in that regard was that heavy snowfalls had blanketed the Dublin region, making travel at that time very difficult.
15. The hearing which took place in the early morning of 27th December was perforce heard otherwise than in public, since as Walsh J. put it in Re R Ltd. [1989] I.R. 126 at 134, “the doors of the court” were not open to the public. While the hearing was otherwise then in public, this was authorised by s. 45(1)(a) and s. 45(1)(c) of the 1961 Act. But while this was necessary and unavoidable, I believe that – not least given the importance of the matter – it is desirable in the public interest that the primary command of Article 34.1 regarding the public administration of justice be nonetheless observed insofar as it is now possible to do so and that by delivering a judgment in open court the public can at least thereby become aware of the existence of these proceedings and their outcome.
Section 27 of the Civil Law (Miscellaneous Provisions) Act 2008
16. Section 27(1) of the 2008 Act provides that:-
“27.— (1) Where in any civil proceedings (including such proceedings on appeal) a relevant person has a medical condition, an application may be made to the court in which the proceedings have been brought by any party to the proceedings for an order under this section prohibiting the publication or broadcast of any matter relating to the proceedings which would, or would be likely to, identify the relevant person as a person having that condition.”
17. Section 27(2) states that an application for an order under this section may be made at any stage of the proceedings. However, s. 27(3) provides:-
“(3) The court shall grant an order under this section only if it is satisfied that—
(a) the relevant person concerned has a medical condition,
(b) his or her identification as a person with that condition would be likely to cause undue stress to him or her, and
(c) the order would not be prejudicial to the interests of justice.”
18. The phrase “relevant person” is defined by s. 27(11) as meaning:
“(a) a party to the proceedings, or
(b) a person called or proposed to be called to give evidence in the proceedings.”
19. An order under s. 27 (1) of the 2008 Act was sought by the Hospital, since, of course, the non-identification of patients is a key feature of the confidentiality which is integral to the medical profession. CD and EF are, of course, parties to the proceedings and at the hearing before me indicated that they were – understandably – most anxious that neither they nor their family would be personally identified. Baby AB plainly had a “medical condition” and I was satisfied that his non- identification would not be prejudicial to the interests of justice.
20. It was on that basis that I made the order under s. 27(1). This presents one potentially difficult issue of interpretation which would have benefited from further argument had the time and opportunity been available which, however, was simply not the case. While this is not completely satisfactory, I must nonetheless now perforce address this question.
21. As we have seen, s. 27(3) provides that the relevant person must have the medical condition and that “his or her identification as a person with that condition would be likely to cause undue stress to him or her”. In the present case, if one views s. 27(3) literally, then the only relevant person for present purposes is Baby AB. It is true that his parents are “relevant persons” within the meaning of s. 27(11) insofar as they were potential witnesses, but, of course, they did not have the medical condition which would justify the making of the order. And while Baby AB did have the relevant medical condition, given that his very young age he naturally did not have any consciousness or capacity in relation to the proceedings. He thus remained mercifully oblivious to the unfolding medical emergency. Again, viewed literally, it could not be said that even if Baby AB’s identity were to be revealed, this would cause “undue stress” to him within the meaning of s. 27(3)(b), precisely because he could not have had any consciousness of this fact.
22. If this is correct, then it would mean that the court would be powerless to make an order under s. 27 of the 2008 Act where – as here – the subject-matter of the application was a baby or a very young child, even though the identification of the child might cause immense distress to the parents or other close relatives. It would likewise mean that no order could be made under s. 27 where the proceedings concerned a patient who was unconscious or in a coma. I find it difficult to believe that the Oireachtas intended to create such an anomalous state of affairs.
23. It is clear that the literal rule remains the primary rule of interpretation: see, e.g., But given that s. 27 is essentially a remedial provision designed to complement the traditional concepts of medical confidentiality in a legal setting, it can be interpreted “as widely and liberally as can fairly be done”: see Bank of Ireland v. Purcell [1989] I.R. 327 at 333, per Walsh J.
24. In these circumstances, it is, I think, legitimate to have regard to the provisions of s. 5(1) of the Interpretation Act 2005. This provides:-
“5.—(1) In construing a provision of any Act (other than a provision that relates to the imposition of a penal or other sanction)—
(a) that is obscure or ambiguous, or
(b) that on a literal interpretation would be absurd or would fail to reflect the plain intention of—
(i) in the case of an Act to which paragraph (a) of the definition of “Act” in section 2 (1) relates, the Oireachtas, or
(ii) in the case of an Act to which paragraph (b) of that definition relates, the parliament concerned,
the provision shall be given a construction that reflects the plain intention of the Oireachtas or parliament concerned, as the case may be, where that intention can be ascertained from the Act as a whole.”
25. In my view, the present case comes squarely within the provisions of s. 5(1)(b) of the 2005 Act, since the literal interpretation “would fail to reflect the plain intention” of the Oireachtas. In these circumstances, I believe that it is permissible to adopt a teleological approach to s. 27 by interpreting it broadly and without doing too much violence to the statutory language so as to permit the making of an order in a case such as the present, even though the child in question who has the medical condition will not by reason of its very young age suffer the stress which the language of s. 27(3)(a) would otherwise appear to require. Even if I am wrong in this, it is clear that as the present proceedings come within the ambit of s. 45(1)(c) of the 1961 Act, it is permissible to hold the proceedings in camera, while circulating the judgment and making its contents public in such a way as will preserve the anonymity of Baby AB: see, e.g., Attorney General v. X. [1992] 1 IR 1 at 46, per Finlay C.J. Either way, the identity of Baby AB – and, hence, his family – will thus be protected from disclosure. At the same time, I respectfully suggest that the Oireachtas might usefully wish to re-examine the actual language of s.27 of the 2008 Act in the light of the facts of this case.
Freedom of Religion
26. If we turn now to the substantive questions at issue, the starting point is, of course, Article 44.2.1 of the Constitution which provides:
“Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen.”
27. Along with the guarantee of free speech in Article 40.6.i, Article 44.2.1 guarantees freedom of conscience and the free practice of religion. Taken together, these constitutional provisions ensure that, subject to limited exceptions, all citizens have complete freedom of philosophical and religious thought, along with the freedom to speak their mind and to say what they please in all such matters. Article 44.2.1 protects not only the traditional and popular religions and religious denominations – such as, for example, Roman Catholicism, the Church of Ireland and the Presbyterian Church – but perhaps just as importantly, it provides a vital safeguard for minority religions and religious denominations whose tenets are regarded by many as unconventional.
28. If one may be permitted to speak bluntly, the antipathy of the Jehovah Witnesses to the taking of blood products may well come within the latter category. Most Irish people would, I suspect, express unease and even disdain for a religious belief which required its faithful to abjure what is often a life saving and essential medical treatment. The Witnesses, on the other hand, regard the blood prohibition as one which is not only scripturally ordained in view of the admonition in Acts 15:29 requiring Christians to “abstain from meats offered to idols, and from blood, and from things strangled, and from fornication”, but is one which also poses – when it arises – a practical test of faith.
29. A secular court cannot possibly choose in matters of this kind and, of course, a diversity of religious views is of the essence of the religious freedom and tolerance which Article 44.2.1 pre-supposes. Nor can the State be prescriptive as to what shall be orthodox or conventional in such matters, for, as Jackson J. put it in a noted US decision concerning the Witnesses, West Virginia Board of Education v. Barnette 319 U.S. 624 (1943):
“…if there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion or force citizens to confess by word or act their faith therein.”
30. It probably suffices for present purposes simply to say that the right of a properly informed adult with full capacity to refuse medical treatment – whether for religious or other reasons – is constitutionally protected: see, e.g., Fitzpatrick v. FK (No.2) [2008] IEHC 104, [2009] 2 IR 7.
Article 42: Family Autonomy and the Position of Children
31. Of course, the present case concerns not an adult, but a very young baby. In this regard, Article 41 and Article 42 of the Constitution come squarely into play.
32. Article 41.1 provides:
“1º The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.
2º The State, therefore, guarantees to protect the Family in its constitution and authority as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.”
33. Article 42.1 provides:
“The State acknowledges that the primary and natural educator of the child is the Family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children.”
34. Finally, Article 42.5 provides:
“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.”
35. There is thus no doubt at all but that parents have the constitutional right to raise their children by reference to their own religious and philosophical views. But, as Article 42.5 makes clear, that right is not absolute. The State has a vital interest in ensuring that children are protected, so that a new cohort of well-rounded, healthy and educated citizens can come to maturity and are thus given every opportunity to develop in life. This interest can prevail even in the face of express and fundamental constitutional rights. No one would suggest, for example, that the right of the State to protect children against possible exploitation and abuse would not, for example, enable the Oireachtas to enact legislation prohibiting the involvement of children in street preaching and the distribution of religious literature on the street at night, even if such activities were thought by some to be scripturally mandated or that the children were being directed in such religious activities for religious reasons by their parents: see, e.g., the judgment of Ruttledge J. for the US Supreme Court on this very point in another noted decision concerning the Witnesses, Prince v. Massachusetts 321 US 158 (1944).
36. Of course, the right of the State to intervene and thus to override the constitutional right of the parents is expressly circumscribed by the language of Article 42.5. The circumstances must be “exceptional” and the intervention proportionate (“…..with due regard”) to the circumstances. There must also have been a “failure” of duty on the part of parents. But there is absolutely no doubt but that the court can intervene in a case such as this where the child’s life, general welfare and other vital interests are at stake. As Denham J. said in North Western Health Board v. HW [2001] 3 IR 622 at 727:-
“The courts will only intervene and make an order contrary to the parents’ decisions and consent to procedures for the child in exceptional circumstances. An example of such circumstances in relation to medical matters may be a surgical or medical procedure in relation to an imminent threat to life or serious injury.”
37. Of course, in one sense – as Birmingham J. pointed out in a case with very similar facts, Re Baby B, High Court, 28th December, 2007 – the use of the term “failure” in this context is perhaps a somewhat unhappy one, since there is no doubt but that CD and EF, acting by the lights of their own deeply held religious views, behaved in a conscientious fashion vis-à-vis Baby AB. The test of whether the parents have failed for the purposes of Article 42.5 is, however, an objective one judged by the secular standards of society in general and of the Constitution in particular, irrespective of their own subjective religious views.
38. Given that Article 40.3.2 commits the State to protecting by its laws as best it may the life and person of every citizen, it is incontestable but that this Court is given a jurisdiction (and, indeed, a duty) to override the religious objections of the parents where adherence to these beliefs this would threaten the life and general welfare of their child.
39. It was for these reasons that I granted a declaration to the effect that it would be lawful in these particular circumstances for the Hospital to administer a blood transfusion (along with other associated blood products) in the case of Baby AB. As Dr. Carson made clear in his evidence to me, such a course of action was clinically necessary and urgent and all possible alternatives had been exhausted. This declaration is, of course, limited to these clinical events and is not to be construed as conferring on clinicians an open ended entitlement into the future to administer such treatment to Baby AB irrespective of the wishes and beliefs of the parents.