Unenumerated Rights

Cases

Ryan v. The Attorney General.

[1965] IR 294

The plaintiff’s case is that the Act of 1960 is invalid because (1) it is a violation of the inalienable and imprescriptible rights guaranteed to the Family by Article 41 of the Constitution; (2) it is a violation of the inalienable right and duty of parents to provide, according to their means, for the religious, moral, intellectual, physical, and social education of their children given by Article 42 of the Constitution; and (3) it is a breach of the guarantee in Article 40, 3, of the Constitution by the State “in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.” On this third branch the plaintiff puts forward two independent contentions. The first is that Article 40, 3, gives her a right of bodily integrity and that the Oireachtas in passing the Act of 1960 has not respected that right. The other contention is that the fluoridation of the public water supplies is or may be dangerous to the health of all or some of the citizens and, therefore, that in passing the Act of 1960 the Oireachtas has failed to respect and, as far as practicable, by its laws to defend and vindicate the right of the citizen to life and to bodily integrity.
All the Articles of the Constitution relied on are in that part of the Constitution which is headed, “Fundamental Rights.” Article 41 which deals with the Family provides in section 1, sub-s. 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,” while sub-s. 2 provides:”The State, therefore, guarantees to proect 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.” Not one of the counsel in this case has attempted to state what the inalienable and imprescriptible rights of the Family are and, as the Constitution gives little help on this, I am in some difficulty in dealing with this argument. “Inalienable”means that which cannot be transferred or given away while”imprescriptible” means that which cannot be lost by the passage of time or abandoned by non-exercise. The right of the Family to educate the children of that Family is, I think, one of the rights which any moral philosophy would recognise but this right cannot, in my opinion, be one of the rights referred to in Article 41 for there is a separate Article (Article
42) dealing with Education and it is highly unlikely that the Constitution gives the Family two separate rights to educate, one in Article 41 and the other in Article 42, particularly as the right given by Article 42 is detailed in five separate sections in that Article. Some clue to the ambit of the rights of the family referred to in Article 41 is to be found in sub-s. 2 of section 1 where there is a reference to a guarantee by the State to protect the family in its constitution and authority. It seems, therefore, that the rights referred to in section 1, sub-s. 1, of Article 41 relate to the constitution and authority of the family. It was argued by the plaintiff’s counsel that the addition of the fluoride ion to drinking water affected the authority of the family to decide what drink and food the members of the family should consume and that the Act of 1960 was, therefore, an attack on the authority of the Family. If it be assumed for the purposes of this argument that fluoridation of water is capable of being a violation of any right, it does not seem to me that it in any way affects the authority of the family. At the time when the Constitution was enacted, there were a number of Acts of Parliament in force which prescribed minimum standards and contents for food and drink and I am entitled to take this legal background into consideration when interpreting the Constitution. In my opinion, legislation dealing with the contents of food or drink does not in any way affect the authority of the Family and the Act of 1960 is not an interference with the rights guaranteed to the family by Article 41.
The next branch of the plaintiff’s case is that the Act of 1960 is invalid because it is an interference with the right given by Article 42 to the family and to the parents to educate the children of the family. Section 1 of Article 42 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,”while section 2 provides:”Parents shall be free to provide this education in their homes or in private schools or in schools recognised or established by the State.” It was urged by Mr. MacBride that the word “education” in this Article should be given a wide meaning so that it would include rearing and nurturing and he went on to submit that the addition of the fluoride ion to the public water supply will therefore be an interference with the right of the parents to educate their children. The word “education” undoubtedly had this wide meaning at one time but in 1937, when the Constitution was enacted, it had become obsolete. In the Shorter Oxford Dictionary, issued in 1933, the meanings given for the word “education” are:”(1) the process of nourishing or rearing” (this is marked with a sign to show that this meaning was obsolete in 1933) “(2) the process of bringing up young persons (3) the systematic instruction, schooling or training given to the young (and, by extension, to adults) in preparation for the work of life. Also the whole course of scholastic instruction which a person has received.”In other dictionaries the meaning for which Mr. MacBride contends is also described as obsolete. Moreover, it seems to me that the terms of the Article show that the word “education”was not used in this wide sense in the Constitution. Section 1 of the Article recognises the “right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children,” but in section 2 it is provided that the parents are free to provide this education in their homes or in schools recognised or established by the State. The education referred to in section 1 must, therefore, be one that can be provided in schools and must, therefore, be one of a scholastic nature. It seems to me, therefore, that the fluoridation of the public water supply (even if it be harmful) does not interfere with or violate the rights given to the family and to the parents by Article 42 of the Constitution. It was agreed during the argument that the puzzling contrast between the family and the parents in section 1 of Article 42 was not relevant to any of the issues in this case.
The third branch of the plaintiff’s case is based on Article 40, 3, of the Constitution. Article 40 is the first of the Articles in the part of the Constitution which is headed, “Fundamental Rights,” and Article 40 is headed, “Personal Rights.”The arrangement of the sections in this Article (in many ways the most important in the Constitution, for Article 5 declares that Ireland is a democratic State and what can be more important in such a State than the personal rights of the citizens) presents some problems. Section 1 gives equality before the law to all citizens as human persons. Section 2 provides that titles of nobility shall not be conferred by the State. Section 3, sub-s. 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 citizen, while sub-s. 2 of that section provides:”The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.”Section 4 gives the right to personal liberty. Section 5 deals with the inviolability of the dwelling-house, while in section 6 the State guarantees liberty for the exercise of the rights of freedom of expression for convictions and opinions, of peaceful assembly and the right to form associations and unions. Whatever may be the extent of the general guarantee given by section 3 for personal rights, it is difficult to understand why it was inserted between the right to equality before the law and the other specified personal rights.
The first matter to be considered on this general guarantee is whether the High Court has jurisdiction to declare an Act of the Oireachtas unconstitutional because, in the opinion of that Court, it is a breach of the guarantee by the State “in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.” I have to anticipate a later part of this judgment by saying that, in my opinion, this general guarantee relates not only to the personal rights specified in Article 40 but to those specified personal rights and other personal rights of the citizen which have to be formulated and defined by the High Court. In the course of his argument the Attorney General conceded that the High Court had jurisdiction to declare an Act of the Oireachtas invalid if it did not respect, and, as far as practicable, defend and vindicate the personal rights of the citizen and if, in addition, the Oireachtas had acted oppressively or in bad faith in passing the Act; but when Mr. William Finlay was making the closing speech on behalf of the Attorney General, he referred in another context to a passage in the advice given to the President by the Supreme Court in relation to the constitutional validity of the Offences Against the State (Amendment) Bill, 1940, from which it would appear that a majority of that Court were of opinion that the High Court and Supreme Court had no jurisdiction to declare an Act of the Oireachtas unconstitutional because it was a violation of the general guarantee in section 3: see In re Art. 26 of the Constitution and the Offences Against the State (Amendment) Bill, 1940 (1). The passage (at p. 481) is:”Article 40 deals with personal rights. Clause 3 thereof provides that the State guarantees by its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen, and to protect from unjust attack and, in case of injustice done, to vindicate, the life, person, good name, and property rights of every citizen. It is alleged that the provisions of the Bill are repugnant to the guarantee contained in this clause. It seems to us impossible to accede to this argument. The guarantee in the clause is not in respect of any particular citizen, or class of citizens, but extends to all the citizens of the State, and the duty of determining the extent to which the rights of any particular citizen, or class of citizens, can properly be harmonised with the rights of the citizens as a whole seems to us to be a matter which is peculiarly within the province of the Oireachtas, and any attempt by this Court to control the Oireachtas in the exercise of this function, would, in our opinion, be a usurpation of its authority.”
If it be assumed that advice given by the Supreme Court to the President binds the High Court in the same way as does a decision of the Supreme Court in a case between parties (and my view is that it does not), the passage does not bind me to hold that the High Court has not jurisdiction to consider the validity of an Act of the Oireachtas when it is claimed that it is a violation of the general guarantee in section 3 of Article 40, because the passage is wholly irreconcilable with the later judgment of the Supreme Court in In re Philip Clarke (1). In that case Mr. Justice O’Byrne when delivering the judgment of the Court said (at p. 247) in relation to the passage I have quoted in the advice of the Supreme Court:”A passage, at p. 481, in the judgment delivered by Sullivan C. J. in In re Art. 26 of the Constitution and the Offences Against the State (Amendment) Bill, 1940 (2) was relied upon as laying down the proposition that the Court could not consider whether a guarantee contained in the Constitution has been infringed by an Act of the Oireachtas. Such an interpretation of the passage would be inconsistent with the principle already referred to as having been laid down in that judgment. The passage must be read as a rule of prudence in the consideration of the question of express or implied repugnance, especially in matters such as those involved in the said Bill.”
In my opinion, the High Court has jurisdiction to consider whether an Act of the Oireachtas respects and, as far as practicable, defends and vindicates the personal rights of the citizen and to declare the legislation unconstitutional if it does not. I think that the personal rights which may be involved to invalidate legislation are not confined to those specified in Article 40 but include all those rights which result from the Christian and democratic nature of the State. It is, however, a jurisdiction to be exercised with caution. None of the personal rights of the citizen are unlimited: their exercise may be regulated by the Oireachtas when the common good requires this. When dealing with controversial social, economic and medical matters on which it is notorious views change from generation to generation, the Oireachtas has to reconcile the exercise of personal rights with the claims of the common good and its decision on the reconciliation should prevail unless it was oppressive to all or some of the citizens or unless there is no reasonable proportion between the benefit which the legislation will confer on the citizens or a substantial body of them and the interference with the personal rights of the citizen. Moreover, the presumption that every Act of the Oireachtas is constitutional until the contrary is clearly established applies with particular force to this type of legislation.
The next matter to be considered (though I have already said something about it) is whether the general guarantee in Article 40, section 3, relates only to those personal rights which are specified in Article 40 or whether it extends to other unspecified personal rights of the citizen. If it extends to personal rights other than those specified in Article 40, the High Court and the Supreme Court have the difficult and responsible duty of ascertaining and declaring what are the personal rights of the citizen which are guaranteed by the Constitution. In modern times this would seem to be a function of the legislative rather than of the judicial power but it was done by the Courts in the formative period of the Common Law and there is no reason why they should not do it now. A number of factors indicate that the guarantee is not confined to the rights specified in Article 40 but extends to other personal rights of the citizen. Firstly, there is sub-s. 2 of section 3 of Article 40. It reads:”The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.” The words “in particular” show that sub-s. 2 is a detailed statement of something which is already contained in sub-s. 1 which is the general guarantee. But sub-s. 2 refers to rights in connection with life and good name and there are no rights in connection with these two matters specified in Article 40. It follows, I think, that the general guarantee in sub-s. 1 must extend to rights not specified in Article 40. Secondly, there are many personal rights of the citizen which follow from the Christian and democratic nature of the State which are not mentioned in Article 40 at allthe right to free movement within the State and the right to marry are examples of this. This also leads to the conclusion that the general guarantee extends to rights not specified in Article 40.
In my opinion, one of the personal rights of the citizen protected by the general guarantee is the right to bodily integrity. I understand the right to bodily integrity to mean that no mutilation of the body or any of its members may be carried out on any citizen under authority of the law except for the good of the whole body and that no process which is or may, as a matter of probability, be dangerous or harmful to the life or health of the citizens or any of them may be imposed (in the sense of being made compulsory) by an Act of the Oireachtas. This conclusion, that there is a right of bodily integrity, gets support from a passage in the Encyclical Letter, “Peace on Earth”:”Beginning our discussion of the rights of man, we see that every man has the right to life, to bodily integrity and to the means which are necessary and suitable for the proper development of life; these are primarily food, clothing, shelter, rest, medical care, and finally the necessary social services.” If then the Act of 1960 imposes the consumption of fluoridated water on the citizens and if that is or may, as a matter of probability, be dangerous or harmful to the life or health of any of the citizens, the plaintiff’s right to bodily integrity would be infringed and the legislation would be unconstitutional.
At an early stage in this case the Attorney General submitted that I should not hear evidence that the fluoridation of water was dangerous. He argued that the jurisdiction to declare an Act unconstitutional on the ground that it did not respect the personal rights of the citizen could be exercised only if the Act were oppressive or had been enacted in bad faith and that this had not been pleaded. The plaintiff has, however, pleaded that the fluoridation of the public piped water supply will be dangerous. The Attorney General also relied on the fact that when the Oireachtas was considering the Act of 1960, they had before them the report of the Fluorine Consultative Council who advised that the fluoridation of the public water supply at a concentration of 1 p.p.m. was not dangerous; he said that this established that the Oireachtas was not acting in bad faith or oppressively when enacting the Act of 1960. I decided to admit the evidence because a plea that the fluoridation of the public water supply involves an element of danger seemed to me to be a plea that the Oireachtas had not respected the rights of the citizen to life and to bodily integrity. Moreover, it seemed to me that a plea that the process was dangerous involved a charge that the Oireachtas had acted oppressively, for a medical process which might be dangerous would, if imposed on the citizens, be oppressive.
The next issue to be considered is whether the fluoridation of the public water supplies, even if it be dangerous, is a violation of the plaintiff’s right to bodily integrity. In my opinion, it is not. The plaintiff has no legal right to a supply of piped water and the Act of 1960 does not impose any age and is not imposed at all in relation to a legitimate child; that purpose is confined to residence with the mother or with a relative of the mother and is not applicable to residence with the father or any relative of the father.

The State (C.) v. Frawley

[1976] IR 365
Finlay P.

Finlay P.
13th April, 1976

This is an application by the prosecutor for an order of release under Article 40 of the Constitution; pursuant to s. 4, sub-s. 2, of that Article the Supreme Court, on appeal from my decision in the High Court, directed an enquiry into his detention. The facts on which the prosecutor relies are as follows. He is at present detained in Mountjoy Prison on foot of a warrant issued by the Dublin Circuit Criminal Court in respect of a number of counts of breaking and entering and robbery with violence committing him to concurrent sentences of imprisonment of the maximum length of two years commencing on the 28th February, 1975. It is anticipated that on foot of that warrant he would, if not previously released by order of the Court, be discharged from prison in the month of July, 1976. No challenge is made to the validity of this conviction or of the warrant issued pursuant to it. The respondent has supplied the prosecutor with a prison record of his detention on this and on previous committals; its accuracy is accepted and, by agreement, it has been admitted in evidence.
The prosecutor did not give oral evidence before me but Dr. Brian McCaffrey, the clinical director of psychiatry for the Eastern Health Board who examined the prosecutor on his behalf; Dr. Smith, the senior psychiatrist to the Central Mental Hospital, Dundrum; Dr. Davies, the medical officer of Mountjoy Prison and Dr. Daly, the director of the Central Mental Hospital, Dundrum, were also called as witnesses on behalf of the prosecutor. No oral evidence was adduced on behalf of the respondent who showed cause by relying on the conviction and warrant. From this oral evidence, from the previous prison record to which I have referred, and from the prosecutor’s own original complaint I find the facts of this matter to be as follows. The prosecutor is now diagnosed, in the words of Dr. McCaffrey, as suffering from a personality trait disturbance of a sociopathic type and, in the words of Dr. Daly, from a disorder of personality which is sociopathic in nature. Between these two diagnoses there is not, I am satisfied, any substantial conflict. He is not, on the agreed medical evidence, either now or consistently a person who is insane, nor does he suffer from a psychotic disease. He does not come within the ordinary definition of a psychopath. No evidence was adduced before me, nor was any suggestion made on behalf of the respondent, that the prosecutor was feigning any part of this condition. Some minor conflict appears in the medical evidence as to whether the prosecutor has been at any relevant time even temporarily insane or of unsound mind but I have come to the conclusion on the evidence that, at some periods at least, the disturbance of his personality has been so acute that it rendered him for some time of legally unsound mind.
If the history of his childhood given by the prosecutor to Dr. McCaffrey is substantially accurate (and I have no reason to believe otherwise), then the origin of this condition is almost certainly an upbringing largely in institutions after a broken marriage of his parents. Having regard to the prosecutor’s innate personality and intelligence, this upbringing was almost unbelievably cruel. Whatever its origin, the prosecutor’s condition manifests itself in an aggressive and continuous hostility to authority and to the features of society which represent authority. To this is added a higher than average intelligence and an unusually athletic physique and capacity. In the pursuit of this hostility the prosecutor is endowed with a physical courage tantamount to recklessness. As a result, during the periods of his imprisonment (which have now continued with only short interruptions since 1969), he has displayed three main activities.
First, he has repeatedly climbed over the walls and on to the roofs of prisons and hospitals with an agility and skill which is practically unique. Secondly, he has repeatedly swallowed metal objects such as bed springs and handles of spoons and has inserted wire and sharp objects into his body not with a suicidal intent, in the opinion of the doctors, but rather for the reckless purpose of making his continued detention impossible. Of course, this tendency as well as the prosecutor’s climbing activities have seriously endangered his life and health. Thirdly, he militantly resists almost all forms of discipline and repeatedly, either on his own or with others, seeks by various methods to escape from detention.
During the entire period of his imprisonment, including the currency of his present detention, he has been certified as insane on a number of occasions and has been transferred to the Central Mental Hospital, Dundrum, usually for short periods of a month or less: he has then been certified as not insane and has been re-transferred to prison. For most of the time he has been in prison he has been kept in solitary confinement with the interruption of varying but short periods of exercise and association with other prisoners. Whilst out of solitary confinement he is usually kept handcuffed for some period. He is deprived of much of the ordinary equipment of a prisoner such as cutlery, a bed with springs and a transistor radio. The purpose and, I am satisfied, the only purpose of these very severe restrictions is to prevent his escape on the one hand and to prevent him swallowing metal and other objects on the other. He has, for example, at one time swallowed batteries and component parts of a radio.
During the relatively short periods of his detention in the Central Mental Hospital, Dundrum, he has received treatment which consisted only of sedation and custodial care. His hostility to that institution and its staff is apparently even greater than his hostility to prison; and this, apart from any other consideration, has prevented any effective therapy.
There is no doubt that to either the prison or hospital authorities he presents an extraordinarily difficult custodial problem; it is difficult to protect him from himself and to detain him, and he is entirely disruptive of the entire organisation of the prison and hospital. He has a particularly bad effect on the other patients confined to the hospital in Dundrum and, to the extent of his permitted association, on fellow prisoners. The requirements of his physical health originate, almost exclusively, from his self-inflicted injuries and wounds; and I am satisfied that those requirements have been adequately met during his detention largely by repeated visits to general hospitals for surgical treatment. Due to the number of operations he has undergone for the removal of foreign bodies from his stomach, he now represents a marked risk if he has to undergo further abdominal surgery.
It is the view of Dr. McCaffrey, which is not disputed by the other medical witnesses or challenged by the respondent, that the only long-term psychiatric treatment which would have a reasonable chance of success in the prosecutor’s case would be his involuntary detention in a specialised psychiatric unit which was capable of keeping him in custody while being specially equipped to provide outlets for his physical capacity and aggressiveness in harmless activities such as gymnastics and games, and which would provide educational and intellectual interests and companionship which he would find amenable, and specially-trained staff who would acquire his co-operation and confidence.
On the evidence it is agreed that no such institution exists in Ireland and that neither in the Central Mental Hospital, Dundrum, nor in any other psychiatric hospital do facilities for such treatment exist. The number of persons suffering from a similar though not identical condition in Ireland at present was estimated by Dr. McCaffrey at about six, and by Dr. Daly at from six to twenty. Dr. Daly expressed the opinion that, disregarding the finance which might be involved, such a unit could physically be installed in Dundrum and, provided appropriate trained staff could be obtained, put into operation. The building of it would involve not only complete segregation from the other patients now detained there, who are almost all psychotic in one form or another, but also the provision of physical barriers to escape which would have to be far beyond the barriers provided in that institution at the present time. Even if the provision of such a unit were immediately started, it would be a number of years before it could be operative.
On the medical evidence, the prosecutor has shown some improvement in his condition in the last six or seven months, though he remains a genuinely sick person. This improvement is considered as probably arising from his expected release next July and, possibly, it is also derived from the fact that he is reaching an age of maturity at which a spontaneous improvement of his condition might occur.
On these facts, Mr. MacEntee, on behalf of the prosecutor, submitted a number of written submissions which he subsequently developed in an able argument. On the facts as I find them, the submissions which remain relevant may be summarised into two broad contentions.
The first contention is that the right to bodily integrity is an unspecified constitutional right and that, in the context of a detained prisoner who is unable to obtain his own medical attention, it imposes upon the Executive an obligation to protect his health as far as is reasonably possible in all the circumstances. Further, counsel contends that the prosecutor’s present detention and its circumstances fail to secure to him that right and that, therefore, it is unconstitutional and unlawful. The second broad contention is that, even if the European Convention on Human Rights is not part of the substantive law of the State1, the freedom from torture and from inhuman and degrading treatment and punishment which is guaranteed by the Convention is, nevertheless, an unenumerated constitutional right; and it is submitted that the present detention of the prosecutor denies that freedom and, accordingly, is unconstitutional and unlawful.
In support of these contentions, counsel referred to the following cases, which I have considered: Ryan v. The Attorney General 2; In re Haughey 3; O’Brien v. Keogh 4: Byrne v. Ireland 5; and McGee v. The Attorney General. 6

Having regard to these submissions and to my findings of fact, I have come to the following conclusions. The right of bodily integrity as an unspecified constitutional right is clearly established by the decision of the Supreme Court in Ryan v. The Attorney General 7 by which I am bound and which I accept. Even though it was there laid down in the context of a challenge to the constitutional validity of a statute of the Oireachtas which, it was alleged, forced an individual to use water containing an additive hazardous to health, I see no reason why the principle should not also operate to prevent an act or omission of the Executive which, without justification, would expose the health of a person to risk or danger.
When the Executive, in exercise of what I take to be its constitutional right and duty, imprisons an individual in pursuance of a lawful warrant of a court, then it seems to me to be a logical extension of the principle laid down in Ryan’s Case 7 that it may not, without justification or necessity, expose the health of that person to risk or danger. To state, as Mr. MacEntee submits, that the Executive has a duty to protect the health of persons held in custody as well as is reasonably possible in all the circumstances of the case seems to me no more than to state in a positive manner the negative proposition which I have above accepted. Therefore, I am satisfied that such a proposition is sound in law.
The vital question, however, is whether the Executive has failed in that duty in this case on the facts as I find them. I am satisfied that the medical requirements of the prosecutor, as distinct from his psychiatric needs, have at all material times been adequately met by the respondent. The prosecutor has been regularly visited and examined by the medical officer of Mountjoy Prison and, when specialised surgical treatment has been required, that treatment has been afforded in the Mater Hospital by a senior consultant surgeon. In my view, the restraints of which the prosecutor most vehemently complains have been designed and implemented to eliminate or diminish, so far as is reasonably practical, the possibility of the prosecutor harming himself by swallowing foreign bodies, by self injury or by injury arising from his climbing and escaping activities.
The real failure in this duty alleged against the respondent is that he has failed to provide the special type of institution and treatment which was recommended by Dr. McCaffrey as a long-term treatment and that, to an extent, imprisonment in any other form is directly harmful to the progress of the prosecutor’s condition of personality disturbance. A failure on the part of the Executive to provide for the prosecutor treatment of a very special kind in an institution which does not exist in any part of the State does not, in my view, constitute a failure to protect the health of the prosecutor as well as possible in all the circumstances of the case. If one were to accept in full all the assumptions upon which Dr. McCaffrey’s opinion is based, it could be shown that there was a failure of an assumed absolute duty to provide the best medical treatment irrespective of the circumstances. I am satisfied, as a matter of law, that no such absolute duty exists.
It has been urged on behalf of the prosecutor that the respondent cannot be excused from his duty to provide this very specialised type of psychiatric treatment on the grounds of the non-availability of the appropriate facilities since that non-availability flows from an unconstitutional failure on the part of his superiors to provide this specialised type of institution with appropriate staff. Even though the number of persons suffering from a condition even generally akin to that of the prosecutor may be as low as six, not all of whom are in custody, a description of the progress and consequence of the prosecutor’s disturbance and the nature of his life in prison would make the availability of appropriate long-term treatment most desirable as a matter of compassion.
However, it is not the function of the Court to recommend to the Executive what is desirable or to fix the priorities of its health and welfare policy. The function of the Court is confined to identifying and, if necessary, enforcing the legal and constitutional duties of the Executive. I cannot conscientiously hold, no matter where my sympathy might lie, that an obligation to provide for prisoners in general the best medical treatment in all the circumstances can be construed as including a duty to build, equip and staff the very specialised unit which Dr. McCaffrey has recommended and which might be appropriate to the needs of the prosecutor and four or five other persons. Therefore, I am satisfied that the first main contention of the prosecutor fails.
With regard to the second contention, the position in law seems to me to be that the existence of constitutional rights which are not specified in Article 40 of the Constitution8 was first declared by Mr. Justice Kenny in the High Court in Ryan v. The Attorney General 9 and was subsequently confirmed by Ó Dálaigh C.J. in the Supreme Court in that case. At p. 313 of the report Mr. Justice Kenny states: “It follows, I think, that the general guarantee in sub-s. 1 must extend to rights not specified in Article 40. Secondly, there are many personal rights of the citizen which follow from the Christian and democratic nature of the State which are not mentioned in Article 40 at allthe right to free movement within the State and the right to marry are examples of this.” If the unspecified personal rights guaranteed by Article 40 follow in part or in whole from the Christian and democratic nature of the State, it is surely beyond argument that they include freedom from torture, and from inhuman or degrading treatment and punishment. Such a conclusion would appear to me to be inescapable even if there had never been a European Convention on Human Rights, or if Ireland had never been a party to it.
The question which has given me the most trouble in this case is whether the conditions under which the prosecutor has been and is detained in prison constitute a failure to protect him from torture or from inhuman or degrading treatment and punishmentthus making his detention unlawful. Notwithstanding the harshness of the privations which he has undergone and, to a lesser extent, continues to suffer, I have finally come to the conclusion that those conditions do not constitute such failure.
I am quite satisfied that the purpose and intention of the restrictions and privations surrounding the prosecutor’s detention are neither punitive nor malicious. The strongest confirmation of this would appear to be that the restrictions have been somewhat relaxed since the improvement in his condition noted by Dr. McCaffrey in the last six or seven months. There was no evidence before me of any privation or hardship which does not appear related to one or other of the main purposes of keeping the prosecutor from escaping and preventing him from injuring himself. In seeking to achieve these two purposes, the respondent is discharging two duties which appear to me to be constitutional in origin.
I must construe the entire concept of torture, inhuman and degrading treatment and punishment as being not only evil in its consequences but evil in its purpose as well. It is most commonly inspired by revenge. retaliation, the creation of fear or improper interrogation. It is to me inconceivable to associate it with the necessary discharge of a duty to prevent self-injury or self-destruction.
Therefore, I am satisfied that the respondent has justified the detention of the prosecutor and, therefore, I must refuse the prosecutor’s application for an order releasing him pursuant to Article 40, s. 4. sub-s. 2, of the Constitution.
[The prosecutor appealed to the Supreme Court from the judgment and order of the High Court but the appeal was struck out (on consent) on the 4th October, 1976]

The State (M) v. The Attorney General

[1979] IR 79

 

An application having been properly and candidly made to the first respondent by the first prosecutor for the granting of a passport for her daughter, it was quite clear that to do so would be an act on the part of the first respondent which facilitated the commission of an offence created by s. 40 of the Act of 1952 and would be a decision which he could not make properly or lawfully.
On these facts, and having regard to the statutory provisions, two main attacks are made on behalf of the prosecutors against the constitutionality of the Act of 1952. The first is that it constitutes an invidious and unfair discrimination against an illegitimate child by reason of the differences which exist between the treatment of such a child and the treatment of a legitimate child. Secondly, it was asserted that upon being born the child has a constitutional right to travel outside the State, that this right is one of the unenumerated rights arising under the Constitution, that the sections quoted are a failure on the part of the legislature to protect and secure that right adequately and properly or are an unwarranted and unjustifiable invasion of the right. In argument some reliance was also placed on an assertion that the sections are an unwarranted and unconstitutional invasion of the rights of the natural father of an illegitimate child.
Briefly summarised, the argument on behalf of the respondents was that the entire provisions of the Act of 1952 contemplated a situation in which the mother of an illegitimate child, when compared with the mother of a legitimate child, for some significant period after the birth of her child was subjected to special and severe pressures of a social and economic nature in relation to the future and the disposal of the child; that it was proper that the legislature should protect not only the mother but the child from those pressures; that the manifest intention and purpose of s. 40 of the Act of 1952 (as read in conjunction with the definitions contained in s. 3 of the Act) was to afford such protection; and that the fact that in one particular case other protective provisions might have been more conducive to the welfare of the child was not a good ground for holding that the provisions of the Act of 1952 are repugnant to the Constitution.
With regard to the first submission made on behalf of the prosecutors, I am satisfied that for an illegitimate child and a legitimate child there is a difference of moral capacity and social function, at least in the context of the removal of the child out of the State. A legitimate child is part of a family unit; the rights and, in a sense, the duties of the family being specially provided for in the Constitution. In the generality of cases the legitimate child has the protection of a joint decision by its parents or, in the event of a difference of opinion between the parents as to the child’s welfare, each parent has the right under the Guardianship of Infants Act, 1964, to apply to the court for orders protecting the welfare of the infant. In particular, each parent may apply for an order, which is frequently sought in the Courts, preventing the other parent from removing a child out of the State in defiance, or in contravention, of the welfare of the child. On the other hand an illegitimate child has not the benefit of being a member of a family unit. In The State (Nicolaou) v. An Bord Uchtala4 the Supreme Court decided that the constitutional rights of the family did not apply to the parents of illegitimate children. In delivering the judgment of the Supreme Court, Mr. Justice Walsh at p. 643 of the report said:””While it is quite true that unmarried persons cohabiting together and the children of their union may often be referred to as a family and have many, if not all, of the outward appearances of a family, and may indeed for the purposes of a particular law be regarded as such, nevertheless so far as Article 41 is concerned the guarantees therein contained are confined to families based upon marriage.” Furthermore, the provisions of the Act of 1964 do not appear to permit of the father of an illegitimate child being a plaintiff before the court who is entitled to seek the directions of the court with regard to the welfare of the child. Such a general jurisdiction would appear to exist in the court exercising the powers under the Wards of Court jurisdiction, but the statutory protection of the child is certainly not identical to that of a legitimate child.
Further, in my view there is much weight in the submissions on this point made on behalf of the respondents to the effect that in the generality of cases the mother of an illegitimate child may be subjected to strains, stresses and pressures arising from economic and social conditions which fully justify the legislature in making special provisions with regard to the welfare of that child, which provisions are not considered necessary for the welfare of a legitimate child.
I can find no distinction in principle between the special treatment afforded by s. 40 of the Adoption Act, 1952 (coupled with the definitions contained in s. 3 of that Act) in the case of an illegitimate child as compared with the provisions contained in the same section in respect of a legitimate child on the one hand and, on the other hand, the special provisions contained in s. 49, sub-s. 2 (a) (ii), of the Statute of Limitations, 1957, in respect of a child in the custody of its parents at the time of the accrual of its right of action in tort as compared with the provisions of that statute affecting a child not in such custody. Therefore, following the reasoning and the principle of the decision of the Supreme Court in O’Brien v. Keogh 5 , I am forced to the conclusion that the submission made on behalf of the prosecutors that the provisions of ss. 3 and 40 of the Act of 1952 constitute an invidious and unfair and, therefore, an unconstitutional discrimination against an illegitimate child are not well founded.
With regard to the second submission made on behalf of the prosecutors, this depends initially upon their establishing a right to travel out of the country as one of the unenumerated personal rights contained in the Constitution. The first statement of the existence of such unenumerated personal rights is to be found in the judgment of Mr. Justice Kenny in Ryan v.The Attorney General 6 , which was subsequently confirmed by the Supreme Court. At p. 313 of the report the learned judge stated:””It follows, I think, that the general guarantee in sub-s. 1 must extend to rights not specified in Article 40. Secondly, there are many personal rights of the citizen which follow from the Christian and democratic nature of the State which are not mentioned in Article 40 at all – the right to free movement within the State and the right to marry are examples of this. This also leads to the conclusion that the general guarantee extends to rights not specified in Article 40.”
I have considered carefully whether there should be any special reason why the learned judge, in taking examples of personal rights which are not enumerated in Article 40 but which arise from the Christian and democratic nature of the State, should have confined to a right to free movement within the State that which might be described ordinarily as a right to travel. Dealing with an absolute right which is subject only to public order and the common good, there would appear to be grounds for expressing it in this rather limited way. Without entering into and enforcing binding agreements with other sovereign States, the State can neither by its laws nor by the acts of its Executive guarantee its citizens freedom of movement outside the State as a personal right. It does not seem to me that the Constitution can or should be construed as imposing upon the State in any event or upon any terms an obligation to enter into or enforce such agreements.
However, where such agreements already exist in terms, and subject to conditions, acceptable to the State, it appears to me that the citizens of the State may have a right (arising from the Christian and democratic nature of the State ” though not enumerated in the Constitution) to avail of such facilities without arbitrary or unjustified interference by the State. To put the matter more simply and more bluntly, it appears to me that, subject to the obvious conditions which may be required by public order and the common good of the State, a citizen has the right to a passport permitting him or her to avail of such facilities as international agreements existing at any given time afford to the holder of such a passport. To that right there are obvious and justified restrictions, the most common of which being the existence of some undischarged obligation to the State by the person seeking a passport or seeking to use his passport ” such as the fact that he has entered into a recognisance to appear before a criminal court for the trial of an offence. Such a right to travel, which is inextricably intertwined with the right to obtain a passport, has been recognised by the constitutional law of the United States of America in such cases as Kent v. Dulles. 7 Furthermore, one of the hallmarks which is commonly accepted as dividing States which are categorised as authoritarian from those which are categorised as free and democratic is the inability of the citizens of, or residents in, the former to travel outside their country except at what is usually considered to be the whim of the executive power. Therefore, I have no doubt that a right to travel outside the State in the limited form in which I have already defined it (that is to say, a right to avail of such facilities as apply to the holder of an Irish passport at any given time) is a personal right of each citizen which, on the authority of the decisions to which I have referred, must be considered as being subject to the guarantees provided by Article 40 although not enumerated.
In the instant case, where I am dealing with a child who is under the age of one year and is, therefore, under the age of reason, such a personal right must be construed, in my view, in the same way as the Courts have consistently construed the right of liberty of such a child, that is to say, as being a right which can be exercised not by its own choice (which it is incapable of making) but by the choice of its parent, parents or legal guardian, subject always to the right of the Courts by appropriate proceedings to deny that choice in the dominant interest of the welfare of the child. So construed, the right of travel constitutionally arising for this particular child on the existing legal provisions for its welfare consist, in my view, of the right to travel with the approval or consent of its mother provided that such travelling, and the purpose of it, do not appear to conflict with the welfare of the child.
Having concluded that this child has a constitutional right to travel in the manner and for a purpose consistent with its welfare chosen by its mother, a question then arises as to whether the impugned provisions of the Adoption Act, 1952, constitute a discharge by the State of its obligations under s. 3, sub-s. 1, of Article 40 of the Constitution. That sub-section provides:””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.”
If the facts stated in the affidavit of the first prosecutor (which has not been challenged) are accurate, and I have no reason to believe otherwise, then it seems to me to be clear that there is an important and vital advantage to the welfare of this child that it should be permitted to travel to Nigeria in order to become part of a family unit in that country as soon as possible. Having regard to the alternatives open to the child, in my view it is not in the child’s interest in the first instance to continue in an institution or home. Secondly, if the child is to be assimilated into a family environment and background in Nigeria, the whole modern thinking on the importance of background and environment in the earliest possible formative years of a child indicate that the sooner that is commenced the more likely it is to be successful. Under the provisions of the Act of 1952 there is no machinery whereby that can be done lawfully, no matter how dominant that advantage may appear and no matter how clearly the welfare of the child may be served by an early removal from the State to Nigeria.
Apart from the facts of the instant case, it is easy to envisage probable, as opposed to fanciful, examples of similar cases affecting an illegitimate child. Within the first year of its life an illegitimate child might well require a very specialised form of treatment for a physical or mental ailment with which it was born and which would be carried out more appropriately and more efficiently outside this country. If such a necessity arose, the child’s right to travel at the choice of its mother would become vital to its welfare. However, since the purpose of the child’s journey outside the State would not necessarily be to reside with its mother, or with any relative of its mother, and since the practical necessity of the circumstances might well require the child to travel without any relative but with a medical or nursing companion for treatment, such a journey and the treatment associated with it would become legally impossible under the provisions of s. 40 of the Act of 1952.
Having regard to these considerations, I take the view that, by reason of the absence of any discretion vested in a court or otherwise for exceptional cases so as to permit the removal out of the State of an illegitimate child within the first year of its birth (otherwise than for the purpose of residing with its mother or a relative, as defined), the provisions of s. 40 of the Act of 1952 are unconstitutional because they fail to defend and vindicate the personal right of the child to travel in the manner in which I have defined it. To expand the definition of the right to travel which I am satisfied this child has, I am satisfied that such a child has a right to travel outside the State at the choice of its mother or legal guardian, subject to the power of the Courts to intervene in order to ensure the child’s welfare. Having regard to the finding in the decision of the Supreme Court in The State (Nicolaou) v. An Bord Uchtala4 that the father of an illegitimate child has not a right to its custody which is inferior only to that of the mother while she is alive and which is superior to that of any other person after her death, and having regard to the provisions of the Guardianship of Infants Act, 1964, which do not confer any such right of custody or guardianship on the father of an illegitimate child, I am not satisfied that the constitutional right to travel of an illegitimate child below the age of reason extends to a right to travel at the choice of its natural father.
It becomes necessary to consider, in the light of these findings, whether I must declare as invalid under the Constitution the entire of s. 40 of the Act of 1952 (as interpreted in accordance with the definitions contained in s. 3 of that Act) or whether it is necessary to delete only portions of that section so as to leave the remainder standing as valid. My understanding of the obligation imposed upon me by the presumption of constitutionality in favour of this Act, which was passed after the enactment of the Constitution, is that I should set aside only so much of the section as is necessary to render it constitutional.1 I am satisfied that it is only necessary to declare as unconstitutional the entire of sub-s. 2 of s. 40 of the Act of 1952 and the words in sub-s. 3 of that section which are contained in brackets, that is to say:””not being an illegitimate child under the age of one year.” The section, would then remain effective with the result that a child, either illegitimate or legitimate, who is under the age of seven years could not be removed out of the State except with the approval of a parent, guardian or relative of the child. “Parent” and “relative” in the case of the illegitimate child being construed as the mother or a defined relation of the mother; and “guardian”for both the legitimate and the illegitimate child being “a person appointed, according to law, to be guardian of his person by deed or will or by order of a court of competent jurisdiction””see s. 3 of the Act of 1952. In my view the section, so read, would be a sufficient vindication and protection by the State of the right of an illegitimate child to travel in the manner in which I have defined that as a constitutional right and, as such, would be a constitutional section. It follows from this decision that the conditional order of certiorari which has been obtained by the prosecutors must be made absolute and the cause shown set aside.
During the hearing a suggestion was made to me that it might be appropriate at this stage to make an order of mandamas directed to the Minister for Foreign Affairs to grant the passport. It does not seem to me to be appropriate to do so in these proceedings at this stage. However, it follows from my opinion that the child has a constitutional right to a passport, unless the respondents are in a position to bring Wardship proceedings before the court in the interest of this child as a result of which the court, exercising that jurisdiction, decides that it is contrary to the child’s welfare for it to travel out of Ireland so as to remain with the family indicated in Nigeria.

 

 

Norris v. The Attorney General

[1984] IR 36

O’Higgins C.J.

The plaintiff has also submitted that the blanket prohibition of homosexual conduct effected by the legislation threatens his physical and mental health through frustration and disorientation arising from his congenital disposition. For this reason the plaintiff asserts that his right to bodily integrity is endangered. In my opinion this submission is not a sound one. If the legislation is otherwise valid and within the competence of the legislature to enact, it cannot be rendered inoperative merely because compliance with it by the plaintiff is difficult for, or harmful to, him due to his innate or congenital disposition. In this respect the exigencies of the common good must prevail. The plaintiff also alleges that this legislation and, in particular, s. 11 of the Act of 1885, impairs his rights of freedom of expression and freedom of association which are guaranteed by Article 40, s. 6, of the Constitution. I do not accept this submission. Freedom of expression and freedom of association are not guaranteed as absolute rights. They are protected by the Constitution subject to public order and morality. Accordingly, if the impugned legislation is otherwise valid and consistent with the Constitution, the mere fact that it prohibits the plaintiff from advocating conduct which it prohibits or from encouraging others to engage in such conduct or associating with others for the purpose of so doing, cannot constitute a breach of the Constitution.
I now turn to what I have described as the core of the plaintiff’s case. This is the claim that the impugned legislation constitutes an unwarranted interference with his private life and thereby infringes his right to privacy. This claim is based on the philosophical view, attributed to John Stuart Mill, that the law should not concern itself in the realm of private morality except to the extent necessary for the protection of public order and the guarding of citizens against injury or exploitation. It is a view which received significant endorsement in the report of the Wolfenden Committee on Homosexual Offences and Prostitution. That committee’s report, furnished to the British Parliament in 1957, contained the following statement in support of its recommendation for limited decriminalisation:
“There remains one additional counter argument which we believe to be decisive, namely, the importance which society and the law ought to give to individual freedom of choice in action in matters of private morality. Unless a deliberate attempt is to be made by society, acting through the agency of the law, to equate the sphere of crime with that of sin, there must remain a realm of private morality and immorality, which is, in brief and crude terms not the law’s business. To say this is not to condone or encourage private immorality.”
The Wolfenden Committee had been established by the Scottish Home Office and, although it recommended (in effect) the removal of criminal sanctions from homosexual conduct when carried out in private between adult responsible males, the British Parliament was very slow to accept that recommendation and to act upon it. It was not until the Sexual Offences Act, 1967 (which was introduced as a private member’s bill) that the law was changed in England and Wales; in Scotland the change was not made until the passing of the Criminal Justice (Scotland) Act, 1980. In relation to Northern Ireland, the British Parliament declined to act until compelled to do so as a result of the recent decision of the European Court of Human Rights in Dudgeon v. United Kingdom .21 The caution shown by successive British Governments and Parliaments is understandable because what was proposed was a significant reversal of legislative policy in an area in which deep religious and moral beliefs were involved.
From the earliest days, organised religion regarded homosexual conduct, such as sodomy and associated acts, with a deep revulsion as being contrary to the order of nature, a perversion of the biological functions of the sexual organs and an affront both to society and to God. With the advent of Christianity this view found clear expression in the teachings of St. Paul, and has been repeated over the centuries by the doctors and leaders of the Church in every land in which the Gospel of Christ has been preached. To-day, as appears from the evidence given in this case, this strict view is beginning to be questioned by individual Christian theologians but, nevertheless, as the learned trial judge said in his judgment, it remains the teaching of all Christian Churches that homosexual acts are wrong.
In England, buggery was first treated as a crime by the statute 25 Hen. VIII c. 6, having been previously dealt with only in the ecclesiastical courts. In Ireland, it first received statutory condemnation in the statute of the Irish Parliament 10 Chas. I, sess. 2, c. 20. Subject to statutory changes as to punishment, it continued to be prohibited and punished as a crime in accordance with the provisions of the Act of 1861 which were complemented by the later provisions of the Act of 1885. While those statutory provisions have now been repealed in the entire of the United Kingdom, the question in this case is whether they ceased to operate in Ireland at the time of the enactment of the Constitution in 1937.
In the course of the trial of this action in the High Court, reference was made to the Wolfenden Report, to the Kinsey Survey on homosexual behaviour conducted in the United States and to a similar survey conducted in Sweden. No such survey has been conducted in Ireland, but the trial judge, on the evidence he heard, was prepared to conclude that there is probably a large number of people in this country with homosexual tendencies. Of these, however, only a small number are exclusively homosexual in the sense that their orientation is congenital and irreversible. It is this small group (of those with homosexual tendencies) who must look to the others for the kind of relationship, stable or promiscuous, which they seek and desire. It follows that the efforts and activities of the congenital must tend towards involving the homosexually orientated in more and more deviant sexual acts to such an extent that such involvement may become habitual. The evidence in this case and the text-books produced as part thereof indicate how sad, lonely and harrowing the life of a person, who is or has become exclusively homosexual, is likely to be. Professor West in his work, Homosexuality Re-Examined, states at p. 318: “Exclusive homosexuality forces a person into a minority group; cuts off all prospect of fulfilment through a family life with children and hampers participation in mainstream social activities which are mostly geared to the needs of heterosexual couples.” He goes on to talk of those, whose life centres on short-term liaisons, as facing loneliness and frustration as they lose their sexual attractiveness with advancing age. Other authors, also referred to, indicate the instability of male homosexual relations, the high incidence of suicide attempts and the depressive reactions which frequently occur when a relationship ends (Harrison; Reid, Barrett & Hewer). These are some of the consequences which, experience has indicated, tend to follow on a lifestyle which is exclusively homosexual.
Apart from these sad consequences of exclusive homosexuality, unfortunately there are other problems thereby created which constitute a threat to public health. Professor West in his work already mentioned, which was published in a revised form in England over ten years after the decriminalisation of homosexual conduct, says at p. 228: “Far from being immune from venereal infection, as many used to like to believe, male homosexuals run a particularly high risk of acquiring sexually transmitted diseases.” The author goes on to show that in the post-decriminalisation decade in Britain many forms of venereal disease (syphilis, gonorrhoea, urethritis and intestinal infection) have shown an alarming increase in males, and that this is attributable directly to the increase in homosexual activity and conduct. In relation to syphilis, the author gives this serious warning: “A promiscuous homosexual with such a reservoir of infection can transmit the disease, in all innocence, to a whole sequence of victims before the carrier is discovered. The diagnosis at this stage is not always obvious, even when suspected, since blood tests for this infection do not usually become positive until some weeks after the primary chancre has appeared.” He might well have added that, in the case of the novice or the new entrant into homosexual activity, reticence or shame might well delay further the tracing and discovery of the carrier.
Apart from these known consequences of fairly widespread homosexual behaviour and conduct, one other matter of particular importance should be noted. This is the effect of homosexual activity on marriage. It has to be accepted that, for the small percentage of males who are congenitally and irreversibly homosexual, marriage is not open or possible. They must seek such partnerships as they can amongst those whose orientation disposes them to homosexual overtures. But for those so disposed or orientated, but not yet committed, what effect will the acceptance of such overtures be likely to have on marriage? Again, precise information in relation to Ireland is not available. One can only look to what the Wolfenden Committee said in its report (para. 55) before the changes in the law occurred in the United Kingdom: “The second contention, that homosexual behaviour between males has a damaging effect on family life, may well be true. Indeed we have had evidence that it often is: cases in which homosexual behaviour on the part of the husband has broken up a marriage are by no means rare, and there are also cases in which a man in whom the homosexual component is relatively weak, nevertheless, derives such satisfaction from homosexual outlets that he does not enter upon a marriage which might have been successfully and happily consummated. We deplore this damage to what we regard as the basic unit of society.”
That view was based on the limited experience available to the Committee prior to any changes in the law. It indicates, however, that homosexual activity and its encouragement may not be consistent with respect and regard for marriage as an institution. I would not think it unreasonable to conclude that an open and general increase in homosexual activity in any society must have serious consequences of a harmful nature so far as marriage is concerned.
I have been speaking of homosexuality and of its possible consequences in accordance with what, in my view, can be gathered from the evidence in this case. What I have said can be summarised as follows.
(1) Homosexuality has always been condemned in Christian teaching as being morally wrong. It has equally been regarded by society for many centuries as an offence against nature and a very serious crime.
(2) Exclusive homosexuality, whether the condition be congenital or acquired, can result in great distress and unhappiness for the individual and can lead to depression, despair and suicide.
(3) The homosexually orientated can be importuned into a homosexual lifestyle which can become habitual.
(4) Male homosexual conduct has resulted, in other countries, in the spread of all forms of venereal disease and this has now become a significant public-health problem in England.
(5) Homosexual conduct can be inimical to marriage and is per seharmful to it as an institution.
In the United Kingdom the decisive factor in bringing about decriminalisation of homosexuality was the acceptance of the view advocated by the Wolfenden Committee, and repeated in this case by the plaintiff, that
homosexuality was concerned only with private morality and that the law had no business in entering into that field. Whether such a view can be accepted in Ireland depends not on what was done by a sovereign parliament in the United Kingdom but on what our Constitution ordains and requires.
The preamble to the Constitution proudly asserts the existence of God in the Most Holy Trinity and recites that the people of Ireland humbly acknowledge their obligation to “our Divine Lord, Jesus Christ.” It cannot be doubted that the people, so asserting and acknowledging their obligations to our Divine Lord Jesus Christ, were proclaiming a deep religious conviction and faith and an intention to adopt a Constitution consistent with that conviction and faith and with Christian beliefs. Yet it is suggested that, in the very act of so doing, the people rendered inoperative laws which had existed for hundreds of years prohibiting unnatural sexual conduct which Christian teaching held to be gravely sinful. It would require very clear and express provisions in the Constitution itself to convince me that such took place. When one considers that the conduct in question had been condemned consistently in the name of Christ for almost two thousand years and, at the time of the enactment of the Constitution, was prohibited as criminal by the laws in force in England, Wales, Scotland and Northern Ireland, the suggestion becomes more incomprehensible and difficult of acceptance.
But the plaintiff says that the continued operation of such laws was inconsistent with a right of privacy which he enjoys. Here, in so far as the law and the State are concerned, he asserts a “no go area” in the field of private morality. I do not accept this view either as a general philosophical proposition concerning the purpose of law or as having particular reference to a right of privacy under our Constitution. I regard the State as having an interest in the general moral wellbeing of the community and as being entitled, where it is practicable to do so, to discourage conduct which is morally wrong and harmful to a way of life and to values which the State wishes to protect.
A right of privacy or, as it has been put, a right “to be let alone” can never be absolute. There are many acts done in private which the State is entitled to condemn, whether such be done by an individual on his own or with another. The law has always condemned abortion, incest, suicide attempts, suicide pacts, euthanasia or mercy killing. These are prohibited simply because they are morally wrong and regardless of the fact, which may exist in some instances, that no harm or injury to others is involved. With homosexual conduct, the matter is not so simple or clear. Such conduct is, of course, morally wrong, and has been so regarded by mankind through the centuries. It cannot be said of it, however, as the plaintiff seeks to say, that no harm is done if it is conducted in private by consenting males. Very serious harm may in fact be involved. Such conduct, although carried on with full consent, may lead a mildly homosexually orientated person into a way of life from which he may never recover. As already indicated, known consequences are frustration, loneliness and even suicide. In addition, it is clearly established that an increase in the practice of homosexuality amongst males increases the incidence of all forms of venereal disease, including the incapacitating and often fatal disease of syphilis. Surely, in the light of such possible consequences, no one could regard with equanimity the freeing of such conduct from all legal restraints with the certain result that it would increase and its known devotees multiply. These, however, are not the only considerations.
There is the effect of homosexuality on marriage. As long ago as 1957 the Wolfenden Committee acknowledged, in relation to Great Britain, the serious harm such conduct caused to marriage not only in turning men away from it as a partnership in life but also in breaking up existing marriages. That was the conclusion reached as to the state of facts before the criminal sanctions were removed. One can only suspect that, with the removal of such sanctions and with the encouragement thereby given to homosexual conduct, considerably more harm must have been caused in Great Britain to marriage as an institution. In Ireland, in this respect, the State has a particular duty. Article 41, s. 3, sub-s. 1, of the Constitution provides: “The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.” Surely, a law which prohibits acts and conduct by male citizens of a kind known to be particularly harmful to the institution of marriage cannot be regarded as inconsistent with a Constitution containing such a provision.
On the ground of the Christian nature of our State and on the grounds that the deliberate practice of homosexuality is morally wrong, that it is damaging to the health both of individuals and the public and, finally, that it is potentially harmful to the institution of marriage, I can find no inconsistency with the Constitution in the laws which make such conduct criminal. It follows, in my view, that no right of privacy, as claimed by the plaintiff, can prevail against the operation of such criminal sanctions.
European Convention on Human Rights
One other argument has been advanced on behalf of the plaintiff by Mrs. Robinson. This was based on the Convention for the Protection of Human Rights and Fundamental Freedoms which was signed at Rome on the 4th November, 1950, and was confirmed and ratified by the Government on the 18th February, 1953. This Convention specifies rights and freedoms for the citizens and subscribing countries, broadly similar to the rights and freedoms enjoyed by the citizens of Ireland under the laws and the Constitution. In particular, article 8 of the Convention provides as follows:
“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.”
Recently the European Court of Human Rights, which is the appropriate body to do so under the Convention, interpreted this article 8 on a complaint by Jeffrey Dudgeon, a citizen of Northern Ireland, that the legislation impugned in this action, which was then in force in Northern Ireland, interfered with his rights as a homosexual. By a majority verdict the European Court held that it did so and that, accordingly, ss. 61 and 62 of the Offences Against the Person Act, 1861 and s. 11 of the Criminal Law Amendment Act, 1885, were inconsistent with the observance of article 8 of the Convention.
Mrs. Robinson has argued that this decision by the European Court of Human Rights should be regarded by this Court as something more than a persuasive precedent and should be followed. She contends that, since Ireland confirmed and ratified the Convention, there arises a presumption that the Constitution is compatible with the Convention and that, in considering a question as to inconsistency under Article 50 of the Constitution, regard should be had to whether the laws being considered are consistent with the Convention itself. While I appreciate the clarity of her submission, I must reject it. In my view, acceptance of Mrs. Robinson’s submission would be contrary to the provisions of the Constitution itself and would accord to the Government the power, by an executive act, to change both the Constitution and the law. The Convention is an international agreement to which Ireland is a subscribing party. As such, however, it does not and cannot form part of our domestic law, nor affect in any way questions which arise thereunder. This is made quite clear by Article 29, s. 6, of the Constitution which declares: “No international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas.”
A similar contention was put before the former Supreme Court in In re Laighlais and was rejected. In the course of his judgment in that case, Maguire C.J. said at p. 125 of the report:
“The Oireachtas has not determined that the Convention of Human Rights and Fundamental Freedoms is to be part of the domestic law of the State, and accordingly this Court cannot give effect to the Convention if it be contrary to domestic law or purports to grant rights or impose obligations additional to those of domestic law.
No argument can prevail against the express command of section 6 of Article 29 of the Constitution before judges whose declared duty it is to uphold the Constitution and the laws.
The Court accordingly cannot accept the idea that the primacy of domestic legislation is displaced by the State becoming a party to the Convention for the Protection of Human Rights and Fundamental Freedoms. Nor can the Court accede to the view that in the domestic forum the Executive is in any way estopped from relying on the domestic law. It may be that such estoppel might operate as between the High Contracting Parties to the Convention, or in the court contemplated by Section IV of the Convention if it comes into existence, but it cannot operate in a domestic Court administering domestic law. Nor can the Court accept the contention that the Act of 1940 is to be construed in the light of, and so as to produce conformity with, a Convention entered into ten years afterwards.”
I agree with those views expressed by the former Chief Justice.
For these reasons, I cannot accept Mrs. Robinson’s argument. Neither the Convention on Human Rights nor the decision of the European Court in Dudgeon v. United Kingdom 21 is in any way relevant to the question which we have to consider in this case.
For the reasons set out in this judgment, I have come to the conclusion that the plaintiff is not entitled to the relief he claims and that this appeal should be dismissed.

In McGee v. The Attorney General 2 O’Keeffe P. said at p. 292 of the report: “In my view, one must look at the state of public opinion at the time of the adoption of the Constitution in order to determine whether the effect of its adoption was to remove from the statute book a section of the Act of 1935: see the principles of construction applied by the Supreme Court in O’Byrne v. The Minister for Finance .42 The section impugned was barely two years on the statute book when the Constitution was adopted. If the submission of the plaintiff is correct, then public opinion as to what were fundamental rights must have been such as to require that the rights guaranteed to individuals by the Constitution were inconsistent with the continued legality of the section. I consider that the best test of the position is to be found in the views expressed when the section was being passed into law since, in point of time, this was so close to the enactment of the Constitution by the people. I find that the section was adopted without a division, although it was technically opposed. I cannot think that this reflects a public opinion in favour of the existence of such a right of privacy as is alleged by the plaintiff to be guaranteed under the Constitution.”
Whilst the report of the argument of counsel for Mrs. McGee (p. 296) refers to this factor in the case, an examination of the judgments does not disclose any consensus in the Supreme Court. FitzGerald C.J., who dissented, appears to have treated the matter as a contemporaneous issue, when (at p. 300) he was dealing with the relevant facts concerning the manufacture of the particular contraceptive in question.
Mr. Justice Walsh touched on the matter at pp. 306-8 of the report of McGee’s Case .2 Having quoted the provisions of Article 50, s. 1, he said: “I have referred to the wording of s. 1 of Article 50 because, apart from being the foundation of the present proceedings, one of the submissions made on behalf of the Attorney General was to the effect that a statutory provision in force prior to the Constitution could continue to be in force and to be carried over by Article 50 even though its provisions were such as could not now be validly enacted by the Oireachtas because of the provisions of the Constitution. Stated as a general proposition, I find that this is in direct conflict with the very provisions of Article 50 and is quite unsustainable. However, in my opinion, there are circumstances in which the proposition could be partially correct.
If a pre-Constitution statute was such that it was not in conflict with the Constitution when taken in conjunction with other statutory provisions then in existence and with a particular state of facts then existing [my emphasis] and if such other statutory provisions continued in effect after the coming into force of the Constitution and the particular state of facts remained unaltered, the provisions of the first statute might not in any way be inconsistent with the provisions of the Constitution. If, however, subsequent to the coming into force of the Constitution the other statutory provisions were repealed and the state of facts was altered to a point where the joint effect of the repeal of the other statutes and the alteration of the facts was to give the original statute a completely different effect, then the question would arise of its continuing to be part of the law. In my view, Article 50, by its very terms (both in its Irish and English texts), makes it clear that laws in force in Saorstát Éireann shall continue to be in force only to the extent to which they are not inconsistent with the Constitution; and that, if the inconsistency arises for the first time after the coming into force of the Constitution? the law carried forward thereupon ceases to be in force.
The relevance of this to the present case is clear. There is no evidence in the case to indicate what was the state of facts existing at the time of the passing of the Act of 1935 and the years subsequent to it up to the coming into force of the Constitution, and even for a period after that. It appears to have been assumed, though there is no evidence upon which to base the assumption, that contraceptives were not manufactured within the State at that time or were not readily available otherwise than by sale. The validity or otherwise of a law may depend upon an existing state of facts or upon the facts as established in litigation, as was clearly indicated by this Court in Ryan v. The Attorney General .3 To control the sale of contraceptives is not necessarily unconstitutional per se; nor is a control on the importation of contraceptives necessarily unconstitutional. There may be many reasons, grounded on considerations of public health or public morality, or even fiscal or protectionist reasons, why there should be a control on the importation of such articles. There may also be many good reasons, grounded on public morality or public health, why their sale should be controlled. I used the term ‘controlled’ to include total prohibition. What is challenged here is the constitutionality of making these articles unavailable. Therefore, the decision in this appeal must rest upon the present state of the law and the present state of the facts relating to the issues in dispute. Therefore, even if it were established that in 1935, 1936 or 1937, or even 1940, contraceptives were reasonably available without infringement of the law, that would not necessarily determine that s. 17 of the Act of 1935 now continues to be in full force and effect.”
An examination of the judgments of Budd J., Mr. Justice Henchy and Mr. Justice Griffin in McGee’s Case 2 does not disclose any reference to this issue. It would seem, therefore, that there is no authority binding upon me as to the manner in which I should approach this particular issue, if, indeed, it is necessary to consider it. At p. 319 of the report of McGee’s Case 2 Mr. Justice Walsh said:
“According to the preamble, the people gave themselves the Constitution to promote the common good with due observance of prudence, justice and charity so that the dignity and freedom of the individual might be assured. The judges must, therefore, as best they can from their training and their experience interpret these rights in accordance with their ideas of prudence, justice and charity. It is but natural that from time to time the prevailing ideas of these virtues may be conditioned by the passage of time; no interpretation of the Constitution is intended to be final for all time. It is given in the light of prevailing ideas and concepts.” The emphasis is mine.
In The State (Healy) v. Donoghue 18 the Chief Justice accepted that view of what the preamble conveys (for the purpose of considering the issues which arose in that case) and, before citing the above passage from the judgment of Mr. Justice Walsh in McGee’s Case 2 , the Chief Justice said at p. 347 of the report of Healy’s Case 18 : “The preamble to the Constitution records that the people ‘seeking to promote the common good, with due observance of prudence, justice and charity, so that the dignity and freedom of the individual may be assured, true social order attained, the unity of our country restored, and concord established with other nations, do hereby adopt, enact, and give to ourselves this Constitution.’ In my view, this preamble makes it clear that rights given by the Constitution must be considered in accordance with concepts of prudence, justice and charity which may gradually change or develop as society changes and develops, and which fall to be interpreted from time to time in accordance with prevailing ideas. The preamble envisages a Constitution which can absorb or be adapted to such changes. In other words, the Constitution did not seek to impose for all time the ideas prevalent or accepted with regard to these virtues at the time of its enactment.” After the above passage from the judgment of Mr. Justice Walsh in McGee’s Case 2 (quoted by the Chief Justice in Healy’s Case 18 ) Mr. Justice Walsh continued: “The development of the constitutional law of the United States of America is ample proof of this. There is a constitution which, while not professing to be governed by the precepts of Christianity, also in the Ninth Amendment recognises the existence of rights other than those referred to expressly in it and its amendments. The views of the United States Supreme Court, as reflected in the decisions interpreting that constitution and in the development of their constitutional law, also appear firmly to reject legal positivism as a jurisprudential guide.”
I respectfully adopt those observations of the Chief Justice and Mr. Justice Walsh as a correct statement of the proper judicial approach in testing the constitutionality of a statute. In a case such as the present, involving an examination of a British statute, I would refer, also, to the judgment of Mr. Justice Walsh in The State (Sheerin) v. Kennedy 9 (with which the other members agreed) where he says at p. 386 of the report: “The Oireachtas established by the Constitution is the only parliament which is, or was, subject to the provisions of the Constitution and therefore the question of determining the validity of a law having regard to the provisions of the Constitution can only refer to laws enacted by the Oireachtas established by the Constitution. All laws in force on the date immediately prior to the coming into operation of the Constitution are presumed not to be in conflict with the Constitution in force at the date of their enactment or in excess of the powers of the parliament which enacted them, but they enjoy no such presumption in respect of the provisions of the present Constitution and fall to be examined under the provisions of Article 50 of the Constitution not as to their validity but, even assuming they were valid, as to whether or not they are inconsistent with the provisions of the present Constitution.”
I find it philosophically impossible to carry out the necessary exercise of applying what I might believe to be the thinking of 1937 to the demands of 1983. It seems to me that, in this respect, the Attorney General’s argument fails in limine it would plainly be impossible to identify with the necessary degree of accuracy of description the standards or mores of the Irish people in 1937 indeed, it is no easy task to do so today. If one had to seek, in testing the consistency or otherwise of a pre-1922 statute or a statute of Saorstát Éireann with the Constitution, to do so by reference to the presumed attitude of the Irish people in 1937 (however difficult that might be 45 years after the enactment of the Constitution), one must postulate the concept of doing so 145 years after its enactment. Suffice it to say that the Constitution is a living document; its life depends not merely upon itself but upon the people from whom it came and to whom it gives varying rights and duties. Ten years after the decisions in McGee v. The Attorney General 2 and in Byrne v. Ireland 43 , it is difficult to recall the forensic surprise they created. In my view, it passes from the realm of legal fiction into the world of unreality if the test sought to be applied is one based on some such question as: “Did the people of Saorstát Éireann in 1937 consider that the offence created by [some Victorian statute]should no longer be in force?” The only thing considered by those who voted for or against the Constitution in 1937 was whether or not they wanted a new Constitution. An examination of the Dáil debates on the draft Constitution does not encourage any contrary view.
The personal right
Articles 40-44 of the Constitution set out the “fundamental rights” of all citizens; Article 40 specifies certain personal rights but does not include any express reference to a right to privacy such as is claimed by the plaintiff to have been “identified by the Supreme Court in McGee v. the Attorney General 2 and not confined to the right to marital privacy but one of the personal rights of the citizen which encompasses but is not exhausted by the right of a husband and wife to privacy in their sexual relations within marriage” see p. 9 of the plaintiff’s written submissions. In his judgment in Ryan v. The Attorney General 3 Kenny J. said at pp. 312-13 of the report:

“I think that the personal rights which may be involved to invalidate legislation are not confined to those specified in Article 40 but include all those rights which result from the Christian and democratic nature of the State . . . there are many personal rights of the citizen which follow from the Christian and democratic nature of the State which are not mentioned in Article 40 at all the right to free movement within the State and the right to marry are examples of this.”
As was stated by Mr. Justice Walsh in G. v. An Bord Uchtala44 at p. 66 of the report: “It is now well accepted that the view, first enunciated by my learned colleague, Mr. Justice Kenny, in the High Court in Ryan v. The Attorney General 3 and confirmed by this Court on appeal in the same case (that there are rights guaranteed by the Constitution other than those which are enumerated in the Constitution itself) is the correct view.” Mr. Justice Walsh does not directly indicate what he accepts as the source of such unenumerated rights but, at p. 68 of the report of G. v. An Bord Uchtala44 , he cites with approval the observations of Mr. Justice Henchy in McGee v. The Attorney General 2 at p. 325 of the report: “As has been held in a number of cases, the unspecified personal rights guaranteed by sub-s. 1 of s. 3 of Article 40 are not confined to those specified in sub-s. 2 of that section. It is for the Courts to decide in a particular case whether the right relied on comes within the constitutional guarantee. To do so, it must be shown that it is a right that inheres in the citizen in question by virtue of his human personality. The lack of precision in this test is reduced when sub-s. 1 of s. 3 of Article 40 is read (as it must be) in the light of the Constitution as a whole and, in particular, in the light of what the Constitution, expressly or by necessary implication, deems to be fundamental to the personal standing of the individual in question in the context of the social order envisaged by the Constitution. The infinite variety in the relationships between the citizen and his fellows and between the citizen and the State makes an exhaustive enumeration of the guaranteed rights difficult, if not impossible.”
At p. 310 of the report of McGee’s Case 2 , Mr. Justice Walsh said: “Articles 41, 42 and 43 emphatically reject the theory that there are no rights without laws, no rights contrary to the law and no rights anterior to the law. They indicate that justice is placed above the law and acknowledge that natural rights, or human rights, are not created by law but that the Constitution confirms their existence and gives them protection. The individual has natural and human rights over which the State has no authority; and the family, as the natural primary and fundamental unit group of society, has rights as such which the State cannot control. However, at the same time it is true, as the Constitution acknowledges and claims, that the State is the guardian of the common good and that the individual, as a member of society, and the family, as a unit of society, have duties and obligations to consider and respect the common good of that society. It is important to recall that under the Constitution the State’s powers of government are exercised in their respective spheres by the legislative, executive and judicial organs established under the Constitution. I agree with the view expressed by O’Byrne J. in Buckley and Others (Sinn Féin) v. The Attorney General 45 that the power of the State to act for the protection of the common good or to decide what are the exigencies of the common good is not one which is peculiarly reserved for the legislative organ of government, in that the decision of the legislative organ is not absolute and is subject to and capable of being reviewed by the Courts. In concrete terms that means that the legislature is not free to encroach unjustifiably upon the fundamental rights of individuals or of the family in the name of the common good, or by act or omission to abandon or to neglect the common good or the protection or enforcement of the rights of individual citizens.”
At first sight, Mr. Justice Walsh’s judgment seems to identify the source of these unenumerated rights not as the Christian and democratic nature of the State (pace Kenny J. in Ryan v. The Attorney General 3 ) but as the human personality, pace Mr. Justice Henchy in McGee’s Case .2
I recognize that, immediately before the passage I have just cited, Mr. Justice Walsh referred to the plaintiff’s submission which invoked that portion of the preamble to the Constitution in which the people, in giving themselves the Constitution, express the intention to seek “to promote the common good, with due observance of prudence, justice and charity, so that the dignity and freedom of the individual may be assured.” At pp. 318-19 of the report of McGee’s Case 2 Mr. Justice Walsh said: “In a pluralist society such as ours, the Courts cannot as a matter of constitutional law be asked to choose between the differing views, where they exist, of experts on the interpretation by the different religious denominations of either the nature or extent of these natural rights as they are to be found in the natural law. The same considerations apply also to the question of ascertaining the nature and extent of the duties which flow from natural law; the Constitution speaks of one of them when it refers to the inalienable duty of parents to provide according to their means for the religious, moral, intellectual, physical and social education of their children: see s. 1 of Article 42. In this country it falls finally upon the judges to interpret the Constitution and in doing so to determine, where necessary, the rights which are superior or antecedent to positive law or which are imprescriptible or inalienable . . . The very structure and content of the Articles dealing with fundamental rights clearly indicate that justice is not subordinate to the law. In particular, the terms of s. 3 of Article 40 expressly subordinate the law to justice. Both Aristotle and the Christian philosophers have regarded justice as the highest human virtue. The virtue of prudence was also esteemed by Aristotle as by the philosophers of the Christian world. But the great additional virtue introduced by Christianity was that of charity not the charity which consists of given to the deserving, for that is justice, but the charity which is also called mercy. According to the preamble, the people gave themselves the Constitution to promote the common good with due observance of prudence, justice and charity so that the dignity and freedom of the individual might be assured. The judges must, therefore, as best they can from their training and their experience interpret these rights in accordance with their ideas of prudence, justice and charity.”
In the instant case, the Chief Justice has stated that “the preamble proudly asserts the existence of God in the Most Holy Trinity and recites the people of Ireland as humbly acknowledging their obligation to Our Divine Lord Jesus Christ. It cannot be doubted that a people so asserting and acknowledging their obligations to Our Divine Lord Jesus Christ were proclaiming a deep religious conviction and faith and an intention to adopt a Constitution consistent with that conviction and faith and with Christian beliefs. Yet it is suggested that in the very act of so doing the people rendered inoperative laws which have existed for hundreds of years prohibiting unnatural sexual conduct which Christian teaching held to be gravely sinful. It would require very clear and express provisions in the Constitution itself to convince me that such took place.” As I have sought to indicate in my observations under the heading oflocus standi, I cannot accept the approach based upon applying the test of the then contemporary mores to the issue of constitutionality. It must be the mores contemporaneous with the raising of the issue itself. This is in no way to question the proposition that what is termed unnatural sexual conduct is denounced by Christian teaching as gravely sinful; I have no doubt but that Christian teaching is to be found which would declare sexual conduct of the kind contemplated by s. 61 of the Act of 1861 between husband and wife to be gravely sinful; yet it seems a clear inference from the judgment of Mr. Justice McWilliam and I, as I have already indicated, am firmly of opinion that the section constitutes an impermissible invasion of the right of privacy in marriage.
In so far as the judgment of Kenny J. in McGee’s Case 2 , in referring to the Christian and democratic nature of the State, is a relevant identification of source (cited by the President of the High Court in The State (C.) v. Frawley 6 at p. 373 and in The State (M.) v. The Attorney General 46 at p. 80), I would respectfully dissent from such a proposition if it were to mean that, apart from the democratic nature of the State, the source of personal rights, unenumerated in the Constitution, is to be related to Christian theology, the subject of many diverse views and practices, rather than Christianity itself, the example of Christ and the great doctrine of charity which He preached. Jesus Christ proclaimed two great commandments love of God and love of neighbour; St. Paul, the Apostle to the Gentiles, declared that of the great virtues, faith, hope and charity, the greatest of these is charity (1 Cor. 13, 13). I would uphold the view that the unenumerated rights derive from the human personality and that the actions of the State in respect of such rights must be informed by the proud objective of the people as declared in the preamble”seeking to promote the common good, with due observance of prudence, justice and charity, so that the dignity and freedom of the individual may be assured, true social order attained, the unity of our country restored, and concord established with other nations.” The dignity and freedom of the individual occupy a prominent place in these objectives and are not declared to be subject to any particular exigencies but as forming part of the promotion of the common good.
The right of privacy
The Constitution does not guarantee or, in any way, expressly refer to a right of privacy no more, indeed, than does the United States Constitution, with which our Constitution bears so many apparent similarities. In the United States Constitution the right to privacy in one form or another has been founded upon the First Amendment ( Stanley v. Georgia 47 ); the Fourth and Fifth Amendments ( Terry v. Ohio 48 ); in the penumbras of the Bill of Rights ( Griswold v. Connecticut 12 ) the contraceptives case; in the Ninth Amendment ( Griswold v. Connecticut 12 ); and in the concept of liberty guaranteed by the first section of the Fourteenth Amendment ( Meyer v. Nebraska 49 ).
In our Constitution a right of privacy is not spelled out. As stated by Mr. Justice Henchy in his judgment, there is a guarantee of privacy in voting under Article 16, s. 1, sub-s. 4 the secret ballot; a limited right of privacy given to certain litigants under laws made under Article 34; the limited freedom from arrest and detention under Article 40, s. 4; the inviolability of the dwelling of every citizen under Article 40, s. 5; the rights of the citizens to express freely their convictions and opinions, to assemple peaceably and without arms, and to form associations and unions all conferred by Article 40, s. 6, sub-s. 1; the rights of the family under Article 41; the rights of the family with regard to education under Article 42; the right of private property under Article 43; freedom of conscience and the free profession and practice of religion under Article 44. All these may properly be described as different facets of the right of privacy, but they are general in nature (as necessarily they must be in a Constitution) and do not set bounds to the enumeration of the details of such a right of privacy when the occasion arises. In our jurisdiction, this is best exemplified in the McGee Case 2 where, whilst Mr. Justice Walsh rested his judgment upon the provisions of Article 41, and Budd J., Mr. Justice Henchy and Mr. Justice Walsh relied upon the guarantees of Article 40, section 3. I would respectfully share the latter view of the true foundation for what the McGee Case 2 upheld the right of privacy in marriage.
Whilst the Constitution of the Irish Free State (Saorstat Eireann ), 1922, did not, as it were, isolate the fundamental rights of citizens in a manner in which the present Constitution of 1937 has done, articles 6, 7, 8, 9 and 10 of that Constitution indicate the manner in which certain rights were spelled out but,
to a degree, highlight the absence of such guarantees as are contained in Article 40, s. 3, and Article 41 of the Constitution. There may well be historical reasons for these differences a greater awareness of the need for the enunciation of fundamental rights was present during the 1930s than at the time of the negotiations for the Treaty that led to the enactment of the Constitution of the Irish Free State. At all events, since 1937, the concept of judicial dynamism in constitutional law has grown, thereby identifying more readily the role of the Courts and, in particular, this Court as the judicial organ of government, not merely by way of a supervisory jurisdiction on the actions of the legislative and executive branches of government but by way of legal interpretation thus playing its part in “seeking to promote the common good, with due observance of prudence, justice and charity, so that the dignity and freedom of the individual may be assured . . .” as most strikingly evidenced by the decision in the McGee Case .2
How then, to identify the nature of the personal right of privacy? The right to privacy has been called by Brandeis J. of the United States Federal Supreme Court “the right to be let alone” a quotation cited by the Chief Justice in this case and by Mr. Justice Walsh in his dissenting judgment as a member of the Court of Human Rights in Dudgeon v. United Kingdom .21 By way of definition it has brevity and clarity and I would respectfully adopt it as accurate and adequate for my purpose but, to a degree, the very definition begs the question. The right to privacy is not in issue; the issue is the extent of that right or the extent of the right to be let alone. If a man wishes to maim himself in private, may he not do so? No, because he may become a charge upon the public purse. If a man wishes to masturbate alone and in private, he may do so. If he and another male adult wish to do so in private, may they not do so? No, each commits an offence under s. 11 of the Act of 1885. If a woman wishes to masturbate in private, she does not commit an offence. If two women wish to do so in private, neither of them commits an offence. If a man and a woman wish together to do so in private, not being married to each other, neither of them commits an offence. In such latter circumstances, the act committed by the woman upon the man may be identical with that which another man would commit upon him, save that his partner is a woman.
I refer to these particular examples to seek to illustrate the problem that arises if a test is related to what may be generalised as compelling State interest. The term “compelling State interest” is commonly used, particularly in the United States, in cases depending on the claim to privacy. It is self evident that such interest is overwhelming in the protection of minors, persons under incapacity of one kind or another, public decency, discipline in the armed forces or the security forces and so on. But what is the test in circumstances where none of these obvious instances of compelling State interest apply? The Chief Justice has touched upon the alleged greater spread of venereal diseases but I do not accept that the State has discharged in any way a burden of proof of establishing that such a circumstance amounts to a compelling State interest. I
join with Mr. Justice Henchy in the observations he has made in his judgment on the failure of the Attorney General, with all the resources at his disposal, to call any evidence whatever to displace the impressive body of evidence called on behalf of the plaintiff. Subject to the matters that I have already instanced, in my opinion a very great burden lies upon those who would question personal rights in order to justify State interference of a most grievous kind (the policeman in the bedroom) in a claim to the right to perform sexual acts or to give expression to sexual desires or needs in private between consenting adults, male or female.
The Acts of 1861 and of 1885 were passed during the long reign of a British monarch whose name is identified with many human virtues those of duty, responsibility, love of family and country and so on but a less attractive quality of that age was the gross hypocrisy that frequently prevailed, even amongst the ranks of the legislators. Certainly, male homosexuality was known to exist on a wide scale and the Act of 1861 provided a most terrible penalty for what might well be the natural expression of such a human condition. Can the impugned sections be justified to remain on the statute book in 1983 as being consistent with or, more correctly, as being not inconsistent with the personal rights guaranteed by the Constitution?
I have read the evidence of the several distinguished witnesses who testified for the plaintiff; I have examined the cross-examination of these witnesses and the textbooks and reports to which they referred. Applying, as I do, and as Mr. Justice Henchy does, the principles to be drawn from the decision of this Court in Northern Bank Finance v. Charlton 31 on the issues as to whether or not an act or acts prohibited by the impugned sections are part of the make-up of an exclusively homosexual male and whether such prohibitions are or are not required by public order and morality or any other facet of the common good, the only conclusion to which the learned trial judge could come to on the evidence was that the plaintiff’s case was established. The learned trial judge stated that the question for him to decide was “whether there are grounds on which the legislature, under current social conditions and having regard to the prevailing ideas and concepts of morality and the current knowledge of matters affecting public health etc., could now reasonably come to the conclusion that the acts declared unlawful are such as ought to be prohibited for the attainment of the true social order mentioned in the preamble, the implementation of the principles of social policy directed by Article 45 and the preservation of the public order and morality mentioned in Article 40 of the Constitution.” Without expressing any view as to whether or not the question may be so precisely stated, in my opinion there was no evidence before the learned trial judge upon which he could hold other than that the impugned sections were not consistent with the Constitution.
I cannot delimit the area in which the State may constitutionally intervene so as to restrict the right of privacy, nor can I overlook the present public debate concerning the criminal law and arising from the statute of 1861 in regard to abortion the killing of an unborn child. It is not an issue that arises in this case, but it may be claimed that the right of privacy of a pregnant woman would extend to a right in her to terminate a pregnancy, an act which would involve depriving the unborn child of the most fundamental right of all the right to life itself. I recognize that there has been no argument in this case relevant to such an issue, but nothing in this judgment, express or in any way implied, is to be taken as supporting a view that the provisions of s. 58 of the Act of 1861 (making it a criminal offence to procure an abortion) are in any way inconsistent with the Constitution. There are but two judicial references to this question, if question be the appropriate word. In McGee’s Case 2 Mr. Justice Griffin said at p. 335 of the report: “In this context, I wish to emphasise that this judgment is confined to contraception as such; it is not intended to apply to abortifacients, though called contraceptives, as in the case of abortifacients entirely different considerations may arise.”
More elaborately, in G. v. An Bord Uchtala44 Mr. Justice Walsh said at p. 69 of the report: “Not only has the child born out of lawful wedlock the natural right to have its welfare and health guarded no less well than that of a child born in lawful wedlock, but a fortiori it has the right to life itself and the right to be guarded against all threats directed to its existence whether before or after birth. The child’s natural rights spring primarily from the natural right of every individual to life, to be reared and educated, to liberty, to work, to rest and recreation, to the practice of religion, and to follow his or her conscience. The right to life necessarily implies the right to be born, the right to preserve and defend (and to have preserved and defended) that life, and the right to maintain that life at a proper human standard in matters of food, clothing and habitation. It lies not in the power of the parent who has the primary natural rights and duties in respect of the child to exercise them in such a way as intentionally or by neglect to endanger the health or life of the child or to terminate its existence. The child’s natural right to life and all that flows from that right are independent of any right of the parent as such. I wish here to repeat what I said in McGee’s Case 2 at p. 312 of the report: ‘. . . any action on the part of either the husband and wife or of the State to limit family sizes by endangering or destroying human life must necessarily not only be an offence against the common good but also against the guaranteed personal rights of the human life in question.’ In these respects the child born out of lawful wedlock is in precisely the same position as the child born in lawful wedlock.
The Constitution rejected the English common-law view of the position of the illegitimate child in so far as its fundamental rights are concerned. It guarantees to protect the child’s natural rights in the same way as it guarantees to protect the natural rights of the mother of the child.”
For myself I am content to say that the provisions of the preamble, which I have quoted earlier in this judgment, would appear to lean heavily against any view other than that the right to life of the unborn child is a sacred trust to which all the organs of government must lend their support. The right of the adult male citizen privately to express his sexual orientation alone or with another such person free from State interference is an entirely different matter.
The plaintiff has, further, rested his case upon alleged breach of the constitutional guarantee of equality contained in s. 1 of Article 40. Having reached the conclusion already expressed, I do not consider it necessary to examine the law in the light of that section. However, I am not to be taken as agreeing with the view that the plaintiff’s argument implies an over-wide interpretation of the scope of that constitutional guarantee. Likewise, in so far as the plaintiff has rested his case upon article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms and the decision of the European Court of Human Rights in the Dudgeon Case 21 , I do not consider it necessary to come to any conclusion in that regard. Apart from the limited issue of locus standi, my judgment depends upon the right of privacy derived from Article 40, as I have sought to explain. It may be, as some of the theological witnesses claimed, that the criminalisation of the sexual acts proscribed by the impugned sections is contrary to the law of God; I am content to hold that it is contrary to one of the fundamental rights guaranteed by the Constitution.
I join with Mr. Justice Henchy where he says: “It would not be constitutional to decriminalise all homosexual acts, any more than it would be constitutional to decriminalise all heterosexual acts. Public order and morality; the protection of the young, of the weak-willed, of those who may readily be subject to undue influence, and of others who should be deemed to be in need of protection; the maintenance inviolate of the family as the natural primary and fundamental unit of society; the upholding of the institution of marriage; the requirements of public health; these and other aspects of the common good require that homosexual acts be made criminal in many circumstances . . . Not only will the Oireachtas be empowered to make homosexual acts criminal but, for the purpose of upholding the requirements of the common good in its full constitutional connotation, it will be necessary for such legislation to hedge in such immunity from criminal sanctions as it may think fit to confer on acts of a homosexual nature in private between consenting adults, with appropriate definitions as to adulthood, consent and privacy and with such exceptions as to prostitution, immoral exploitation, publicity, drug abuse, commercialisation, family relationships and such other matters or areas of exception as the Oireachtas may justifiably consider necessary . . .”
unaffected are for physiological, social and other reasons capable of being differentiated as to their nature, their context, the range of their possible consequences and the desirability of seeking to enforce their proscription as crimes. While individual opinions on the matter may differ, it was and is a matter of legislative policy to decide whether a compulsion of the common good is capable of justifying the distinction drawn. I would hold that the proviso contained in the second sentence of Article 40, s. 1, makes constitutionally acceptable under that Article the line of demarcation between the acts made criminal by the impugned sections and those which the plaintiff complains are left unproscribed by the criminal law.
The second, indeed, the main ground on which it is submitted that the impugned statutory provisions are unconstitutional is that they violate an essential component of the plaintiff’s right of privacy. That a right of privacy inheres in each citizen by virtue of his human personality, and that such right is constitutionally guaranteed as one of the unspecified personal rights comprehended by Article 40, s. 3, are propositions that are well attested by previous decisions of this Court. What requires to be decided and this seems to me to be the essence of this case is whether that right of privacy, construed in the context of the Constitution as a whole and given its true evaluation or standing in the hierarchy of constitutional priorities, excludes as constitutionally inconsistent the impugned statutory provisions.
Having regard to the purposive Christian ethos of the Constitution, particularly as set out in the preamble (“to promote the common good, with due observance of Prudence, Justice and Charity, so that the dignity and freedom of the individual may be assured, true social order attained, the unity of our country restored, and concord established with other nations”), to the denomination of the State as “sovereign, independent, democratic” in Article 5, and to the recognition, expressly or by necessary implication, of particular personal rights, such recognition being frequently hedged in by overriding requirements such as “public order and morality” or “the authority of the State” or “the exigencies of the common good”, there is necessarily given to the citizen, within the required social, political and moral framework, such a range of personal freedoms or immunities as are necessary to ensure his dignity and freedom as an individual in the type of society envisaged. The essence of those rights is that they inhere in the individual personality of the citizen in his capacity as a vital human component of the social, political and moral order posited by the Constitution.
Amongst those basic personal rights is a complex of rights which vary in nature, purpose and range (each necessarily being a facet of the citizen’s core of individuality within the constitutional order) and which may be compendiously referred to as the right of privacy. An express recognition of such a right is the guarantee in Article 16, s. 1, sub-s. 4, that voting in elections for Dáil Éireann shall be by secret ballot. A constitutional right to marital privacy was recognized and implemented by this Court in McGee v. The Attorney General 2 ;the right there claimed and recognized being, in effect, the right of a married woman to use contraceptives, which is something which at present is declared to be morally wrong according to the official teaching of the Church to which about 95% of the citizens belong. There are many other aspects of the right of privacy, some yet to be given judicial recognition. It is unnecessary for the purpose of this case to explore them. It is sufficient to say that they would all appear to fall within a secluded area of activity or non-activity which may be claimed as necessary for the expression of an individual personality, for purposes not always necessarily moral or commendable, but meriting recognition in circumstances which do not engender considerations such as State security, public order or morality, or other essential components of the common good.
Put in specific terms, the central issue in this case is whether the plaintiff’s claim to be entitled to engage in homosexual acts in private must give way to the right and duty of the State to uphold considerations of public order and morality. In my opinion the legal test by which that issue should be determined is this: where, as in this case, a pre-Constitution legislature has condemned as criminal all homosexual acts between males (ranging from acts of gross indecency, the commission of which does not require even physical contact, to acts of sodomy) and thereby blights and thwarts in a variety of ways the life of a person who is by nature incapable of giving expression to his sexuality except by homosexual acts, and who wishes to be entitled to do so consensually in private, the onus lies on the Attorney General, representing the State, if he is to defeat the individual’s claim, to show that to allow him that degree of privacy would be inconsistent with the maintenace of public order and morality.
In my judgment the Attorney General has signally failed to discharge that onus. In the High Court, ten witnesses were called, all on behalf of the plaintiff. Although homosexual acts in private between consenting adults have largely ceased to be criminal in England and Wales since 1967; although in most European countries for many years the legal position has been no less liberal; although a similar degree of decriminalisation has been in force for varying periods in different jurisdictions throughout the world, including some 20 or so States in the United States of America; and although there have been many studies by experts of the social, religious and other effects of such decriminalisation; not a single witness was called by the Attorney General to rebut the plaintiff’s case that the degree of decriminalisation sought by him posed no real threat to public order or morality. On the contrary, the consensus of the evidence given was that the beneficial effects, both in terms of individual fulfilment of personality and of the social, political and religious mores of the community, that would flow from a relaxation of the impugned provisions would outweigh any possible ill-effects on society as a whole.
I hope to support that conclusion not by eclectic excerpts from the evidence but by answers which epitomise the general tenor of the particular witnesses.

The State (Nicolaou) v. An Bord Uchtala

Walsh J. [1966] IR 567

WALSH J. :
The appellant in this case is a Cypriot who at all material times resided and carried on business as a cafe proprietor in London. He is a member of the Greek Orthodox Church. He is not a citizen of Ireland. Kathleen Donnelly is a citizen of Ireland whose parents and family at all material times resided in Co. Galway. In 1959 she was employed by the appellant as a waitress and they were living together as man and wife. She is a member of the Roman Catholic Church. In July, 1959, her brother, Denis Donnelly, came to London and took her back to her family in Galway. Her return to Ireland was followed by a correspondence of an amicable and sociable character between the appellant on the one hand and Miss Donnelly and her parents on the other. About this time Miss Donnelly found that she was pregnant. The appellant asked her to marry him and she and her parents were willing that the marriage should take place provided that he became a Roman Catholic. He was willing to do so, and it was apparently on this understanding that she returned to him in London. The marriage was, however, delayed pending receipt of the necessary documentary evidence that he was free to marry. On the 23rd February, 1960, a daughter was born to Miss Donnelly, at the North Middlesex Hospital, Edmonton. The birth of the child was registered on the 4th March and the certified extract from the register shows that it was registered on the information and signatures of the appellant and Miss Donnelly, that the child’s name was given as Mary Carmel, that the name of the father was given as Leontis Nicolaou and that the name of the mother was given as Kathleen Sheila Donnelly. The address of both father and mother was given as 19, Durham Road, London. The child was baptised in the Catholic Church of St. Mellitus, London, on the 6th March. Mother and child returned to live with the appellant at 19 Durham Road, where they remained until the 16th June. During this period the mother was depressed and emotionally upset. The necessary documentary evidence that both were free had become available but it appears that she was unable to make up her mind what do do. The appellant says in his second affidavit that his attitude at this time was that he was anxious to marry her in a Catholic Church but that he was prepared to live with her outside marriage. He also said he was willing if she wished that she should depart and leave the child with him and that he was also reluctantly willing that she should depart and take the child with her, hoping that she would return when she felt better. Her mother was urging her either to marry or else leave the appellant and have the child adopted. Both these alternatives were frequently discussed between the appellant and Miss Donnelly. The appellant made it quite clear that he would not agree to have the child adopted. Miss Donnelly says in her affidavit that during this period she was worried about the child being illegitimate; that she was not satisfied to continue living with the appellant; that she was not prepared to marry him unless and until he became a Catholic; and that she was not prepared to depart and leave the child with him for fear that it would not be brought up as a Catholic. She wished to go to a Catholic home where she could work to keep herself and the child and with that end in view she had been in touch with the Crusade of Rescue, an English Adoption Society, which had put her in touch with the Catholic Protection and Rescue Society of 30, South Anne Street, Dublin. She eventually decided to take that step.
On the 16th June she left the appellant, taking the child with her. She told him she was going to a home, such as that already mentioned, in Dublin. He agreed to let the child go with her. He said in his first affidavit that he understood she intended to reside in an institution in Ireland and that he considered it essential that the child should be with its mother. He believed that the child could not be adopted without his consent and he told Miss Donnelly that if any proposals were made for adoption they should be referred to him. In his second affidavit he says that he agreed to let her take the child with her only on the understanding that any proposal for adoption should be referred immediately to him. She travelled to Dublin and on arrival went to 30 South Anne Street, where she met certain officers of the Catholic Protection and Rescue Society. She was then admitted with the child to St. Patrick’s, Navan Road, a home owned by the Society, where she remained some months, working for her own and the child’s maintenance. She had requested Miss Cassidy, the secretary of the Society, to try and find a home for the child. She was eventually told that the Society had secured a parent to adopt the child, and following instructions, brought it on the 23rd September, 1960, to 30 South Anne Street, where she left it in the custody of officers of the Society.
Not having heard from Miss Donnelly, and being unaware of her and the child’s whereabouts, the appellant wrote to Mrs. Donnelly on the 20th July, 1960, making inquiries.
Mrs. Donnelly replied on the 26th July, saying that Kathleen had come from London to Dublin; that she, Mrs. Donnelly, would let him know how Kathleen and the child were getting on when she heard from her. Early in August the appellant got a letter from Miss Donnelly. In this she said that she thought she had made it clear to him when leaving him that all was over between them, so why not forget about her and the child and start a new life for himself; that she quite agreed that he was the child’s father and was interested in her, but that she could not leave the child with him fearing it might not be reared a Roman Catholic; and if he had any plans with regard to the child’s future she would be very grateful if he would let her know before she got the child adopted, as that would mean that it would not be his any more. This letter was addressed from Miss Donnelly’s home in Galway. The appellant did not reply to her letter; but towards the end of September he travelled to Galway and saw her personally. He asked her where the child was, and she told him that she had left it in Dublin; that she had given it away. He returned to Dublin where he instructed Messrs. John P. Redmond & Co., Solicitors, to write to Miss Donnelly. They wrote on the 30th September, stating,inter alia, that they had been instructed that she had indicated that she had disposed of the child by placing it in an institution, or with persons prepared to adopt it; and that unless she replied within seven days that she was willing to return the child to the appellant they would institute proceedings in the High Court to compel her to do so. She replied on the 5th October, referring, inter alia, to her letter of the previous August to the appellant, to which she had received no reply. She said that the Crusade of Rescue Society in Dublin had got a good home for the child; and that adoption became legal within six months. On the 7th October Messrs. Redmond & Co. wrote to the secretary of An Bord Uchtala (hereinafter called “the Board”), confirming a previous telephone conversation; and stating that they acted for the prosecutor, who was father of a child born to Miss Kathleen Donnelly in London on the 23rd February, 1960, and registered under the name of Mary Carmel Nicolaou. The letter went on to say that they had been instructed to institute proceedings in the High Court to prevent any adoption of the child; that in accordance with the provisions of s. 16 of the Adoption Act, 1952, they were putting the Board on notice that such proceedings were pending; and that in the event of the Board being requested to make arrangements for the registration of the child’s adoption they must ask them to take no further steps in the matter pending the outcome of the Court proceedings. On the 17th October the Registrar of the Board replied acknowledging receipt of the letter and saying that the matter had been noted. Messrs. Redmond & Co. had written a similar letter to the secretary of the Catholic Protection and Rescue Society, and on the 12th October had received a merely formal acknowledgment. No proceedings were at this time instituted in the High Court on account, as stated by the appellant, of the state of Miss Donnelly’s health.
Miss Donnelly continued to be much upset as a result of the circumstances in which she found herself, a condition which was apparently worsened by the receipt of Messrs. Redmond’s letter and the threat of legal proceedings. She suffered something in the nature of a nervous breakdown and at the end of 1960 and beginning of 1961 spent some ten or eleven weeks under treatment in Ballinasloe Mental Hospital. During early 1961 the appellant had some correspondence with her family; but correspondence with her personally was not resumed until October.
Some time in August or September, 1961, while she was staying with her parents, she received certain papers in connection with the adoption of the child. She called to the office of Mr. John C. O’Donnell, Solicitor, Galway, and explained her position. He took her to the office of the County Registrar, who is also a commissioner for oaths, where the necessary papers were signed and an affidavit of some kind sworn. On the 13th September, 1961, the Board made an order for the adoption of the child by a married couple.
On the 26th October Miss Donnelly wrote to the appellant, stating that she was not working and asking for a few pounds. She did not tell him that the child had been adopted. Correspondence continued during 1961, 1962 and 1963, in the course of which she asked for, and was given, money from time to time. In the spring of 1963, and again in the summer, she had spells of treatment in Ballinasloe Mental Hospital. Her letters about this time are written in affectionate terms and it appears from them that she was contemplating a return to London and marriage with the appellant. She did return to his employment in August, 1963; and arrangements were made for the marriage. She appears to have suffered another emotional upset, and refused to go on with it. It was at this time that the appellant first learned definitely from her that the child had been adopted. He was not aware where the child was, and made various unsuccessful attempts to find out. He had consultations with his legal advisers in Dublin, and on the 17th January, 1964, an application was made to Mr. Justice Henchy for a conditional order of habeas corpus directed to the registrar of the Board and the secretary of the Catholic Rescue and Protection Society. This was described by the appellant’s counsel as being in the nature of a “fishing” application. When refusing it Mr. Justice Henchy suggested that an examination of the Register of Adopted Children might possibly yield results.
On the 12th February the appellant’s solicitors obtained a certified extract from the Adopted Children’s Register, showing that an order had been made on the 13th September, 1961, for the adoption of a female child, bearing the names, Mary Carmel, who had been born on the 23rd February, 1960. On the 14th April they wrote to the Board asking to be furnished with a copy of this order; and on the 21st April the registrar replied, stating that as a matter of principle their request could not be granted. Counsel on behalf of the appellant then applied to the High Court for a conditional order of certiorari seeking to quash the adoption order, and this application was refused by Mr. Justice Murnaghan on the 17th July. On appeal this Court granted a conditional order on the following grounds:(1) that the Board in making the adoption order failed to comply with the requirements of s. 16, sub-s. 1, (d) and (i), of the Adoption Act, 1952; and (2) that the said Act is repugnant to the Constitution in so far as it purports to deprive the applicant of his rights as a natural father to have the custody of his natural child, Mary Carmel Donnelly, without notice to him, or at all. The order was directed to the registrar of the Board and, in accordance with Order 60 of the Rules of the Superior Courts, it directed that the Attorney General should have notice thereof. These parties having shown cause counsel on behalf of the appellant moved the High Court to have the conditional order made absolute notwithstanding the cause shown. The hearing of the application by three judges of the High Court occupied several days, spread over a period of some months; and eventually, on the 31st May last, the application was refused and the conditional order was discharged. From that decision the appellant now appeals.
The appellant would not be furnished with a copy of the adoption order and the original was not produced during the hearing in the High Court. There was, accordingly, some doubt as to whether the order made on the 13th September, 1961, was in fact made in respect of the child in question. The registrar of the Board, however, attended before this Court and produced the original order. There is no doubt whatever that it was made in respect of the child in question.
Counsel’s first submission in support of the application to make the conditional order absolute was based upon s. 14, sub-s. 1, of the Adoption Act, 1952. This provides that an adoption order shall not be made without the consent of every person being the child’s mother or guardian or having charge of or control over the child, unless the Board dispenses with any such consent in accordance with the section. Sub-sect. 2 provides that the Board may dispense with the consent of any person if satisfied that that person is incapable by reason of mental infirmity of giving consent, or cannot be found. Counsel submitted that the appellant was a person having charge of or control over the child; that, accordingly, under the provisions of the section his consent was essential to the making of a valid adoption order; that he had never consented; and that the adoption order was therefore invalid as being made without jurisdiction. The first observation to be made in regard to this submission is that the ground on which it is based is not one of the grounds on which this Court made the conditional order. Counsel was, however, as in the High Court, allowed to develop it and did so at some length.
Circumstances could arise in which an illegitimate child could be taken into wardship and a person other than the mother appointed guardian, who could entrust the child to the care of foster-parents. Counsel for the appellant submitted that in such circumstances consents would be required from the mother, from the guardian, and from the foster-parents, before an adoption order could be validly made. It was submitted that the appellant was at the material time a person having charge of or control over the child and that his consent was necessary as well as that of the mother. Sect. 15, sub-s. 1, provides that a consent shall not be valid unless given after the child has attained the age of six months, and not earlier than three months before the application for adoption. The widest range in time during which a valid consent could have been given was between 23rd August, 1960 (when the child was six months old), and the 13th June, 1961 (three months before the adoption order was made). It is quite clear that the appellant did not have actual charge of or control over the child at any time during that period, during the whole of which it was in another country and in the actual charge and control of others. Counsel, however, submitted that while Miss Donnelly and the child were living with the appellant in London they were part of his household; and that he, as head of the household, had actual charge and control over the child; that before she departed with the child she made a binding agreement with him that any proposals for adoption would be immediately referred to him; that while away from him she had charge and control of the child merely as his agent; and that she could not, by breaking her agreement and exceeding her authority as agent, deprive him of his charge of, and control over, the child. In the opinion of the Court this submission is not well founded either in fact or in law.
It is an essential part of the appellant’s case as presented that the mother of an illegitimate child has a natural right to its custody and control superior to any right which the father can claim, so long as she is alive and has not abdicated her right. If, then, while Miss Donnelly and the child were living with the appellant, he had charge of and control over the child it was at most a charge and control shared jointly with her and he had it by her permission and not otherwise; it was a permission which she could at any time have withdrawn. The evidence does not support the submission as to a binding agreement or as to the creation of any relationship of principal and agent, or indeed that he had any actual charge and control over the child, though he certainly provided and cared for it. When Miss Donnelly took the child with her to this country she did so in exercise of her natural right and not as agent for the appellant. He had not, therefore, at any material time charge of, or control over, the child. In the opinion of the Court counsel’s first submission in support of the first ground on which the conditional order was granted is not well founded.
Counsel, however, made a further submission based upon this matter of consent. It is clear that from the 23rd September, 1960, when the child was left by Miss Donnelly with the officers of the Catholic Protection and Rescue Society at 30 South Anne Street, Dublin, until it was adopted on the 13th September, 1961, the child was not in her actual physical charge or control; but with the mother’s consent was in the actual charge and control of the Society, or of some other person or persons unknown to the appellant, and whose identity does not appear from the evidence. Counsel submitted that if the appellant’s consent was not essential to the validity of the adoption order, the consent of such unknown person or persons was; and that it was reasonably clear that no such consent had been obtained by the Board before the adoption order was made. This submission makes it necessary to consider the construction of s. 14, sub-s. 1, of the Adoption Act, 1952.
Counsel for the Attorney General submitted that the sub-section meant that where the mother was alive and could be found her consent alone was necessary; that if she were dead or could not be found, and there was a legal guardian, his consent alone was necessary; and that it was only where the mother was not to be found, and there was no legal guardian, that the consent of the person or persons having charge of, or control over, the child became necessary. The Court is unable wholly to accept this submission. As already indicated, circumstances could exist in which the mother of an illegitimate child, its legal guardian, and foster-parents having actual physical charge and control over the child could be all persons concerned at the same time in greater or less degree in the question of its adoption. In such circumstances it would seem only reasonable and proper that the consent of the guardian as well as that of the mother should be essential and in the opinion of the Court the sub-section so provides. If, however, the sub-section is to be given a merely literal construction, a consent would be required also from the foster-parents. Given a merely literal construction some strange results would follow. In the present case, for instance, it is probable that before the adoption order was made the Rescue Society had found a home for the child with the couple who eventually obtained the order; and that at the time it was made the child was in the actual physical charge and control either of the Society or of the adopting couple. The adopting couple were seeking to adopt the child; and the Society, one of whose main objects is doubtlessly to provide for the adoption of such children, was, it may be assumed, doing its best to facilitate them. To require in such circumstances, from either the Society or the couple, a written consent to the adoption of the child would appear to be a singularly unnecessary and senseless procedure; and it is difficult to accept as correct an interpretation of the sub-section which could occasion such a result. It would moreover seem quite unnecessary to require a written consent to adoption from a person who has actual physical charge of, or control over, a child merely by permission of the child’s mother or legal guardian; since such a permission could be withdrawn at any moment. If such a person’s consent were necessary, and were to be refused, his right to the charge of the control over the child could at once be terminated by the mother or guardian, and with it the necessity for his consent. That is not the kind of charge or control referred to in the sub-section. It is to be noted that at no time was the appellant’s charge of or control (if any) over the child in this case other than with the consent of the mother. In the opinion of the Court counsels’ first submissions cannot be accepted.
The first ground upon which the conditional order was granted was that in making the adoption order the Board failed to comply with the requirements of s. 16, sub-s. 1, (d)and (i), of the Adoption Act, 1952. The sub-section provides that certain specified persons and no others shall be entitled to be heard on an application for an adoption order; and the persons so specified at sub-paras. (d) and (i) are, respectively, a person having charge of or control over the child; and any other person whom the Board, in its discretion, decides to hear. Counsel’s first submission in support of this ground was that the appellant as a person having charge of or control over the child was entitled to be heard by the Board before a valid adoption order could be made. For the reasons already stated this submission cannot be accepted.
Counsel’s next submission was that the Board had deprived itself of jurisdiction to make a valid adoption order by not hearing the appellant on the application for the order. It was pointed out that at all material times the Board must have been, and was in fact, aware that the appellant had acknowledged the child as his; that he was opposed to any adoption; and that he had through his solicitors announced his intention of instituting proceedings in the High Court to prevent an adoption order being made. His interest in the matter had been made manifest; and it was submitted that in these circumstances natural justice required that he should be heard upon the application for adoption; and that the failure of the Board to allow him the opportunity of being heard amounted to non-compliance with the provisions of s. 16, sub-s. 1 (i), of the Act and deprived it of jurisdiction to make a valid order.
It is clear that the persons specified in sub-paras. (a) to (h) of the sub-section inclusive have a right to be heard on an application for an adoption order in the sense that, if one of them applies to the Board to be heard, he cannot properly be refused. It does not, however, follow that before it can make a valid adoption order the Board must seek out all such persons and inquire of each whether he wishes to be heard. There could also be several persons not coming within any of the categories covered by sub-paras. (a) to (h) whose views as to the adoption of a particular child might be of assistance to the Board; and sub-para. (i) enables the Board to hear them. However, no such person can be said to have a right to be heard unless and until the Board has decided to hear him. In this respect the drafting of the sub-section and sub-paragraph may be somewhat peculiar, but the purpose is plain enough. It would be a strange result if by failing to hear some person who could have been of assistance, and who did not ask to be heard, the Board could deprive itself of all jurisdiction to make a valid order. It might well be thought that in the particular circumstances of this case it was impolitic of the Board not to have afforded the appellant the opportunity to be heard but it had a discretion after proper consideration not to do so. The proper exercise of that discretion not to allow the appellant such opportunity left him without any right to be heard. The position would of course be different if the refusal was based on a general policy not to hear the fathers of illegitimate children in such cases and in such an event certiorari would go. There is, however, no evidence that such was the position in this case.
These submissions made on behalf of the appellant in seeking an order of certiorari cannot be accepted.
So far as the question of the delay on the appellant’s part in bringing his proceedings is concerned it is but fair to state that in the opinion of this Court, on the facts before it, he acted throughout with solicitude for the position of the child’s mother and the Court is satisfied that the delay was in a very large measure due to his concern to do nothing to aggravate the mother’s condition of ill-health.
It is now necessary to consider the submissions advanced in support of the second ground on which the conditional order was granted to the appellant. The first of these was based upon Article 40, 1, of the Constitution which provides as follows:”All citizens shall, as human persons, be held equal before the law. This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.”
In the opinion of the Court section 1 of Article 40 is not to be read as a guarantee or undertaking that all citizens shall be treated by the law as equal for all purposes, but rather as an acknowledgment of the human equality of all citizens and that such equality will be recognised in the laws of the State. The section itself in its provision, “this shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function,” is a recognition that inequality may or must result from some special abilities or from some deficiency or from some special need and it is clear that the Article does not either envisage or guarantee equal measure in all things to all citizens. To do so regardless of the factors mentioned would be inequality.
The argument for the appellant was as follows:At the time the Constitution of Saorstát Éireann came into force, and subsequently on the coming into operation of the present Constitution, the law of this country recognised as a personal legal right the right of the father of an illegitimate child to its custody, inferior only to that of the mother, while alive, and after her death superior to that of any other persons, such as the mother’s relatives, and that this legal right was founded upon a judicial recognition of a preexisting natural right: that the Adoption Act, 1952, in its provisions as to those whose consent is necessary before an adoption order can be made, and as to those who are entitled to be heard on an application for an adoption order, has no regard to this legal right of the natural father: that this amounts to unfair discrimination and is therefore repugnant to the Article in question: that while the Article by its terms refers only to citizens it recognises the personal right to equality before the law of citizens by virtue of the fact that they are human persons and that as non-citizens share with citizens a common humanity they therefore share their constitutional rights.
Legal rights, unless guaranteed by the Constitution, may be adversely affected or completely taken away by legislation. It was, nevertheless, submitted that such legislation, if it discriminates unfairly against a particular class of citizens, would be invalid having regard to the provisions of the Article in question.
In support of the first branch of this submission counsel for the appellant relied on Reg. v. Nash (1); In re Crowe(2);In re Kerr(3); In re Hyndman(4); and In re Connor(5),and submitted that these cases established that a natural father had the personal legal right for which they contended. The Court is not satisfied that these cases do establish that the natural father has any such legal right; and in so far as counsel’s submission is based upon this proposition it is not, in the opinion of the Court, well founded.
Over and above this the appellant argues as follows: that under the provisions of s. 14, sub-s. 1, of the Act, when there is question of a child’s adoption no consent is required from its natural father; that under the provisions of s. 16, sub-s. 1, he is not as such natural father entitled to be heard on the application for an adoption order; that in contrast, consent to adoption is required from the mother, the guardian, and any person having charge of or control over the child and that the several persons mentioned in s. 16, sub-s. 1, are entitled to be heard on the application for adoption: that these provisions discriminate against natural fathers on the ground of sex because rights are given to the mother which are denied to the father and on the ground of paternity because rights are given to persons, who may be more distant relations of the child or even strangers in blood, which are denied to natural fathers.
Under the provisions of these sections of the Act certain persons are given rights and all other persons are excluded. Whether or not the natural father is excluded depends upon the circumstance whether or not he comes within the description of a person who is given a right, and he may or may not come within some such description. If he is in fact excluded it is because in common with other blood relations and strangers he happens not to come within any such description. There is no discrimination against the natural father as such. The question remains whether there is any unfair discrimination in giving the rights in question to the persons described and denying them to others.
In the opinion of the Court each of the persons described as having rights under s. 14, sub-s. 1, and s. 16, sub-s. 1, can be regarded as having, or capable of having, in relation to the adoption of a child a moral capacity or social function which differentiates him from persons who are not given such rights. When it is considered that an illegitimate child may be begotten by an act of rape, by a callous seduction or by an act of casual commerce by a man with a woman, as well as by the association of a man with a woman in making a common home without marriage in circumstances approximating to those of married life, and that, except in the latter instance, it is rare for a natural father to take any interest in his offspring, it is not difficult to appreciate the difference in moral capacity and social function between the natural father and the several persons described in the sub-sections in question. In presenting their argument under this head counsel for the appellant have undertaken the onus of showing that in denying to the natural father certain rights conferred upon others s. 14, sub-s. 1, and s. 16, sub-s. 1, of the Act are invalid having regard to Article 40 of the Constitution. In the opinion of the Court they have failed to discharge that onus.
In so far as this Article has been invoked to show that the Act purports to permit an unconstitutional discrimination between children in relation to adoption it is to be noted that the Act does not confer a right of adoption on any child, nor does it permit any child to be the moving party in respect of its own adoption. The restriction as to the class of children who may be the subject of adoption orders is a restriction imposed upon the Adoption Board and this restriction in no way impinges upon the provision of Article 40, section 1.
The fact that under the Adoption Act, 1952, an illegitimate child or an orphan may be the subject of an adoption cannot be construed as a discrimination against such child. Article 42, section 5, of the Constitution, while dealing with the case of failure in duty on the part of parents towards the children, speaks of “the natural and imprescriptible rights of the child.” Those “natural and imprescriptible rights” cannot be said to be acknowledged by the Constitution as residing only in legitimate children any more than it can be said that the guarantee in section 4 of the Article as to the provision of free primary education excludes illegitimate children. While it is not necessary to explore the full extent of “the natural and imprescriptible rights of the child” they include the right to “religious and moral, intellectual, physical and social education.” An illegitimate child has the same natural rights as a legitimate child though not necessarily the same legal rights. Legal rights as distinct from natural rights are determined by the law for the time being in force in the State. While the law cannot under the Constitution seek to deprive the illegitimate child of those natural rights guaranteed by the Constitution it can, as in the Adoption Act, 1952, secure for the illegitimate child legal rights similar to those possessed by legitimate children. It provides opportunities for illegitimate children and orphans to secure the advantages of family life. The Act does not infringe any natural right of an illegitimate child. On the contrary, its purpose and effect is to redress the inequalities imposed by circumstances on orphans and illegitimate children.
It was also submitted on behalf of the appellant that the provisions of the Adoption Act, 1952, violate the guarantees contained in Article 40, section 3, 1, of the Constitution. That section reads:”The State guarantees in its laws to respect, and, so far as practicable, by its laws to defend and vindicate the personal rights of the citizen.” The Constitution does not set out in whole what are the rights of the citizen which are encompassed in this guarantee and, while some of them are indicated in sub-section 2 of section 3, it was pointed out in the judgment of this Court in Ryan v.The Attorney General (1) that the personal rights guaranteed are not exhausted by those enumerated in sub-section 2. It is, however, abundantly clear that the rights referred to in section 3 of Article 40 are those which may be called the natural personal rights and the very words of sub-section 1, by the reference therein to “laws,” exclude such rights as are dependent only upon law. Sub-section 3 cannot therefore in any sense be read as a constitutional guarantee of personal rights which were simply the creation of the law and in existence on the date of coming into operation of the Constitution. For the reasons already indicated earlier in this judgment, in so far as a father has rights in respect of his natural child which were the creation of law, judge-made or legislative, they were of their nature susceptible to legislative change and if the Adoption Act, 1952, has effected such change it does not infringe the guarantee contained in section 3 of Article 40. It has not been shown to the satisfaction of this Court that the father of an illegitimate child has any natural right, as distinct from legal rights, to either the custody or society of that child and the Court has not been satisfied that any such right has ever been recognised as part of the natural law. If an illegitimate child has a natural right to look to his father for support that would impose a duty on the father but it would not of itself confer any right upon the father. The appellant has therefore failed to establish that any personal right he may have guaranteed to him by Article 40, section 3, of the Constitution has been in any way violated by the Adoption Act of 1952.
The provisions of the Adoption Act, 1952, do not purport to deal with the legal position of the father and mother of an illegitimate child and their respective claims where questions of custody are concerned apart from legal adoption and the Court does not find it necessary to consider the position in such a case.
The appellant next claimed relief under the provisions of Article 41 of the Constitution. It was submitted on his behalf that the Adoption Act, 1952, was invalid having regard to the provisions of this Article in that it violates the constitutional guarantees to protect the family in its constitution and authority and purports to render alienable what are referred to in the Constitution as “the inalienable and imprescriptible rights” of the family, rights which in the words of Article 41, section 1, are “antecedent and superior to all positive law.” It is quite clear from the provisions of Article 41, and in particular section 3 thereof, that the family referred to in this Article is the family which is founded on the institution of marriage and, in the context of the Article, marriage means valid marriage under the law for the time being in force in the State. While it is quite true that unmarried persons cohabiting together and the children of their union may often be referred to as a family and have many, if not all, of the outward appearances of a family, and may indeed for the purposes of a particular law be regarded as such, nevertheless so far as Article 41 is concerned the guarantees therein contained are confined to families based upon marriage. This, in the opinion of the Court, is of itself sufficient to render the appellant’s submissions in respect of this Article of the Constitution unsustainable and the Article avails him nothing.
For the same reason the mother of an illegitimate child does not come within the ambit of Articles 41 and 42 of the Constitution. Her natural right to the custody and care of her child, and such other natural personal rights as she may have (and this Court does not in this case find it necessary to pronounce upon the extent of such rights), fall to be protected under Article 40, section 3, and are not affected by Article 41 or Article 42 of the Constitution. There is no provision in Article 40 which prohibits or restricts the surrender, abdication, or transfer of any of the rights guaranteed in that Article by the person entitled to them. The Court therefore rejects the submission that the Adoption Act, 1952, is invalid in as much as it permits the mother of an illegitimate child to consent to the legal adoption of her child, and lose, under the provision of s. 24 (b) of the Act, all parental rights and be freed from all parental duties in respect of the child.
Lastly, the appellant sought to invoke Article 42, section 1, of the Constitution. Article 42 is the Article which deals with education. Section 1 is in the following terms:”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.” The appellant submits that the Adoption Act, 1952, has infringed his inalienable right as a parent to provide in these respects for his child the subject-matter of these proceedings. It is the opinion of this Court that the parent referred to in Article 42, section 1, is a parent of a family founded upon marriage and this of itself disqualifies the appellant as a parent within the meaning of that term in Article 42, section 1. The appellant’s case therefore can find no support in this section. It follows that it is unnecessary to consider what might be the effect of the provisions of section 5 of Article 42 upon the circumstances of the appellant’s case so far as the appellant is himself concerned.
It was also suggested that the Adoption Act, 1952, by permitting the adoption of a child by the parents of an existing family and by enacting that the child shall be considered as one born to them in lawful wedlock, with the property rights and the other legal rights of such a child, in some way infringes the provisions of Article 41 of the Constitution by encroaching upon the guaranteed rights of that family and its members. The Court rejects that submission. The adoption of a child by the parents of a family in no way diminishes for the other members of that family the rights guaranteed by the Constitution. Rights of succession, rights to compensation for the death of a parent and such matters may properly be the subject of legislation and the extension of such legal rights by legislation to benefit an adopted child does not encroach upon any of the inalienable and imprescriptible rights guaranteed by the Constitution to the family or its members or upon the natural and imprescriptible rights of children referred to in section 5 of Article 42.
The High Court judgments rested in part upon the fact that the appellant is not a citizen of Ireland. This Court expressly reserves for another and more appropriate case consideration of the effect of non-citizenship upon the interpretation of the Articles in question and also the right of a non-citizen to challenge the validity of an Act of the Oireachtas having regard to the provisions of the Constitution. The opinion which the Court has pronounced upon these Articles is not dependent upon or affected by the fact that the appellant is not a citizen of Ireland or by the fact that the Attorney General through his counsel informed this Court that he did not wish to submit in this case that the rights, if any, of the appellant under the Articles in question were any the less by reason of the fact that he was not a citizen of Ireland.

 

G. v. An Bord Uchtala

O’Higgins C.J. [1980] IR 54
S.C.

The Plaintiff’s Proceedings
On the 11th May, 1978, the plaintiff commenced these proceedings in the High Court against An Bord Uchtala(the Adoption Board) claiming the return of her child. The President of the High Court, having regard to the reality of the issue which had arisen concerning the future of the child and to the absolute necessity that the identities of those concerned should not be disclosed, put into operation the procedures set out at the commencement of his judgment. These procedures, as one would expect from him, were devised with great care and concern both for the preservation of this essential secrecy and in the interests of justice. The result is that the adoption society has been added as a defendant, and that the persons now having custody have been added as notice parties and a notice of motion on their behalf (seeking an order under s. 3 of the Act of 1974) has become the true nature of these proceedings. Evidence was taken from both the plaintiff and the notice parties with due regard to each other’s rights but without any disclosure of their identities one to the other. The learned President, having considered this evidence and having reserved judgment, decided against the notice parties’ claim for an order under s. 3 of the Act of 1974 and directed that the child be returned to the custody of her mother. Against this decision this appeal has been brought by the notice parties.
[Having referred to the provisions2 of s. 3 of the Adoption Act, 1974, the Chief Justice continued]. In considerering the application of s. 3 of the Act of 1974 to this case, the learned President came to the conclusion that the constitutional rights of the mother to the custody of her child continued and prevailed, and concluded that she was entitled as of right in the circumstances to the return of her child. In so concluding the learned President, while recognising the coexistence of clear constitutional rights on the part of the child, was of the opinion on the facts that these were neither interfered with nor endangered. Therefore, it seems appropriate that at this stage I should have regard to the constitutional rights of the persons primarily involved in this sad story, namely, the mother and her child.
The Mother’s Rights
In the first place it should be noted that the mother is not the mother of a family, in the sense in which the term is used in the Constitution. Article 41 of
the Constitution, which 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, refers exclusively to the family founded and based on the institution of marriage. It is this family which, in Article 41, s. 1, sub-s. 2, the State guarantees to protect in its constitution and authority as the necessary basis of social order and as indispensable to the welfare of the nation and the State.
But the plaintiff is a mother and, as such, she has rights which derive from the fact of motherhood and from nature itself. These rights are among her personal rights as a human being and they are rights which, under Article 40, s. 3, sub-s. 1, the State is bound to respect, defend and vindicate. As a mother, she has the right to protect and care for, and to have the custody of, her infant child. The existence of this right was recognised in the judgment of this Court in The State (Nicolaou) v. An Bord Uchtala. 1 This right is clearly based on the natural relationship which exists between a mother and child. In my view, it arises from the infant’s total dependency and helplessness and from the mother’s natural determination to protect and sustain her child. How far and to what extent it survives as the child grows up is not a matter of concern in the present case. Suffice to say that this plaintiff, as a mother, had a natural right to the custody of her child who was an infant, and that this natural right of hers is recognised and protected by Article 40, s. 3, sub-s. 1, of the Constitution. Section 6, sub-s. 4, and s. 10, sub-s. 2(a), of the Guardianship of Infants Act, 1964, constitute a compliance by the State with its obligation, in relation to the mother of an illegitimate child, to defend and vindicate in its laws this right to custody. These statutory provisions make the mother guardian of her illegitimate child and give the mother statutory rights to sue for custody.
However, these rights of the mother in relation to her child are neither inalienable nor imprescriptible, as are the rights of the family under Article 41. They can be alienated or transferred in whole or in part and either subject to conditions or absolutely, or they can be lost by the mother if her conduct towards the child amounts to an abandonment or an abdication of her rights and duties.
The Child’s Rights
The child also has natural rights. Normally, these will be safe under the care and protection of its mother. 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. In exceptional cases the State, under the provisions of Article 42, s. 5, of the Constitution, is given the duty, as guardian of the common good, to provide for a child born into a family where the parents fail in their duty towards that child for physical or moral reasons. In the same way, in special circumstances the State may have an equal obligation in relation to a child born outside the family to protect that child, even against its mother, if her natural rights are used in such a way as to endanger the health or life of the child or to deprive him of his rights. In my view this obligation stems from the provisions of Article 40, s. 3, of the Constitution.
At Common Law
At common law an illegitimate child was termed “filius nullius” and was regarded as being no more than the “unfortunate offspring of the common failing of a man and a woman”a burden on the locality and a person to be shunned. In this unchristian treatment of a human being, natural rights were forgotten and a lonely life was ordained merely because of the accident of birth. Not only is this not so now under the Constitution, but the State has the added obligation to defend and vindicate in its laws all natural rights of all citizens. In relation to illegitimate children and certain others, the State has endeavoured to discharge this obligation by the Adoption Acts. The purpose of these Acts is to give to these children the opportunity to become members of a family and to have the status and protection which such membership entails. I turn now to look at the provisions of these Acts in so far as they bear on this case.

McGee v. Attorney General

[1974] IR 284
Walsh J.

Articles 40, 41, 42 and 44 of the Constitution all fall within that section of the Constitution which is titled”Fundamental Rights.” Articles 41, 42 and 43 emphatically reject the theory that there are no rights without laws, no rights contrary to the law and no rights anterior to the law. They indicate that justice is placed above the law and acknowledge that natural rights, or human rights, are not created by law but that the Constitution confirms their existence and gives them protection. The individual has natural and human rights over which the State has no authority; and the family, as the natural primary and fundamental unit group of society, has rights as such which the State cannot control. However, at the same time it is true, as the Constitution acknowledges and claims, that the State is the guardian of the common good and that the individual, as a member of society, and the family, as a unit of society, have duties and obligations to consider and respect the common good of that society. It is important to recall that under the Constitution the State’s powers of government are exercised in their respective spheres by the legislative, executive and judicial organs established under the Constitution. I agree with the view expressed by O’Byrne J. in Buckley and Others (Sinn Féin) v. The Attorney General 52 that the power of the State to act for the protection of the common good or to decide what are the exigencies of the common good is not one which is peculiarly reserved for the legislative organ of government, in that the decision of the legislative organ is not absolute and is subject to and capable of being reviewed by the Courts. In concrete terms that means that the legislature is not free to encroach unjustifiably upon the fundamental rights of individuals or of the family in the name of the common good, or by act or omission to abandon or to neglect the common good or the protection or enforcement of the rights of individual citizens.

 

Re Information (Termination of Pregnancies) Bill, 1995

[1995] IR 1
Hamilton C.J.

Article 6 of the Constitution provides that:
“1. All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good.
2. These powers of government are exercisable only by or on the authority of the organs of State established by this Constitution.”
Article 40, s. 3 of the Constitution provides that:
1. 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.
2. The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.
3. The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and as far as practicable, by its laws to defend and vindicate that right [Hereinafter referred to as the Eighth Amendment].
This sub-section shall not limit freedom to travel between the State and another State [hereinafter referred to as the Thirteenth Amendment].
This sub-section shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another State [hereinafter referred to as the Fourteenth Amendment].”
Article 41, s. 1 provides that:
“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.
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.”
Article 41, s. 2 provides that:
“1 In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.
2 The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.”
Position prior to the passing of the Fourteenth Amendment
The determination of the issue as to whether or not the Bill or any provision thereof is repugnant to the Constitution or any provisions thereof, of necessity involves an examination of the relevant provisions of the Constitution. Prior to the passing of the Eighth Amendment to the Constitution, the right to life of the unborn was not one of the personal rights acknowledged specifically by the Constitution. However, the right to life of the unborn had been referred to and acknowledged by Walsh J. in the course of his judgment in G. v. An Bord Uchtala [1980] I.R. 32 when he stated at p. 69:
“Not only has the child born out of lawful wedlock the natural right to have its welfare and health guarded no less well than that of a child born in lawful wedlock, but a fortiori it has the right to life itself and the right to be guarded against all threats directed to its existence whether before or after birth. The child’s natural rights spring primarily from the natural right of every individual to life, to be reared and educated, to liberty, to work, to rest and recreation, to the practice of religion, and to follow his or her conscience. The right to life necessarily implies the right to be born, the right to preserve and defend (and to have preserved and defended) that life, and the right to maintain that life at a proper human standard in matters of food, clothing and habitation. It lies not in the power of the parent who has the primary, natural rights and duties in respect of the child to exercise them in such a way as intentionally or by neglect to endanger the health or life of the child or to terminate its existence. The child’s natural right to life and all that flows from that right are independent of any right of the parent as such.”
He then repeated what he had said in McGee v. The Attorney General [1974] I.R. 284 at p. 312:
“. . . any action on the part of either the husband and wife or of the State to limit family sizes by endangering or destroying human life must necessarily not only be an offence against the common good but also against the guaranteed personal rights of the human life in question.”
In Norris v. The Attorney General [1984] I.R. 36, McCarthy J. stated at p. 103 that:
“For myself I am content to say that the provisions of the preamble, which I have quoted earlier in this judgment, would appear to lean heavily against any view other than that the right to life of the unborn is a sacred trust to which all the organs of government must lend their support.”
The right to life of the unborn was clearly recognised by the courts as one of the unenumerated personal rights which the State guaranteed in its laws to respect, and, as far as practicable, by its laws to defend and vindicate.
The Eighth Amendment of the Constitution added to s. 3 of Article 40 the following sub-section:
“The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right”,
thereby acknowledging the right to life of the unborn.
The nature and extent of this right was considered in The Attorney General (S.P.U.C.) v. Open Door Counselling Ltd. [1988] I.R. 593.
The defendants in that case considered it essential to the service which they wished to provide that they should be at liberty to inform such women who wish to have an abortion outside the jurisdiction of the court of the name, address, telephone number and method of communication with a specified clinic which they had examined and were satisfied was one which maintained a high standard, but it was declared by this Court at p. 627 of the report:
“. . . that the activities of the defendants, their servants or agents in assisting pregnant women within the jurisdiction to travel abroad to obtain abortions by referral to a clinic: by the making of their travel arrangements, or by informing them of the identity and location of and method of communication with a specified clinic or clinics are unlawful, having regard to the provisions of Article 40, s. 3, sub-s. 3 of the Constitution.” [Emphasis added].
Having so declared, this Court then ordered
“. . . that the defendants and each of them, their servants or agents be perpetually restrained from assisting pregnant women within the jurisdiction to travel abroad to obtain abortions by referral to a clinic, by the making for them of travel arrangements, or by informing them of the identity and location of and the method of communication with a specified clinic or clinics or otherwise”. [Emphasis added]. ”
In the course of his judgment in that case, Finlay C.J., having considered the admitted facts, stated at p. 624 that:
“I am satisfied beyond doubt that having regard to the admitted facts the defendants were assisting in the ultimate destruction of the life of the unborn by abortion in that they were helping the pregnant woman who had decided upon that option to get in touch with a clinic in Great Britain which would provide the service of abortion. It seems to me to be an inescapable conclusion that if a woman was anxious to obtain an abortion and if she was able by availing of the counselling services of one or other of the defendants to obtain the precise location, address and telephone number of, and method of communication with, a clinic in Great Britain which provided that service, put in plain language, that was knowingly helping her to attain her objective.”
And at p. 625:
“The performing of an abortion on a pregnant woman terminates the unborn life which she is carrying. Within the terms of Article 40, s. 3, sub-s. 3 it is a direct destruction of the constitutionally guaranteed right to life of that unborn child.
It must follow from this that there could not be an implied and unenumerated constitutional right to information about the availability of a service of abortion outside the State which, if availed of, would have the direct consequence of destroying the expressly guaranteed constitutional right to life of the unborn. As part of the submission on this issue it was further suggested that the right to receive and give information which, it was alleged, existed and was material to this case was, though not expressly granted, impliedly referred to or involved in the right of citizens to express freely their convictions and opinions provided by Article 40, s. 6, sub-s. 1 of the Constitution, since, it was claimed, the right to express freely convictions and opinions may, under some circumstances, involve as an ancillary right the right to obtain information. I am satisfied that no right could constitutionally arise to obtain information the purpose of the obtaining of which was to defeat the constitutional right to life of the unborn child. This ground of appeal, therefore, fails.”
The other members of this Court agreed with the judgment of Finlay C.J.
This case clearly decided that the giving of information with regard to the identity and location and method of communication with a specified clinic or clinics for the purpose of having an abortion or termination of a pregnancy was unlawful having regard to the provisions of Article 40, s. 3, sub-s. 3 of the Constitution even though such abortion or termination was to take place outside the State and would be lawfully available in another state.
This decision by this Court was based on its interpretation of the provisions of the Eighth Amendment to the Constitution, interpreted with particular emphasis on, and with reference to, the right to life of the unborn. As stated by Finlay C.J. at p. 621:
“It was not part of the facts of this case nor of the submissions of the defendants that the service which they were providing for pregnant women in relation to abortion outside this jurisdiction was in any way confined to, or especially directed towards, the due regard to the equal right of life of the mother mentioned in the sub-section of the Constitution which I have already quoted, and this portion of that sub-section did not therefore arise for interpretation or decision in this case.”
That this was so is exemplified by the following statement of Finlay C.J. and the manner in which he identified the issue in that case:
“I am satisfied, however, that the essential issues in this case do not depend upon the plaintiff establishing that the defendants were advising or encouraging the procuring of abortions. The essential issue in this case, having regard to the nature of the guarantees contained in Article 40, s. 3, sub-s. 3 of the Constitution, is the issue as to whether the defendants’ admitted activities were assisting pregnant women within the jurisdiction to travel outside that jurisdiction in order to have an abortion. To put the matter in another way, the issue and the question of fact to be determined is: were they thus assisting in the destruction of the life of the unborn.”
The effect of the decision of this Court in that case was further considered by this Court in S.P.U.C. v. Grogan [1989] I.R. 753 and in the course of his judgment Finlay C.J. stated at p. 764 that
“It was decided by this Court in The Attorney General (S.P.U.C.) v. Open Door Counselling Ltd. [1988] I.R. 593 at p. 627 ‘that the activities of the defendants, their servants or agents in assisting pregnant women within the jurisdiction to travel abroad to obtain abortions by referral to a clinic; by the making of their travel arrangements, or by informing them of the identity and location of and method of communication with a specified clinic or clinics are unlawful, having regard to the provisions of Article 40, s. 3, sub-s. 3 of the Constitution’. This Court by the same order restrained the defendants in that action by permanent injunction from carrying on these activities. That decision clearly established that the actual activity which the defendants in this case are claiming and intending to pursue as of right is unlawful, having regard to the provisions of Article 40, s. 3, sub-s. 3 of the Constitution.
I reject as unsound the contention that the activity involved in this case of publishing in the students’ manuals the name, address and telephone number when telephoned from this State, of abortion clinics in the United Kingdom, and distributing such manuals in Ireland, can be distinguished from the activity condemned by this Court in The Attorney General (S.P.U.C.) v. Open Door Counselling Ltd. [1988] I.R. 593 on the grounds that the facts of that case were that the information was conveyed during periods of one to one non-directive counselling. It is clearly the fact that such information is conveyed to pregnant women, and not the method of communication which creates the unconstitutional illegality, and the judgment of this Court in the Open Door Counselling case is not open to any other interpretation.
This application for an interlocutory injunction, therefore, consists of an application to restrain an activity which has been clearly declared by this Court to be unconstitutional and therefore unlawful and which could assist and is intended to assist in the destruction of the right to life of an unborn child, a right acknowledged and protected under the Constitution. That constitutionally guaranteed right must be fully and effectively protected by the courts.”
This decision reiterated the opinion of the Court that the activities of informing pregnant women of the identity and location and method of communication with a specified clinic or clinics for the purpose of obtaining a termination of pregnancy were unlawful having regard to the provisions of Article 40, s. 3, sub-s. 3 of the Constitution (the Eighth Amendment).
The provisions of the Eighth Amendment to the Constitution were further considered by this Court in The Attorney General v. X [1992] 1 I.R. 1 but with particular regard to “the intimate human problem of the right to life of the unborn and its relationship to the right of the mother of an unborn child to her life”.
The events which gave rise to these latter proceedings were, in the words of Costello J., painful and distressing: and there is no need to refer to them in this judgment.
In that case, the Court was obliged to consider the effect of that portion of the Eighth Amendment which did not arise for “interpretation or decision” in The Attorney General (S.P.U.C.) v. Open Door Counselling Ltd. [1988] I.R. 593 and which dealt with the equal right to life of the mother.

One of the issues which arose in The Attorney General v. X [1992] 1 I.R. 1 concerned the mother’s right to life which was acknowledged by the Eighth Amendment.
It was submitted on behalf of the defendants in that case that although the Eighth Amendment required the courts to defend and vindicate the life of the unborn, they were, in doing so, to have regard to the equal right to life of the mother.
In considering the terms of Article 40, s. 3, sub-s. 3 of the Constitution in this context, the Court recognised that, in certain circumstances, there could be a conflict between “the right to life of the unborn” and “the equal right to life of the mother”; that where such conflict of rights could not be avoided, the Constitution required that its provisions be interpreted harmoniously and that the rights thereby guaranteed should be interpreted in concert in accordance with the concepts of prudence, justice and charity.
In the course of his judgment in The Attorney General v. X. [1992] 1 I.R. 1, Finlay C.J. stated at p. 53 of the report:
“I accept the submission made on behalf of the Attorney General, that the doctrine of the harmonious interpretation of the Constitution involves in this case a consideration of constitutional rights and obligations of the mother of the unborn child and the interrelation of those rights and obligations with the rights and obligations of other people and, of course, with the right to life of the unborn child as well.
Such a harmonious interpretation of the Constitution carried out in accordance with concepts of prudence, justice and charity, as they have been explained in the judgment of Walsh J. in McGee. v. The Attorney General [1974] I.R. 284, leads me to the conclusion that in vindicating and defending as far as practicable the right of the unborn to life but at the same time giving due regard to the right of the mother to life, the Court must, amongst the matters to be so regarded, concern itself with the position of the mother within a family group, with persons on whom she is dependent, with, in other instances, persons who are dependent upon her and her interaction with other citizens and members of society in the areas in which her activities occur. Having regard to that conclusion, I am satisfied that the test proposed on behalf of the Attorney General that the life of the unborn could only be terminated if it were established that an inevitable or immediate risk to the life of the mother existed, for the avoidance of which a termination of the pregnancy was necessary, insufficiently vindicates the mother’s right to life.

I, therefore, conclude that the proper test to be applied is that if it is established as a matter of probability that there is a real and substantial risk to the life, as distinct from the health, of the mother, which can only be avoided by the termination of her pregnancy, such termination is permissible, having regard to the true interpretation of Article 40, s. 3, sub-s. 3 of the Constitution.”
The basis for the orders made in The Attorney General (S.P.U.C.) v. Open Door Counselling Ltd. [1988] I.R. 593 was that:
“. . . no right could constitutionally arise to obtain information the purpose of which was to defeat the constitutional right to life of the unborn child which right ‘must be fully and effectively protected by the courts’.”
The Attorney General v. X. [1992] 1 I.R. 1, however, established that having regard to the true interpretation of the Eighth Amendment, termination of the life of the unborn is permissible if it is established as a matter of probability that there is a real and substantial risk to the life, as distinct from the health, of the mother and that that risk can only be avoided by the termination of her pregnancy.
In such a case, does a constitutional right arise or exist to obtain information the purpose of which is to vindicate the right to life of the mother though with the inevitable consequence of, and at the expense of, terminating the right to life of the unborn child?
Once the termination of the pregnancy is permissible, the mother has the right to all relevant information necessary to enable her to have the pregnancy terminated and this includes the information which was the subject matter of the orders in The Attorney General (S.P.U.C.) v. Open Door Counselling Ltd. [1988] I.R. 593 viz. information with regard to the identity and location of and method of communication with a specified clinic or specified clinics.
The effect of the decision of the Supreme Court and the judgments of the majority of the Court in The Attorney General v. X. [1992] 1 I.R. 1 is that where there is a real and substantial risk to the life, as distinct from the health, of the mother, and that risk can only be avoided by the termination of the mother’s pregnancy, then such termination is permissible and not unlawful having regard to the provisions of Article 40, s. 3, sub-s. 3 of the Constitution.
In such circumstances, the mother would have the right to travel outside the jurisdiction to avail of such services to secure a termination of the pregnancy.

It would appear, however, that irrespective of the mother’s constitutional right to travel, the exercise of that right would have to be subordinated to the constitutional right to life of the unborn in circumstances where the pregnancy constituted no threat to the life of the mother.
As stated by Finlay C.J. in the course of his judgment in The Attorney General v. X. [1992] 1 I.R. 1 at p. 57:
“I accept that where there exists an interaction of constitutional rights the first objective of the courts in interpreting the Constitution and resolving any problem thus arising should be to seek to harmonise such interacting rights. There are instances, however, I am satisfied, where such harmonisation may not be possible and in those instances, I am satisfied, as the authorities appear to establish, that there is a necessity to apply a priority of rights.
Notwithstanding the very fundamental nature of the right to travel and its particular importance to the characteristics of a free society, I would be forced to conclude that if there was a stark conflict between the right of a mother of an unborn child to travel and the right to life of the unborn child, the right to life would necessarily have to take precedence over the right to travel.”
He further stated that:
“The submission made that the mother of the unborn child had an absolute right to travel which could not be qualified or restricted, even by the vindication or defence of the right to life of the unborn, is not a valid or sustainable submission in law.”
In the course of his judgment in The Attorney General v. X. [1992] 1 I.R. 1, Egan J. stated at p. 92 that:
“The right to travel can only effectively arise in reference to an intention to procure an unlawful abortion and must surely rank lower than the right to life of the unborn.”
While these observations were made in respect of the right to travel, they can, with equal validity, be applied to the right to information.
If the purpose of the travel or the securing of information is to procure an unlawful abortion, then it would be unlawful having regard to the provisions of Article 40, s. 3, sub-s. 3 of the Constitution, but if the purpose was the procurement of a permitted or lawful abortion, i.e. one that complies with the test laid down in The Attorney General v. X. [1992] 1 I.R. 1, then neither the travel nor the giving or obtaining of information with regard thereto would be unlawful.
That would appear to be the position with regard to the provision of information with regard to the services provided outside the State for the termination of pregnancies prior to the enactment of the Fourteenth Amendment to the Constitution.
This amendment provided that:
“This sub-section shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another State.”
The sub-section referred to in the said amendment was that which provided that:
“The State acknowledges the right to life of the unborn and with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.”
For the reasons set forth in the course of this judgment, it is manifest that, were it not for the provisions of the Fourteenth Amendment to the Constitution, many of the provisions of the Bill relating to the provision of information relating to services available in another State for the obtaining of abortions or termination of pregnancies, including the identity and locations of and method of communication with clinics where these services were available, would be repugnant to the provisions of the Constitution despite the conditions imposed by the Bill on the availability and nature of the information to which the Bill related.
The giving of such information had been held to be unlawful having regard to the provisions of Article 40, s. 3, sub-s. 3 of the Constitution in that, in effect, it provided assistance in the destruction of the life of the unborn.
The provisions of the Fourteenth Amendment however provided that this sub-section should not limit freedom to obtain or make available in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another State.
The purpose of this Amendment was to remove the inhibition placed on the granting of information with regard to these services relating to the termination of pregnancies, by the decisions of the Supreme Court based on the provisions of Article 40, s. 3, sub-s. 3 of the Constitution.
The Fourteenth Amendment gave to the Oireachtas the power to lay down the conditions subject to which such information should be obtained or made available and expressly provided that the sub-section of the Constitution which acknowledged the right to life of the unborn should not limit freedom to obtain or make available in the State, such information.

Arguments were addressed to the Court that the provisions of the Fourteenth Amendment were self-executing and did not require any Act of the Oireachtas to bring it into affect.
It is not necessary for this Court to decide in this reference whether the provisions of this Amendment were self-executing or only came into effect when such conditions were laid down by law.
The conditions laid down by law are contained in the Bill and the issue before this Court is whether the provisions of the Bill or any of them are or is repugnant to the provisions of the Constitution.
Before dealing with the issue as to whether the Bill or any provision or provisions thereof is or are repugnant to the Constitution or any provision thereof the effect of the Fourteenth Amendment to the Constitution must be determined and this necessarily involves the construction by this Court of its provisions.
The subject of this amendment was “information relating to services lawfully available in another State”.
The medical termination of pregnancy, performed in accordance with the law of the state in which it is carried out constitutes a service lawfully available in another state.
It also constitutes a service within the meaning of Article 60 of the European Economic Community Treaty.
The Court of Justice of the European Community held in Society for the Protection of Unborn Children (Ireland) Ltd. v. Grogan (Case C 159/90) [1991] E.C.R. 4685 (at p. 4739) that:
“It must be held that termination of pregnancy, as lawfully practised in several Member States is a medical activity which is normally provided for remuneration and may be carried out as part of a professional activity . . . Consequently the answer to the national courts first question must be that the medical termination of pregnancy, performed in accordance with the law of the State in which it is carried out, constitutes a service within the meaning of Article 60 of the Treaty”.
There can be no doubt but that the provisions of the Fourteenth Amendment relate, inter alia, to and include information relating to medical termination of pregnancy, performed in accordance with the law of the state in which it is carried out.
The next matter for consideration is the nature of the information which may be obtained or made available in the State in relation to such services.
It was argued by counsel assigned by the Court to present arguments against the constitutionality of the Bill based on the right to life of the unborn that the information permitted to be obtained or made available did not include information with regard to the identity, location and method of communication with specified clinics or a clinic where such services were lawfully available but was limited to information of a general nature relating to abortion.
He argued that it had already been held by this Court in The Attorney General (S.P.U.C.) v. Open Door Counselling Ltd. [1988] I.R. 593 that the making available of such information constituted assistance in ‘the destruction of the life of the unborn’ and that the provisions of the Fourteenth Amendment should not be interpreted or construed so as to permit of the giving of such assistance.
He further argued that if the terms of the amendment permitted the giving of such information, which amounted to assistance in the destruction of the life of the unborn, such amendment was inconsistent with the terms of the Eighth Amendment to the Constitution which acknowledged the right to life of the unborn, and that the principle of harmonious interpretation of the provisions of the Constitution did not permit of such interpretation.
It is not possible to construe the provisions of this amendment in the manner so argued for, as the terms of the Fourteenth Amendment specifically provided that the Eighth Amendment should not limit the freedom therein referred to.
They deal with “information relating to services lawfully available in another State”. Such information must include, and was intended to include, information with regard to the nature of the services, where and by whom they are provided and all information in relation thereto including the identity, location and method of communication with specified clinics or a specified clinic where such services are lawfully provided.
As the provision of such information would constitute assistance in the destruction of the life of the unborn, it was further argued by counsel for the unborn that
(i) any provision in the Constitution or in any legislation which would permit or render lawful the giving or obtaining of such information was contrary to the natural law right to life of the unborn which right is acknowledged by the Eighth Amendment to the Constitution;
(ii) that the natural law is the foundation upon which the Constitution was built and ranks superior to the Constitution;
(iii) that no provision of the Constitution or of any Act enacted by the legislature or any judicial interpretation thereof can be contrary to natural law, and if it is, cannot be enforced.
These arguments raise the question of the role of the natural law in the development of constitutional jurisprudence with regard to the identification ‘of the personal rights of the citizen’ referred to in Article 40, s. 3 sub-s. 1 of the Constitution and the guarantee therein set forth on the part of the State to respect, and as far as practicable, by its laws to defend and vindicate such rights.
It is fundamental to this argument that, what is described as ‘the natural law’ is the fundamental law of this State and as such is antecedent and superior to all positive law, including the Constitution and that it is impermissible for the People to exercise the power of amendment of the Constitution by way of variation, addition or repeal, as permitted by Article 46 of the Constitution unless such amendment is compatible with the natural law and existing provisions of the Constitution and, if they purport to do so, such amendment had no effect.
The Court does not accept this argument.
By virtue of the provisions of Article 5 of the Constitution, Ireland is a sovereign, independent, democratic state.
By virtue of the provisions of Article 6, all powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State, and, in final appeal to decide all questions of national policy, according to the requirement of the common good.
The powers of government therein referred to are exercisable only by or on behalf of the organs of State established by the Constitution and are exercisable only in accordance with the provisions thereof.
In the course of his judgment in Byrne v. Ireland [1972] I.R. 241 Budd J. stated at pp. 295 and 299 of the report that:
“It is . . . the People who are paramount . . . The State is not internally sovereign but, in internal affairs, subject to the Constitution, which limits, confines and restricts its powers.”
The Constitution limits, confines and restricts the powers of the State and the organs of State established by the Constitution.
Though Article 15, s. 1, sub-s. 1 of the Constitution provides that ‘the sole and exclusive powers of making laws for the State is hereby vested in the Oireachtas’ these powers are restricted by the provisions of Article 15, s. 4 which provide that:
“1 The Oireachtas shall not enact any law which is in any respect repugnant to the Constitution or any provision thereof.
2 Every law enacted by the Oireachtas which is in any respect repugnant to this Constitution or to any provision thereof, shall, but to the extent only of such repugnancy, be invalid.”
These provisions which prohibit the Oireachtas from enacting any law which is in any respect repugnant to the Constitution or any provision thereof clearly illustrate the supremacy of the Constitution in so far as the law making powers of the Oireachtas is concerned.
In addition Article 26, s. 1 of the Constitution provides that:
“The President may, after consultation with the Council of State, refer any Bill to which this Article applies to the Supreme Court for a decision on the question as to whether such Bill or any specified provisions or provision of such Bill is or are repugnant to this Constitution or any provision thereof.”
Article 26, s. 3, sub-s. 1 provides that:
“In every case in which the Supreme Court decides that any provision of a Bill the subject of a reference to the Supreme Court under this Article is repugnant to this Constitution or to any provision thereof, the President shall decline to sign such Bill.”
Again this provision clearly illustrates the supremacy of the Constitution. The decision which the President, after consultation with the Council of State, was entitled to seek from this Court was whether the Bill or any provision thereof was repugnant to the Constitution or any provision thereof.
Article 28, s. 2 of the Constitution provides that:
“The executive power of the State shall, subject to the provisions of this Constitution be exercised by or on the authority of the Government.”
The judicial organ of the State is also subject to the provisions of the Constitution and the law.
Article 34, s. 1 of the Constitution provides that:
“Justice shall be administered in Courts established by law by judges appointed in the manner provided by this Constitution . . .”
Article 35, s. 2 of the Constitution provides that:
“All judges shall be independent in the exercise of their judicial functions and subject only to this Constitution and the law.”
Before entering his or her duties as a judge every person appointed a judge under the Constitution is required to make and subscribe a declaration to, inter alia, “uphold the Constitution and the law”.

These provisions of the Constitution clearly indicate and establish that all the organs of the State, the Oireachtas, the executive and judiciary are subject to the Constitution and the law.
In addition to administering justice in courts established by law, it is the responsibility of judges of the High Court and the Supreme Court to interpret the Constitution and apply the provisions thereof.
In the course of his judgment in McGee v. The Attorney General [1974] I.R. 284 Walsh J. stated at p. 318 of the report:
“In this country, it falls finally upon the judges to interpret the Constitution and in doing so to determine, where necessary, the rights which are superior or antecedent to positive law and which are imprescriptible or inalienable.”
These rights are referred to in the various articles of the Constitution contained in the sections thereof entitled “Fundamental Rights” and including Articles 40 to 44 inclusive of the Constitution.
These Articles deal with Personal Rights, the Family, Education, Private Property and Religion.
In the course of its interpretation of these Articles and in particular Article 40 of the Constitution, this Court, agreeing with the view expressed by Kenny J. in the course of his judgment in the High Court in Ryan .v. Attorney General [1965] I.R. 294 held that the ‘personal rights’ mentioned in Article 40, s. 3, sub-s. 1 of the Constitution are not exhausted by the enumeration of ‘life, person, good name and property rights’ in Article 40, s. 3, sub-s. 2 of the Constitution, which states:
“The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.”
In delivering the judgment of the Court in Ryan v. The Attorney General Ó Dálaigh C.J. stated, at pp. 344 and 345 of the judgment, that:
“The Court agrees with Mr. Justice Kenny that the ‘personal rights’ mentioned in s. 3, sub-s. 1 are not exhausted by the enumeration of ‘life, person, good name and property rights’ in s. 3, sub-s. 2 as is shown by the use of the words “in particular”: nor by the more detached treatment of specific rights in the subsequent sections of the Article. To attempt to make a list of all the rights which may properly fall within the category of ‘personal rights’ would be difficult and fortunately is unnecessary in this present case.”
In the course of his judgment in McGee v. The Attorney General [1974] I.R. 284, Walsh J. stated at p. 318:

“While the Constitution speaks of certain rights being imprescriptible or inalienable, or being antecedent and superior to all positive law, it does not specify them. Echoing the words of O’Byrne J. in Buckley and Others (Sinn Fein) v. The Attorney General [1950] I.R. 67, I do not feel it necessary to enter upon an inquiry as to their extent or, indeed, as to their nature. It is sufficient for the Court to examine and to search for the rights whicih may be discoverable in the particular case before the Court in which these rights are invoked.
In a pluralist society such as ours, the courts cannot as a matter of constitutional law be asked to choose between the differing views, where they exist, of experts on the interpretation by the different religious denominations of either the nature or extent of these natural rights as they are to be found in the natural law. The same considerations apply also to the question of ascertaining the nature and extent of the duties which flow from natural law; the Constitution speaks of one of them when it refers to the inalienable duty of parents to provide according to their means for the religious, moral, intellectual, physical and social education of their children: see s. 1 of Article 42. In this country it falls finally upon the judges to interpret the Constitution and in doing so to determine, where necessary, the rights which are superior or antecedent to positive law or which are imprescriptible or inalienable. In the performance of this difficult duty there are certain guidelines laid down in the Constitution for the judge. The very structure and content of the Articles dealing with fundamental rights clearly indicate that justice is not subordinate to the law. In particular, the terms of s. 3 of Article 40 expressly subordinate the law to justice. Both Aristotle and the Christian philosophers have regarded justice as the highest human virtue. The virtue of prudence was also esteemed by Aristotle as by the philosophers of the Christian world. But the great additional virtue introduced by Christianity was that of charity not the charity which consists of giving to the deserving, for that is justice, but the charity which is also called mercy. According to the preamble, the people gave themselves the Constitution to promote the common good with due observance of prudence, justice and charity so that the dignity and freedom of the individual might be assured. The judges must, therefore, as best they can from their training and their experience interpret these rights in accordance with their ideas of prudence, justice and charity. It is but natural that from time to time the prevailing ideas of these virtues may be conditioned by the passage of time: no interpretation of the Constitution is intended to be final for all time. It is given in the light of prevailing ideas and concepts.”
In the course of his judgment in The State (Healy) v. Donoghue [1976] I.R. 325, O’Higgins C.J. stated as follows at p. 347 of the report:
“The preamble to the Constitution records that the people ‘seeking to promote the common good, with due observance of prudence, justice and charity, so that the dignity and freedom of the individual may be assured, true social order attained, the unity of our country restored and concord established with other nations, do hereby adopt, enact, and give to ourselves this Constitution’.
In my view, this preamble makes it clear that rights given by the Constitution must be considered in accordance with concepts of prudence, justice and charity, which may gradually change or develop as society changes and develops and which fall to be interpreted from time to time in accordance with prevailing ideas. The preamble envisages a Constitution which can absorb or be adapted to such changes. In other words, the Constitution did not seek to impose for all time the ideas prevalent or accepted with regard to these virtues at the time of its enactment. Walsh J. expressed this view very clearly in McGee v. The Attorney General [1974] I.R. 284.”
The principles set out in these two judgments were accepted by Finlay C.J. in the course of his judgment in The Attorney General v. X [1992] I.R. 1, where he stated at p. 53 as follows:
“I not only accept the principles set out in these two judgments as correct and appropriate principles which I must follow in interpreting the provisions of this sub-section of the Constitution but I find them particularly appropriate and illuminating in the interpretation of a sub-section of the Constitution which deals with the intimate human problem of the right of the unborn to life and its relationship to the right of the mother of an unborn child to her life.”
It is clear from the passages from these judgments set forth herein that the courts in interpreting the Constitution and in ascertaining and declaring what are the personal rights which are guaranteed by the Constitution and in determining, where necessary, the rights which are superior or antecedent to positive law or which are imprescriptible or inalienable, must act in accordance with the aforesaid guidelines as laid down in the Constitution and must interpret them in accordance with their ideas of prudence, justice and charity.
As stated by Walsh J. in the course of his judgment in McGee v. The Attorney General [1974] I.R. 284 at p. 318 of the report:
“In a pluralist society such as ours, the Courts cannot as a matter of constitutional law be asked to choose between the differing views, where they exist, of experts on the interpretation by the differing religious denominations of either the nature and extent of these natural rights as they are to be found in the natural law.”
From a consideration of all the cases which recognised the existence of a personal right which was not specifically enumerated in the Constitution, it is manifest that the Court in each such case had satisfied itself that such personal right was one which could be reasonably implied from and was guaranteed by the provisions of the Constitution, interpreted in accordance with its ideas of prudence, justice and charity.
The courts, as they were and are bound to, recognised the Constitution as the fundamental law of the State to which the organs of the State were subject and at no stage recognised the provisions of the natural law as superior to the Constitution.
The People were entitled to amend the Constitution in accordance with the provisions of Article 46 of the Constitution and the Constitution as so amended by the Fourteenth Amendment is the fundamental and supreme law of the State representing as it does the will of the People.
It was further argued by counsel for the unborn that The Attorney General v. X [1992] 1 I.R. 1 was wrongly decided because
(a) no argument was addressed to the Court on the question of the natural law,
(b) the Attorney General had wrongfully conceded that the provisions of the Eighth Amendment envisaged a lawful abortion taking place in the State,
(c) no medical evidence was adduced with regard to the question of the medical necessity for an abortion.
This submission was part of counsel’s general argument that the natural law was superior to the Constitution.
Having regard to the judgment and decision of this Court, which recognises and emphasises the supremacy of the Constitution, this Court is satisfied that in the consideration of the issues raised in that case and the conflicting constitutional rights involved, the proper principles were applied to the interpretation of the relevant provisions of the Constitution and in the determination of the issues raised therein and rejects this submission.

 

 

 

I. O’T. v. B.

[1998] 2 IR 321

Hamilton C.J.
…
He referred to the provisions of Article 34.3.2 of the Constitution which provides:-
“Save as otherwise provided by this Article, the jurisdiction of the High Court shall extend to the question of the validity of any law having regard to the provisions of this Constitution, and no such question shall be raised (whether by pleading, argument or otherwise) in any Court established under this or any other Article of this Constitution other than the High Court or the Supreme Court.”
and submitted that, apart from this sub-article, there is no limit contained in the Constitution on the jurisdiction and obligation imposed on these courts to uphold constitutional rights.
Counsel on behalf of the applicants misunderstands the role of the Circuit Court: he fails to have regard to the fact that the jurisdiction of the Circuit Court is based on and defined by legislation.
Such jurisdiction must be conferred on it by the legislature.
The matter is completely different where the High Court and Supreme Court is concerned: the jurisdiction of these courts derives directly from the Constitution, which invests in these courts full jurisdiction in and power to determine all matters.
Counsel on behalf of the Attorney General submitted that the only courts which have jurisdiction to ascertain and declare the existence of previously unascertained and undeclared constitutional rights are the High Court and the Supreme Court.
In the course of his judgment in Ryan v. The Attorney General [1965] I.R. 294, Kenny J. stated at pp. 312 and 313 that:-
“In my opinion, the High Court has jurisdiction to consider whether an Act of the Oireachtas respects and, as far as practicable, defends and vindicates the personal rights of the citizen and to declare the legislation unconstitutional if it does not. I think that the personal rights which may be involved to invalidate legislation are not confined to those specified in Article 40 but include all those rights which result from the Christian and democratic nature of the State. It is, however, a jurisdiction to be exercised with caution. None of the personal rights of the citizen are unlimited: their exercise may be regulated by the Oireachtas when the common good requires this. When dealing with controversial social, economic and medical matters on which it is notorious views change from generation to generation, the Oireachtas has to reconcile the exercise of personal rights with the claims of the common good and its decision on the reconciliation should prevail unless it was oppressive to all or some of the citizens or unless there is no reasonable proportion between the benefit which the legislation will confer on the citizens or a substantial body of them and the interference with the personal rights of the citizen. Moreover, the presumption that every Act of the Oireachtas is constitutional until the contrary is clearly established applies with particular force to this type of legislation.
The next matter to be considered (though I have already said something about it) is whether the general guarantee in Article 40, section 3, relates only to those personal rights which are specified in Article 40 or whether it extends to other unspecified personal rights of the citizen. If it extends to personal rights other than those specified in Article 40, the High Court and the Supreme Court have the difficult and responsible duty of ascertaining and declaring what are the personal rights of the citizen which are guaranteed by the Constitution. In modern times this would seem to be a function of the legislative rather than of the judicial power but it was done by the Courts in the formative period of the Common Law and there is no reason why they should not do it now. A number of factors indicate that the guarantee is not confined to the rights specified in Article 40 but extends to other personal rights of the citizen. Firstly, there is sub-s. 2 of section 3 of Article 40. It reads:- ‘The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.’ The words ‘in particular’ show that sub-s. 2 is a detailed statement of something which is already contained in sub-s. 1 which is the general guarantee. But sub-s. 2 refers to rights in connection with life and good name and there are no rights in connection with these two matters specified in Article 40. It follows, I think, that the general guarantee in sub-s. 1 must extend to rights not specified in Article 40. Secondly, there are many personal rights of the citizen which follow from the Christian and democratic nature of the State which are not mentioned in Article 40 at all – the right to free movement within the State and the right to marry are examples of this. This also leads to the conclusion that the general guarantee extends to rights not specified in Article 40.”
It is clear from the foregoing passage that Kenny J. considered that the responsible duty of ascertaining and declaring what are the personal rights of the citizen, other than those specified in Article 40, rests on the High Court and the Supreme Court.
In many cases, too numerous to mention, since the decision in Ryan v. The Attorney General [1965] I.R. 294, the High Court and the Supreme Court have fulfilled the responsible duty referred to by Kenny J. In no case, has either the District Court or the Circuit Court sought to exercise such jurisdiction.
I am satisfied that it was the intention of the framers of the Constitution that all matters pertaining to the interpretation of the provisions of the Constitution should be decided by the courts whose jurisdiction derives from the Constitution itself and not by courts of limited and local jurisdiction, whose jurisdiction is derived from Acts of the Oireachtas.
For this reason, I am satisfied that the submission on behalf of the Attorney General that the only courts which have jurisdiction to ascertain and declare the existence of previously unascertained and undeclared constitutional rights are the High Court and the Supreme Court, is correct.
Such finding does not restrict in any way the obligations imposed on the Circuit Court and the District Court to uphold the Constitution and the laws and to defend and vindicate the rights of individuals appearing in either of those courts.
If the question of the existence or otherwise of an unenumerated constitutional right should arise in, and be relevant to, proceedings before them, such a question would undoubtedly be a question of law upon which the determination of either the High Court or Supreme Court thereon could be sought in accordance with (so far as the Circuit Court is concerned) s. 16 of the Courts of Justice Act, 1947, or (in so far as the District Court is concerned) in accordance with s. 52 of the Courts (Supplemental Provisions) Act, 1961.
Question 5 should be answered”Yes”.
Legal and Constitutional Rights
Having decided that the Circuit Court did not have the aforesaid jurisdiction, the learned Circuit Court Judge then considered the issues of whether a child had a legal right to know the identity of its natural mother and whether such right (if it existed), had been already declared to be one of unenumerated rights ascertained and identified under the Constitution.
As appears from the preliminary judgment of the learned Circuit Court Judge he considered:-
(i) that the provisions of s. 35 of the Status of Children Act, 1987 recognised a legal right on the part of children to know the identity of their natural parent, and
(ii) that the legal right to know the identity of a natural parent is one of the unenumerated rights ascertained and identified under the Constitution.
His finding in relation to these two issues are the subject of questions 6 and 8 in the case stated.
Question 6 asks whether he was correct in holding that the right of a natural child to know the identity of his or her natural parents is one of the unenumerated rights which have been actually ascertained and declared.
Question 8 asks whether he was correct that a natural child has a legal right to know the identity of his or her natural parents whether implicitly derived from s. 35 of the Status of Children Act, 1987, or otherwise.
In reaching his conclusion that the right of a natural child to know the identity of his or her natural parents was one of the unenumerated rights which had been declared to exist by the Superior Courts, the learned Circuit Court Judge relied on the judgments delivered in this Court in G. v. An Bord Uchtala [1980] I.R. 32, in particular on passages from the judgment of O’Higgins C.J. at pp. 55 and 56 and from the judgment of Walsh J. at p. 67, and on a passage from the judgment in G.N. v. K.K. (Unreported, High Court, Budd J., 21st December, 1993).
He also appears to have relied on his conclusion that the right to know one’s parentage is clearly reflected in the enactment of the provisions of s. 35 of the Status of Children Act, 1987.
Section 35 of the Status of Children Act, 1987 is limited in its scope.
Section 35(1) of the said Act, provides that:-
“(a) A person (other than an adopted person) born in the State,
or
(b) any other person (other than an adopted person),
may apply to the court in such manner as may be prescribed for a declaration under this section that a person named in the application is his father or mother, as the case may be, or that both the persons so named are his parents.”
The learned Circuit Court Judge had determined that neither the applicant nor the plaintiff was an “adopted person” within the meaning the said section, and in spite of the submissions made on behalf of the Attorney General, I am satisfied that he was correct in so determining.
The first question raised by him in the case stated was whether he was correct in so holding and I am satisfied at this stage that the question should be answered”Yes”.
That being so, the applicant and the plaintiff were persons to whom the provisions of s. 35 applied.
The right conferred on them, however, was clear, explicit and limited.
It was the right to apply to the court for a declaration that “a person named in the application” is his or her father or mother.
The right is a limited right to be exercised against a named person. The section cannot be interpreted to include a right to a declaration against an unnamed person, or to a right to be informed as to the identity of his or her natural parents.
In view of the limited nature of such right and in view of the fact that the proceedings instituted on behalf of the applicant did not name or identify the person, alleged to be the natural parent, the learned Circuit Court Judge held that the applicant could not possibly succeed in her cause of action, which was made pursuant to the provisions of s. 35, and struck out these proceedings.
As stated by Keane J. at p. 376 of the judgment which he is about to deliver:-
“The Oireachtas has erected a barrier to the obtaining of a declaration under s. 35, where the applicants cannot identify the putative parent or parents in respect of whom the declaration was sought.”
In question 4 of the case stated he asks “Whether he was correct in holding that the application of I.O’T., the applicant, was not properly commenced and should be struck out?”
I am satisfied that having regard to the provisions of s. 35(1)(a) and (b) of the Status of Children Act, 1987, he was correct in so doing and that question 4 should be answered”Yes”.
The question then arises whether the right to know and be informed of the identity of his or her natural parents is an unenumerated right which has been held by the Superior Courts to be guaranteed by the Constitution.
I have already stated that it was the intention of the framers of the Constitution that all matters pertaining to the interpretation of the provisions of the Constitution should be decided by the courts whose jurisdiction derives from the Constitution. The said jurisdiction of the said courts, which extends to the determination of personal rights guaranteed by Article 40.3 of the Constitution is a jurisdiction which in the words of Kenny J. is “to be exercised with caution”.
In view of the caution to be exercised with regard to the duty of ascertaining and declaring what are the personal rights of the citizen, other than those actually specified in the Constitution, it is incumbent on a court declaring such right to do so in clear and explicit terms and it is only a right which has been so declared, that can be regarded as a right guaranteed by the Constitution. It is not permissible for any court to imply from the existence of a right guaranteed by the Constitution, whether from the specific terms thereof or as a result of a declaration by the Superior Courts, the existence of any other right in the absence of a declaration by the superior courts of the existence of that other right.
I am satisfied from a consideration of the judgments in G. v. An Bord Uchtala[1980] I.R. 32 and G.N. v. K.K. (Unreported, High Court, Budd J., 21st December, 1993), relied on by the learned Circuit Court Judge that nothing contained in such judgments justify his finding that the right of a natural child to know the identity of his or her natural parents was one of the unenumerated rights which have been actually ascertained and declared.
Consequently, I am satisfied that the answer to both Questions 6 and 8 should be”No”.
Constitutional Right
In view of the answers to questions 6 and 8, it is now necessary to consider question 7 which is:-
“If the right of a natural child to know the identity of his or her natural parent is not one of the unenumerated rights which have been ascertained and declared, whether such a right is an unenumerated right guaranteed by the Constitution?”
If the right contended for exists, it can only exist by virtue of the provisions of Article 40.3.1 of the Constitution.
This Article 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 citizen.”
In the course of his judgment in G. v. An Bord Uchtala [1980] I.R. 32 O’Higgins C.J. stated at pp. 54 and 55:-

“The Mother’s Rights
In the first place it should be noted that the mother is not the mother of a family, in the sense in which the term is used in the Constitution. Article 41 of the Constitution, which 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, refers exclusively to the family founded and based on the institution of marriage. It is this family which, in Article 41, s. 1, sub-s. 2, the State guarantees to protect in its constitution and authority as the necessary basis of social order and as indispensable to the welfare of the nation and the State.
But the plaintiff is a mother and, as such, she has rights which derive from the fact of motherhood and from nature itself. These rights are among her personal rights as a human being and they are rights which, under Article 40, s. 3, sub-s. 1, the State is bound to respect, defend and vindicate. As a mother, she has the right to protect and care for, and to have the custody of, her infant child. The existence of this right was recognised in the judgment of this Court in The State (Nicolaou) v. An Bord Uchtala. This right is clearly based on the natural relationship which exists between a mother and child. In my view, it arises from the infant’s total dependency and helplessness and from the mother’s natural determination to protect and sustain her child. How far and to what extent it survives as the child grows up is not a matter of concern in the present case. Suffice to say that this plaintiff, as a mother, had a natural right to the custody of her child who was an infant, and that this natural right of hers is recognised and protected by Article 40, s. 3, sub-s. 1, of the Constitution. Section 6, sub-s. 4, and s. 10, sub-s. 2 (a), of the Guardianship of Infants Act, 1964, constitute a compliance by the State with its obligation, in relation to the mother of an illegitimate child, to defend and vindicate in its laws this right to custody. These statutory provisions make the mother guardian of her illegitimate child and give the mother statutory rights to sue for custody.
However, these rights of the mother in relation to her child are neither inalienable nor imprescriptible, as are the rights of the family under Article 41. They can be alienated or transferred in whole or in part and either subject to conditions or absolutely, or they can be lost by the mother if her conduct towards the child amounts to an abandonment or an abdication of her rights and duties.
The Child’s Rights
The child also has natural rights. Normally, these will be safe under the care and protection of its mother. 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. In exceptional cases the State, under the provisions of Article 42, s. 5, of the Constitution, is given the duty, as guardian of the common good, to provide for a child born into a family where the parents fail in their duty towards that child for physical or moral reasons. In the same way, in special circumstances the State may have an equal obligation in relation to a child born outside the family to protect that child, even against its mother, if her natural rights are used in such a way as to endanger the health or life of the child or to deprive him of his rights. In my view this obligation stems from the provisions of Article 40, s. 3, of the Constitution.”
In the course of delivering the judgment of the Supreme Court in The State (Nicolaou) v. An Bord Uchtala [1966] I.R. 567, Walsh J. stated at p. 644:-
“For the same reason the mother of an illegitimate child does not come within the ambit of Articles 41 and 42 of the Constitution. Her natural right to the custody and care of her child, and such other natural personal rights as she may have (and this Court does not in this case find it necessary to pronounce upon the extent of such rights), fall to be protected under Article 40, s. 3 and are not affected by Article 41 or Article 42 of the Constitution.”
I refer to these passages because they establish that rights arising from the relationship between a mother and her child born out of wedlock arise from and are governed by Article 40.3 of the Constitution and are not dependent on any other provision of the Constitution. Such rights, however, are neither inalienable nor imprescriptible; can be alienated or transferred in whole or in part, either subject to conditions or absolutely; or they can be lost by the mother if her conduct towards the child amounts to an abandonment or abdication of her rights and duties.
It is quite clear from the facts as found by the learned Circuit Court Judge that the action of the natural mother of the applicant and the action of the natural mother of the plaintiff, though for the best of motives viz. ensuring proper care for their children, in placing them in the care of the respective foster parents, amounted to a decision to relinquish their rights and duties in regard to the said children.
Such rights were relinquished by the natural parents when, through the offices of the Society they gave their children to the Society for the purpose of being placed with suitable foster parents who would assume the responsibility for rearing and educating them.
As appears from the evidence before the learned Circuit Court Judge this was done by the mothers of both parties on the understanding that their identities would be kept confidential and that their identities would not be disclosed without their express consent.
In the course of my judgment in Kennedy v. Ireland [1987] I.R. 587, I stated at p. 592:-
“Though not specifically guaranteed by the Constitution, the right of privacy is one of the fundamental personal rights of the citizen which flow from the Christian and democratic nature of the State. It is not an unqualified right. Its exercise may be restricted by the constitutional rights of others, by the requirements of the common good and is subject to the requirement of public order and morality.”
The right to know the identity of one’s natural mother is a basic right flowing from the natural and special relationship which exists between a mother and her child, which relationship is clearly acknowledged in the passages quoted from the judgments in The State (Nicolaou) v. An Bord Uchtala [1966] I.R. 567 and in G. v. An Bord Uchtala [1980] I.R. 32.
The existence of such right is not dependent on the obligation to protect the child’s right to bodily integrity or such rights as the child might enjoy in relation to the property of his or her natural mother but stems directly from the aforesaid relationship.
It is not, however, an absolute or unqualified right: its exercise may be restricted by the constitutional rights of others, and by the requirement of the common good.
Its exercise is restricted in the case of children who have been lawfully adopted in accordance with the provisions of the Adoption Act, 1952 as the effect of an adoption order is that all parental rights and duties of the natural parents are ended, while the child becomes a member of the family of the adoptive parents as if he or she had been their natural child.
The applicant and the plaintiff are not in the same position as children who have been adopted in accordance with the provisions of the Adoption Act, 1952. They remain the children of their natural mother and are entitled to the benefit of such rights as arise from such relationship.

While they enjoy the constitutional right to know the identity of their respective natural mothers, the exercise of such right may be restricted by the constitutional right to privacy and confidentiality of the natural mothers in respect of their dealings with the Society. Whether they are so restricted depends on the circumstances of the case and whether they, or either of them wish to exercise this right to privacy.
The answer to question 7 is”Yes”, but such right is neither absolute nor unqualified.
While there is a conflict of constitutional rights, the obligation on the courts is to attempt to harmonise such rights having regard to the provisions of the Constitution and in the event of failure to so harmonise, to determine which right is the superior having regard to all the circumstances of the case. So far as the applicant and the plaintiff are concerned, the court must decide whether their constitutional rights outweigh the constitutional and legal rights of their natural mothers.
These issues cannot be determined so far as they relate to the applicant because the proceedings instituted on her behalf were struck out by the learned Circuit Court Judge and I have held that he was correct in so doing: (answer to question 4).
They can, however, be determined in the proceedings instituted on behalf of M.H.
In these proceedings, M.H. claimed, inter alia:
(a) An order directing the defendants to disclose to the plaintiff, in such manner as to this Honourable Court may seem fit and proper, the name and address of the plaintiff’s mother;
(b) Further or in the alternative, an order directing the defendants to make discovery upon oath of all documents which are or have been within their possession or procurement in relation to the placement of the plaintiff by way of informal adoption with Mr. P.J.R. and Mrs. M.R.
The learned Circuit Court Judge held that he had jurisdiction to hear these proceedings and for the reasons set forth by him in the course of his preliminary judgment he dismissed the claim for discovery.
The learned Circuit Court Judge posed two questions in relation to this aspect of the case:-
“(a) Whether he was correct in holding that the Circuit Court had jurisdiction to hear the claim brought by the plaintiff?
and
(b) Whether he was correct in dismissing that part of the claim in the case of the plaintiff which sought sole discovery?”
laws enacted by the Oireachtas established under the Constitution and hence does not extend to pre-1937 legislation, the Circuit Court has no jurisdiction to entertain an action claiming a declaration that such legislation is unconstitutional: it would, however, it is suggested, have jurisdiction to determine, e.g. at the instance of a defendant whether a pre-1937 statute is consistent with the Constitution (See Kelly on the Irish Constitution, 3rd ed., p. 425). Similarly, in the present case, the learned Circuit Court Judge has not been invited to grant a declaration as to the existence of the alleged constitutional right: he has, however, been asked to grant certain reliefs which, it is claimed, are necessary in order to uphold the right in question.
The “unenumerated rights” doctrine did not emerge until nearly 30 years after the enactment of the Constitution. It may not have been within the contemplation of its framers that such a doctrine would emerge. However, whether or not such a development was envisaged, they cannot have contemplated that courts of local and limited jurisdiction should have such a role. So to hold would be to construe the relevant provisions of the Constitution in an unjustifiably literal and pedantic fashion and one which would be wholly at variance with the spirit, if not the precise wording, underlying those provisions which were clearly intended to assign to the High Court and this Court an exclusive role in the interpretation of the Constitution and the development of its associated jurisprudence.
I am accordingly, of opinion that the learned Circuit Court Judge was correct in point of law in concluding that he had no jurisdiction to determine whether the right in question existed, in the absence of a decision by the High Court or the Supreme Court to that effect.
The constitutional right
The next question that arises is as to the existence of the constitutional right in question. As already noted, the learned Circuit Court Judge was of the view that the right of a natural child to know the identity of his or her natural parents is one of the unenumerated rights which have been actually ascertained and declared. However, he also posed the question as to whether, if it had not been so ascertained or declared, it was nonetheless an unenumerated right guaranteed by the Constitution.
On behalf of the applicants, counsel submitted that these questions raised essentially the same issue. He further submitted that it was a necessary corollary of the recognition by the courts that every child had a natural right to realise his or her full personality and dignity as a human being that the child should be entitled to an answer to what he categorised as”the most fundamental question”, i.e. who am I? He cited in support the observations of O’Higgins C.J. in G. v. An Bord Uchtala [1980] I.R. 32, at page 55. He further submitted that this was also a corollary of the right of the child to be supported and brought up by its parent or parents, recognised by O’Higgins, C.J. and Walsh J. in their judgments in the same case.
Counsel for the applicants further submitted that the property rights to which the applicants were entitled in the estates of their respective mothers and which fell to be protected and vindicated under Article 40.3 of the Constitution could not be so protected and vindicated unless the applicants were entitled to know the identity of their mother. He said that it was clear that, since the applicants had never ceased to be in law the children of their natural mothers, they would have such rights in the estate of their mother, should the mother die intestate, having regard to the provisions of s. 67 of the Succession Act 1965 as amended by s .4 (a) of the Act of 1987. He submitted that it was clear from the judgment of Walsh J., speaking for this Court in O’B. v. S. [1984] I.R. 316, that such a right, if it existed (which it did not at the date of that decision), attracted the protection of Article 40.3.
Counsel for the applicants further submitted that the provisions of s. 35 of the Act of 1987 constituted a statutory mechanism whereby a person can seek a binding declaration as to whether a named person is their parent. The applicants had a constitutional right of access to the Circuit Court in order to avail of this procedure, which necessarily involved their also being entitled to ascertain the identity of the person in respect of whom such a declaration could be made. He cited in support the observations of Murphy J. in the High Court decision of Bula Ltd. v. Tara Mines Ltd. (No. 1) [1987] I.R. 85 at page 93.
Counsel for the applicants further relied on the requirement under Article 40.1 that the applicants be held equal before the law with all other citizens. That requirement would, he said, be violated if they were to be denied any opportunity of ascertaining the identity of their mother. He referred in this context to the fact that under s. 22 of the Adoption Act, 1952, there exists a mechanism whereby persons who have been legally adopted may be afforded an opportunity of ascertaining the identity of their natural mother.
Counsel for the applicants finally relied on the personal right to bodily integrity recognised by the courts in Ryan v. The Attorney General [1965] I.R. 294 and The State (C.) v. Frawley [1976] I.R. 365 at page 372.
He submitted that a failure to allow the applicants to ascertain the identity of their respective mothers would expose the health of each of them to the risk of physical and psychological damage. The physical risk arose from the possibility of marriage to a close relation, the psychological risk from the emotional consequences for them of being unable to ascertain the identity of their natural mothers. He cited in support the observations of Budd J. in G.N. v. K.K. (Unreported, High Court, Budd J., 21st December, 1993).
On behalf of the Attorney General, counsel submitted that the authorities cited by counsel for the applicants lent no support to the proposition that there was an unenumerated constitutional right to ascertain the identity of one’s parents. He said that the decisions went no further than establishing that the child of parents who were not married, in common with the children of married parents and legally adopted children, had a constitutional right to be brought up and educated. In the present case, since the applicants had been brought up and educated by the parents who had informally adopted them, it could not be said that they had been deprived of their constitutional rights. Submissions to the same effect were made by counsel on behalf of the notice parties.
In considering this issue, it should be noted at the outset that this is clearly one of the instances in which the distinction which has been on occasions adverted to by judges and commentators between “rights” on the one hand and “freedoms” and “powers” on the other is of peculiar relevance. The concept of “rights” in many contexts in the Constitution necessarily involves the existence of a co-relative”duty” on another person or body. (See the observations of Costello J., as he then was, in Murray v. Ireland [1985] I.R. 532). Thus, in the present case, the “right” of the applicants to be informed of the identity of their natural mothers would be a meaningless concept, unless there existed a corresponding duty on the part of either the notice parties or the natural mothers themselves or both of them to give the applicants that information. The arguments in this case demonstrate that, in considering whether such a duty exists, different legal considerations arise in the case of the natural mothers from those which arise in the case of the notice parties.
It should also be pointed out that difficulties arise a t the outset, in this as in any other case where parties seek to rely on an unenumerated personal right alleged to have been recognised by the Constitution, as to the principles by which the court should determine whether such a right exists. That the courts have power to recognise the existence of such unenumerated rights has been regarded as clear since the decision in Ryan v. The Attorney General [1965] I.R. 294. In his judgment at first instance in that case, Kenny J. said at p. 31 3:-
“A number of factors indicate that the guarantee is not confined to the rights specified in Article 40 but extends to other personal rights of the citizen. Firstly, there is sub-s. 2 of s. 3 of Article 40 . . . The words ‘in particular’ show that sub-s. 2 is a detailed statement of something which is already contained in sub-s. 1 which is the general guarantee. But sub-s. 2 refers to rights in connection with life and good name and there are no rights in connection with these two matters specified in Article 40. It follows, I think, that the general guarantee in sub-s. 1 must extend to rights not specified in Article 40. Secondly, there are many personal rights of the citizen which flow from the Christian and democratic nature of the State which are not mentioned in Article 40 – the right to free movement within the State and the right to marry are examples of this. This also leads to the conclusion that the general guarantee extends to rights not specified in Article 40.”
Two comments should be made on this frequently cited passage. First, Kenny J. advances two reasons for his finding that the unenumerated rights exist: (a) the actual wording of Article 40 and, (b) his view that in any event there are certain rights which flow “from the Christian and democratic nature of the State” which are not mentioned in the Article.
Secondly, while his view as to the existence of the unenumerated rights was confirmed on appeal by this Court, it should be noted that Ó Dálaigh C.J. contented himself with saying at p. 344 that:-
“The court agrees with Mr. Justice Kenny that the personal rights mentioned in [Article 40.3.1] are not exhausted by the enumeration of ‘life, person, good name and property rights’ in [Article 40.3.2] as is shown by the use of the words ‘in particular’; nor by the more detached treatment of specific rights in the subsequent sections of the Article. To attempt to make a list of all the rights which may properly fall within the category of ‘personal rights’ would be difficult and, fortunately, is unnecessary in this present case.”
There was no discussion in that judgment of the question as to whether, given that the unenumerated rights clearly existed in the contemplation of the framers of the Constitution, it was intended by them that the duty of declaring what those rights were should be the function of the judiciary rather than the Oireachtas, although that fundamental issue is referred to in the judgment of Kenny J. Nor was there any explicit endorsement of Kenny J.’s proposed criterion that they might flow from the Christian and democratic nature of the State. This may have been because the right under discussion was conceded, on behalf of the Attorney General, to be such an unenumerated right, although not in the precise form of a right to bodily integrity.
It would unduly prolong this judgment to consider in detail the problems that have subsequently been encountered in developing a coherent, principled jurisprudence in this area. It is sufficient to say that, save where such an unenumerated right has been unequivocally established by precedent, as, for example, in the case of the right to travel and the right of privacy, some degree of judicial restraint is called for in identifying new rights of this nature. (See, in this context, the remarks of McCarthy J. writing extra-judicially in “Observations on the Protection of Fundamental Rights in the Irish Constitution”, Constitutional Adjudication in European Community and National Law (Dublin, 1992) at pp. 179 to 182) and of G.W. Hogan in “Unenumerated Personal Rights: Ryan’s Case Re-evaluated” (1990-1992) Irish Jurist N.S. 95.
In the present case, it is argued that the right to know who one’s natural parents are is so essential to realising one’s personality and dignity as a human being that it should be recognised as such an unenumerated right. However, it is also possible to take another view.
In G. v. An Bord Uchtala [1980] I.R. 32, O’Higgins C.J. said at p. 55:-
“The child also has natural rights. Normally, these will be safe under the care and protection of its mother. Having being 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.”
In the present case, the applicants are two mature adults who have been brought up and educated by the persons who adopted them informally. They were deprived of the opportunity to be nurtured by their natural mothers, but, in cases such as the present, no court can fill that void which they now obviously feel in their lives. Nor, as they obviously and readily accept, can their natural mothers, even if identified, be compelled by any legal process to give them the familial love and companionship which children born in happier circumstances normally enjoy with their parents throughout their lives.
Undoubtedly, if the right in question exists, its enforcement would at least afford the applicants the opportunity of making contact and establishing such a relationship, if the natural mothers felt they could cope with any psychological difficulties involved. But to say that a person in the position of the applicants who has been denied that information, and as a consequence the opportunity of getting to know his or her natural parents, has in some sense failed to realise “his or her full personality and dignity as a human being” could be regarded as a grave overstatement. There have been, no doubt, millions of cases in this and other centuries where, because of individual personal tragedies or widespread social upheavals, people have grown to adulthood without knowing who their real parents were. To say of such people that they have failed in any sense to realise their full personality and dignity as human beings is, it could be argued, to deny the unique value which should be attributed to every human being, irrespective of his or her parentage or ancestry, a value which is surely at the heart of the legal philosophy which underlies the Constitution.
In the judgment of the Chief Justice, he treats the right as deriving from the particular relationship between mother and child. As to the unique nature of that bond between the natural mother and her child, there can be no doubt. As O’Higgins C.J. pointed out, the helplessness of the child and its complete dependence on its mother leads to an inevitable conclusion that, not merely has the mother a natural right to the custody of the child: the child has a natural right to be protected and nurtured by its biological mother. But these rights would also be void of legal content if there were not correlative duties: the duty of the State through its organs to protect and vindicate the right of the mother to the custody and care of her child and the duty of the mother herself to protect and care for the child. (That latter duty, it must be emphasised again, can be constitutionally assumed by others in particular circumstances.)
Again, as pointed out by O’Higgins C.J., the rights of the child do not end there: he or she has the right to be cared for, brought up and educated by both his or her parents until he or she is an adult. In the case of both the applicants in the present case, the duties of the natural mothers were assumed, when they were still babies, by the adoptive parents. It seems to me that the right of the applicants, or anyone in their position, to know the identities of their natural mothers, to the extent that it exists, is a right entirely separate from, and should not be confused with, the right they enjoyed to be nurtured and cared for by their natural mothers until the time of their informal adoption and the similar right which they enjoyed to be brought up and educated by the adoptive parents who had assumed those particular responsibilities.
In the overwhelming majority of families, where children happily know the identity of their parents, the question which is under consideration in this case does not arise. Nor will it arise where, through an intermediary such as An Bord Uchtala, or an adoption society, communication is established between a natural mother and her child and a reunion is voluntarily effected between the two. It can only arise, where, as here, the possibility exists that the mother may not be willing to effect a reunion with the child.
It is in that context, and that context alone, that, in my view, the issue can be addressed as to whether the child enjoys a unenumerated right to know the identity of the mother. There may be cases, of which the right to travel is an obvious example, where the right derives so conspicuously from the democratic nature of the State that its recognition affords little difficulty. Similarly, freedom of expression is so universally acknowledged and central a value in all democratic societies that, if the view is taken that it does not derive complete and express recognition from Article 40.6.1(i), it would seem to demand acceptance as an unenumerated personal right of the citizen.
Such considerations are, however, of little assistance in resolving the issue in this case. Once it is accepted, as I think emerges inevitably from the remarks of Walsh J. in McGee v. Attorney General [1974] I.R. 284 and the judgment of this Court in Information (Termination of Pregnancies) Bill, 1995 [1995] 1 I.R. 1, that there exists no identifiable and superiorcorpus of law to which judges may have recourse in a case such as the present, it follows that the existence of the right will depend on the opinions of individual judges as to whether, in the circumstances with which they are confronted, it would be just or unjust to deny the existence of the right. The relevance of that approach in the present case is, of course, that it immediately brings into the equation the right to privacy of the natural mothers.
Purists may object to that approach, because, it could be said, the right either exists as a right superior to positive law or it does not. That may be a philosophically irreproachable position. But it leaves judges still without any guidance as to how they are to determine whether the right exists. Ultimately, there is no escape from the conclusion that while the right, as a matter of philosophical theory, may exist, the legal question, which it is the function of the court to resolve, is whether, assuming its existence, it is outweighed by the right of privacy of the mothers.
As to the right of privacy, which is of central importance in the present case, one can readily understand the process by which that came to be judicially accepted as an unenumerated right in the interpretation of a Constitution which, in its preamble, declared one of its aspirations to be:-
“. . . that the dignity and freedom of the individual may be assured.”

It was in that precise context that Henchy J. in Norris v. The Attorney General [1984] I.R. 36, at p. 71, defined the right as:-
“. . . a complex of rights which vary in nature, purpose and range, (each necessarily being a facet of the citizen’s core of individuality within the constitutional order).”
Having considered some of the instances in which the courts had recognised such a right to exist, he went on at p. 72:-
“There are many other aspects of the right of privacy, some yet to be given judicial recognition. It is unnecessary for the purpose of this case to explore them. It is sufficient to say that they would all appear to fall within a secluded area of activity or non-activity which may be claimed as necessary for the expression of an individual personality, for purposes not always necessarily moral or commendable, but meriting recognition in circumstances which do not engender considerations such as State security, public order or morality or other essential components of the common good.”
I find it difficult to imagine an aspect of human experience which falls more clearly into the constitutional area of privacy, as thus defined, than the circumstances of the natural mothers in the present case. It is unnecessary to dwell on the social climate which prevailed when young women in the position of the natural mothers took such tragic and seemingly irreversible decisions. Some may have clung to the hope that at an unimaginably distant time they might be reunited with their children. All must have thought that, if they chose, they could carry their secret with them to the grave.
No doubt some will find the development of the law of privacy itself by the courts disquieting and would prefer if it was undertaken by the Oireachtas, as being the body with a democratic mandate to resolve the difficult conflicts of aspects of the public interest which inevitably arise. But unlike the constitutional right of the applicants claimed to exist in the present case, it has at least a secure anchorage in our law, having regard not merely to the decision, in Norris , but also to McGee v. Attorney General [1974] I.R. 284 and Kennedy v. Ireland [1987] I.R. 587.
It is a necessary consequence of the argument on behalf of the applicants in the present case, however, that not merely does the claimed right exist: it must also enjoy, to at least a limited extent, a superior position in the hierarchy of constitutional rights, if one were to adopt the approach of this Court in The People v. Shaw [1982] I.R. 1, to the reconciliation of the exercise of such rights. The learned Circuit Court Judge is manifestly correct in the view that he has taken that, if this Court were to find that the right exists, the natural mothers would have to be heard before it could be said to prevail over their rights of privacy. Such a hearing could undoubtedly avoid the disclosure of the identities of the mothers to their natural children, until such time as the court had resolved the issue. The Circuit Court Judge, however, conscious of the further problems which arose, suggested an additional safeguard in these terms:-
“The evidence indicated that there are statutory provisions in England for this sort of situation. They include the use of a social worker to make contact with the natural mother and to counsel her about the situation in which she finds herself.
I would not be at all happy, nor do I think it would be a safe course for the court to adopt, to compel a natural mother of her age to endure what, may be for her a significantly traumatic and anxiety provoking participation in these proceedings without a full report from an appropriate professional skilled person in this area.
The natural mother has indicated that she does not want to be contacted by the Society again and subject to what counsel may say on the matter, it seems to me that a person such as a social worker or other appropriate professional person is the person to make the contact in the first place.
The social worker or other person would then prepare a report for the court and the parties to the case and if there are not compelling reasons why she should not be joined, I will consider making her a party to this case.”
The concerns of the learned Circuit Court Judge are understandable. But even if the course which he proposes is adopted, the natural mother will find that, no matter how skilfully and sensitively it is handled, she is involved to at least that degree in the harsh and unfamiliar world of adversarial litigation. The despatch by the court of social workers, counsellors and other professionals to interview private citizens who have no wish to be involved in such processes must, of its nature, constitute an intrusion on the privacy of the natural mother.
It follows that the claim on behalf of the applicants in the present case not merely necessitates a finding by this Court that a constitutional right of the nature asserted exists, however uncertain its jurisprudential origins: it must also of its nature be superior to that extent to the established right of privacy, recognised in the decisions of the High Court and this Court which no one in the present case has sought to challenge. I am satisfied that that claim is not well founded.
Clearly, most people in the position of the applicants, perhaps the overwhelming majority, would have a deep-seated wish to know the identity of their mother. But what is at issue is whether they have a discrete, unenumerated personal right to such knowledge which is one of the personal rights acknowledged by the Constitution and which imposes a corresponding duty on the mothers to reveal their identity to them. I am satisfied that they have not. It remains to be considered whether they have such a right deriving from their expressly guaranteed rights under the Constitution or from an unenumerated right identified by the courts.
The first such right relied on by the applicants in the present case is the right of private property. It has been clear since the decision of this Court in Blake v. The Attorney General [1982] I.R. 117 that, in the case of individual citizens such as the applicants, the protection which such citizens enjoy against unjust attacks on their property rights is derived from Article 40, under the heading “Personal Rights”, and not from Article 43, which prohibits the abolition of the right of private ownership as an institution. However, included in the property rights of the applicants protected under Article 40.3 is the “right to . . . inherit property”referred to in general terms in Article 43.1.2. The State is, accordingly, obliged to protect from unjust attack and vindicate the right of the applicants to inherit property where, under the laws for the time being in force, they enjoy such a right in respect of specific property. (See the observations of Walsh J. in O.B. v. S . [1984] I.R. 316). It is not in dispute in the present case that, were the natural mothers of the applicants to die intestate, the applicants would be entitled under the provisions of s. 67 of the Succession Act, 1965, as amended by s. 4(a) of the Act of 1987 to a share in their estates.
It is also clear, however, that such a right will be unenforceable if the applicants are not entitled to ascertain the identity of their mothers. Assuming that they have no such right by statute or common law, a matter which is dealt with in the next part of this judgment, it would follow that this right, although guaranteed by the State in Article 40.3, could not in fact be upheld by the courts.
That undoubtedly somewhat anomalous result derives from the fact that, because the adoptions in this case were informal, certain constitutional rights, however theoretical and vestigial, remain vested in the children which are denied legally adopted children. Constitutional issues as to whether this represents an invidious discrimination between the categories of adopted children could arise in this context which were not addressed in the course of argument. It is, however, sufficient to say that, given the obvious fact that this right has clearly not prompted the initiation by the applicants of the present proceedings, it cannot, in any event, prevail over the right of privacy.
As to the submission that withholding the information as to the natural mother’s identity was also a denial of the applicants’ constitutional rights of access to the courts, under s. 35 of the Act of 1987, a declaration may only be granted by the Circuit Court in respect of a named putative parent or parents. It is to be presumed, in the absence of any challenge to the provision, that it is constitutionally valid. Unless the applicants are in a position to demonstrate a constitutional right derived aliunde to the information in question and there also exists, as is claimed on behalf of the applicants, a procedural machinery for enforcing that right, the Oireachtas has erected a barrier to the obtaining of a declaration under s.35 where the applicants cannot identify the putative parent or parents in respect of whom the declaration was sought. The applicants cannot, accordingly, rely on their constitutional right of access to the courts as necessitating the invocation of the unenumerated right, since in the absence of any right derivedaliunde that right of access has been constitutionally barred. The same considerations apply to the argument founded on the proposition that to deny them the unenumerated right is to deprive them of their constitutional right as citizens to be held equal before the law with other citizens. That could no doubt be said to be the effect of s. 35, but again, in the absence of a challenge to the constitutionality of the section, it cannot be regarded, of itself, as a ground for successfully invoking the unenumerated right in question.
As to the submission that the withholding from the applicants of the information in question constituted a risk to their bodily integrity (in everyday English, good health) and hence that the granting of the information was necessary in order to uphold the constitutional right in question, it is no doubt correct to say that, in a general sense, a risk to the physical health of a person can arise if he is not informed in every case of the identity of his natural mother. It is possible that such a person could marry or cohabit with a person closely related to them by blood with, it might be, harmful genetic consequences. Such consequences would, of course, affect, at most, the issue of such marriages and possibly not even them, depending on the present state of scientific knowledge on the topic. However, if it was to be laid down that the risk of this happening was of such an order that it necessitated recognition by the courts of an unenumerated right to know the identity of one’s natural parents, it would render the introduction of a system of legal adoption impossible. While a more flexible attitude is emerging today on the part of both natural mothers and adoptive parents, it remains the case that, in this as in other countries, anonymity is regarded as an essential feature of the process. Given the impossibility in practical terms of ensuring that children who, for whatever reason, have been brought up by persons other than their natural parents, are informed in every case of the identity of their natural parents, it follows that some risk, in this as in so many other areas of life, of genetic damage to the issue may exist. The same may be said of the emotional damage on which the applicants also rely. In the light of the necessity for judicial restraint in the categorisation of new unenumerated rights, I am satisfied that it has not been established that there is a necessity to declare such a right on this ground alone.

T.D. v. Minister for Education

[2001] 4 IR 259
Keane C.J.
expedition: within that framework, it remained for the State to determine how best to satisfy those constitutional rights.
As to the submission that the court had no jurisdiction to grant a mandatory injunction of this nature, he submitted that, while this might be so in an ordinary lis inter partes, different considerations arose where the court was being asked to ensure the proper protection of constitutional rights. Nor was it a case in which, as the respondents claimed, the court had failed properly to balance the interests of the parties in a proportionate manner: the damage suffered by the applicants in the present case as a result of the absence of the facilities was real and substantial and, given that the respondents themselves had framed the programme which the order of the court required them to implement within the specified time, it could not be said that it imposed a disproportionate burden on them. As to the objection that compliance with the injunction would require constant supervision by the court, he submitted that this alleged difficulty was overstated: the obligations imposed on the applicants by the order were clear and specific and in accordance with their own programme and there should be no need for any supervision of their compliance. The fact that they would have to come to court if they proposed to depart from the time scale prescribed by the court meant that they were in no different position from any other party who was the subject of an injunction and who sought to have its terms varied.
Counsel for the applicants submitted that the respondents were, in effect, saying that the courts were precluded from granting mandatory injunctions so as to ensure that the other organs of government carried out their constitutional duties. If that were the law, it would mean that the courts would be powerless to ensure the upholding of the Constitution. In fact, he urged, the courts had on more than one occasion recognised that circumstances could arise in which the courts would grant mandatory relief as against the other organs of government, citing Byrne v. Ireland [1972] I.R. 241. In the present case, the only way in which the applicants’ rights could be upheld was by the granting of such a mandatory injunction.
The constitutional rights of the applicants
The right claimed on behalf of each of the applicants can be defined as:-
“a right to be placed and maintained in secure residential accommodation so as to ensure, so far as practicable, his or her appropriate religious and moral, intellectual, physical and social education”
No such right is expressly recognised by the Constitution and, to the extent that it exists, it must be as one of the unenumerated personal rights guaranteed under Article 40.3.1 of the Constitution in accordance with the construction of that Article adopted by the High Court and this court in Ryan v. The Attorney General [1965] I.R. 294.
Article 42.1 of the Constitution provides that:-
“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.”
Article 42.5 provides that:-
“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.”
In G. v. An Bord Uchtala [1980] I.R. 32 at pp. 55 to 56, O’Higgins C.J., referred to the rights of children as follows:-
“The child also has natural rights. Normally, these will be safe under the care and protection of its mother. 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. In exceptional cases the State, under the provisions of Article 42, s. 5, of the Constitution, is given the duty, as guardian of the common good, to provide for a child born into a family where the parents fail in their duty towards that child for physical or moral reasons.”
It was also made clear by Finlay C.J., giving the judgment of this court in In re The Adoption (No. 2) Bill, 1987 [1989] I.R. 656, that Article 42.5 was not to be confined, in its reference to the duty of parents towards their children, to the duty of providing education for them. He said at p. 663:-
“In the exceptional cases envisaged by that section where a failure in duty has occurred, the State by appropriate means shall endeavour to supply the place of the parents. This must necessarily involve supplying not only the parental duty to educate but also the parental duty to cater for the other personal rights of the child.”
In F.N. v. Minister for Education [1995] 1 I.R. 409, Geoghegan J. expressed the view that the right claimed on behalf of the applicant in that case – broadly similar to the right asserted on behalf of the applicants in the present case – was one of the unenumerated rights of children which parents were obliged to protect and uphold and that their failure to do so rendered that case an exceptional case within the meaning of Article 42.5 in which the State was obliged to uphold and protect the right.
In the judgments which they deliver this morning, Hardiman J. reserves the question as to whether this case was correctly decided and Murphy J. expresses the view that it was wrong in law and should not now be followed. The correctness of the decision, however, was not challenged on behalf of the respondents in the present case or indeed in any of the previous cases to which they were parties.
Geoghegan J. arrived at his conclusion in F.N. v. Minister for Education [1995] 1 I.R. 409, at least in part, in the light of the passage I have already cited from the judgment of O’Higgins C.J. in G. v. An Bord Uchtala [1980] I.R. 32. In his judgment in this case, Murphy J. points out that the proposition there laid down by the learned Chief Justice was not expressly assented to by a majority of the court. It is also clear that the passage in question is an application to the particular case of children of the doctrine of unenumerated rights first laid down by the High Court and endorsed by this court in Ryan v. The Attorney General [1965] I.R. 294.
The implications of that doctrine have not at this stage been fully explored by the courts. Two questions, in particular, merit further consideration. The first is as to the criteria by which the unenumerated rights are to be identified. In the High Court in that case, Kenny J. said that there were many personal rights of the citizen which flow from “the Christian and democratic nature of the State” which are not mentioned in Article 40. There was no explicit endorsement of that view in this court, perhaps because the right under discussion in that case was conceded on behalf of the Attorney General to be such an unenumerated right. Whether the formulation adopted by Kenny J. is an altogether satisfactory guide to the identification of such rights is at least debatable. Secondly, there was no discussion in the judgment of this court as to whether the duty of declaring the unenumerated rights, assuming them to exist, should be the function of the courts rather than the Oireachtas.
In my judgment in I. O’T. v. B [1998] 2 I.R. 321, I said at p. 370 that:-
“save where such an unenumerated right has been unequivocally established by precedent, as, for example, in the case of the right to travel and the right of privacy, some degree of judicial restraint is called for in identifying new rights of this nature. (See, in this context, the remarks of McCarthy J. writing extra-judicially in”Observations on the Protection of Fundamental Rights in the Irish Constitution”, Constitutional Adjudication in European Community and National Law, (Dublin, 1992) at pp. 179 to 182) and of G.W. Hogan in “Unenumerated Personal Rights: Ryan’s Case Re-evaluated”(1990 to 1992) Irish Jurist N.S. 95).”
For the reasons there set out and in the light of the considerations so forcefully urged by Murphy J. in his judgment in this case, I would have the gravest doubts as to whether the courts at any stage should assume the function of declaring what are today frequently described as “socio-economic rights” to be unenumerated rights guaranteed by Article 40. In my view, however, the resolution of that question must await a case in which it is fully argued.
For the purposes of this case, it is sufficient to say that, assuming that the passage from the judgment of O’Higgins C.J. in G. v. An Bord Uchtala [1980] I.R. 32 correctly states the law, Geoghegan J. was clearly correct in holding that the right claimed on behalf of the applicant in that case was one of the unenumerated rights of children which parents were obliged to protect and uphold.
It should, however, be pointed out that the right thus identified, and which I have endeavoured to formulate with as much precision as possible, is one which arises from the special position of children. They are dependent in their childhood for the nurture, care and education, which is essential for their physical, intellectual and emotional growth, on their parents. In the great majority of cases, those needs are met by the parents, making use, obviously, in modern conditions of the great range of educational facilities now provided by the State, directly or indirectly. It is clear that the applicants in these and similar cases, because of behavioural problems deriving from various causes, require special treatment in secure units and, in the result, they clearly constitute exceptional cases in which the State is under a duty to ensure that that their right to such treatment is upheld.
Locus standi
The law in general requires that a person who seeks to challenge the validity of laws passed by the Oireachtas or actions or omissions of the executive and demonstrates that a particular right which he/she enjoys is threatened or endangered by the alleged invalidity, cannot rely on the fact, if it be the fact, that the invalidity will have that effect on the rights of others, although not on his/hers: see the decisions of this court in Cahill v. Sutton [1980] I.R. 269, King v. Attorney General [1981] I.R. 233, Madigan v. Attorney General [1986] I.L.R.M. 123 and Mac Mathúna v. Attorney General [1989] I.R. 505. That general principle, however, must on occasions yield to the overriding necessity that laws passed by the Oireachtas or acts and omissions of the executive should not go unchallenged, simply because it is difficult, if not impossible, for individual citizens or groups to establish that their individual rights are affected. Thus, in cases where legislation affected all the citizens in the same manner, as in the case of the electoral laws challenged in O’Donovan v. Attorney General [1961] I.R. 114, the State’s becoming a party to the Single European Act in Crotty v. An Taoiseach [1987] I.R. 713 or the expenditure of money for an allegedly unlawful purpose by the Oireachtas and Executive during a referendum campaign ( McKenna v. An Taoiseach (No. 2) [1995] 2 I.R. 10), the courts have afforded locus standi to persons whose bona fide concerns were not in doubt but who could not demonstrate that their individual rights or interests were particularly affected.
In the present case, it is clear that, having regard to their respective ages, some of the applicants will derive no conceivable benefit from the order granted by the High Court. Indeed, since all of them are in the catchment area of the Eastern Health Board and the units to be provided on foot of the order are, without exception, situated outside that area, it is difficult to see what benefit will accrue to any of them from the provision of these units. While it may be that a general improvement in the provision of facilities on a national basis would ensure that the facilities available in the Eastern Health Board area were not being used to meet any deficiencies in other areas and that, in that indirect manner, children in need of facilities, including the applicants, might derive some benefit from their provision, the fact remains that, as the evidence clearly demonstrated, the damage was already done in the case of the applicants by the undoubted failure of the State to deal adequately with this problem in the past.
However, I am satisfied that the submission advanced on behalf of the applicants that these considerations are relevant to the form of relief to which the applicants might be entitled rather than to theirlocus standi or lack of it is well founded. They have undoubtedly been affected by the failure on the part of the State agencies to meet their particular needs and that, of itself, would appear to me to afford them locus standi in these proceedings. I do not think that their position can be equated to that of the plaintiffs in Cahill v. Sutton [1980] I.R. 269, King , Madigan and Mac Mathúna . In each of those cases, the plaintiffs were held to be precluded from questioning the constitutional validity of parts of the legislation under consideration which did not in any way affect their personal circumstances. In this case, the applicants are all persons who were held by the High Court to have been entitled to the provision of appropriate facilities which were in fact not provided to them and from which they would have benefited and it is clear from the evidence that that was a finding which the trial judge was entitled to make.
It may be that in some of the cases, the granting of the relief sought would not in any way redress the breach of their rights which has already taken place and, in other cases, would at best have a peripheral effect only so far as they were concerned. But, as persons affected by the failure of the Ministers to uphold their constitutional rights, I am satisfied that they have sufficientlocus standi to raise the more general issue of public importance as to the nature of the remedy available in such cases.

A.B. v C.D.

2016 7320 P

High Court

3 October 2016

unreported
[2016] IEHC 541
Mr. Justice Richard Humphreys

October 3, 2016

JUDGMENT
1. The plaintiff is the Deputy Chief Executive Officer of Hospital X in which the defendant was placed, at the time of the application. The defendant is a convicted prisoner who is serving a life sentence for murder in Wheatfield Prison, but who was admitted to Hospital X on 8th August, 2016 as a result of a self-inflicted injury to his neck with a home-made weapon. The wound was not healing and the defendant refused to take prescribed medications and in addition exacerbated his injury by inflicting further wounds upon himself.

2. The position at the time the application was made to me was that the defendant, in the view of the hospital, required “ immediate and continuing intra-venous antibiotic administration to reduce the immediate possibility of sepsis in his present condition ”. The hospital was of the view that because of what they considered to be his psychiatric condition, he was likely to become uncooperative and might well require sedation.

3. The defendant was awaiting a bed in the Central Mental Hospital. While in Hospital X he was assessed by a Senior Registrar in Psychiatry, whose report referred to the view of the forensic consultant psychiatrist attached to Wheatfield that the defendant had paranoid ideas of delusional intensity, very limited engagement by the defendant, and “ a likely schizophreniform psychosis ”. The author of the report states her opinion (to which I will return) that the defendant is unwilling to accept that he has a serious injury and he “ lacked capacity to agree to the surgical procedure proposed by the ENT team ” as he does not understand the issue, does not believe the medical advice given and is unable to properly weigh up the risks to him and communicate his comprehension and view. While surgery is not currently required, the same would appear to apply to less invasive medical treatment.

4. Medical treatment was commenced, quite properly, by the hospital prior to court application, on the basis of the doctrine of necessity. The hospital now says that there is no specific legislation that permits the administration of medical treatment or surgery to the defendant other than by wardship or recourse to the inherent jurisdiction of the court, which it has invoked.

5. On 10th August, 2016, I heard from Mr. Donal McGuinness B.L., counsel for the plaintiff, as well as from Ms. Bernadette Parte, Solicitor, who I appointed as Guardian ad Litem for the defendant for the purposes of the application. Mr McGuinness’ primary application was for an interlocutory order authorising the staff of Hospital X to administer all necessary medical and surgical treatment to protect the defendant’s life and bodily integrity. On that date I made an order allowing the application and I now set out reasons for having done so.

Was the application one appropriate to be heard in camera?
6. Mr. McGuinness applied at the outset for the matter to be heard in camera , given what were described as “ security concerns ” for the hospital. Section 45 of the Courts (Supplemental Provisions) Act 1961 allows for what are described as lunacy matters to be heard otherwise than in public, but it does not follow that such matters must automatically be heard in camera . It appeared to me that an order restraining publication of the identities of the parties or the hospital concerned would sufficiently protect the rights of the parties and that the drastic step of an in camera hearing was not necessary. In any event the bald reference to security concerns was in my view too vague to properly ground an application for an in camera hearing. I therefore refused the application to be heard in camera but provided for reporting restrictions.

Should treatment be ordered on the basis of the evidence of mental incompetence in this application?
7. Where a patient lacks capacity, the court must act on his or her behalf in the patient’s best interests. In the absence of special factors such as incurable and intolerable suffering, or the likelihood of a persistent vegetative state, those best interests generally militate in favour of receiving all treatment that is professionally recommended as prolonging life and indeed promoting the patient’s medical welfare more widely.

8. Nonetheless, ordering medical treatment and especially surgical treatment contrary to the wishes of an adult patient impinges upon the bodily integrity of the individual, so in the case of a patient of full age and capacity, leaving aside for a moment the position of prisoners or any other special cases, it normally needs to be clear that the person does indeed lack such capacity. That was the opinion of the Senior Registrar who signed the opinion exhibited on behalf of the hospital. But what was that opinion based on? It appeared to have two elements, one being information and opinion received from the psychiatrist at Wheatfield, and the second being her own interview with the defendant. That first element is hearsay upon hearsay (given that Hospital X’s risk manager, not the Registrar, swore the affidavit), and furthermore emanates from a separate institution than that represented before me. It is therefore of limited weight for present purposes. As regards the interview with the defendant, it seems to have related only to the surgery itself (reference is made to “ explanation around the procedure ”, “ risks of not having the procedure and the possible benefits of having it ”, “ any understanding of the specifics of the procedure ”, “ fears … about surgery ”). Only one question relates to anything else (“ I asked Mr. D. about what happened in Wheatfield prison and he responded ‘there is something going on there’ and refused to elaborate… He said the prison officers were beating [him] up. ”) The report is silent as to how long this interview took but the account of it is brief, possibly because the author states that her team’s role was (merely) to provide “ a second opinion for the ENT team ”, who had already presumably formed their own view, although this is not deposed to.

9. The author of the report concedes that the defendant “ was somewhat cooperative with the interview ” and that “ [i]t was difficult to assess the full extent of his psychotic phenomena given limited engagement with the interview ”. He was clearly dismissive of medical advice and denied the reality of his situation. However many individuals in society are in one degree or another of denial as to their health and medical position, and to one degree or another are unwilling or incapable of understanding the full medical ramifications of their situation. Does that of itself make them psychiatrically unwell? Probably not unless the concept of psychiatric illness is made unacceptably elastic. Where would such a doctrine end? With the totalitarian society, that uses the machinery of mental treatment against those who decline to submit to accepted truths.

10. And of course that is to assume that the defendant means what he says. Many people can affect an unwillingness to acknowledge or comprehend a problem in order to deflect having to deal with it, when what is really motivating them is not incapacity but simply a preference not to take the action under discussion. An obfuscatory response does not have to be taken at face value and might signal a wish not to be treated rather than mental illness. The author of the report does not seem to have taken the view that a more extensive history or assessment of the defendant’s mental condition was required, armed as she was with the clear opinion from Wheatfield and the brief to produce only a second opinion for the ENT team. So there is no criticism of her at all. It does not appear from the report that she was told that the report was to be used for forensic purposes – if she had been so requested, one might have expected that brief to be acknowledged. There is no reference in the report to what the author thinks the defendant’s mental illness actually is or to the methodology adopted to form the view on capacity, or to the degree of incapacity, or to how incapacity is assessed objectively. She does refer to “ paranoid thinking as above ” which I think is a reference to the allegation that prison officers were beating him up. But I am not sure that one could conclude, without more, that this allegation is such an appalling vista that it could only be the result of paranoia.

11. At the end of the day I would have to ask myself, if the defendant was not a prisoner, would I be happy to direct medical treatment for him based primarily on an interview that, while it appears to have fully done the job the author was set, does not appear to me to constitute a searching or even detailed investigation of the mental health of the defendant? I would have some hesitation in doing so. It seems to me that if such an approach were adopted, only those who could compellingly display full understanding of their medical position could assert a right to refuse treatment; anyone else could be required to undergo any procedure that a medical team, backed up by a judge, thought was in their interests. If the application hinged on it being clear that this defendant lacked capacity I would have been minded to require further evidence before proceeding.

12. Ms. Parte’s discussion with the defendant could be said to have illustrated paranoid elements to the defendant’s thinking, but to so conclude might be to assume too much about why the defendant says what he says. Her brief was not and could not have been to provide medical opinion.

Does a prisoner enjoy a right to autonomy to refuse necessary treatment in any event?
13. I turn then to the patient’s status as a prisoner. An order sentencing a person to life imprisonment, or to any other period, is a court order which must be obeyed like any other order. A spouse ordered to transfer an asset to another spouse cannot lawfully frustrate the court’s order by destroying the asset. A person ordered to be imprisoned cannot lawfully frustrate the court’s order by destroying himself.

14. While suicide is not a crime, neither is it a lawful act (that hypothesis would be inconsistent with s. 2(2) of the Criminal Law (Suicide) Act 1993). Crimes, torts and lawful acts are not an exhaustive categorisation. Despite its de-criminalisation suicide remains an act contrary to public policy. A mentally competent person does not have any legal entitlement to kill themselves directly (if such entitlement existed, they could bring an action for trespass to the person against rescuers: an absurd proposition). But a mentally competent adult is entitled to kill themselves indirectly, by refusing food, hydration or medical treatment. Such a right is seen as flowing from the right to autonomy and bodily integrity of the individual.

15. This question has been recently considered by Baker J. in Governor of X. Prison v. P.McD. [2015] IEHC 259 (Unreported, High Court, 31st March, 2015). It is true that as Baker J. points out at paras 94 et seq., a prisoner retains the right to bodily integrity in prison in the sense that he or she cannot be harmed or neglected by the State (Creighton v. Ireland [2010] IESC 50 (Unreported, Supreme Court, Fennelly J., 27th October, 2010) at para. 4, Devoy v. Governor of Portlaoise Prison [2009] IEHC 288 (Unreported, High Court, 22nd June, 2009). But it by no means follows from a prohibition on harming prisoners that the prisoner’s full rights of autonomy have to be recognised. To do so to the extent of allowing a prisoner to refuse life-saving treatment (or food or hydration) would be to recognise a “right” of the prisoner to frustrate the lawful order of the court. There is no such right.

16. In X. v. Germany Application No. 10565/83 (1984) 7 E.H.R.R. 152 the European Commission of Human Rights noted that the conflict between the right of autonomy of a force-fed prisoner and the duty of the state to protect his life was “not solved by the Convention itself”. Force-feeding that was in his best interests and that did not involve more constraint than necessary was not contrary to art. 3 of the Convention. The prisoner’s application was declared inadmissible as a result.

17. In Ciorap v. Moldova (Application no. 12066/02, European Court Human Rights, 19th June, 2007), at para. 77 the Strasbourg Court stated that “ a measure which is of therapeutic necessity from the point of view of established principles of medicine cannot in principle be regarded as inhuman and degrading. … The same can be said about force-feeding that is aimed at saving the life of a particular detainee who consciously refuses to take food ”.

18. In Herczegfalvy v. Austria (Application no. 10533/83, European Court of Human Rights, 24th September, 1992, Series A, no. 244, p. 26) para. 83), the court held that where force-feeding and restraints are medically necessary, no violation of article 3 of the ECHR thereby arises.

19. Applying this decision, in Ilijkov v. Bulgaria (Application no. 33977/96, Commission decision of 20th October, 1997), the Commission rejected as manifestly ill-founded a complaint that force-feeding of a prisoner contravened art. 3 of the ECHR. The prisoner accepted (a necessary concession given previous Strasbourg caselaw) that it was not the case that “force feeding per se, as an act of disrespect for his will” was contrary to art. 3, but his challenge to the manner of force-feeding was rejected.

20. In Gennadiy Naumenko v. Ukraine (Application no. 42023/98, European Court of Human Rights, 10th February, 2004) (a case where a prisoner complained of having been compelled to take medication), the Court reiterated that therapeutic treatment in principle did not contravene article 3 if persuasively shown to be necessary.

21. In Nevmerzhitsky v. Ukraine (Application no. 54825/00, European Court of Human Rights, 5th April, 2005), the Strasbourg court addressed a complaint by a hunger-striking prisoner who had been subjected to force-feeding (see para. 38 onwards). The applicant in that case said that this caused him “ substantial mental and physical suffering ”, that he had been “ handcuffed to a heating appliance in the presence of guards and a guard dog ” and “ held down by the guards while a special medical tube was used to feed him ” (para. 78). “ [F]orce had been used to feed him ” (para. 89). He was “ forced to swallow a rubber tube that was connected to a bucket with a special nutritional mixture ” (para. 90).

22. The court referred to previous caselaw to the effect that the principle of force-feeding was not contrary to the Convention although the manner of its administration could be, if inhuman or degrading (para. 93; citing X. v. Germany and Ilijkov). It reiterated the view that “ force feeding that is aimed at saving the life of a particular detainee who consciously refuses to take food ” was not in principle to be regarded as contrary to art. 3 of the ECHR (para. 94) provided medical necessity was shown to exist (citing Herczegfalvy). The court concluded that medical necessity had not been shown and therefore force feeding “ resisted by the applicant ” (para. 98) contravened art. 3.

23. It seems abundantly clear therefore that there is no breach of human rights as such in the forcible administration of food, or on the same logic, hydration or medical or surgical treatment, to a non-consenting prisoner, provided that medical necessity has been clearly demonstrated. Why should the prisoner’s rights under the Constitution be dramatically more extensive? One searches in vain for a compelling reason.

24. It is also true, as Baker J. pointed out, that the English High Court has held that the right of a person of full age and capacity to refuse nutrition and hydration continued to exist for a detained prisoner (Secretary of State for the Home Department v. Robb [1995] Fam. 127 (Thorpe J.)). That court relied heavily on a decision of the Supreme Court of California in Thor v. Superior Court, 855 P.2d 375 (1993) which recognised four countervailing considerations against which such a right could be balanced: preserving life, preventing suicide, maintaining the integrity of the medical profession and protecting innocent third parties (p. 131). In Thorpe J’s view, the first two considerations were outweighed by personal autonomy; an approach that rests shakily on a straight read-across of rights from the citizen of full age and capacity at liberty to the detained prisoner. Even apart from the sense that the whole formulation of the doctrine smacks at first sight of judicial legislation of a particularly trans-Atlantic stripe, it is particularly striking that no consideration is afforded to the importance of ensuring that effect is given to orders of the court, or even to maintaining order in prisons. No institution can function in an ordered manner if its stakeholders are in the process of killing themselves, even by neglect or omission.

25. Thor was a judgment given by Arabian J. of the California Supreme Court. What appears not to have been drawn to the attention of Thorpe J. (or to the attention of the court in P.McD. either) is that Thor was decided on the basis of a specific Californian statutory provision, cited at pp. 744 to 745 of the report: “ Penal Code section 2600 expressly provides that a prisoner ‘may … be deprived of such rights, and only such rights, as is necessary in order to provide for the reasonable security of the institution in which he is confined and for the reasonable protection of the public .’” That express statutory provision makes the decision much less of an exercise in judicial legislation as far as California is concerned – but not as respects its adoption in other jurisdictions.

26. At p. 745 of Thor, Arabian J. deals with the question of whether the prisoner’s rights are to be circumscribed by his status as prisoner in remarkably stark terms: “ In refusing to consent to further treatment, [the prisoner] Andrews is exercising his fundamental right of self-determination in medical decisions. Petitioner [the treating doctor, Dr. Thor] has offered no evidence that allowing him to do so undermines prison integrity or endangers the public. Thus, considering the magnitude of the right at issue in light of the clear legislative directive articulated in Penal Code section 2600 , we hold that petitioner must accede to Andrews’s decision and may not force him to accept unwanted treatment or care ” (footnote omitted).

27. The result in Thor has limited support in other U.S. caselaw. A similar conclusion was arrived at in Zant v. Prevatte, 248 Ga. 832, 286 S.E.2d 715 (Georgia, 1982) (Weltner J.), which is an early case consisting largely of a short set of assertions rather than detailed reasoning; and in Stouffer v. Reid 413 Md. 491 993 A.2d 104 (Maryland, 2010), although there the Court of Appeals of Maryland was heavily influenced by the decision in Mack v. Mack, 329 Md. 188, 618 A.2d 744 (1993) which related to a non-prisoner patient. It did not appear to satisfactorily address why there is any necessary read-across to the case of a prisoner.

28. By contrast, the vast preponderance of U.S. caselaw, both state and federal, that has examined the issue takes a strikingly different approach.

29. In Commissioner of Correction v. Myers, 379 Mass. 255, 399 N.E.2d 452, 458 (Massachusetts,1979), the Supreme Judicial Court of Massachusetts authorised the forcible medication of a non-consenting prisoner.

30. White v. Narick, 170 W.Va. 195, 292 S.E.2d 54 (West Virginia, 1982) was a case where a convicted murderer serving a life sentence began a hunger strike. The Supreme Court of West Virginia noted that competent (non-prisoner) patients have been allowed to refuse medical treatment (at 58) but held, nevertheless, that: “ [the state’s] interest in preserving life is superior to White’s personal privacy (severely modified by his incarceration) and freedom of expression right. Our research indicates that although only one appellate court has dealt with death resulting from hunger strikes, they are common in prisons throughout the country. Their main aim is to gain attention from prison officials and occasionally from the public, to manipulate the system. We cannot condemn fasting – Ghandi taught us about its force as a way to secure change. But prison officials must do their best to preserve White’s life ” (footnote omitted).

31. In Von Holden v. Chapman, 87 A.D.2d 66, 450 N.Y.S.2d 623 (N.Y. App. Div., 1982), a convicted murderer engaged in a hunger strike, with the intention of committing suicide. Denman J. of the Appellate Division of the New York Supreme Court said: “ Even overlooking the fact that Chapman’s status as a prisoner severely delimits his constitutional privileges, … it is self-evident that the right to privacy does not include the right to commit suicide ” (p. 68).

32. In In re Sanchez, 577 F. Supp. 7 (S.D.N.Y., 1983), the U.S. District Court permitted force-feeding a civil contemnor engaged in a hunger strike, who was found to be attempting to frustrate the lawful authority of the court by pressurising a judge into granting his motion to vacate the contempt order and render himself mentally and physically incapable of testifying before a grand jury.

33. The New Hampshire Supreme Court has held that a prisoner may be forced to receive medical treatment to save his life: In re Joel Caulk, 125 N.H. 226, 480 A.2d 93 (New Hampshire, 1984). In that case, the Supreme Court of New Hampshire determined that the state’s interests in the preservation of human life and the prevention of suicide outweighed whatever residual right of privacy the prisoner may have retained as an incarcerated person (at p. 97) and that the prisoner’s decision to starve himself to death would have an adverse effect on maintaining an effective criminal-justice system (at p. 96).

34. In Garza v. Carlson, 877 F.2d 14 (8th Cir.1989), the US Court of Appeals for the Eighth Circuit held, in the context of a prisoner threatened with force-feeding, that “ preservation of prisoners’ health is certainly a legitimate objective, and prison officials may take reasonable steps to accomplish this goal. Garza’s rights under the Constitution were not violated by the threat of receiving involuntary nourishment ”.

35. In Department of Public Welfare v. Kallinger, 134 Pa.Cmwlth. 415,580 A.2d 887 (1990), Pellegrini J. held at 134 Pa.Cmwlth. 415, 426 that “ The Commonwealth of Pennsylvania has an overwhelming interest in the orderly administration of its prison system. The Commonwealth must maintain prison security, order and discipline. It must also fulfil its duty to provide proper medical care to the inmates, thus preserving life and preventing suicide. These vital interests, along with the need to preserve the integrity of the physicians and psychiatrists working within the penal system, clearly outweigh any diminished right to privacy held by Kallinger. Accordingly, we order that Farview [State Hospital] can and must continue to provide appropriate nutrition through a nasogastric tube and appropriate medical care to Joseph Kallinger so long as he continues to refuse nutrition and medical treatment. Kallinger shall remain committed to Farview until such time as the medical and psychiatric staff feel it’s appropriate for him to return to a State Correctional Institution .”

36. In Martinez v. Turner, 977 F.2d 421 (8th Cir.1992), an accused person remanded in custody alleged that officials violated his due process rights when they ordered that he be force-fed. The US Court of Appeals for the Eighth Circuit summarily dismissed his argument, finding that “ Martinez’s claim that he was force-fed also fails to state a constitutional claim. The mere allegation of forced-feeding does not describe a constitutional violation. Bureau of Prison regulations authorize medical officers to force-feed an inmate if they determine that the inmate’s life or permanent health is in danger. Attachments to Martinez’s pleadings reveal that … medical officers determined that forced-feeding was necessary to his health ” (at p. 423). Certiorari of this ruling was denied by the US Supreme Court: Martinez v. Turner 507 U.S. 1009, 113 S. Ct. 1658, 123 L. Ed. 2d 277 (1993).

37. In State ex rel. Schuetzle v. Vogel, 537 N.W.2d 358 (N.D.1995), the Supreme Court of North Dakota had to consider a declaratory judgment allowing for the forced diabetes monitoring of a prisoner together with possible forced administration of insulin, medication and food if ordered by a doctor. At p. 361, Meschke J. for the court said “ Ignoring the most relevant state interest here, Vogel would have us analyze this case apart from the prison setting where it arises. In a non-prison setting, the state interests that are generally identified as countervailing (but often subordinate) to the scope of a patient’s autonomy include preserving life, preventing suicide, maintaining the integrity of the medical profession, and protecting innocent third persons [citing Thor, 855 P.2d at 383]. In the case of a prison inmate, though, the state has an “important interest in maintaining the confinement of the prisoner and the integrity of its correctional system [that] must also be considered” in the balance . Matter of Adoption of J.S.P.L., 532 N.W.2d 653, 662 (N.D. 1995). See also Washington v. Harper, 494 U.S. 210”.

38. In Laurie v. Senecal, 666 A.2d 806 (1995) the Supreme Court of Rhode Island gave short shrift to the argument that a prisoner had the right to refuse food and hydration. Weisberger C.J. said: “ It has been argued in this case as it was in In re Caulk, supra, and Thor supra, that starving oneself is not an act of suicide but by some leap of logic constitutes merely setting certain natural forces in motion. The same argument might be presented in the event that a prisoner should slash his wrists with a razor blade and then resist all efforts to staunch the bleeding. The similarity between the two instances is that the person who desires to end his or her life deliberately sets a force in motion that will be fatal unless intervention occurs. We believe that the state has a right, and indeed a duty, to intervene in such circumstances. It has been declared by the Legislature of this State in G.L. 1956 (1993 Reenactment) § 42-56-1(b) that the Department of Corrections has been established “to provide for the custody, care, discipline, training, treatment, and study of persons committed to state correctional institutions …” We believe that in such circumstances it would be in total disregard of this duty to stand idly by while a healthy adult decided to end his or her life by starvation just as it would if he or she decided to end his or her life by some more dramatic means such as hanging, slashing of wrists, or swallowing some type of poison .” That finding encapsulates the central point: the purpose of the prison service is to provide for the custody of offenders and persons committed to custody, in accordance with court orders. Such orders and the consequent duty of the prison service to implement them are inconsistent with an alleged right to die by refusing medical or surgical treatment, food or hydration. One does not have to go as far as to find a duty on the State to intervene in order to find a right to intervene. Thor was distinguished on the grounds that by reason of the pre-existing quadriplegia of the prisoner, it was a case “ involving the right of a surrogate decision maker to end medical treatment that had the effect of prolonging the act of dying without any reasonable hope of curing a terminal condition ”, and thus quite distinct from a case where the prisoner is not likely to die if he or she accepted treatment, food and hydration as advised.

39. In In re Grand Jury SubpoenaJohn Doe v. United States, 150 F.3d 170 (2d Cir.1998), the US Court of Appeals for the Second Circuit upheld force-feeding of a civil contemnor on hunger strike. In a per curiam judgment, the court said that “ In reviewing the district court’s force-feeding order of June 25, 1998, we, like the majority of courts that have considered the question, hold that such an order does not violate a hunger-striking prisoner’s constitutional rights [citing Martinez, Caulk, Von Holden, Vogel, Kallinger, Laurie and Myers]. Although Doe, as a civil contemnor, has been convicted of no crime, the institution where he is housed is still responsible for his care while incarcerated. Other compelling governmental interests, such as the preservation of life, prevention of suicide, and enforcement of prison security, order, and discipline, outweigh the constitutional rights asserted by Doe in the circumstances of this case ” (at 172).

40. A similar conclusion allowing forced intervention to preserve the life of a prisoner was arrived at by the Iowa Supreme Court in Polk County Sheriff v. Iowa District Court for Polk County,594 N.W.2d 421 (Iowa 1999).

41. The US District Court for the Northern District of Alabama dealt with an application by the Immigration and Naturalization Service for forced medical treatment, nutrition and hydration of a prisoner in In Re Soliman, 134 F. Supp. 2d 1238 (N.D. Ala. 2001). Smith J. cited a litany of previous federal (Doe, Sanchez, Martinez, Garza) and state (White, Von Holden) decisions supportive of forced feeding or medication of prisoners, noting at p. 1255 that “ Federal Courts generally have approved of force-feeding hunger striking inmates, regardless of whether the person was a convicted prisoner, a pre-trial detainee, or a person held pursuant to a civil contempt order ”.

42. In People ex rel. Illinois Department of Corrections v. Millard 782 N.E.2d 966 (2003), the Appellate Court of Illinois, Fourth District, granted relief to prison administrators for force feeding and forced medication of a prisoner on hunger strike, Appleton J., writing for the majority, stated that “ In reviewing the trial court’s force-feeding order of September 27, 2001, we, like the majority of courts that have considered the question, hold that such an order does not violate a hunger-striking prisoner’s constitutional rights [citing Soliman, Doe, Vogel, Kallinger, Caulk, White, Von Holden]” Very little authority went the other way. Appleton J. disagreed with Zant which he said “ failed to consider compelling penological objectives such as the preservation of life, prevention of suicide, and the enforcement of prison security, order, and discipline ” (at 971).

43. In Commissioner of Correction v. Coleman, 303 Conn. 800, 38 A.3d 84, 95-97 (2012), the Supreme Court of Connecticut held that the state could force-feed a prisoner who was engaged in hunger strike as a protest, and that such force-feeding did not contravene US or international law. The decision is notable and indeed welcome for its (relatively rare in the US context) reliance on ECHR jurisprudence. In this case reliance was placed on some of the already-cited Strasbourg decisions accepting the lawfulness in principle of forced medication or feeding of prisoners.

44. There have been a number of other recent decisions, largely to the same effect. For example, in Aamer v. Obama 742 F. 3d 1023 (2014), a case dealing with force-feeding in Guantanamo Bay, the US Court of Appeals for the DC Circuit emphasised that “ the overwhelming majority of courts have concluded, as did [the district court Judge] and as we do now, that absent exceptional circumstances prison officials may force-feed a starving inmate actually facing the risk of death. See [Freeman v. Berge, 441 F.3d 543, 547 (7th Cir.2006)] at 546; Commissioner of Correction v. Coleman … Petitioners point to nothing specific to their situation that would give us a basis for concluding that the government’s legitimate penological interests cannot justify the force-feeding of hunger-striking detainees in Guantanamo .”

45. It is clear that the Californian statutory provision itself ruled out a consideration of wider interests such as the need to give effect to court orders. It would be truly bizarre if a Californian decision which turned on the wording of a particular local statute were to be held to have effectively determined the Irish and English law on an alleged entitlement of prisoners to refuse medical treatment, via the domino effect of the Thor, Robb and P.McD. decisions.

46. What would perhaps be even more bizarre would be a situation created by the Robb decision and its acceptance in P.McD., whereby a single state court finding in Thor was swallowed whole and recast as the law of these islands, despite it being massively outweighed by an avalanche of precedent, both at state and federal level, going the other way. Not a single one of the decisions of what the US Court of Appeals for the DC circuit recently called “ the overwhelming majority of courts ” finding no legal violation in forced medical treatment, feeding or nutrition of mentally competent adult prisoners was opened or cited to the court in P.McD.

47. Nor, with the exception of a couple of glancing and relatively unreasoned references to Caulk by way of disagreement ([1995] Fam. 127 at 131 and 132), were any of those cases cited in Robb.

48. I prefer in the circumstances of this case to be guided by the “ overwhelming majority ”, rather than follow decisions such as Robb and P.McD., which derive from such a wholly unrepresentative fragment of previous caselaw.

49. Prisoners seek to kill themselves directly or indirectly for various reasons, as noted in the U.S. jurisprudence. Some by way of political or religious protest, others perhaps as a manifestation of one degree or another of mental impairment, and others simply to cheat justice. Sometimes, as with Hermann Göring’s evasion of the verdict of the Nuremberg International Military Tribunal in 1946, and that of Robert Ley in 1945 before his trial began, that cheating of justice is by a direct route. Alternatively, and here one thinks of one interpretation of Slobodan Miloševiæ’s death in 2006, the route is more indirect, by consciously seeking to bring on ill-health. The question to my mind is whether the court wants to stand by and watch justice be evaded? That question needs only to be posed in order to be answered in the negative. There is no right to evade the implementation of the criminal justice system, either before, during or after trial, and whether directly or indirectly. In addition, the state interest in preventing prisoners killing themselves either directly or indirectly also supports the maintenance of order in prisons for a series of reasons spelled out in the U.S. caselaw. If one really wanted to follow Thor, Robb and P.Mc.D. to the inevitable and repugnant reductio ad absurdum, one would have to cast the Görings of this world as pioneers of human rights and autonomy in utilising direct or indirect self-destruction to thwart the machinery of justice even in the face of the conscience of humanity.

50. For those reasons, I find Thorpe J.’s adoption in Robb of the Californian approach in Thor to be wholly unconvincing. By way of necessary consequence, I do not find the reasoning on this issue in P.McD. to be persuasive, because Baker J.’s attention does not seem to have been drawn to the origin of the test at issue which ultimately derives from a local Californian law; nor was she directed to the mountain of caselaw of a highly persuasive and coherent nature going the other way. Robb itself was decided as a form of moot case, as Thorpe J. acknowledges, and P.McD. was decided without much of a live contest on the issue because no-one in that case appeared to want to force-feed the prisoner. The decision perhaps illustrates the ongoing problem that courts are generally reliant on the parties to draw relevant materials to their attention. The actual outcome in P.McD. is not hugely problematic to the extent that the learned judge granted a declaration that the Prison Governor was entitled to give effect to the prisoner’s wishes not to be fed or treated. If a prisoner wants to starve to death or die by medical neglect, it is a matter for executive discretion as to whether to allow them to do so in all the circumstances: it might be too prescriptive in the modern era to declare a positive duty to force-feed a person of full age and capacity in particular, at least in all cases (there might well be a duty to force-feed a minor or a person of impaired capacity, or perhaps in other particular circumstances). To that extent, Leigh v. Gladstone (1909) 26 T.L.R. 139 is of limited assistance (as Robb held). But insofar as the court in P.McD. declared that the prisoners decision “ is valid ” and “ should remain operative ” if he subsequently became incapable (para. 131), if that implies that such a valid and operative decision precludes the possibility of State action to override it if the executive (or persons, such as the plaintiff, acting on their behalf) so decides (whether with or without a court order), I would very respectfully conclude that such an approach is based on the false premise that a prisoner has a legal entitlement to exercise his or her autonomy in a manner which would frustrate the order of the court remanding or sentencing him or her. No such entitlement can co-exist with the doing of justice. A prisoner simply does not have any legal entitlement to cheat justice, and the court should not co-operate in him or her attempting to do so.

51. It appears to be a further logical consequence of such an approach that if medical necessity is established, the person having custody of the prisoner (or a person to whom he or she has been entrusted) is entitled to administer such treatment, or if so decided, nutrition or hydration without the necessity of a court order, because the prisoner does not have a lawful entitlement to refuse consent in those circumstances. Having said that, seeking declaratory or injunctive relief may be a prudent step as the U.S. caselaw demonstrates. But in my view action taken by prison management to prevent a prisoner’s life being put at risk by neglect such as refusal of medical treatment is not unlawful even without such relief having been granted.

52. Thus, I made an order compelling the defendant to undergo treatment, on the basis that as a prisoner in custody under a court order, he is not simply entitled to refuse treatment where this would either directly or ultimately put his life at risk and thereby frustrate the verdict and order of the court. To that extent, his rights to autonomy, privacy and bodily integrity are qualified by his status as a prisoner and his liability to undergo his sentence, which necessarily involves a prohibition on his frustration of that sentence by self-harm including harm by neglect or omission in relation to matters such as medical or surgical treatment, nutrition or hydration.

Order
53. For the foregoing reasons, the order I made on 10th August, 2016 was as follows:

(i) that the identification of the defendant, the plaintiff and the hospital be prohibited under s. 45 of the Courts (Supplemental Provisions) Act 1961;
(ii) that the application for the hearing to be held in camera be refused;
(iii) that Ms. Bernadette Parte, solicitor, be appointed to act as guardian ad litem on behalf of the defendant for the purpose of the interlocutory application;
(iv) that the plaintiff be authorised to administer all medical and/or surgical treatment that may be recommended by the medical staff of the hospital in the interests of the defendant’s medical welfare;
(v) that the plaintiff be authorised to use sedation and if necessary force in the administration of such treatment to the defendant;
(vi) that the plaintiff be authorised to call upon the staff of the Irish Prison Service and/or the Garda Síochána if necessary to assist in the administration of such treatment to the defendant; and
(vii) that the plaintiff pay the costs of the guardian ad litem for the purposes of the interlocutory application.

Byrne v Governor of Castlerea Prison

[2005] I.E.H.C. 64

MR. JUSTICE O’NEILL GAVE HIS RULING AS FOLLOWS:
The Applicant in this case was convicted on the 25th October, 2002, of various charges and had imposed upon him a number of sentences, the longest of which was six years with three years suspended. Under that sentence the Applicant would have served his sentence by about the third week of January this year. The Director of Public Prosecutions sought a review of this sentence on the grounds of leniency and the Court of Criminal Appeal on the 20th October, 2003, varied all of his sentences to five years in each case. The Applicant’s therefore release date is likely to be in August 2006.

The Applicant sought an enquiry into the legality of his detention and I directed that that enquiry be held and it was so held by me over three days, that is to say Monday, Tuesday and Wednesday of this week. No issue arises at all as to the legality of the warrants under which the Applicant is detained.

The Applicant challenges the legality of the detention on the grounds that its legality has been vitiated by breaches of his constitutional rights to bodily integrity and fair procedures in that as a result of what he believes is a false and malicious report from an Garda Siochana which has been recorded on his file, to the effect that he is a member of the Real IRA, he has, while detained in Castlerea Prison been denied certain privileges which he contends he should have been given, namely a transfer to Shelton Abbey, an open prison, and temporary releases for various occasions, for example, communions and confirmations of his children, and also for Christmas.

Also that he has been denied necessary medical treatment and specifically that he had not been given counselling in respect of a post traumatic stress disorder and/or the sequelae of it, resulting from a needle stick injury suffered by him in Mountjoy Prison in January, 2003, and finally that he was subjected to inhuman and degrading treatment by being detained stripped to his underwear in an isolation unit on the 24th and 25th December, 2004.

As a convicted prisoner the Applicant carries a very heavy burden of proof, to establish that his detention is unlawful on the grounds advanced. The following passage from the judgment of Barrington, J, in the State (Richardson) -v- the Governor of Mountjoy Prison, (1980) I.L.R.M at page 82 and pages 90, 91, states the relevant legal principle as follows; “It would clearly not be possible to enumerate in advance what are the conditions which would invalidate a detention otherwise legal. If a Court were convinced that the authorities were taking advantage of the fact that a person was detained, consciously and deliberately to isolate his constitutional rights, or to subject him to inhuman or degrading treatment, the Court might order his release. If the Court were convinced that the condition of the prisoners detention were such as to seriously endanger his life or health and that the authorities intended to do nothing to rectify these conditions the Court might release him. It appears to me that the location would be similar if the conditions of a prisoners detention were such as seriously threaten his life or health, but the authorities for some reason were unable to rectify the conditions.”

Evidence was given before me by Mr. Frank Mc Dermott, an Assistant Principal officer, working in the prison service, and Governor Daniel Scanlon, Governor of Castlerea Prison, by Assistant Governor Vincent Melvin and by Dr. Michael Henry, a doctor attached to Castlerea Prison and by Dr. Louis Carroll, a psychiatrist whom the Applicant attended in a private capacity. Also affidavits sworn by Mr. Branigan, the solicitor for the Applicant and by the Applicant himself and by Joseph Byrne, a brother of the Applicant, were opened to me. The Applicant was transferred from Mountjoy Prison to Castlerea Prison in June of 2003 at his own request. Now if I might deal with the medical issue first.

The Applicant had a number of physical problems, namely frozen shoulder and ingrown toenails. It was accepted that he received the appropriate treatment for these. The evidence reveals that he was seen on eleven occasions by the doctor in Castlerea Prison and declined two other consultations. He was brought to the Mater Hospital on thirty-two occasions as an outpatient. He attended Roscommon General Hospital on twenty-one occasions as a day patient and was admitted twice. He was seen by a dentist on four occasions and declined two other visits. He was

seen by a chiropodist on three occasions. He attended the Infectious Diseases Unit in the Mater Hospital until his discharge from that unit on the 11th December, 2003. He attended there four times in the first six months of his detention in Castlerea Prison and counselling in respect of the sequelae of the needle stick injury is available in that unit. There could be no doubt that while in prison the Applicant received a great deal of medical attention for his physical problems and no complaint is made about the care provided for these.

He makes the case that his psychiatric and or psychological health was neglected because he was not given counselling for post traumatic stress disorder or the sequelae of it, which resulted from a needle stick injury and that he complained to various parties about this, about not getting this counselling, including to Mr. Justice Kinlin and the Prison Inspector and the Minister for Justice, and his solicitor wrote in November, 2004, reiterating this complaint.

I accept the evidence of Dr. Henry that the Applicant did not, apart from one occasion, that is on the 20/06/2003 to Dr. Kelly, make complaints relating to the lack of counselling for his for post traumatic stress disorder. I accept Dr. Henry’s evidence that the Applicant was monitored for mental health problems in Mountjoy and later in Castlerea and that he was diagnosed as having an adjustment disorder with reactive depression and treated with antidepressants and was stable in that regard. I

accept Dr. Henry’s evidence that the Applicant did not reveal or present to prison medical officers features of post traumatic stress disorder at any stage and therefore no such diagnoses were made by the prison medical officer.

I also accept Dr. Carroll’s evidence. He saw the Applicant for the first time on the 20th March, 2003, in Mountjoy Prison with the Applicant’s general practitioner Dr. Moore and he interviewed the Applicant for a lengthy period of time. He found subjective and objective symptoms of post traumatic stress disorder and he diagnosed him as having this disorder. He saw him again on the 15th November, 2004, and in his rooms in Harrington Street, in Dublin and he found him on that occasion to be weepy and complaining that he was staying in his cell. It was Dr. O’Carroll’s evidence that the biological side of his problem was well controlled by his drugs, but the emotional side was not doing well. At the earlier stage he needed counselling for post traumatic stress disorder, but at this latter stage the post traumatic stress disorder had probably burnt itself out, but he needed counselling for the sequelae of it, which was a depression.

Now a curious feature of the case is that notwithstanding the fact that Dr. O’Carroll was engaged to conduct a review of the Applicant with a view to assisting in his care or treatment, his report on his consultation on the 20th March, 2003, was never sent to the prison authorities. It was sent to the State of Claims Agency and it was said that the Applicant’s solicitor_ believed that they would forward it to the prison authorities. I do not accept that explanation. It simply fails, as far as I’m concerned, to carry any conviction.

It may well be the case that the Applicant perhaps because of a lack of trust did not open up all of his mental health symptoms to the prison medical officers whereas he did that to Dr. Carroll. I’m satisfied, however, that he did not make complaints to the prison doctors, which might have lead to a diagnoses of post traumatic stress disorder.

Whether he has or has not post traumatic stress disorder, I’m satisfied that he did not give the prison doctors any complaint which would have alerted them to that condition. On the contrary, I’m satisfy that he presented a picture to them consistent with a diagnoses of adjustment disorder, plus reactive depression and specifically I’m satisfied that he did not complain about the lack of counselling in respect of the needle stick injury, apart from the one occasion on the 20th June, 2003. That complaint appeared to have been addressed by his continued attendance at the Infectious Diseases Unit at the Mater Hospital until his discharge in December, 2003, where counselling is provided for this injury and it’s psychological sequelae. I’m also satisfied he did not complain to the prison medical staff thereafter about this.

The evidence establishes to my satisfaction that the Applicant was monitored on a daily basis, by daily contact with a nurse who administered to him his anti-depressant medication and by other prison staff and nothing untoward was ever observed about his mental condition until the 23rd December, 2004. I’m quite satisfied that the Applicant has wholly failed to prove that there was any neglect of his mental health or that he was denied counselling, which was necessary for him. Insofar as he now needs counselling, I’m satisfied that if he brings this matter to the attention of the medical staff in Castlerea Prison, I’m quite satisfied that it will receive appropriate professional attention.

In the round the evidence demonstrates that the Applicant’s physical and mental health has received a level of attention from prison medical staff and that is remarkable for the number of interventions involved. I have therefore come to the conclusion, for the reasons set out above, that there has been no breach to his right to bodily integrity, demonstrated in that regard.

This brings me now to the incident that occurred just before Christmas of last year. On the 23rd December the Applicant apparently tried to extract a tooth with a razor blade. It broke and he swallowed part of the blade. He was taken to Roscommon General Hospital, investigated and he safely passed the blade and was discharged on the 24th December. It was Governor Scanlon’s evidence that despite the Applicant’s assertion that the injury was accidental and no self-harm was intended and as a precaution self-harm had to be contemplated and for that reason he was placed in an isolation unit for close observation and monitoring.

The cell in which he was placed did not have the furniture or other materials that could be used for self-harm, including normal clothing. The following day, Christmas day, when it was clear that he was stable and not intent on self-harm he was returned to his normal cell. As a precaution an appointment was made with Dr. Geraghty, a psychiatrist, for the 6th January, 2005, probably the first day on which the psychiatrist would be available after Christmas.

I’m satisfied that putting the Applicant into an isolation unit was an acceptable precaution having regard to the incident that occurred on the 23rd and that it was ended as soon as possible and in my view, it could not be said to be in any sense inhuman or degrading treatment. It was put to Governor Scanlon that in imposing this punishment or procedure upon him, that he Governor Scanlon was behaving in a cruel-and vindictive manner. I am quite satisfied that that assertion was wholly unjustified.

Governor Scanlon was also challenged on the use of garda information. I accept the governor’s evidence that there was no such information recorded on the Applicant’s file in Castlerea Prison and that his only knowledge of this in relation to this matter came from the Applicant himself who broached the subject to him. I also accept Governor Scanlon’s evidence that information of the kind apprehended by the Applicant had no influence whatsoever in decisions made concerning the Applicant and that the Applicant was treated on the same basis as all prisoner.

The evidence establishes that decisions concerning temporary releases and transfers were taken by the Prison Service and not by the governor who could of course make recommendations in relation to these decisions.

It is the Applicant’s case that the rejection of several of his applications for temporary release and the rejection of his application for a transfer to Shelton Abbey Open Prison, was the result of a malign bias against him based on information from the gardai that he was a member of the Real IRA. The evidence, in my opinion, falls singularly short of establishing these claims. I’m satisfied that the granting or refusal of these privileges depends on a weighing up a variety of factors as indicated in the evidence of Mr. Mc Dermott. In this case the Applicant did receive a considerable number of temporary releases to visit his mother in hospital when she was gravely ill. This stop when she recovered.

I accept Mr. Mc Dermott’s evidence in relation to the general policy of not permitting temporary release for holy communions and confirmation because of the problems involved in bringing prisoners to these gatherings and also into a home. Insofar as a transfer to Shelton Abbey is concerned similarly a variety of considerations will apply and not least the availability of space and the number of other prisoners making similar applications. The evidence in this case fails to satisfy me that the refusal of these privileges was the results of invidious discrimination against the Applicant for whatever reason. I’m satisfied

that the Applicant has failed to demonstrate that he has in fact suffered the various ill treatments that he alleges. That conclusion would be sufficient to dispose of this enquiry.

However, Mr. Kavanagh in his closing submission made the case that the use by the Prison Service of the process revealed in the evidence of Mr. Mc Dermott on making inquiries of an Garda Siochana the results of which were kept secret from a prisoner, insofar as that information could be used to the detriment of a prisoner in decisions taken in regard to the management of his sentence or regarding the granting or withholding of privileges, that the keeping of that information secret from the prisoner was or could be a breach of the prisoner’s right to fair procedures and natural justice. Earlier in these proceedings I ruled on a claim for privilege in respect of an entry kept on the Applicant’s file by the Prison Service and I uphold the privilege in connection with that information.

Essentially the same issue arises out of Mr. Kavanagh’s submission. The evidence of Mr. Mc Dermott establishes to my satisfaction that the Prison Service in order to assess the security risks attached to decisions to grant temporary release or transfers to open prisons must have recourse to information provided by an Garda Siochana and that the continued flow of that information depends on confidentially being maintained in relation to it.

There is no doubt that a prisoner continues to enjoy his constitutional right to fair procedures while he serves his sentence and he enjoys this right in relation to enquiries which materially affect his rights. This of course is not an absolute right and like all constitutional rights which are not absolute, it may be curtailed or denied in the interest of the common good. If Mr. Kavanagh was right was in his submissions the consequence would be that the Prison Service would in all probability be denied a flow of information to it in order to assess security risks attached to decisions to grant temporary releases or transfers. Manifestly what is required is a balancing exercise to reconcile these competing rights and interests.

I am quite satisfied that there is a public interest in the maintenance of the flow of information from the gardaí to the Prison Service for the purpose of enabling the Prison Service to assess security risks. I can not see a compromise which would enable access by a prisoner to that information which would not offend the confidentiality basis on which the information is provided. It may very well be the case that further consideration of that problem will produce a viable solution which reconciles the understandable need for confidentiality with the right of a prisoner to information that bears on his case. However, as matters stand I have come to the conclusion that the public interest in maintaining this information flow must outweigh the Applicant’s right to access to that information.

In the result I’ve come to the conclusion that there has not been a breach of the Applicant’s right to fair procedure as contended for by Mr. Kavanagh. In conclusion I am satisfied that the Applicant’s detention is in all respect lawful.

Approved
16/3/05
Iarfhlaith O’Neill

Cosgrove v Ireland

 

[1982] ILRM 48
McWilliam J
The plaintiff claims that his constitutional rights and his rights under the Guardianship of Infants Act, 1964, have been violated by the first-named defendants by the issue, at the request of his wife, of passports to his two infant children without consulting him and contrary to his wishes.

In 1969 the plaintiff was the owner of a farm in Co. Roscommon of about 37 acres, on which there was a house. He had previously lived with his mother and an uncle on a farm in Westmeath but, after their deaths, he bought the farm in Roscommon. In that year he met his wife, who was a Dutch citizen but was nursing in Dublin, through the matrimonial column of a newspaper. They were married in March, 1970, and went to live on the farm in Co. Roscommon. It would seem that the parties were not compatible, but there were two children of the marriage, the elder, Elizabeth Anna, being born on 8 January 1971, and the younger, Maureen Teresa, being born on 29 June 1972.

For the birth of the first child the wife went to Dublin and it appears that her mother came over from Holland to be with her. All three came to the plaintiffs home in Roscommon after the birth. After the wifes mother had left, the wife got jaundice and was brought with the child by ambulance to hospital in Galway. As the plaintiff had no car at this time, he did not visit his wife in Galway. In March, the wife went to Dublin for a few days with the child and the plaintiff alleges that she tried to go to Holland with the child at that time. However this may be, she returned to Roscommon with the child and brought her mother to stay with her and seems to have got a social worker in Sligo to call to see the plaintiff. The plaintiff alleges that he was isolated by his mother-in-law during this visit because the two women would only talk in Dutch which he did not understand. In April the wife went to Sligo with the child and took a job in a hospital there and did not return to the farm until October. At Christmas they all went to Holland for twelve days and the childs name was put on the plaintiffs passport. On their return to Ireland the wife refused to go back to the farm and again went to Sligo. Later the plaintiff bought a house in Sligo, let his land in Roscommon and rented land near the town of Sligo. The second child was born in June and the whole family went to live in the house in Sligo, which had required a lot of repairs, in August or September, 1972. They continued to live there until early in 1973. The land in Sligo was not available for the plaintiff in 1973 so he bought a house in Boyle, where the family went to live in or about May of that year. They remained there until early in 1975. During this period the plaintiff worked his farm from Boyle, apparently being away from home from early morning until late at night, although some of his observations about looking after the children indicate that this may not be quite accurate. His wife had obtained part-time work in Boyle. Relations between them appear to have deteriorated rapidly and the evidence of a social worker who saw them from time to time from May 1974, was that they quarrelled all the time and could not agree about anything to do with the children or the home. At the end of 1974 the wife wanted to take the children for a holiday to Holland but the plaintiff refused to allow this. There is no doubt in my mind but that, at this stage, the marriage had hopelessly broken down.

In the event, the wife left Boyle on a Monday without informing the plaintiff of her intentions although she had probably seen him on the previous evening at the nursing home where she worked. The plaintiff thinks this all happened in February 1975 but it seems reasonably clear from the documents that it was in the middle of March, probably the weekend of 9 March. The plaintiff went to work on his farm during the next three days but appears to have discussed the matter with one of the social workers on the Monday or Tuesday. On Wednesday 12 March, the plaintiff was involved in an incident near his farm with a neighbour who reported the matter to the Guards. The Guards interviewed the plaintiff and, as a result of this, arranged for a doctor to be called and the plaintiff was brought to a psychiatric hospital in Castlerea. The plaintiff remained in the hospital for about three weeks although, after a few days, he became a voluntary patient and was allowed to visit his farm from time to time during the remainder of his stay. The plaintiff states that his wife called to the hospital, and asked him to sign a document consenting to her taking the children to Holland and that he refused. Forms for his consent to the children getting passports in their own name were given to him in the hospital, but whether these were given to him by his wife or not is not clear to me.

The medical superintendent at the hospital had seen the plaintiff and his wife together in November, 1974, and appears to have seen the plaintiff on a number of occasions between that month and the time when he was admitted to the hospital. He formed the opinion that the plaintiff suffered from paranoia. He expressed no opinion about the wife except that he thought that she was also unreasonable.

When the plaintiffs wife left Boyle she went to Dublin and stayed with the children at Harcourt Street in a hostel for battered wives. She had written to the Department for Foreign Affairs on 4 March 1975, setting out her version of the situation and asking for passports for the children. A reply was sent from the Department on 20 March arranging an appointment with the Minister on 21 March in Dublin. As this reply was sent to Harcourt Street, there must have been some communication in the interval. On 21 March, the plaintiffs wife again wrote to the Minister asking for passports for the children and stated that the plaintiff was in St. Patricks Mental Hospital, Castlerea and, because of his mental condition, she was unable to obtain his signature. She did not refer to the letter of 20 March which she may not have then received.

The Minister requested a report from the Guards in Boyle and he was sent one on 21 March. It does not appear that any inquiry was made to the hospital. It seems to be accepted by the parties that the wife had an interview with the Minister but I do not think there was any evidence to this effect.

On 25 March 1975, the plaintiff telephoned to the Department and spoke to an official there and objected to the passports for the children being issued to his wife. He was told that his refusal to consent was noted. He telephoned again, probably at the end of June or beginning of July, to find out how his wife had got passports for the two children and wrote on the same day setting out the circumstances and, in effect, asking how it had all happened. This letter was received on 4 July and reply was sent to the plaintiff on 23 July stating that passports were issued to the two children in March but not stating the date in March on which they were issued. I have not been furnished with this date.

It may be assumed that the wife went to Holland with the two children almost immediately after the passports were issued. Neither she nor the children have returned since. The plaintiff stated that he got some letters from his wife giving a box number in Dublin. These are not before me. Once the wife was in Holland, it is difficult to see the point in sending letters from Dublin through a box number. Certainly, the plaintiff must have realised that the children were in Holland after he got the letter of 23 July 1975, from the Department. Towards the end of 1975 the plaintiff sold his farm in Co. Roscommon and, early in the following year, he sold the house in Boyle and has since then been living in Dublin. He is not presently employed. In September or October, 1976, he went to Holland with his sister and stayed for about a week but says that he was only able to see his children for about an hour each day. He states that they did not speak English to him. In October, 1977, he again went to Holland but says that he was only allowed to see his children on two or three occasions at his hotel for about an hour. He states that, at this time, his children could not speak English. In October, 1978, he again went to Holland but his wife and her father did not let him see the children and produced some document from the Minister for Justice at the Hague and told him he must keep away. He has not seen his children since. He says that his wife stopped writing to him about six months ago, but that, when she did write, the children wrote notes also. I can only assume that these were in English. No letter from the wife or notes from the children were produced.

Under these circumstances the plaintiff claims declarations that rights guaranteed to him under Article 40, 41 and 42 of the Constitution and by the Guardianship of Infants Act, 1964, have been violated by the State and by the Minister for Foreign Affairs and he also claims damages.

The only statutory provision with regard to the issue of passports is contained in s. 1(xi) of the Ministers and Secretaries Act, 1924, and this merely provided that the administration and business of the granting of passports and all powers, duties and functions connected with the same should be assigned to the Minister.

In so far as I am aware, passports are not necessary in order to leave the State. The position appears to be that all or most States will not admit persons who have not got a passport. In the case of The State (K.M. and R.D.) v Minister for Foreign Affairs [1979] IR 73 Finlay, P., said (at 81) It appears to me that, subject to the obvious conditions which may be required by public order and the common good of the State, a citizen has a right to a passport permitting him or her to avail of such facilities as international agreements existing at any given time afford to the holder of such a passport. This is one of the unspecified personal rights which is guaranteed by the Constitution.

With regard to infants, s. 40 of the Adoption Act, 1952, provides as follows:

(1) No person shall remove out of the State a child under seven years of age who is an Irish citizen or cause or permit such removal.

(3) Subsection (1) shall not apply to the removal of a child (not being an illegitimate child under one year of age) by or with the approval of a parent, guardian or relative of the child.

This section requires only the approval of one parent and this was given by the plaintiffs wife. But the Guardianship of Infants Act, 1964, provides at s. 6(1) that The father and mother of an infant shall be guardians of the infant jointly. The same Act provides at s. 10(1)Every guardian under this Act shall be a guardian of the person and of the estate of the infant unless, in the case of a guardian appointed by deed, will or order of the court, the terms of his appointment otherwise provide. and s. 11(10) provides that Any person being a guardian of an infant may apply to the court for its direction on any question affecting the welfare of the infant and the court may make such order as it thinks proper.

I am of opinion that the result of these three subsections of the Guardianship of Infants Act is that neither parent may deprive the other of his or her children without an order of the court. This being so, the plaintiffs wife ought to have made an application to the court before she took the children out of the country contrary to the wishes of the plaintiff. Such an application could have been made expeditiously and might well have been granted under the circumstances.

These proceedings, however, are not brought against the wife but against the Minister for Foreign Affairs, and it does not seem to be possible to obtain any relief against the wife who will, presumably, never again return to Ireland with the children.

The evidence established that the practice of the Department of Foreign Affairs, of which the Passport Office is a part, is to require the written consent of both parents for the issue of passports to children under the age of 16 years and forms for signature by both parents are prepared accordingly. These were the forms which were given to the plaintiff in hospital and which he refused to sign. The plaintiff also stated in evidence that he was informed of this practice when he telephoned the Department and was also informed that the children could not get passports without his signature to the forms.

This is a very prudent practice to adopt, but there is no statutory provision requiring it, and I am not satisfied that there is any duty imposed on the State or the Department by the Constitution or otherwise to take any particular steps to protect rights which they have no reason to suppose are being infringed. That, however is not the case here, and this point may be argued on another occasion.

Here, the Passport Office was notified by the plaintiff that he was objecting to the issue of the passports after forms had been issued which the plaintiff had failed to sign. Under these circumstances the Department was put on notice that the plaintiff was exercising his rights as joint guardian under the Guardianship of Infants Act and I am of opinion that the passports should not have been issued without an application to the court being made by the wife and that this should have been told to the wife. Accordingly, in my view, the Department must share responsibility with the wife for the failure of the wife to obtain the consent of the court to sole custody of the children being had by her.

It seems to me that most of the Constitutional rights alleged to have been infringed depend on the status of the plaintiff as joint guardian of his children and, having come to the conclusion which I have reached as to the effect of the Guardianship of Infants Act, I do not consider it necessary to consider whether the failure to see that the requirements of this Act were observed incidentally caused the violation of any constitutional rights or not. It does occur to me that there may be a distinction between a statutory prohibition on the exercise of a constitutional right and the mere failure to ensure that a constitutional right will not be infringed by any person in any circumstances.

McWILLIAM J (2 June 1981): In December of last year, in an action brought by the plaintiff in which he claimed that his constitutional rights and his rights under the Guardianship of Infants Act, 1964, had been infringed. I held that the plaintiffs rights as joint guardian of his children under the Act of 1964 had been infringed by the issue of passports for them to his wife after the Department of Foreign Affairs had been notified by him that he was objecting to the issue of the passports. I was of opinion that, after such notice as aforesaid, the passports should not have been issued without an application to the court.

The children have been in Holland with the plaintiffs wife since March, 1975 and are still there, and the plaintiffs wife has stated that she will not agree to the children coming to Ireland. She has obtained a divorce from the plaintiff in Holland. The parties were married in 1970. The plaintiff was a small farmer and his wife was a qualified nurse. They were not compatible and by the end of 1974, the marriage had hopelessly broken down. It is always difficult to apportion blame when a marriage breaks down but there is no doubt but that the plaintiff was, at least, eccentric, and, after his wifes departure from the matrimonial home, he spent a short period in a psychiatric hospital. One of the psychaitrists at the hospital formed the opinion that he suffered from paranoia. After she left the matrimonial home the wife and her children were accommodated in a home for battered wives in Harcourt St. Dublin. It is not unreasonable to suppose that she went to such an institution as a last resort, whether her apprehensions were justified or not. It was while she was there that the passports for her children were issued to her.

Having given my decision that the plaintiffs rights had been infringed, the matter now comes before me to determine what relief, if any, the plaintiff is entitled to obtain. Orders are sought directing the defendant to make representations to the authorities in Holland regarding the custody of the children and access to them by the plaintiff but no argument had been addressed to me which persuades me that I have jurisdiction to make any such orders even if they had been sought in the Statement of Claim. The main arguments have centred round the plaintiffs claim for damages.

On behalf of the plaintiff I have been referred to an old case in the reign of Queen Anne Ashby v White (1703) 2 Ld Raym 938. The substantial effect of this decision was that, if there is a right, there is a remedy and, if there is no other remedy, the remedy will be in damages. It is significant that, in this case, there was no pecuniary loss of any sort, merely the deprivation of a right to vote for a member of parliament. I was also referred to the judgment of Walsh J, giving the judgment of the Supreme Court in the case of Meskell v Coras Iompair Eireann [1973] IR 121, in which he said, at page 136, that, for the breach of a constitutional right, a person is entitled to such damages as may, upon inquiry, be proved to have been sustained by him; and, at page 138, he said that a person may sue for damages suffered by reason of the infringement of his constitutional rights. I was further referred, on behalf of the plaintiff, to the case of Heywood v Wellers [1976] QB 446. This was a case in which solicitors had been grossly negligent in their conduct of, or failure to conduct at all, proceedings on behalf of their client to restrain an objectionable form of molestation. It was there held that it was forseeable by the solicitors at the time of their retainer that failure to take the appropriate steps on behalf of their client would result in a continuance of the molestation or, at least, in a risk of its continuance. The solicitors having failed to take the appropriate steps, the client was further molested and it was held that she was entitled to recover damages for the distress resulting from the negligent failure of the solicitors to obtain the relief which they were employed to obtain.

I have also read the judgment of Birkett, J., in the case of Constantine v Imperial Hotels Ltd [1944] KB 693. This was a case brought by a traveller against an innkeeper who had wrongfully refused to receive and lodge him. The issue related to the right to sue for a breach of a common law right without proof of special damage. It was held that there was such a right and that the plaintiff was entitled to succeed in the action. This issue does not arise in the present case but, in his judgment, Birkett, J having reviewed a great many decisions, including that in Ashby v White, held that he was not entitled to award substantial or exemplary damages although he found that the plaintiff had suffered much unjustifiable humiliation and distress, and awarded only nominal damages.

The position as to damages for mental distress was considered by all the judges in Heywood v Wellers. Lord Denning, MR said (at 459)

It was suggested that even if the solicitors had done their duty and taken the man to court he might still have molested her. But I do not think they can excuse themselves on that ground. After all, it was not put to the test: and it was their fault that it was not put to the test. If they had taken him to court as she wished and as they ought to have done it might well have been effective to stop him from molesting her any more. We should assume it would have been effective to protect her unless they prove it would not.

James, LJ (at 4612) referred to an earlier judgment of Lord Denning in Cook v Swinfe [1967] 1 WLR 457. Lord Denning said in that case, at 461, So both in tort and in contract the measure of damages depends on what may reasonably be foreseen. In these circumstances I think that, just as in the law of tort, so also in the law of contract, damages can be recovered for nervous shock or anxiety state if it is a reasonably foreseeable consequence. Bridge, LJ said (at 4634)

There is, I think a clear distinction to be drawn between mental distress which is an incidental consequence to the client of the misconduct of litigation by his solicitor, on the one hand, and mental distress on the other hand which is the direct and inevitable consequence of the solicitors negligent failure to obtain the very relief which it was the sole purpose of the litigation to secure. The first does not sound in damages: the second does.

Although I was not referred in argument to the case of Constantine v Imperial Hotels Ltd, it was submitted that I am not entitled to award any damages for mental distress. However I prefer to adopt the views expressed in the later cases, as I can see no reason why the principles there applied in cases of contract and tort should not also be applied in the case of the infringement of a statutory right. Accordingly, I am of opinion that the plaintiff is entitled to recover such damages as have been proved to have been sustained by him and also general damages for forseeable mental distress, anxiety and inconvenience.

The plaintiff visited Holland in the autumn in each of the years 1976, 1977, 1978 and 1979. His evidence in that he spent sums, not very satisfactorily estimated, in travelling to Holland and staying there on these four occasions. He has also claimed sums in respect of defending divorce proceedings brought against him by his wife in Holland. I have also had evidence from a travel agent as to the costs of travelling to Holland and from an actuary as to the capital value now of the sums required to meet such costs until the children reach ages varying from 16 to 18 years. This amounts to a substantial sum and is claimed on behalf of the plaintiff.

Although the Department adopted an incorrect procedure and thereby infringed the rights of the plaintiff, I think I am bound to consider, in relation to any special damage, what was the difference between the damage actually sustained and the probable damage had the correct procedure been adopted. It appears to me, from the evidence I have heard, that the result would probably have been the same had an application been made to the court except that the court might have tried to impose some condition on the wife that the issue of the passports would be made subject to suitable arrangements for access by the plaintiff to his children. How such a condition could have been implemented I do not know but, had it been made, it is possible that some condition would also have been made requiring the plaintiff to contribute to the support of his children. He has not contributed anything towards the support of his wife or children since they left Ireland. The behaviour of the plaintiff while the parties were in Ireland was such that his access to the children would probably have been very greatly restricted had his wife and children remained In Ireland. It is quite inconceivable that he would have been given custody of the children when the parties separated.

The plaintiffs visits to Holland were unsatisfactory from the point of view both of the plaintiff and of his wife. I am not satisfied that meetings would have been any more satisfactory had they taken place in Ireland except that the children would have been able to speak in English to the plaintiff. One unsatisfactory aspect of the visits was that the plaintiff made no prior arrangements with his wife regarding them and did not adopt any normal procedures for arranging the visits. In addition he refused to furnish the addresses at which he stayed in Holland and made no attempt to co-operate with his wife or her family while he was there.

Having regard to all the circumstances of the case, I cannot accept the figures put forward on the plaintiffs behalf as justified. I am satisfied that he did sustain some expense as a result of the issue of the passports in the way in which they were issued but, in my opinion, this was very small and I will award a sum of 250 on this account. I am also satisfied that the claim for substantial general damages is not justified either, but the plaintiff must have suffered considerable distress when his request, in effect, that the proper procedures should be observed was ignored. Accordingly, he is entitled to more than mere nominal damages and I will award a sum of 1,000 on this account, making a total of 1,250.